Whereas the International Criminal Court in 2008- 9 was just a distant threat, it now sees the Palestinians as having a state that can officially file war crimes complaints
While seriously problematic from the Israeli legal perspective, the UN Human Rights Council’s report on the 2014 Gaza war, made public on Monday, is far less biased than the Goldstone Report on the 2008-9 Gaza fighting. However, where it attacks the IDF’s conduct, in some ways it is far more sophisticated than Goldstone.
In addition, whereas the International Criminal Court in 2008- 9 was just a distant threat, it now sees the Palestinians as having a state that can officially file war crimes complaints and is deep into a preliminary examination of the Israeli-Palestinian conflict.
At a macro level and looking toward the ICC, the main problems the UNHRC report poses for Israel are the questions of command responsibility, whether Israel can disclose enough information to show its attacks on residences were justified, and whether it can defend its policy of using artillery even after pervasive reports of civilian casualties caused by such weaponry.
Command responsibility refers to the idea that senior military and political leaders can be found guilty of war crimes if their targeting policies violate the laws of armed conflict. The State Comptroller’s Office is the only authority that has been tasked by Israel to look into the issue, making its coming report an urgent matter, if only to show that the government and defense community are not ignoring it.
It can be argued that Israel made an unforced error in failing to enact a law spelling out command responsibility, as had been suggested in 2013 by the quasi-governmental Turkel Commission, which looked into the 2010 Mavi Marmara incident in which naval commandos killed 10 Turkish activists trying to run the Gaza blockade.
However, it can also be argued that waiting for publication of the UNHRC report helped clarify the issues on which Israel should press forward more quickly.
Regarding disclosure, Israel will likely say it has divulged far more in the way of operational details in its investigations of alleged war crimes than any other country. This might be true, but it could also consider disclosing even more details in an effort to fight for the high ground in the legitimacy debate, even if the details are less than what the HRC’s investigative commission appeared to demand – which is a standard that seemed to brush off the need to protect intelligence sources without citing a basis under the laws of armed conflict.
As for the use of artillery, Israel will likely confront questions about its policy by attacking the commission’s level of military expertise.
The HRC report makes reference to having had a military expert involved to assess military issues, but certain aspects of its conclusions will likely raise an Israeli accusation that those who authored the report did not understand the exigencies of what is feasible on the battlefield.
One example might be where the report rejects the IDF’s claim that in a particular instance, aerial support was not available.
The report rejects the IDF’s explanation of its use of what the commission viewed as less-accurate weaponry, arguing that the country’s vast air power belied the claim of a lack of aerial support – although this rejection appears weak since it is not based on any factual knowledge of the circumstances.
In fairness to the report, Israel did not cooperate with the HRC commission, in some instances forcing it to make estimates.
Many, even on the Israeli side, consider the decision against cooperation to have been tactically imprudent.
But Israel can hardly be slammed too hard for its decision not to cooperate, since it was chaired for most of its existence by Canadian legal expert William Schabas, who eventually resigned over disclosures that he had accepted payment from the PLO for prior legal advice.
On a micro level, Israel has its work cut out for it in defending itself against specific war crimes allegations regarding the August 1 Hannibal Protocol incident, attacks in the Shejaia neighborhood on July 19, 20 and 30, and particularly troubling incidents like the July 16 naval shelling that killed four boys on Gaza beach.
Despite Israel’s detailed explanation as to why it closed its own investigation into the Gaza beach incident, the report questions whether Israel could not have done more to clarify that the four boys were not Hamas personnel. Similar questions are likely to be raised across the board.
From the Israeli perspective, the report is far harsher on Hamas than were past UN reports, whether it be over indiscriminate rocket fire or purposely using civilian areas to stage attacks. In one surprising instance, the report even suggests that Hamas could be guilty of war crimes not only for murder and attempted murder from the direct lethal power of its rockets, but could also be guilty of the more indirect war crime of terrorizing a populace.
The report also clearly rebukes Hamas for storing weapons in UN facilities and other civilian locations.
Despite all of its findings against Hamas, however, the report manages to find a way on most issues to skew toward a final conclusion that condemns Israel and employs a moral equivalence between the sides without really explaining its basis.
Ultimately, on all of the points where Israel is likely to attack the findings, the report focuses far more than did past reports on areas where Israeli legal defenses could be more vulnerable.
In addition, many of its findings against Israel are more nuanced and less blanket than in the past.
This combination could prove legally lethal as the ICC considers whether to further inject itself into the Israeli-Palestinian conflict.
As reported by The Jerusalem Post