Monday, June 22, 2015

An advance version of the UNHRC report on last summer's war (and surrounding events) has been published.

On first glance, the (formerly Schabas) commission has done a far better job than the Goldstone commission, which was provably biased throughout its investigation from evidence gathering through report completion, only accepting facts that supported its foregone conclusion and consciously ignoring everything else. This commission is clearly cognizant of Goldstone's critics and has done much more to show that it understands Israel's position.

So for example, after printing a chart of buildings attacked by Israel and saying that some of the buildings did not appear to have a valid military objective, it adds this paragraph:

In many of the cases examined by the commission, as well as in incidents reported by local and international organizations, there is little or no information as to how residential buildings, which are prima facie civilian objects immune from attack, came to be regarded as legitimate military objectives. The commission recognizes the dilemma Israel faces in releasing information that would disclose the precise target of military strikes, as this information might be classified and jeopardize intelligence sources. In relation to “evidence of military use”, official Israeli sources indicated that: “In the context of wide-scale military operations, it is often extremely difficult to provide evidence demonstrating exactly why certain structures were damaged. While the IDF targets only military objectives, forensic evidence that a particular site was used for military purposes is rarely available after an attack. Such evidence is usually destroyed in the attack or, if time allows, removed by the terrorist organisations who exploited the site in the first place. It is therefore unsurprising that forensic evidence of military use cannot usually be traced following attacks. As is the case with most militaries, the IDF unfortunately cannot publicize detailed reasoning behind every attack without endangering intelligence sources and methods. The Law of Armed Conflict does not include any requirement or obligation to publicize such information. However, in the commission’s view, accepting that logic would undermine any efforts to ensure accountability. The key concept of international humanitarian law is the principle of distinction. Only once it has been established whether a specific attack distinguished between legitimate military objectives on the one hand, and civilians and civilian objects on the other hand, can compliance with the other principles, of proportionality and of precautions, be considered.
While I disagree with the commission's conclusion - the tension between security and accountability does not always have to favor the latter - it is to the commission's credit that they went out of their way to quote the Israeli side of the story even when Isrsel didn't cooperate with the commission.

Indeed, the report quotes from the Meir Amit Intelligence and Terrorism Information Center liberally in attempting to determine that the objects of attack may have been terrorists.

Another difference between Goldstone and this report are that this report mentions Hamas rockets and tunnels before going into the details of Israel's response.

This is not to say that the report was good. It isn't. For example, it parrots the absurd story of  Ahmed Abu Reda, the 16 year old who claimed that the IDF forced him to look for tunnels, digging with his bare hands, for five days. This is the boy for whom the family "forgot" to take photos of his injuries and "disposed" of the evidence that would corroborate this completely fictional accusation. This was only one unverified report where the commission accused Israel of using human shields.

It did mention at least one case of potential Hamas use of human shields as well.

The conclusions, of course, slam Israel. The UNHRC cannot be expected to act in any other way. But at least they take into account Israel's position, again a far cry from Goldstone. They do not make sweeping judgments as to IDF intent as Goldstone did.

669. With regard to Israel, the commission examined carefully the circumstances of each case, including the account given by the State, where available. Israel has, however, released insufficient information regarding the specific military objectives of its attacks. The commission recognizes the dilemma that Israel faces in releasing information that would disclose in detail the targets of military strikes, given that such information may be classified and jeopardize intelligence sources. Be that as it may, security considerations do not relieve the authorities of their obligations under international law. The onus remains on Israel to provide sufficient details on its targeting decisions to allow an independent assessment of the legality of the attacks conducted by the Israel Defense Forces and to assist victims in their quest for the truth.
670. The commission is concerned that impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces, whether it be in the context of active hostilities in Gaza or killings, torture and ill-treatment in the West Bank. Israel must break with its recent lamentable track record in holding wrongdoers accountable, not only as a means to secure justice for victims but also to ensure the necessary guarantees for non-repetition. 
671. Questions arise regarding the role of senior officials who set military policy in several areas examined by the commission, such as in the attacks of the Israel Defense Forces on residential buildings; the use of artillery and other explosive weapons with wide-area effects in densely populated areas; the destruction of entire neighbourhoods in Gaza; and the regular resort to live ammunition by the Israel Defense Forces, notably in crowd-control situations, in the West Bank. In many cases, individual soldiers may have been following agreed military policy, but it may be that the policy itself violates the laws of war.
672. The commission’s investigations also raise the issue of why the Israeli authorities failed to revise their policies in Gaza and the West Bank during the period under review by the commission. Indeed, the fact that the political and military leadership did not change its course of action, despite considerable information regarding the massive degree of death and destruction in Gaza, raises questions about potential violations of international humanitarian law by these officials, which may amount to war crimes. Current accountability mechanisms may not be adequate to address this issue.
These conclusions simply ignore the fact that the determination of whether an army violates the principles of proportionality (too much firepower) and distinction (not distinguishing between military and civilian targets) rely in the end on how a reasonable military commander can act given the information available at the time on the battlefield, not with the luxury of hindsight.

The report slams Hamas and the PA as well, but is also reluctant to make too many categorical statements against them. For example:

673. With regard to Palestinian armed groups, the commission has serious concerns with regard to the inherently indiscriminate nature of most of the projectiles directed towards Israel by these groups and to the targeting of Israeli civilians, which violate international humanitarian law and may amount to a war crime. The increased level of fear among Israeli civilians resulting from the use of tunnels was palpable. The commission also condemns the extrajudicial executions of alleged “collaborators”, which amount to a war crime.

There are more recommendations for Israel than for its enemies, again to be expected. Many of them are for Israel to improve its own internal mechanisms for investigations, which isn't a bad thing and something that Israel generally does anyway. It also recommends that Israel accept the Rome Statute which was deliberately written to be anti-Israel.

Altogether, the report is no Goldstone but it is hardly as objective as it pretends to be.

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