Not surprisingly, the new UN report on the possibilities of war crimes – by both sides – in the fighting last year in Gaza provoked the predictable reactions. But, for many, the report may have been more even-handed than most had expected. J. BROOKS SPECTOR takes a preliminary look.
Long ago, there was the myth of chivalry in warfare. It was said that men would salute each other before raising their swords or pointing their lances – and then trying to kill each other. Later on, once firearms came into general use, soldiers would face each other in precise straight lines. The commanders would salute their respective opponents on the battlefield, just before the carnage began. Once the fighting was over, there would be a “civilised” truce, the wounded would be collected, and then the two sides would move on to further death and destruction. However, one thing missing in the descriptions of such chivalrous combat behaviour was usually the havoc wreaked by the respective armies upon the hapless civilians who were always the real losers.
By contrast, the infamous eyewitness account of the siege of Magdeburg in 1631 set out the real impact of warfare on civilians. Once the siege ended, “Then the city was given over to murder, burning, plundering, torture, and beatings. Every enemy soldier demanded booty. When such men entered a house, if the master was able to give them something, he could save and protect himself and his household – until another came along to take whatever he had. Finally, when everything had been given away, and there was nothing left to give, the real trouble began…. During such rage, this wonderful and great city, like a princess over the entire land, stood completely in flames amidst terrible misery, unspeakable distress, and heartbreak…. words alone cannot adequately describe these acts nor tears adequately bemoan them.” And that, in contrast to those military salutes, was how combat struck civilians.
By the beginning of the 20th century, with the sense state violence could be regulated by those rational, advanced nations, the defined nature of criminal activity in warfare was set out in the Hague Conventions of 1899 and 1907. Of course those exemplars of international law clearly failed to restrain most military forces and governments in meaningful ways during two world wars and any number of other conflicts. After the Second World War, a definition of war crimes was eventually set out in the context of the Nuremberg trials and in the 1945 London Charter, as well as in a group of four Geneva conventions that further clarified international law with respect to war crimes. Beyond the specifics of war crimes, that 1945 London Charter also defined crimes against peace and crimes against humanity – with the understanding such acts frequently occurred in tandem with wartime, and in concert with describable war crimes.
With this background about the nature of war crimes, the inevitable arguments have now broken out over a just-released UN report on the fighting in Gaza last year, and the possibility that some actions by the combatants could be described as war crimes. Although the discussion over this newest report is just beginning, the report’s writers have insisted they took great pains to be even-handed, finding both Israel Defence Force members and Palestinian Hamas militants carried out actions that could be labelled violations of international law – and that such violations might well definable as war crimes. Defending the report, the chairwoman of this inquiry, American jurist Mary McGowan Davis, told a news conference the investigation had assembled the testimony “in a scrupulously objective fashion.”
Not surprisingly, neither Hamas nor the Israeli government felt kindly disposed toward everything in the report that has now been submitted to the UN’s Human Rights Council. The New York Times noted, for example, “each side in the long-running conflict saw what it wanted in any such report: Israelis condemned it as further evidence of bias against them in the United Nations writ large, while Palestinians embraced it as further ballast in their bid to punish Israelis in the International Criminal Court — and the court of international public opinion.”
In their report, the commissioners argued that Palestinian militants had clearly wanted to provoke terror among Israeli civilians, even as they also said they could not identify the rationales Israeli forces had adopted in targeting residential buildings in Gaza in the evening. In doing that, the Israelis had run the risk of significant numbers of non-combatant casualties, the report said.
This report, co-authored by Davis and Doudou Diene, a Senegalese lawyer, noted “impunity prevails across the board” among the actions of Israeli forces that had operated in Gaza and they called on Israel to “break with its recent lamentable track record in holding wrongdoers accountable.” On the other hand, they also noted the “inherently indiscriminate nature” of Palestinian rockets and mortars fired at Israeli civilians; they condemned the extra-judicial killing of people who were suspected of being collaborators; and they reported Palestinian authorities had “consistently failed” to bring violators of international law to justice.
Even before the report was issued, it had already been controversial. The original leader of the inquiry had been William Schabas, a Canadian law professor who had once said Prime Minister Binyamin Netanyahu would be his favourite choice as a defendant at the International Criminal Court. Not surprisingly, the Israelis had complained strenuously he was inherently biased, given his statements and his previous actions as an advisor to the PLO.
Although Schabas ultimately resigned in February 2015, some Israeli officials and news organisations continued referring to the on-going inquiry as “the Schabas report,” with Prime Minister Netanyahu calling it “flawed and biased,” and adding the UN’s Human Rights Council “has a singular obsession with Israel.” (In fairness, it should be noted this Human Rights Council does have Eritrea, Sri Lanka, Syria and a number of other countries on its current radar screen, although such comparisons might not be to Israel’s public advantage.)
Regarding the overall UN approach toward his country, Israel’s UN ambassador had said earlier, “the UN has been taken hostage by terrorist organisations, and in this battle the international community will lose.” And for its part, Hamas called the report a “clear condemnation” of Israel – even as it waved away the same report’s harsh criticisms of its own actions. Not surprisingly, Palestinian Authority chief international negotiator Saeb Erakat offered praise for the work of what he called “these esteemed bodies of international law.”
Looking at the report itself, the panel said some 65% of the 2,251 Palestinians killed in the fighting were civilians, a number rather lower than earlier reported UN estimates, although Israel has replied it had documented militant action by some 44% of those who were killed. In the preparation of the report, its authors noted both Hamas (although the group was not referred to by name in the report) and the Israelis declined to respond to specific questions and both blocked investigators, but the Palestinian Authority (the body not in control in Gaza) did cooperate. The report also identified the extra-judicial killing of twenty-one suspected collaborators by Hamas’ fighters as well as Israeli operations inside residential neighbourhoods as possible war crimes.
The report added that “the scale of the devastation was unprecedented”. There were some 6,000 airstrikes, as well as some 14,500 tank shells and 45,000 artillery shells that were fired during the six-weeks of fighting. The report also noted the fighting had led to “immense distress and disruption to the lives of Israeli civilians,” counting 4,881 rockets and 1,753 mortars fired by Palestinians during hostilities. It also went into some depth in discussing those tunnels that the militants had dug so as to infiltrate Israeli territory.
This new report has followed upon an earlier report, commissioned by the UN’s secretary general, that had found Israeli military actions had killed 44 civilians who had been seeking shelter inside United Nations schools, which, that report said, should have been “inviolable.” This new report gave more space to Israeli actions, but it did draw upon similar language to speak to violations carried out by both sides. It noted, for example, how three Israeli teenagers had been “kidnapped and brutally murdered” and then shifting to describe how a Palestinian teenager had been “viciously murdered by being burned alive.”
It went on to note the militants’ rocket attacks and their tunnel infiltrations of Israeli territory, citing Palestinian statements they had been attempting to strike at Israeli cities and that, moreover, those weapons lacked the guidance systems needed to aim at military objectives. As a result, this information led the panel to conclude the attacks had been “indiscriminate in nature,” implying their main goal “was to spread terror among the civilian population, in violation of international humanitarian law.”
The commission added the tunnels into Israel had traumatised Israeli civilians, saying that they “feared they could be attacked at any moment by gunmen bursting out of the ground.” The New York Times added, “As for the tunnels, the commission detailed the anxiety they caused Israelis but said it ‘cannot conclusively determine’ why they were built and noted that during the summer they ‘were only used to conduct attacks directed at’ Israeli military posts.” The Times went on to say, “Perhaps the harshest condemnation was for the August execution of 21 Gazans suspected of collaborating with Israel, which the report said definitively ‘amount to a war crime.’ ”
The panel also sought to figure out whether Israel had committed war crimes through the indiscriminate killing of civilians; whether attacks on military targets had been proportional; and whether it had taken sufficient care to preclude civilian casualties. On this latter point, the report came down hard on the Israelis.
The report noted while Israeli had used precision-guided missiles aimed at particular targets, many attacks occurred as families were breaking the Ramadan fast together, or were asleep, thereby increasing the chances of civilian deaths. The commission of inquiry said in a statement issued about its report, “The fact that Israel did not revise its practice of air strikes, even after their dire effects on civilians became apparent, raises questions of whether this was part of a broader policy which was at least tacitly approved at the highest level of government.”
The report said its investigators could cull out no information explaining why residential buildings – places “which are prima facie civilian objects immune from attack, were considered to be legitimate military objectives.” In other cases, the panel added there had been “strong indications that these attacks could be disproportionate, and therefore amount to a war crime.”
Moreover, the panel argued Israel’s warnings to Gaza residents such as those so-called “roof-knocks” where lighter missiles were fired before the real bombs were launched, “cannot be considered” effective, as they both confused residents and did not give them sufficient time to evacuate the presumed targets. Further, leaflets telling Gaza residents to leave their dwellings were didn’t help since residents could not identify which locations were going to be hit. Thus, “These terrifying circumstances created a sense of entrapment, of having “no safe place” to go.”
Of course this commission is not the first to assemble a dossier of strikingly harsh criticism of combat actions. A commission investigating Syria has already produced eight reports on suspected war crimes in that unhappy nation, even providing a list of suspects for war crimes indictments. But, so far at least, the Office of the High Commissioner for Human Rights has kept all of these under wraps. Still, under international law there is no statute of limitation on war crimes. And, in fact, in the US, dozens of Bosnian immigrants into America are now facing deportation on the grounds they were involved in both “ethnic cleansing” and other war crimes two decades earlier.
Still, the commission’s chair added a note of reality over the immediate impact of the report when she said, “The most that we can hope for out of this long and arduous process of inquiry is that we will push the ball of justice a little further down the field”. Conceivably, this latest report may still become a road map for a still-preliminary examination underway by the ICC’s prosecutor, and Palestinians are expected to forward yet other documentation to the court later this week.
Now here’s a potentially awkward question locally: Given the contortions the South African government has just put itself through over Sudan’s Omar al-Bashir, as well as its harsh statements over Israeli actions in Gaza, would any further action by the ICC on the basis of this Gaza report lead many South Africans to wonder if their government’s increasingly harsh rhetoric about the ICC would now have to undergo a sudden, very jarring volte face – if the ICC digs into this Gaza question any further?
In the meantime, in South Africa, the Boycott Disinvestment Sanctions movement has issued its view on the matter, focusing almost entirely on the criticism of Israel. As the BDS said, “The UN report’s evidence however overwhelming shows that the scale and impact of Israeli violence dwarfs anything allegedly done by Palestinians.
Palestinian author and analyst Ali Abunimah has commented on the UN Report that: ‘the crimes allegedly committed by Israel [against the Palestinians] are massive compared to anything allegedly done by Palestinians. There can also be no moral equivalence between the legitimate self-defense and resistance of a people [the Palestinians] under occupation and the aggression of an occupier [Israel] whose aim is to subject millions of people to its unopposed military tyranny. It is also apparent that most, though not all, of the transgressions alleged against Palestinians are an artifact of the inferior and unguided weapons, often locally made in Gaza, that are available to resistance groups’ ”
By contrast, the Israeli Embassy issued its foreign ministry statement that, besides noting its criticism of the UN’s focus on Israeli actions, said, “It is well known that the entire process that led to the production of this report was politically motivated and morally flawed from the outset. Just as Israel seriously considers every complaint, no matter its origin, it will also seriously study this report. We take note of the fact that the authors of this report admitted that they lacked much of the relevant information.
It is regrettable that the report fails to recognise the profound difference between Israel’s moral behavior during Operation Protective Edge and the terror organisations it confronted.” It added, “Israel will continue to uphold its commitment to the law of armed conflict despite the brutal tactics of its enemies. Israel will continue to investigate alleged wrongdoing in accordance with international standards and to cooperate with those UN bodies that conduct themselves in an objective, fair and professional manner.”
Taking a more dispassionate tone, a veteran South African foreign affairs analyst argued that the report “has also accused both [Israel and Hamas] of allowing impunity for these violations and possible crimes and has issued a veiled threat to both to conduct credible, independent inquiries into the conduct of their own forces – or face prosecution by the International Criminal Court. As it happens the ICC prosecutor has already opened an inquiry into the Gaza war at the request of the Palestinian Authority which joined the ICC, because last year it became a UN observer member state. Israel has dismissed the report because it says that it was done by a notoriously anti-Israeli institution. There is some truth in that charge generally, although it does not necessarily mean the report is also biased. The equivalent report done on the 2009 Gaza war was led by our own Richard Goldstone who is a renowned jurist.”
He went on to argue, “So both Israel and Hamas ought to respond by beefing up their internal investigations. That probably means in practice, Israel should, since Hamas is not known to have done any investigation so far and is unlikely to do any now, as the commission well knows. Israel, on the other hand, has conducted its own investigations into alleged offences by some of its soldiers. In some cases these have led to prosecutions. But the UN report says these have not been enough. And it has also gone well beyond offences by individual soldiers to condemn the Israeli government at the highest level for a deliberate policy of indiscriminately bombing of densely populated areas that was bound to kill many civilians. If the ICC does decide to pursue a case against Israel and Hamas, that would, of course, be good for its own reputation as it accused by African governments of bias because it has so far only indicted African individuals, including leaders.” That could, he argued be positive if it allowed both sides to test their cases in an open, credible court.
Political scientist Peter Vale characterised the new report as a work that seems even-handed, even given the imbalance of forces between the Israelis and residents of Gaza. But Vale added, somewhat wistfully, perhaps, that it is surely time, after some seventy years of hostility, for a return to the words of the Prophet Isaiah in his admonition, “They will beat their swords into ploughshares and their spears into pruning hooks. Nation will not take up sword against nation, nor will they train for war anymore.” Now if only that could happen. DM
Photo: A Palestinian boy rides his bicycle past graffiti rockets in a street of Gaza City, 29 May 2015. EPA/MOHAMMED SABER
UN report cites possible war crimes by both Israel and Palestinian groups in 2014 Gaza conflict at the UN
Israel and Hamas may have committed war crimes in Gaza, UN says at the Financial Times
UNHRC: Israelis and Palestinians may have committed ‘war crimes’ in 2014 Gaza war
U.N. Cites Possible War Crimes in Gaza Conflict at the Wall Street Journal
UN commission finds evidence of war crimes by Israel, Hamas during 2014 Gaza war at Haaretz
UN accuses Israel and Hamas of possible war crimes during 2014 Gaza conflict at the Guardian
War crimes likely by both sides in 2014 Gaza war: UN at AFP
Israel, Palestinians may have committed war crimes in Gaza: U.N. report at Reuters
Leader of War Crimes Inquiry Into 2014 Gaza Conflict Resigns at the New York Times
UN. Report on Gaza Finds Evidence of War Crimes by Israel and by Palestinian Militants at the New York Times
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