Analysis |

UN Inquiry Could Lead to War Crime Charges for Israel, Hamas

Both parties in Operation Protective Edge are open to accusations of illegal attacks on civilians.

Aeyal Gross
Aeyal Gross
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A general view of the assembly hall at the United Nations Human Rights Council is pictured at the UN headquarters in Geneva, Switzerland, Wednesday, July 23, 2014.
A general view of the assembly hall at the United Nations Human Rights Council is pictured at the UN headquarters in Geneva, Switzerland, Wednesday, July 23, 2014.Credit: AP
Aeyal Gross
Aeyal Gross

In her address to the UN Human Rights Council on Wednesday, Navi Pillay, the United Nations high commissioner for human rights, said, “As we speak, the indiscriminate firing by Hamas and other armed groups of more than 2,900 rockets, as well as mortars, from Gaza continues to endanger the lives of civilians in Israel. I have repeatedly condemned such indiscriminate attacks in the past. I do so again today.”

Pillay also stressed that it is illegal to put military targets in densely populated civilian areas or to launch attacks from such areas. These remarks were part of a speech that discussed the loss of life on both sides and noted that according to UN statistics, about three-fourths of the 600 Palestinians killed in Gaza since July 7 are civilians, while about one-quarter are children. She cited examples like the killing of four children on a Gaza beach and the killing of entire families in Gaza City’s Shujaiyeh neighborhood.

Such incidents, Pillay said, raise a strong possibility that international law was violated to an extent that could constitute war crimes, so they must be subjected to a thorough, independent investigation. She reminded her listeners that the principles of international law require distinctioning between civilians and combatants and between civilian and military targets; taking precautionary measures to avoid harming civilians; and the principle of proportionality, which states that if attacking a military target is liable to also harm civilians, doing so is illegal unless the harm to civilians is proportionate to the direct, concrete military advantage anticipated from the attack.

Pillay’s speech was an accurate depiction of the legal and factual reality, and this time, even the Human Rights Council’s decision included a condemnation of the killing of Israeli civilians by Hamas. Even if its decision to set up a commission of inquiry was worded in biased fashion, it called for an investigation of violations in the occupied territories, including Gaza, so it’s possible to interpret it as applying to violations by all sides.

It will be easy for the inquiry commission to determine that firing indiscriminately at civilians, as Hamas does, is a war crime. But anyone who thinks the fact that Israel claims to be operating solely against military targets will absolve it of responsibility is deluding himself.

The multitude of civilian casualties by itself doesn’t prove that war crimes were committed. But in many cases cited by Pillay, and in other cases as well, a real suspicion arises that violations were committed. It’s not just the deliberate targeting of civilians that’s prohibited; so are attacks that by nature indiscriminately harm civilians, or civilian property, in addition to their military targets.

Bombing the houses of Hamas commanders is liable to be deemed an attack on a civilian target, even if warnings were issued. Attacks on military targets that also harm civilians can be illegal if precautionary measures were not taken to avoid civilian casualties, or if the predictable harm to civilians was disproportionate. Killing dozens of Palestinian civilians in their homes, or at a cafe, when the target was a single combatant could constitute a war crime; even shooting at Hamas fighters is illegal if it will predictably cause massive, disproportionate civilian casualties. If the inquiry commission finds that Israel committed prima facie war crimes, this may well spur the Palestinians to renew their application to join the International Criminal Court. This could lead to both Israelis and Palestinians being investigated in The Hague, on top of investigations by countries with universal jurisdiction laws.

The road to indictments against Israelis remains long, but legal and political complications are just around the corner. The days when international law existed only in theory are long gone, as people like Slobodan Milosevic and Charles Taylor have learned, to their sorrow.

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