External Affairs

From Occupation to Illegal Use of Force, an Indictment of Israeli Criminality

The UN’s Commission of Inquiry into the 2014 Gaza invasion provides evidence that the International Criminal Court can corroborate through its own investigations, leading to the indictment of Israeli leaders and commanders for war crimes

Destroyed ambulance in the CIty of Shijaiyah in the Gaza Strip. Photo by Boris Niehaus (www.1just.de) - Own work. Licensed under CC BY-SA 4.0 via Wikimedia Commons

DISPROPORTIONATE: Destroyed ambulance in the CIty of Shijaiyah in the Gaza Strip during the 2014 Israeli invasion. Photo by Boris Niehaus (www.1just.de) – Own work. Licensed under CC BY-SA 4.0 via Wikimedia Commons

Last year, for 51 days between 13 June and 26 August, Israel carried out its third major military assault on Gaza in the past six years. This last one, code named Operation Protective Edge by the Israeli Defence Forces, was the most vicious, killing 2,251 Palestinians, of which 1,462 were civilians, and included 299 women and 551 children, as well as injuring 11,231, a number that includes 3,436 children, 10% of whom have permanent disabilities, and another 1,500 have been orphaned.

Israel also suffered casualties: 73 killed, of whom 67 were military personnel, and 1,600 injured.

In addition to the human casualties, 18,000 Palestinian housing units were destroyed, along with substantial damage to Gaza’s electricity and sanitation systems, 500,000 Palestinians (almost 1/3 of Gaza’s population) were forcibly displaced during the military operations, and 100,000 remain so a year later, and 73 medical facilities and ambulances were destroyed or damaged.

The magnitude of the Palestinian losses, as well as the comparison with Israeli losses, and the comparative ratio of civilians to military killed on the two sides, by itself suggests that the essential character of this Israeli undertaking is best understood as ‘state terror’ directed at Gaza’s population as a whole. Such conclusions are reinforced by Israel’s provocations during the month prior to the launch of the attack and by the refusal of its government to consider the frequent proposals by Hamas to establish an internationally supervised long-term ceasefire.

This one-sided impression of the events is not conveyed by the much anticipated UN Report of the Commission of Inquiry (COI) set up by the Human Rights Council in July 2014 to investigate violations of international human rights and international humanitarian law that were occurring during Operation Protective Edge. The Commission was originally chaired by William Schabas, a leading world expert of international criminal law, but he resigned under pressure effectively mounted by Israel and the United States, centering on the discovery that Schabas had accepted a small consulting fee for some professional advice given to the Palestinian Liberation Organization a few years earlier. This unhappy development left the commission with only two members, Mary McGowan Davis from the United States and Doudou Déne from Senegal, with Judge McGowan being named as chair. Neither is considered an expert in relation to the subject matter being investigated.

Balance amid imbalance

The report strives for ‘balance’, carefully setting off violations by Israel against those of what it calls ‘Palestinian armed groups’, creating a profoundly false sense on the part of readers as to equivalent responsibility for wrongful behavior by both Israel and Palestine.

I agree with Ali Abunimah’s carefully formulated explanation for this misleading approach taken in the report and the deeper message being conveyed: “Despite the ‘balanced’ language that is now the habitual refuge of international officials hoping to avoid false accusations of anti-Israel bias, the evidence shows the scale and impact of Israel’s violence dwarfs anything allegedly done by Palestinians.” Or as the widely respected international NGO, BADIL, expresses a similar reaction: “In the language employed, there appears a desire to portray the adversaries as being on an equal footing, despite this being patently untrue, as revealed in the vast disparity in respective casualties and destructive capabilities…attempts to portray ‘balance’ where there is none is extremely problematic.” Typical of the imbalanced balance, the Report observes that “Palestinian and Israeli children were savagely affected by the events,” [§25] which is accurate in a literal sense, but a gross example of treating unequals equally, given the far greater severity of suffering endured by Palestinian children.

Looking for a glimmer of silver lining, some have endorsed this framing device of balance as justified so as to persuade the mainstream media in the West to view the contents of the report more seriously as it cannot be dismissed simply by being called anti-Israeli, or worse, anti-Semitic.

As Abunimah emphasises, there is this strange mismatch between the strong evidence of Israeli disregard of legal constraints on military tactics that unduly imperil civilians and this rhetoric of balance, which in effect, assigns blame to both sides. This is not to argue that the criminality of resistance tactics employed by Hamas and associated military groups in Gaza should be overlooked, but rather that the primary human impact of Protective Edge was to leave Gaza bleeding and devastated, while Israel endured minimal damage and a much less destructive impact on its societal order. Israeli damage was repaired almost immediately. In contrast, Israel’s refusal to allow ample reconstructions materials to enter has left substantial parts of Gaza in ruins, with many Gazans continuing to lack adequate shelter and remain homeless and displaced.

Civilian Focus

Despite what might appear to be overly cautious language, a fair reading of the report supports three important conclusions:

  • that Israel’s efforts to protect the civilian population of Gaza were inadequate from the perspective of international humanitarian law, and probably constituted war crimes; and
  • that the military tactics employed on the battlefield were “reflective of broader policy, approved at least tacitly by decision-makers at the highest level of Government of Israel.”
  • that the focus was on the civilian victims rather than on a bland acceptance of arguments premised on ‘military necessity’ or ‘asymmetric warfare’: in the words of the report, “The commission considered that the victims and their human rights were at the core of its mandate.”

Such findings, coupled with the detailed evidence set forth in the body of the report, provide the International Criminal Court with the kind of strong mandate needed for it to proceed further with its preliminary investigation of Israeli criminality in the Gaza War. Palestine is reinforcing this momentum by submitting its own body of evidence to back up allegations of Israeli criminality related to Protective Edge. The Commission makes clear that it is relying, as is customary for non-judicial inquiries of this sort, on a ‘reasonable grounds’ test of potential criminality [§11], which is not as rigorous as would be applied in an ICC trial of accused individuals where the test is often formulated “as guilty beyond reasonable doubt” or some wording to that effect.

The Report does not make a professional determination of whether criminal prosecution should follow from its findings, although in its recommendations it does urge both the ICC and national courts relying on Universal Jurisdiction to move forward with indictments and prosecutions if the apparent criminality of either side’s conduct in confirmed by further investigation.

The ICC had already begun an investigation of its own in response to a Palestinian request after Palestine became a party to the Rome Treaty that provides the authoritative framework for addressing alleged international crimes at an international level. Whether the ICC can bring any perpetrators of Israel’s criminal policies to justice is extremely doubtful as Israel, a non-member, is certain to denounce the effort and the institution and refuse all forms of cooperation; additionally, the ICC is not permitted to hold trials without the presence in the courtroom of those accused. Nevertheless, the prospect of indictment is itself a strong challenge to Israel’s approach to Gaza, and to the Palestinians generally, and it will further strengthen the BDS Campaign, as well as the wider global solidarity movement that rests on delegitimizing Israel’s policies and practices. It will also inhibit travel of Israeli political and military leaders to those countries that empower national courts to exercise universal jurisdiction in relation to well-evidenced allegations of violations of international criminal law.

Occupation as context

There are some positive elements in the Report beyond these general conclusions worth mentioning. Unlike prior assessments, including the Goldstone Report of 2009 dealing with Operation Cast Lead, the attack on Gaza that began on December 27, 2008, this new report specifies the context by referring to the Israeli blockade of Gaza as imposing “a continuing collective penalty against the population of Gaza,” [§15]. The Report fails to take the next logical step of identifying this penalty as a flagrant violation of Article 33 of the Fourth Geneva Convention that unconditionally prohibits any collective punishment, and hence is a continuing crime against humanity. Helpfully, though, the Report does say that “the impact of hostilities cannot be assessed separately from the blockade imposed by Israel.” This view is appropriately reinforced with the significant call for “a full and immediate lifting of the blockade,” [§24] although the relevance of the blockade is not stressed in the COI analysis of the combat tactics relied upon by both sides, which suffers from its resolve to appear ‘balanced.’

The Report also took innovative account of the fact that the Palestinians were suffering from ‘protracted occupation’ and that there was hardly any prospect of peace between Israel and Palestine. [§14ff] Acknowledging this defining reality has some bearing on the reasonableness of resistance tactics, and should be treated as relevant when assessing the severity of violations. In contrast, Israel as the occupier that has long not only ignored, but subverted, the unanimous Security Council injunction to withdraw from territory occupied in 1967, should be held to higher standards of compliance with international law by the UN. In the end, the incendiary question posed indirectly is “What are the Palestinians expected to do by way of resistance, considering that they lack precision weaponry and have long been victimised by a prolonged occupation that is oppressive and exploitative, and shows no sign of ending anytime soon?’

These contextual factors are also affected by a diplomatic framework in which Israel insists on treating Hamas as a terrorist entity, despite the fact that Hamas has been offering long-term proposals for peaceful coexistence supervised by an international presence ever since it decided to pursue a political track to liberation when it participated successfully in the 2006 elections in Gaza and the West Bank. Such a potential path to Israel security is not mentioned in the Report, or its legal correlative, that since World War II, recourse to war is legally valid only as a last resort even where legal claims of self-defence are well-grounded. In this regard, Israel’s refusal to explore a diplomatic alternative to war casts doubts on its claim to be acting in necessary self-defence. This diplomatic option for Israeli security should have been discussed in the Report even if it could not be definitively proven to exist.

The Report relies on a methodology based on customary international law that is articulated by reference to three principles: of distinction (limiting attacks to discrete military targets); of proportionality (avoiding uses of force disproportionate to the value of the target); of precaution (taking reasonable measures to avoid civilian death and destruction). [§13] It is evident to the COI that Palestinian missiles, inaccurate and directed toward Israeli population centers, violate the principle of distinction even if they do little damage as do Israeli strikes directed at densely populated residential neighborhoods. For instance, the Report condemns the Israeli use of massive firepower against Rafah and Shuja’iya “in utter disregard of its devastating impact on the civilian population.” [§58]

Although the Report finds that the use of human shields by either side is a violation of the laws of war, it fails to find sufficient evidence to reach any conclusion.

What Israel must address

In the conclusions and recommendations of the Report there are various calls made for greater vigilance in following through, arguing that imposing accountability for violations of international criminal law is relevant to avoiding a repetition of the Protective Edge experience. In this spirit, the Report indicates that the victims, in particular, stressed examining “the root causes of the conflict” as an essential step toward future. [§75] There was also emphasis placed on overcoming impunity with respect to such crimes, and in particular, “Israel must break with its lamentable record in holding wrongdoers responsible.” [§76] There is also a specific call to support the work of the ICC, and for Israel to accede to the Rome Treaty that controls its operations.[§86(e); 89(d)]

The recommendations that are most relevant are set forth in §86(d):

“To address structural issues that fuel the conflict and have a negative impact on a wide range of human rights, including the right to self-determination; in particular, to lift, immediately and unconditionally, the blockade on Gaza; to cease all settlement-related activity, including the transfer of Israel’s own population to the occupied territory; and to implement the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory.”

This enumeration is a departure from the tone and substance of balance, and calls upon Israel to bring its behaviour as Occupier into conformity with international humanitarian law. It refrains from mandating the dismantling of the unlawful settlements, but otherwise goes quite far in relation to human rights, including self-determination, settlement expansion, and the wall to address the most fundamental Palestinian grievances.

Conclusion

As might have been anticipated, despite the balance of the Report, it was attacked even before being made public by Israel and the United States, and its presentation in an open debate at the Human Rights Council was boycotted. Israel went further, issued its own extensive report prepared under the aegis of the Israel Defence Forces that exonerated Israel on all counts. It also invited a group of ‘high-level’ military officers and diplomats to review the allegations, which also vindicated Israel’s claims in its consensus report. In effect, the familiar battle lines are drawn at inter-governmental levels, making it clear that nothing can be expected to flow from this Report beyond a further recognition that if the Palestinian struggle is to advance at this stage it will depend on the activism of civil society rather than on the policies of governments or the implementation of the Report’s recommendations by the United Nations. At the same time, as with the earlier Goldstone Report, it is important that this COI documented the essential charges, and legitimates the coercive tactics of Palestinian resistance and the nonviolent militancy of the global solidarity movement.

Richard Falk is Professor Emeritus of International Law at Princeton University