UNHRC report tried to justify Hamas firing rockets from civilian areas

The UNHRC Davis report wrote:

473.    International humanitarian law prescribes that parties to the conflict should take all feasible precautions to protect the civilian population and civilian objects under their control from the effects of attacks and to the maximum extent feasible avoid locating military objectives within or near densely populated areas.^[1] The commission notes that this obligation is not absolute and that even if there are areas that are not residential, Gaza’s small size and its population density makes it particularly difficult for armed groups always to comply with these requirements. The ICRC Commentary on Additional Protocol I notes that several delegations of the Diplomatic Conference commented that for densely populated countries, the requirement to avoid locating military objectives within densely populated areas would be difficult to apply.^[2]

But when the ICRC said that, they were referring to normal countries who cared about their civilian population!

This sub-paragraph covers both permanent and mobile objectives. As regards permanent objectives, governments should endeavour to find places away from densely populated areas to site them. These concerns should already be taken into consideration in peacetime. For example, a barracks or a store of military equipment or ammunition should not be built in the middle of a town.

As regards mobile objectives, care should be taken in particular during the conflict to avoid placing troops, equipment or transports in densely populated areas.

In both cases it is likely that governments are sufficiently concerned with sparing their own population and that they will therefore act in the best interests of that population.
[...]
Several delegates at the Diplomatic Conference stressed the fact that for densely populated countries this provision was difficult to apply.

When the government is manifestly not concerned with the safety of its population, these caveats do not apply.

And the UNHRC report goes on to note that this is indeed the case::

[I]n a number of instances, Palestinian armed groups appear to have conducted military operations within or in close proximity to sites benefiting from special protection under international humanitarian law, such as hospitals, shelters and places dedicated to religion and education. The United Nations Board of Inquiry into specific incidents that occurred in the Gaza Strip between 8 July and 26 August 2014 found that in some cases Palestinian armed groups conducted military operations in the vicinity of UNRWA schools. In one case, it noted military activity by both Palestinian armed groups and the IDF in the vicinity of Beit Hanoun Elementary Co-educational “A” and “B” school, which was being used as an UNRWA designated emergency shelter. In the case of the Jabaliya Elementary “C” and Ayyobiya Boys School, an area adjacent to the school was reportedly used by Palestinian armed groups to fire projectiles. In the case of the Nuseirat Preparatory School Co-educational “B” School, the “presence of weapons and other evidence” indicates that Palestinian armed groups may have fired 120 mm mortars from the premises of the school. In another case, media reports quoted the Greek Orthodox Archbishop in Gaza as stating that the church compound, in which approximately 2,000 civilians took refuge, was used by Palestinian armed groups to fire rockets.

In the end the UNHRC concludes in a wishy-washy manner:

Given the number of cases in which Palestinian armed groups are alleged to have carried out military operations within or in the immediate vicinity of civilian objects and specifically protected objects, it does not appear that this behaviour was simply a consequence of the normal course of military operations. Therefore the obligation to avoid to the maximum extent possible locating military objectives within densely populated areas was not always complied with.

The UNHRC's quote of what a minority of delegates to the ICRC conference thought is utterly irrelevant to the situation of an armed group that deliberately and provably chose to embed its arsenal among the civilian population. Its conclusion is close to correct, but its decision to quote a contrary opinion that doesn't apply to Gaza and Hamas is an indication of how much the commission tried to justify Hamas actions that endangered civilians.

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HRW more biased against Israel than UNHRC report

As biased as the Davis report was against Israel, Human Rights Watch is worse.

The first paragraph of HRW's description of the Davis report says:

The commission appropriately highlighted the extensive death and destruction from last year’s fighting, especially in Gaza, where 1,462 Palestinian civilians lost their lives, including 299 women and 551 children. 

Those figures, that HRW states as fact, came from the UN OCHA-OPT. But the Davis commission in its summary report properly put that in context:

While the casualty figures gathered by the United Nations, Israel, the State of Palestine and non-governmental organizations differ, regardless of the exact proportion of civilians to combatants, the high incidence of loss of human life and injury in Gaza is heartbreaking.

Davis admits that the percentage of civilians killed may be much lower than the UN's figures, and given that we have specific names and sources showing that scores of the "civilians" were actually members of terror groups, this is an appropriate caveat. But Human Rights Watch doesn't bother with such subtleties.

HRW also does what it always does when pretending to be even-handed - it only mentions Hamas rockets. The commission also showed lots of evidence that Hamas fired from the vicinity of schools, hospitals and mosques, evidence that HRW does not want people to talk about (my next post shows that the Davis commission still downplayed even that.)

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An absurd UNHRC commission story and the games that will result

The UNHRC report released this week includes some clearly ridiculous allegations from Gaza "eyewitnesses." Here is one of them:

An eyewitness, Raghad Qdeih, told the commission that, on 25 July around 1 p.m., Israeli forces occupied the home of her uncle, Mohamed Tawfiq Qdeih, in Khuza’a. At the time of the attack, the witness, together with her uncle’s extended family and friends were taking shelter on the ground floor. Most of the approximately 30 persons who had sought refuge in that house were women, children and elderly persons, including a man who was over 70 years old. Both witnesses interviewed by the commission in relation to this incident insisted that these people were all civilians, and that none of them were affiliated to armed groups. When the soldiers entered the house, Mohamed Tawfiq Qdeih was holding a white flag with one hand and his other hand was raised to show the soldiers that he was unarmed. He reportedly spoke to the soldiers in Hebrew, telling them that they were all civilians. Mohamed Tawfiq Qdeih was approaching the soldiers and, when he was about two meters away, the soldiers shot him twice and killed him. The women and children - among them the witness's daughter - were then ordered to leave the house, whereas all six men present were directed to stay in the building. The women and children went to the house of the witness’s father, Ramadan Qdeih, next door.

Ramadan Qdeih

The father of Raghad, Ramadan Qdeih, described to the commission that he witnessed the forces arriving at the house of his brother, Mohamed Qdeih, at around 1 p.m., in the process of which they demolished parts of it. About an hour later Israeli soldiers came to his own house. They ordered the people in the house to return to the place where they had previously sheltered, where the women stayed on the first floor. The owner of the house was taken to the second floor. From the window there, Ramadan Qdeih saw the men who had been held at his brother's house with Israeli soldiers standing behind them. The witness said that the men were naked with black plastic bags over their heads, handcuffed and positioned in front of the windows facing outwards. The soldiers then started shooting from behind the naked men, using them as human shields. This went on from about 1.30 to 6 pm. The men were later told by the soldiers that they were placed by the window in order to deter Hamas fighters from returning fire.

If things like these events happened, I would hope that IDF soldiers would be testifying about them.

But the stories are absurd.

The story about the IDF shooting a man at point blank range while he held a white flag and was speaking to them in Hebrew is just one version of the story, as the anti-Israel Euro-Mid Observer described this incident from the perspective of multiple "witnesses."

• Ramadan Qdeih says that the soldiers first entered the house, and that Mohamed was shot afterwards.
• Raghdad Qdeih says that he was shot on the steps leading to the house, not inside.
• Mahmoud Mohammad Ahmad Al-Qara said that Mohammed was killed immediately upon opening the door to his house, not mentioning a conversation at all.

What about the IDF supposedly taking off the clothes of the Arab men and forcing them to stand in the window while they shot around them? It is even more absurd. 

First of all, Hamas wouldn't be deterred from shooting at fellow Gazans. 

Secondly, while the "witness" told the UNHRC that the "human shields" were "naked with black plastic bags over their heads," one told the Euro-Mid NGO that they were blindfolded. It is hard to mistake one for the other.

Thirdly, the most lurid detail from the UNHRC's "testimony" that the "human shields" were stripped naked is not corroborated by a single witness - or even "victim" - interviewed by Euro-Mid. 

Even the Euro-Mid report acknowledges that the testimonies regarding this are inconsistent, but concludes "The contradictions were not important to lead the observers to doubt the truthfulness of statements in general." 

But there is no downside to lying to the UNHRC. They will publish whatever people are willing to say. They won't try to corroborate it in the least. 

And then, when the Military Advocate General is forced to investigate these obviously bogus claims and concludes after many months that almost all the stories are fiction, the headlines will be that the MAG cannot possibly be objective because of the high percentage of accusations that were dismissed. Even well-meaning Western observers will look at those statistics and conclude that something must be fishy, not even considering that Gazans are conditioned to - and instructed to - lie to NGOs. .

And NGOs like Euro-Mid are coaching their "witnesses" to say what they want to hear.

It is a win-win for the terrorists and their supporters, all because the UNHRC does not want to report what human rights groups know very well: that "eyewitnesses" often lie to Western NGOs.  As a rare honest Amnesty researcher noted, "Players and interested parties go to extraordinary lengths to manipulate or manufacture 'evidence' for both internal and external consumption."

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UNHRC report ignores Hamas' use of nuclear terrorism

During last summer's Gaza war, Hamas took credit for attacking,  and threatened to further attack, Israel's nuclear power plant in Dimona:

Hamas remained defiant Thursday, claiming rockets fired at the southern city of Dimona by its military wing the Ezzeddin al-Qassam Brigades showed Israel's weakness.

"It [the rockets fired at Dimona] shows the weakness and vulnerability of the Israeli occupation," Hamas spokesman Sami Abu Zuhri said in an early Thursday statement. "Our responses [to Israeli strikes] are still in their early stages."

The Israeli army said Wednesday that three rockets had been fired from the Gaza Strip at Dimona. No casualties were reported.

Ezzeddin al-Qassam Brigades claimed responsibility for striking Dimona, which houses Israel's nuclear reactor, for the first time.

In a statement, the group said it had fired three M75 rockets at Dimona, which is located nearly 65 kilometers from Gaza.

This is nuclear terrorism.

The 2005 UN International Convention for the Suppression of Acts of Nuclear Terrorism defines acts that fall under that designation, Article 2:

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally:
...
(b) Uses in any way radioactive material or a device, or uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material:
(i) With the intent to cause death or serious bodily injury; or
(ii) With the intent to cause substantial damage to property or to the environment; or
(iii) With the intent to compel a natural or legal person, an international organization or a State to do or refrain from doing an act.
2. Any person also commits an offence if that person:
(a) Threatens, under circumstances which indicate the credibility of the threat, to commit an offence as set forth in paragraph 1 (b) of the present article...

Just another international law that Hamas violated that the UNHRC couldn't mention.

UPDATE: Here's Hamas' video of the rockets aimed at Dimona:



(h/t Bob K)

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UNHRC report didn't mention Hamas threatening Israeli civilians - a war crime

Rule 2 of ICRC's Customary IHL is "Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited." It quotes Article 51(2) of Additional Protocol I prohibits “acts or threats of violence the primary purpose of which is to spread terror among the civilian population.”

During last summer's Gaza war, Hamas explicitly threatened Israelis. They sent a SMS message to many Israeli phones:

Your government claimed yesterday that it stopped the battle, but without our consent and meeting our conditions - and it thought we were rash enough to [agree to a] cease-fire. On the contrary, we hurried to strike anywhere in Israel - from Dimona to Haifa - and we made you hide in shelters like mice. . .

Again, we warn you - if your government does not agree to all of our conditions, then all of Israel will legally remain open to our weapons fire.

Izz - Eddine al-Qassam Brigades

Hamas also released Hebrew langiage videos explicitly threatening Israeli civilians.



 But the UNHRC Davis report doesn't mention any of this. The only messages that they mention from Hamas to Israel are those that they interpret as possible "warnings" to Israeli civilians to seek shelter:

Airlines were warned in advance of the possible targeting of the airport, providing them with the time to suspend flights. Warning civilians in Tel Aviv that a rocket would be fired in the direction of the city at 9 p.m. provided the opportunity for residents to seek shelter. Warning civilians to evacuate communities located in the vicinity of the Green Line could also realistically be acted upon because -- unlike in Gaza -- residents could flee to other areas of Israel less exposed to threats, in great part due to the existence of the Iron Dome system.

Of course, these warnings were threats. When Hamas said they would shoot rockets at the airport, their intent was to shut down Ben Gurion and isolate Israel from the world, not to save lives.

Other "warnings" of theirs never materialized, so the purpose was to terrorize, not to save lives.

In other words, Hamas' threats that are violations of international law were, when noted, regarded as possible mitigation to violations of international law by the David commission!

(h/t Bob K for graphics)

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UNHRC Gaza report didn't mention how Hamas used Shifa Hospital as headquarters

Further research into the UNHRC report issued yesterday shows plenty of omissions about Hamas crimes.

Two in particular stand out as far as Hamas using medical facilities for terror.

The report does not mention, even once, that Hamas - and Hamas' Al Qassam Brigades - used Shifa Hospital as a military headquarters, thereby endangering patients. The fact was confirmed by newspaper reports at the time, and one detailed report was removed by a French news site after Hamas threats:

After four blocked attempts to leave Gaza without explanation over weeks, the Palestinian journalist was summoned by the security services of Hamas on Sunday. "I received a call from a private number. They summoned me to Al-Shifa Hospital in the Gaza City center, " explains Radjaa. He carried with him his two phones, his press card and a small camera.

A few meters from the emergency room where the injured from bombings are constantly flowing, in the outpatient department, he was received in "a small section of the hospital used as administration" by a band of young fighters. They were all well dressed, which surprised Radjaa, "in civilian clothing with a gun under one's shirt and some had walkie-talkies " . He was ordered to empty his pockets, removing his shoes and his belt then was taken to a hospital room "which served that day as the command office of three people."

We even have a photo (that was also removed after Hamas threats:)

Also, Hamas fired rockets from next to Shifa Hospital:



The UNHRC report also says:

[S]everal allegations were made concerning the alleged use by Palestinian armed groups of ambulances to conduct military operations. However, only one specific allegation was provided in the documentation available from Israel and this lacked a date or location for the incident. The commission has received no additional allegations concerning the improper use of ambulances.

The footnote they used was from Israel, "The 2014 Gaza Conflict: Factual and Legal Aspects," but in fact the IDF released at least two videos showing Hamas terrorists using ambulances.






The same paragraph that UNHRC used to mention the "allegation" of Hamas using ambulances was the one that mentioned that they used Shifa Hospital as headquarters.

Which means that the Schabas/Davis report purposefully ignored a major violation of international law by Hamas that they were clearly aware of. Commandeering a hospital for military purposes is certainly more serious than using ambulances. Both of them are war crimes.

This is just one indication that the UNHRC report is just as biased as Goldstone was - but it worked harder to give the appearance of objectivity.

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UNHRC explicitly lies on legal basis for calling Gaza "occupied"

The new UNHRC report on the Gaza war says:

27. International law does not require the continuous presence of troops of the occupying forces in all areas of a territory, in order for it to be considered as being occupied. In the Naletelic case, the ICTY held that the law of occupation also applies in areas where a state possesses the “capacity to send troops within a reasonable time to make its power felt.” The size of Gaza and the fact that it is almost completely surrounded by Israel facilitates the ability for Israel to make its presence felt.

What exactly does the Naletelic case say?

217. To determine whether the authority of the occupying power has been actually established, the following guidelines provide some assistance:

- the occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered incapable of functioning publicly;

- the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation;

- the occupying power has a sufficient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt;*

- a temporary administration has been established over the territory;

- the occupying power has issued and enforced directions to the civilian population;

The footnote to the part about "capacity to send troops within a reasonable time" links to the “The Law of Land Warfare”, Field Manual No. 27-10, US Department of the Army, 18 July 1956, chapter 6, para 356." among others. I didn't check the others but here is what the US Army manual says:

356. Effectiveness of Occupation
It follows from the definition that belligerent occupation must be both actual and effective, that is, the organized resistance must have been overcome and the force in possession must have taken measures to establish its authority. It is sufficient that the occupying force can, within a reasonable time, send detachments of troops to make its authority felt within the occupied district.

The UNHRC didn't bother to actually read the context of the source material, since there is no way you can say that the Gaza resistance has been overcome - they run Gaza's day to day affairs! Any legal scholar who quotes another case without looking at the parameters of that statement would be laughed out of the room.

The next paragraph of the UNHRC report directly contradicts the next paragraph of the Naletelic decision:

This analysis also applies to the Occupied Palestinian Territory which is considered a single territorial unit by the international community, and by Israel in the Interim Agreement on the West Bank and Gaza, which recognized the West Bank and Gaza as a single territorial unit.

But the definition of occupation is not all or nothing over an entire territory, as Naletelic says explicitly:

218. The law of occupation only applies to those areas actually controlled by the occupying power and ceases to apply where the occupying power no longer exercises an actual authority over the occupied area.589 As a result, the Chamber finds that it must determine on a case by case basis whether this degree of control was established at the relevant times and in the relevant places. There is no requirement that an entire territory be occupied, provided that the isolated areas in which the authority of the occupied power is still functioning “are effectively cut off from the rest of the occupied territory”.590

Once again, international law is applied to Israel differently than everywhere else.

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"Goldstone II" released, bad but not nearly as bad as Goldstone I

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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