Omphalos

A Critical Analysis of the Report of the UN Human Rights Council Commission of Inquiry into the 2014 Gaza Conflict

By Pnina Sharvit Baruch
Thursday, March 23, 2017, 4:00 PM

Despite the many tumultuous events that have transpired in both the Middle East and the rest of the world since 2014, the conflict that erupted during that summer between Israel and Palestinian armed groups, particularly fighting involving Hamas in Gaza, continues to have importance with respect to the politics of the region, as well as the law and policy in the conduct of armed operations by all sides. Of particular importance is a lengthy report (Report) commissioned by the United Nations Human Rights Council (HRC) in a resolution adopted on July 23, 2014, while fighting was still ongoing, establishing a UN Independent Commission of Inquiry (COI). The COI was mandated to "investigate all violations of international humanitarian law and international human rights law in the Gaza Strip and the West Bank, including Jerusalem, which took place during the course of military operations in the summer of 2014.”

The Report that emerged from the COI (released publicly June 22, 2015) is highly critical of Israel while lenient towards its opponents. In this regard it constitutes yet another entry in the long history of similar, supposedly “independent” investigations of earlier Israeli-Palestinian conflicts that were anything but neutral. While it adopts a less aggressive tone than, for example, its predecessor from the last Gaza conflict—the Report issued after 'Operation Cast Lead', known as the Goldstone Report—in essence it repeats the by-now familiar process of one-sided denunciation of Israel and its conduct.

Critiquing the Report and exposing its weaknesses and outright flaws is a useful exercise if only to ensure that the Report does not go unchallenged in its dubious factual and legal account of the 2014 conflict. Moreover, the Report is undoubtedly one of the main sources of information being examined by the Office of the Prosecutor of the International Criminal Court in the preliminary examination that it is currently conducting into the events that took place in Israel, the Gaza Strip and the West Bank in the summer of 2014. The Report also carries significance for other states in that it includes general investigatory methodologies and legal analyses concerning the conduct of hostilities. These methodologies and analyses could be applied in other contexts and to other militaries. At a minimum the Report, if unchallenged, helps legitimize a quite illegitimate interpretation of international law applicable to hostilities (international humanitarian law or IHL). More fundamentally, accepting the way the Report analyzes both fact and law with regard to Israel's conduct, in a way that is divorced from any understanding of the realities of armed conflict situations, poses a danger to IHL itself. By imposing almost utopian standards, which Israel naturally fails to meet, the Report manages to reach the outcome—the outcome that the COI, in practical political terms, was designed to reach—of condemning Israel, but at the price of setting a standard that is impracticable for any state seeking to successfully conduct major hostilities in the types of battlefield environment that confronted Israel in 2014.

The result of such repeated exercises is an eventual weakening of states’ overall commitment to a law that, in effect, can’t be satisfied even by the law-abiding that find themselves in the position of actually fighting wars. Moreover, the situation of the state that takes seriously its IHL obligations is worsened further if the perfectionism demanded of its military operations is driven, in practical terms, by the expectation that it must absorb the human costs to civilians that are the result of systematically, strategically unlawful conduct by the other side. The compliance pull of law inevitably weakens if it is understood that there is no behavior that, in the real world, can result in compliance, not really, or at least not if you are a certain kind of party—starting with Israel and the U.S. This legal perfectionism applied to one side and not the other weakens the compliance pull of law for everyone—the compliance-committed, the compliance-uncommitted, and the deliberately-violative.

A thorough critique of the Report is therefore warranted. This is what I undertook in a recent article "The Report of the Human Rights Council Commission of Inquiry on the 2014 Operation in the Gaza Strip – A Critical Analysis," which appeared in the Israel Yearbook on Human Rights. In that article I offer an in-depth, critical examination of the Report, and assess its methodology, analysis, findings and conclusions, which I summarize here for Lawfare readers.

II.

The HRC resolution establishing the COI included a condemnation of Israeli violations and, in essence, prejudiced what the COI was tasked to investigate. Thus, serious concern about whether the COI was indeed meant to be an independent and objective body of inquiry was generated at the outset and even before that—concern ratcheted up by the aforementioned long history of biased and distinctly non-neutral UN investigations of Israel’s conduct. This apprehension was sharply increased with the appointment of Professor William Schabas, an outspoken critic of Israel, to chair the COI. Schabas would ultimately resign after it became public that he had provided paid legal advice to the Palestine Liberation Organization. The COI continued to operate with the two remaining members, Mary McGowan Davis, a former New York Supreme Court Justice from the U.S., and Dr. Doudou Diene, a former UN Special Rapporteur from Senegal.

Israel, having absorbed the historical lesson that cooperation with HRC or other UN rapporteurs did little or nothing to further neutral, objective reporting, did not cooperate with the COI. The Palestinian Authority did cooperate, while Hamas submitted several written and unpublished, non-public statements to the COI but did not respond to requests with respect to specific incidents or with respect to legal and policy issues. Neither Israel nor Egypt granted the COI physical access to Israel and the West Bank, or to the Gaza Strip. As a result, the COI had limited physical access to most of the relevant information and evidence relating to the conflict it was investigating. The overall conclusions of my article are that, despite the surface appearance of a professional and objective analysis of the 2014 Gaza conflict (as it has come to be known), the Report is factually problematic, offers an inaccurate legal analysis of these purported facts, relies upon serious misinterpretations of international law, and, particularly with regards to IHL, demonstrates a lack of relevant legal expertise.

On the factual level, the main problem with the Report is that the COI repeatedly infers from the high number of casualties and considerable level of destruction that IDF forces acted to harm civilians and civilian objects intentionally, excessively or without making sufficient efforts to minimize such harm. The circumstances that prevailed at the relevant time and the relevant military components of the situation are not adequately presented or, really, even taken into account. This kind of analysis, in and of itself, reflects a profoundly incorrect understanding of IHL. The COI claims that its analysis is so because Israel did not provide it with the relevant information, but this cannot justify reaching unsubstantiated conclusions.

The apparent agenda of the Report with respect to overlooking the operational background of IDF conduct is also manifested in the curious way in which the document itself is structured. It begins with an analysis of rocket and mortar attacks by Hamas (paras 59-109). This is followed by a much more elaborate examination of Israel's actions (paras 110-465). The Report only then returns to examining the conduct of Palestinian armed groups and the impact of their operations—siting them in and among civilians—on the population in the Gaza Strip (paras 466-502). This means that Hamas’ modus operandi of conducting its operations from within or near densely populated areas appears only after the detailed analysis of the Israeli attacks on populated areas, which led to civilian casualties and destruction. As a result, the relevant context of the fighting—siting and conducting operations within and among civilians—which of course is a central causal driver of these unfortunate results, is missing from the assessment of the Israeli use of force. This observation has been most eloquently made here.

Moreover, the Report explicitly acknowledges that residents of the Gaza Strip were in all likelihood reluctant to provide information to the COI that could be used against Hamas or other armed groups for fear of reprisals. This is mentioned as an explanation (more precisely, an excuse) for the COI's difficulty in finding proof against the Hamas’s use of civilians as shields for its military operations. This, however, does not prevent the Report from relying heavily on testimonies of witnesses to the effect that no military activity took place in their surroundings—the same testimonies it had found to be unreliable—when analyzing IDF conduct and concluding that there was no indication that its attacks were in response to Hamas military activity.

III.

As for the legal analysis in the Report—the COI consistently adopts interpretations of IHL that are either controversial or, at the very least, not widely accepted by most states. Such interpretations invariably consist of harsher restrictions on militaries' freedom of action than those reflected by the current state of the law. This can be seen, for example, in the Report’s analysis on the subject of “direct participation in hostilities” (DPH) in IHL and its determination of who is considered a member of an armed group, as well as in its legal analysis of how to address doubt regarding the military use of a civilian object.

The COI also inaccurately interprets several other central concepts of IHL. One example is its interpretation of “effective” warnings, which the Report treats as the question of whether such warnings in fact succeeded in preventing harm, instead of examining whether they provided civilians a reasonable opportunity to protect themselves from impending attack. Focusing on the harm suffered by civilians is especially problematic in light of the phenomenon, acknowledged by the Report, of civilians knowingly and intentionally disregarding warnings. Even the most effective warning will not save lives if the recipient intentionally ignores it. The COI similarly misinterprets the legal requirement that a side take "feasible" precautions in its operations with respect to civilians. In considering the implementation of the duty to take “feasible" precautions conditioned by an operation's lawful military objectives and requirements, the Report ignores the crucial element of examining the practical availability —the “feasibility,” one might have thought—of the putatively possible precautions. It thus concludes that Israel exercised a lack of adequate precautions without examining the availability and accessibility of potential precautions in each particular case.

Furthermore, the Report freely asserts legal obligations where none exist under the applicable law. The most striking example is the COI’s determination that states are under an obligation to disclose information needed to prove that a particular object or person attacked was indeed a legitimate target to independent and impartial mechanisms of evaluation. The Report does not explain what the legal source of this supposed obligation is. Furthermore, the COI invents this supposed legal requirement even as it acknowledges that revealing the basis for targeting is problematic at best, as it might mean exposing intelligence-gathering capabilities and putting the lives of individuals serving as sources of intelligence in extreme danger. The Report even goes on to note that Hamas executed those suspected of collaborating with Israel in the aftermath of the Operation—and yet insists on its unsupported, novel legal requirement.

The Report quotes explanations given by the Government of Israel regarding the difficulty in providing exact information about each structure that was damaged during wide-scale operations, as the evidence (e.g. of the presence of a weapon system) is usually destroyed or removed from the scene. Notwithstanding these explanations, the COI retains its firm position on the supposed duty to provide the information since "in the commission’s view, accepting that logic would undermine any efforts to ensure accountability.” The Report does not explain how a state is expected to disclose nonexistent information, just as it fails to explain the legal basis for such requirements in even the most rudimentary way.

IV.

While the Report places many burdens on a state involved in the conflict, it disturbingly fails seriously to address the unlawfulness of practices, whether by state or non-state adversaries, involving the use of civilians, civilian objects and protected objects, such as hospitals and ambulances, as bases for military activity. Hamas engaged in these practices throughout the 2014 conflict. The Report fails to condemn such practices for violating the foundational IHL principle of distinction, and for causing direct harm to civilians and civilian objects. The absence of serious consideration of this legal requirement and the facts showing its violation by Hamas is apparent in the lack of any reference to such violations of IHL by Hamas and other armed groups in the conclusions and recommendations of the Report.

The Report’s lenient treatment of such practices is very unfortunate. The use as civilians as shields and the military use of sensitive, generally legally protected, sites, such as hospitals, clinics, schools, mosques and UN facilities, constitute one of the most problematic practices employed not only by Hamas, but also by similar armed organizations around the world. These tactics are among the deadliest for civilians who find themselves in war zones. The Report's treatment of the issue (or rather its lack thereof) actually strengthens the appeal of such illegal practices to non-state armed groups. On the one hand, given the little attention that the Report devotes to the subject, employing the practice does not appear to exact a toll on non-state actor armed groups. On the other hand, these systemic practices are not taken into account as a relevant circumstance in examining the practice of the other party to the conflict, typically a state, leading to accusations that harm caused to civilians was intentional, indiscriminate, or disproportionate. This makes such modus operandi a winning card for non-state armed groups or states indifferent to the requirements of IHL, encouraging continued and increased use of such illegal tactics by others.

Additionally, reaching beyond IHL as a body of law, the analysis in the Report demonstrates a general lack of understanding of warfare, particularly urban warfare. According to the Report, the COI consulted with an expert on the types of weapons most likely used during the Operation. However, this does not suffice. When analyzing an armed conflict that involves high-intensity fighting, military expertise is required to assess all aspects of military conduct, and not only the weaponry. A lack of sufficient expertise, or indifference to it, is apparent in the way the Report makes unfounded, seemingly fantastical assumptions about military capabilities on Israel’s side and further in the Report’s lack of reference to or analysis of the actual operational context in which fighting took place. A telling example of this appears in the Report's analysis of IDF ground operations in the Shuja'iya neighborhood in the Gaza Strip. The Report says that members of a Palestinian family were fleeing their homes to escape the heightened attacks in the area. The Report notes that "[a]s they walked, intense shelling and explosions were everywhere. Upon arrival at Faray Street, they found attacks there as well, so they continued walking trying to find a safe place. Some family members in the street were hit by mortars." The Report goes on to stress that witnesses "told the commission that no family members were affiliated with an armed group and that they were all civilians, most of them women and children."

This last point suggests that this situation was at least tacitly viewed by the COI and described in the Report as though these attacks were deliberately directed towards the group of civilians. A much more realistic explanation of these events, however, is that these civilians tragically found themselves in the crossfire between IDF soldiers and Palestinian militants. In other words, the attack was most likely not intentionally directed towards the civilians who were hit. This is simply one example of how the COI seemingly evaluated IDF conduct in isolation from relevant operational contexts and, moreover, ascribed unsupported intentions and motives to the IDF’s actions. This is so notwithstanding the fact that the COI was clearly aware that, at the relevant time in the conflict, fighting was ongoing, and moreover, militants were operating in the area. For that matter, the Report also fails to mention the possibility that some of the civilian casualties may have been the result of Hamas or other armed groups firing at IDF forces.

Beyond such professional deficiencies, the Report reveals a severe lack of objectivity on the part of the COI. This has already been noted with respect to the structure of the Report, but it is evident throughout the Report in numerous specific ways. One recurring specific feature of the Report, for example, is the willingness of the COI to criticize Israel based on uncorroborated and unidentified single-witness testimony, taken at face value as indicative of IDF conduct. When assessing Hamas conduct, by contrast, the Report refrains from making critical assessments even when faced with compelling accounts. In addition, official statements which buttress Israeli official positions are treated with suspicion or completely ignored—and the COI goes to great lengths to identify potential supposedly "incriminating" statements by Israeli officials, which then receive a prominent place in the Report. Conversely, official statements supporting claims made by Hamas are given considerable reliance and credibility, with little weight attached to Hamas statements that suggest wrongdoing.

The COI had access (and makes several references) to a detailed report prepared by the Government of Israel on the conduct of its forces. However, the Report frequently fails to mention or discuss (even to dispute) relevant facts and information which appear in the Israeli government’s report. When it does refer to this report, its tone is skeptical. Most notably, the Report makes little mention, if any, of humanitarian efforts described in the Israeli government’s report, carried out by Israel to alleviate at least some of the suffering of the Gaza Strip's civilian population. For example, when analyzing damage to Gaza's power plant, the COI suggests that it may have been the object of a deliberate attack, despite official Israeli statements denying this accusation. The Report fails to note that Israel continued to supply electricity to the Gaza Strip throughout the military operation, which included making repairs to the infrastructure amidst intense combat situations.

The overall conclusion to be drawn from the detailed analysis set out in my full article is that the Report has serious factual and legal weaknesses. Its factual findings and legal analyses cannot be taken at anything like face value, let alone the larger conclusions it draws. The fundamental methodological and legal premise of the Report appears to be that, at least when it comes to Israel, the state bears a heavy burden that in important respects approaches a strict liability standard. If the standards of this Report were applied to the conduct of other militaries—the United States and its allies, most importantly—this misinterpretation of law and functional rejection of reasonable uncertainty as to facts in the conduct of hostilities puts them at risk of being accused of unlawful conduct, even when their actions are lawful and reasonable, or where insufficient evidence exists to justify such conclusions.

V.

The conflict in Gaza in the summer of 2014 was devastating for many of the residents of the Gaza Strip. While Israelis also suffered, living in perpetual fear of rocket attacks, the physical harm to many civilians in Gaza is incomparable. The suffering caused to the civilian population is unfortunately an unavoidable by-product of any armed conflict, even more so when the civilian population is at the heart of the war zone and its presence is exploited for military advantage. Under such circumstances, basing conclusions of wrongdoing entirely on the scope of harm is—simply put—erroneous as a matter of international law. A thorough examination of the conduct of the parties must be performed with due regard to the complexities of the factual situation. It is also important to acknowledge, where relevant, uncertainties regarding interpretation of the applicable legal rules.

A methodical and careful examination of armed conflict situations can be useful for the parties involved, as well as others for whom the experience can be valuable. Unfortunately, the COI fell far short of this standard. The Report issued by the COI is unsatisfactory, misconstrues both fact and law, and ultimately could lead to erosion of respect for the law by holding militaries to unrealistic standards. Equally troubling is the message conveyed to non-state armed groups, which are in essence encouraged to continue risking civilians and gain both military and strategic advantage without being condemned unequivocally for their actions. Seeking compliance with international law and accountability for IHL violations is not an interest of international bodies exclusively. Democratic states with active militaries should be equally invested in ensuring that hostilities are conducted in accordance with the principles of IHL from both a normative and a practical perspective. However, if the goal of international bodies of inquiry, such as the COI, is to contribute to ensuring accountability, then they themselves must first be held to standards of professionalism and impartiality.

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