Reflections on the UN Commission of Inquiry Gaza Report, Part II: The Target Audience

By Daniel Reisner
Monday, August 31, 2015, 7:15 AM

In Part I of this series, I looked at the historical narrative adopted by the authors of the Report of the Independent Commission of Inquiry (COI) on the 2014 Gaza war. In this post, I want to look at the target audience for the Report. I think there can be no doubt that the primary purpose of the establishment of the COI was to support (not to say push) ICC prosecutor Fatou Bensouda with respect to the preliminary examination she launched in January of this year.

This goal is well conveyed in the COI Report itself, which includes the following recommendation:

684. The commission calls upon the international community:

(a) To promote compliance with human rights obligations, and to respect, and to ensure respect for, international humanitarian law in the Occupied Palestinian Territory and Israel, in accordance with article 1 common to the Geneva Conventions;

(b) To use its influence to prevent and end violations, and to refrain from encouraging violations by other parties;

(c) To accelerate and intensify efforts to develop legal and policy standards that would limit the use of explosive weapons with wide-area effects in populated areas with a view to strengthening the protection of civilians during hostilities;

(d) To support actively the work of the International Criminal Court in relation to the Occupied Palestinian Territory; to exercise universal jurisdiction to try international crimes in national courts; and to comply with extradition requests pertaining to suspects of such crimes to countries where they would face a fair trial (emphasis added).

It is similarly mirrored in the HRC Resolution which adopted the COI Report, in which the HRC:

4. Emphasizes the need to ensure that all those responsible for violations of international humanitarian law and international human rights law are held to account through appropriate fair and independent domestic or international criminal justice mechanisms, and to ensure the right of all victims to an effective remedy, including full reparations, and stresses the need to pursue practical steps towards these goals;

5. Calls upon the parties concerned to cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened.

The fact that the COI was established for political reasons comes as no surprise, given the identity of the countries which demanded its establishment. There is something to be said, however, about the manner in which the COI drafters attempted to facilitate this political goal.

All international lawyers understand that the ICC prosecutor and her staff face a serious dilemma. On the one hand, the constant stream of complaints relating to the Israeli-Palestinian dispute, combined with the immense political pressure being exerted by Arab countries, the Palestinian Authority and their allies, cannot be disregarded. On the other hand, when reviewing the 2014 Gaza conflict, any objective informed observer would quickly reach the conclusion that Hamas and the other Palestinian organizations, who fired rockets and mortars against civilian targets from within heavily populated civilian areas, all clearly committed war crimes. Conversely, Israel, which only used force in response to such attacks, which deployed field legal advisers to ensure battlefield compliance with the laws of war, and which has undertaken a serious, robust and transparent process of post conflict investigations, probably did not, though its attacks certainly caused civilian death and suffering. In other words, there is a real risk here that the ICC referral idea will backfire, ending up with the ICC moving forward only with respect to Palestinian war crimes.

That is obviously a highly undesirable result from the perspective of the COI initiators. How best to minimize the risk of such a development? By writing a seemingly professional and objective report which "beefs" up the Israeli side of the equation, while at the same time attempting to minimize the Palestinian side's violations, thus potentially empowering Bensouda to move forward (possibly on both fronts).

When viewed from this perspective, the COI Report is a masterful attempt at misdirection. In spite of the clear basic facts of the conflict (Hamas kidnaps and fires rockets and mortars, Israel retaliates) the majority of the Report focuses on the Israeli attacks. How is this justified? By the fact that the Palestinian side suffered many more casualties than the Israeli side. In addition, all Israeli attacks addressed in the report are described in gruesome detail, providing the reader with truly gut-wrenching descriptions of decapitated and eviscerated innocent children. The Palestinian shelling of civilian Israeli locations, on the other hand, is presented in much less grisly fashion, focusing primarily on the fear generated by the Palestinian attacks. There is, to be sure, less suffering to describe: Israeli civil defense has become quite good. Some of the rockets could be intercepted by the Iron Dome missile defense system. And the rockets are not well targeted. They are truly indiscriminate—a fact that makes Palestinian conduct all the less defensible as a legal matter but also paradoxically caused there to be less civilian death on the Israeli side.

This is then the equation presented by the COI drafters: Israel attacked Gaza and killed hundreds of innocent children; Hamas attacked Israel but only scared a few Israeli children. From a public relations perspective, this equation almost screams disproportionality (although proportionality in the legal sense means something totally different), and it is exactly this media-focused disproportionality that the COI is interested in conveying to its target audience - the ICC prosecutor - with the goal of convincing her that there is sufficient moral justification and public outrage to move forward and to launch a full investigation into Israeli actions.

The COI drafters nevertheless faced a real problem. No matter how much they wanted to, it is impossible to avoid the conclusion that Hamas committed war crimes in the 2014 conflict. Knowing full well that the COI was established to focus on Israel, and that indicting Hamas would be viewed as a problematic result, the COI writers chose therefore to attempt to maximize potential Israeli violations, while minimizing Hamas violations. Thus, as one example, when the COI addressed specific Israeli attacks in Gaza, they repeatedly came to the conclusion that they could not identify any military objective justifying the attack (such conclusions were usually based on the evidence provided by local Palestinians, who strongly denied any military involvement by their family members and neighbors). This, in spite of the fact that, as most of the attacks in question were investigated by the Israeli authorities, and the conclusions of such investigations were made public, the COI knew that Israel claimed that specific military objectives did exist in each such case (the specific details are usually not made public due to security considerations, which the COI admitted were legitimate).

This consistent and repeating theme of rejecting Israel's claim for the existence of legitimate military objectives for its attacks stands in stark contrast to their treatment of Hamas rocket and mortar attacks against Israeli cities. Here, the COI is more than willing to give Hamas the benefit of the doubt. In one case, the authors note that public sources indicated that the Israeli Chief of Staff was visiting the region the day of a mortar attack, thus enabling them to ask perhaps whether Hamas was aiming their (totally indiscriminate and incapable of being aimed with any level of accuracy) attacks specifically against him. He is, after all, (it is inferred) a fully legitimate military target. Similarly, when discussing Hamas long range attacks against Tel-Aviv, the COI saw it appropriate to share with the readers the fact that Israel may have placed a significant military target inside one of its major cities (I can only assume they were referring to IDF HQ, which is well known to sit in Tel Aviv). While the authors never formally state that the existence of such a high profile target can justify attacks against the Israeli metropolis, the fact that they saw fit to mention it at all, while never recognizing the existence of legitimate military targets in Gaza (from which thousands of rockets and shells were launched) is another powerful example of the message being generated by the COI drafters for ICC ears. The message being that Israel did not convince us that it was targeting military objectives; In some cases, Hamas may have been.

Another such example relates to warnings before attacks. The COI writers could not disregard the fact that Israel had provided unprecedented and multi-level forms of pre-attack warnings to Palestinians. In fact, the Israeli practice in this regard has become a source of concern for many other Western countries, who fear that the Israeli high standards will become the new benchmark for precautions in attack—a benchmark other armies are worried that they may be unable to meet. Israeli practice in this area is, indeed, an outlier. Not only do IDF forces quite often make phone calls to warn people to evacuate buildings targeted, they sometimes fire “tap on the roof” munitions to provide people with a last chance to get out.

The COI drafters, conversely, had a different view of such warnings and repeatedly questioned their effectiveness and, as a result, their legitimacy. Conversely, when addressing Hamas attacks against Israeli cities, the COI drafters were quick to point out that, on several occasions, Hamas publicly proclaimed its intention to attack the city of Tel-Aviv, or Ben-Gurion International Airport. Anyone who was in the region during the Gaza conflict well understood that these proclamations were made with the intention of terrorizing the Israeli public and providing proof of Hamas's capability to continue attacking long-range targets in Israel in spite of Israel's best efforts. And yet the drafters of the COI preferred instead to view these threats as well-meaning, legitimate and sufficient advance warnings of attack under rules of international law. Once again, the incredible underlying COI message appears to be that Israel's efforts at providing advance warning were insufficient and ineffective; Hamas sometimes provided reasonable advance warning.

One final note, the COI drafters, mindful of the fact that they were not in possession of the full facts, were careful to point out that they are incapable of reaching conclusions with respect to potential individual criminal responsibility. In their words:

20. The factual conclusions formed the basis for the legal analysis of the individual incidents and their qualification as possible violations of international human rights law or humanitarian law. As the “reasonable ground” threshold is lower than the standard required in criminal trials, the commission does not make any conclusions with regard to the responsibility of specific individuals for alleged violations of international law.

This admitted lack of sufficient factual basis did not however prevent the COI drafters from later repeatedly identifying specific Israeli attacks in Gaza as potential war crimes (they appear to have reached a similar conclusion with respect to Hamas rocket and mortar attacks, albeit with much less vigor and determination). In other words, they believe that they have sufficient evidence to indicate that war crimes have been committed, but not to decide which individuals (if any) should be deemed responsible for such crimes. I can only assume that their intention was that this second-stage should be the responsibility of the ICC Prosecutor.

I am quite confident that this message will not be lost on the ICC Prosecutor and her staff, although I am truly hopeful that, being experienced professionals in the field, they will be able to see beyond the COI-generated smoke and mirrors.