Anne Bayefsky: UN report denies Israel's right of self-defense, advocates arrest of Israelis instead
Arrest Benjamin Netanyahu and any other “suspected” Israeli war criminals wherever and whenever you can get your hands on them. That is the shocking bottom line of a scandalous report released today from the U.N. Human Rights Council in Geneva.Lawfare Blog: What to Make of the UN's Special Commission Report on Gaza?
The report emanates from a board of inquiry the Council created in the midst of the 2014 Gaza war. In legalese, the call to arrest Israelis either for trial before the International Criminal Court (ICC), or before any court in any country that the U.N. labels “fair,” reads like this:
The board “calls upon the international community … 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.”
To be fair, the U.N. report says this could apply to both parties. In other words, the democratic state of Israel, with a moral and legal obligation to defend its citizens, and the Palestinian attackers bent on genocide are moral equals. Throughout the 183-page tome, the U.N. council “experts” play the old “cycle of violence” trick, otherwise known as “it all started when you hit me back.”
An infamous photo from the Third Reich shows eminent Jewish lawyer Michael Siegel, beaten and bloodied after going to police headquarters on behalf of a Jewish client who had been sent to Dachau, forced to walk through the streets of Munich with a sign around his neck saying: “I am a Jew, but I will never again complain to the police.”
Perhaps most frustratingly, even the IDF’s efforts to protect civilians are apparently grounds for incrimination. On page 63, the Commission notes that “according to official Israeli sources, the IDF abandoned air strikes when the presence of civilians was detected.” This Israeli claim is taken at face value, but not for the purposes one might think. Rather than reflecting a policy of minimizing civilian casualties, for the Commission, this information simply demonstrates that “the IDF had the capacity to determine the civilian nature” of its targets and victims. And given the number of civilian deaths, the Commission’s conclusion was that Israel had frequently and unjustifiably failed to deploy this capacity—thus violating its obligation to use all “feasible” means to reduce civilian damage.Volokh Conspiracy: Is it “OK to drop a one-ton bomb in the middle of a neighborhood” if you’re at war and that’s where enemy forces are located?
Our point here is not to defend Israeli conduct in any of these specific situations. It is merely to suggest that the commission has drawn a set of conclusions it cannot possibly draw with rigor, and it has done so using standards that are very difficult to defend.
But don’t take our word for it. The commission all but admits that it lacked the information to draw the conclusions it drew. In an interview with Haaretz’s Barak Ravid, the Commission’s chairperson Mary McGowan Davis had this to say:
I certainly think it would have been different if Israel had cooperated… We could have met with Israeli victims and seen where rockets landed, talked with commanders, watched videos and visited Gaza. We talked to a lot of witnesses but of course an investigation needs to be as close to the scene as possible and it would have looked different.
McGowan Davis clearly intended this comment as a criticism of the Israeli government’s non-cooperation with the investigation. But she’s actually admitting, apparently unawares, that the material with which the Commission was working was simply insufficient to its task.
What does one say about a report whose author forthrightly admits that, had she had real information, “it would have looked different”?
Mary McGowan Davis, who headed the U.N. commission that investigated last summer’s Israel-Hamas conflict in Gaza, tells Ha’aretz (paywall): “We wanted to make a strong stand that the whole use of explosive weapons in densely populated neighborhoods is problematic and that the policy needs to change…. Because it is not OK to drop a one-ton bomb in the middle of a neighborhood.”Chairman of Joint Chiefs: "Israel went to extraordinary lengths to limit civilian casualties"
Of course, one shouldn’t gratuitously drop a one-ton bomb or any bomb in the middle of a neighborhood. But Davis’s critique doesn’t seem limited to gratuitous bombings, but includes the bombing of military targets located in civilian neighborhoods.
If the rule was “you may never bomb [use “explosive weapons”] in a residential neighborhood if civilian casualties may result, regardless of the value of the military target,” it’s pretty obvious what would happen — enemy forces would simply plant themselves in residential neighborhoods knowing they would be immune from attack.
So, for example, Hamas could launch all the missiles it wanted at Israel from the middle of Gaza City, and use apartment buildings, schools, etc. as staging grounds and headquarters, and Israel would be helpless to respond.
Israel went to "extraordinary lengths" to limit civilian casualties during the conflict in Gaza earlier this year, the chairman of the Joint Chiefs of Staff said yesterday.
Israel dropped leaflets and did "roof-knocking, to have something knock on the roof" to warn civilians to move out of the area, Army Gen. Martin E. Dempsey said during a forum at the Carnegie Council for Ethics in International Affairs in New York.

















