The UNHRC report on the 2014 Gaza war and Jerusalem’s response suggest a clash between Israel and the ICC is becoming much more likely.
It turns out this week might just have been the midday sun shower before the much more violent downpour.
Monday’s long-awaited UN Human Rights Council report on last summer’s Operation Protective Edge was by far the most significant event that has occurred in the 10-month legitimacy battle being waged by Israel and the Palestinians over whether war crimes were committed when over 2,100 Palestinians and 73 Israelis lost their lives.
Yet it had only a fraction of the global resonance of the UNHRC’s 2009 Goldstone Report on the 2008- 2009 Gaza conflict.
Why? The short answer is that in 2009, the major threat of the Goldstone Report was that it might lead to the nightmare scenario: the involvement of the International Criminal Court prosecutor in the Israeli-Palestinian conflict. The drama implied in that led to a massive battle over the report’s legitimacy.
Today, we find ourselves in a situation in which ICC Prosecutor Fatou Bensouda had already recognized Palestine as a state over vehement Israeli objections, and is already deep into a preliminary examination of the 2014 war and considering whether to order a full criminal investigation.
In other words, the potential nightmare is already here, and the real show and question is: What will the ICC prosecutor do with the UNHRC report? The Jerusalem Post consulted a wide range of current and former government, IDF, US Army and Air Force officials, and top academics and experts (some were willing to be quoted, some preferred anonymity due to the sensitivity of the issue), to explain the report’s significance and what is likely next.
The Post also was in touch with UNHRC and ICC prosecution officials; the paper has communicated with them before, but possibly due to the highly tense and sensitive period, they did not respond to inquiries by press time.
There appear to be two main scenarios for the ICC.
The brighter Israeli scenario is a preliminary examination extending over a long period, with some form of dialogue between Bensouda and Israel on controversial cases, even if Israel does not formally recognize the ICC’s jurisdiction.
A darker scenario would be the ICC prosecutor and Jerusalem both staking out brinkmanship positions, as she charges forward with a full criminal investigation and possibly indictments.
While there is no consensus about which path Bensouda will choose, there is consensus that the UNHRC report gave the pendulum a hard push toward the darker scenario.
Some top experts said that the likelihood of ICC involvement had grown, and that the situation could gravely harm Israel’s legitimacy and the freedom of international travel of its leaders.
Regarding international travel, in the worst-case scenario where the ICC issued an international arrest warrant against Israeli officials, all 123 ICC members countries, including many European countries, would be bound by treaty to arrest and extradite those officials.
Former IDF international law division head Col.
(res.) Pnina Sharvit-Baruch asserted that the UNHRC report, led by American judge Mary McGowan Davis, “does not prevent the possibility of extended preliminary examination proceedings by the ICC.
There is no overwhelming determination” against Israel, and the report itself stated it was not capable of establishing criminal findings.
Sharvit-Baruch encouraged the government to “act smartly, to cooperate” and “to rally the states and countries” with common interests “to stand with us.”
On the other hand, the US has already dismissed the UNHRC report and warned the ICC not to get further involved, claiming that ICC involvement pushes off peace negotiations, and some other Israeli allies seem to support that position.
In that vein, the Israel Bar Association’s international law section head Gideon Fisher predicted that since Israel has not ratified the ICC’s Rome Statute or recognized its jurisdiction, “it is doubtful we will see real consequences in the near future.”
Which of the UNHRC report’s findings would be most crucial in deciding whether the ICC prosecutor and Israel work cooperatively or are at each other’s throats? There are macro issues, like whether Israel needs to investigate its top military and political war policy-makers for alleged war crimes – which it has not done to date, but which State Comptroller Joseph Shapira will be looking into.
McGowan Davis said Israel must do so; but as Fisher clarified, Shapira “rarely makes personal concrete conclusions” against officials in office, “especially regarding issues of state security.”
Assuming the comptroller notes problems with war-making policy, but keeps the tone of his report to how to improve as opposed to alleging war crimes, will the ICC prosecutor accept his tone? The UNHRC report’s treatment of the 2013 report by Israel’s quasi-government Turkel Commission – on whether Israel’s apparatus for self-investigating alleged war crimes met international law standards – would be a cautionary tale regarding how Bensouda might view a comptroller report with couched criticism.
The report appeared to take the Turkel Commission seriously, and briefly mentioned its central finding that Israel’s investigations comply with international law.
But the Israeli panel also issued 18 recommendations for the Jewish state to improve its investigations.
McGowan Davis seemed to toss the main finding out the window, and treated all of the 18 Turkel recommendations for improvement which Israel has not implemented fully as practically proof of war crimes or an impotent investigative system.
The UNHRC report questioned whether Israel was living up to Turkel’s recommendations for speedy decisions on whether to investigate and indict its soldiers.
It waived off Israel’s 190 initial incident reviews and 22 criminal investigations, and focused on the fact that 10 months after the war there are no indictments for war crimes (though there are some for theft), and many of the war’s most infamous incidents still have not seen a decision as to whether to launch a full criminal investigation.
Where Turkel did not fit McGowan Davis’s worldview, such as when the commission said the IDF’s top legal official, Military Advocate-General Maj.-Gen.
Danny Efroni, is capable of being objective in his multiple duties, she appeared to ignore Turkel’s conclusions.
The UNHRC report rejected the idea of Efroni’s wearing two hats, both as prewar adviser and post-war prosecutor, as contradictory – just as Israeli NGOs Yesh Din and B’Tselem have in the past.
She said he cannot approve targeting decisions before a war and investigate those decisions afterward, whereas Turkel said the military advocate-general can fulfill the two roles objectively, since he has separate units of lawyers walled off from each other and working under him on the differing issues.
While the parallel between the UNHRC report and Bensouda is not exact, Bensouda’s thinking has shown she adopts many standard attitudes within the UN system – which foreshadows her being ready to disregard the comptroller clearing Israeli officials of war crimes in their war-making decisions, if she has decided she is ready to move forward anyway.
There are other macro issues, like how much intelligence and classified information the IDF must share with the UNHRC or the ICC prosecutor in order to satisfy them that cases are closed only after having been fully pursued.
Shockingly, McGowan Davis implied that Israel must be ready to expose intelligence sources to satisfy doubts over Israeli objectivity in investigating its own soldiers.
Her basis under international law? A 2010 report of the special rapporteur on targeted killings in which the rapporteur, Philip Alston, wrote that states must sometimes disclose classified information to show they did not commit war crimes, but also noted, “To date, no state has disclosed the full legal basis for targeted killings, including its interpretation of the legal issues.”
In other words, the UNHRC report would obligate Israel, under threat of declaring its investigations insufficient, to comply with a standard that no country has.
As Lt.-Col. (res.) Geoffrey Corn, a former US Army judge advocate-general and academic, contended, “The report’s criticism of the IDF military advocate- general’s investigations raises serious concerns about respect for the primacy of the national accountability mechanism in the investigation and sanction of Law of Armed Conflict (LOAC) violations. Numerous experts have publicly noted the quality and integrity of the IDF’s accountability mechanisms.”
Corn continued, “Suggesting that an accountability process has failed because prosecutions are not pursued for every incident that raises concerns over LOAC violations is unrealistic, and completely fails to appreciate the complex process of transforming battlefield regulatory standards into standards of criminal responsibility.”
On the flipside, international lawyer Trevor Asserson maintained that the dangers of non-disclosure could outweigh the danger of disclosure. “Cooperating has its limitations; Israel cannot reveal all sources of its information for fear of endangering its own intelligence-gathering apparatus. However, the balance between intelligence-gathering and engaging in self-defense before international commissions needs to give greater weight to the damage to Israel’s safety by [not cooperating].”
On the issue of Israel’s use of artillery in the urban setting and whether it needed to change its rules of engagement mid-war, McGowan Davis averred that “huge numbers of families are dying in these houses that are targeted by large bombs,” and “it must become apparent to someone that the rules of engagement that are supposed to protect civilian lives are not effective” – and need to be changed.
But former US Air Force lawyer and academic Rachel Vanlandingham said this statement betrayed a “fundamental misunderstanding of international humanitarian law, which does not prohibit behavior simply because combat operations trigger tragic effects. While uncomfortable to many, the existing LOAC allows the incidental killing of civilians in armed conflict.
“Simply because earlier attacks caused numerous civilian casualties does not mean that the earlier attacks were illegal, nor does the law require subsequent attacks to be modified without appropriately assessing the direct and concrete overall military advantage anticipated regarding a later attack.”
But the micro issues might end up dictating how Bensouda treats McGowan Davis’s report, and what her relationship is with Israel.
How will the ICC prosecutor view the July 16, 2014 Gaza Beach incident in which the IDF killed four Palestinian minors – which Jerusalem and the UNHRC report fiercely disagree over? The incident became instantaneously infamous in the media and globally, as it occurred on a sunny and seemingly harmless-looking Gaza beach before a throng of journalists who copiously recorded the event and whose photos went viral online.
The IDF starts by saying that the beach installation area where the four Palestinian minors were killed was a known Hamas naval commando area, gated off from the public with few civilians going there, and that it had attacked the same site the day before.
McGowan Davis summarizes the IDF view of the incident, briefly mentions the intelligence point, but then appears to ignore it utterly – though this point was likely decisive for the IDF.
Instead, she hones in on the idea that “the compound was located in the center of a city of almost 550,000 residents, between a public beach and an area regularly used by fishermen… It could therefore not be ruled out that civilians, including children, might be present.”
McGowan Davis makes this point to hammer home her conclusion that the IDF’s aerial surveillance of the boys must not have been good enough to permit such an attack in an urban environment, where civilians might have been if the IDF aerial view could not tell a nine-year-old from a Hamas commando.
Ultimately, the ICC prosecutor will need to decide whether to accept, reject or dialogue with the IDF regarding its investigations.
The UNHRC report was not decisive on the issue, but makes the rejection option much more likely – as it does the possibility of a full-force collision between the ICC prosecutor and Israel.