Tuesday, June 23, 2015

The 2015 UN Report on the 2014 Gaza-Israel war

I’m so angry I could spit. The 2015 UN Report on the 2014 Gaza-Israel war that just came out is a piece of garbage. It’s more anti-Israel propaganda than investigation. It’s supposed to investigate what happened in Gaza in 2014 according to the laws of war. But it seems to know nothing about how those laws actually work.

On June 22, 2015, the United Nations Human Rights Council (UNHRC) issued a long-awaited report on a UN-run study into the 2014 war between Gaza and Israel (“Report of the detailed findings of the Commission of Inquiry on the 2014 Gaza Conflict”). The Report is long—close to two hundred pages.

The Commission completed more than 280 interviews. It received more than 500 written statements and documents (“Report of the Independent Commission of Inquiry on the 2014 Gaza Conflict”, p. 4, paragraph 8). Nevertheless, it fails.

The Commission begins this Report with a statement that immediately signals trouble. The Report says, “The commission [which wrote the Report] considers that, in situations of armed conflict or occupation, international humanitarian law [IHL] and international human rights law apply concurrently” (ibid, p.4, paragraph 12).

This statement sounds innocent enough. But it’s not innocent. It’s where the UN goes wrong. It’s where the UN corrupts the laws of war.

The UN Commission here says it will apply Human Rights Law and Laws of war (IHL) concurrently. What they aren’t telling you is that Human Rights Law and IHL are two very distinctive bodies of law that are often in conflict. The conflict is, Human Rights Law seeks Maximum Safety for civilians; civilians are to be protected at all times. IHL, however, allows for civilian death to occur in war, even ‘accidental’ death.

These sets of laws conflict on a more fundamental level. The basic premise of Human Rights law is safety and security for civilians, their property and their living environments. The basic premise of war is destruction. 

How does this UN Commission apply Human Rights law and IHL concurrently?  It doesn’t.  

That’s the problem. The UN says it will apply IHL and Human Rights law at the same time. This Report is that effort. But this Report doesn’t reveal concurrency. It reveals that the whole concept of concurrency fails, especially when—as here--it’s used to propagandize against one of the combatants.  

For example, in 2014, when civilians died in certain Gazan apartment buildings during an Israeli attack, the Commission studied what had happened. In the process of doing that, it short-changed the laws of war. It misrepresented the laws of war. It used its version of concurrency to demonize Israel. It bastardized IHL to build a biased case against Israel.

Here’s how that bastardization process worked. This case is just one of many such instances you’ll see in this Report.

In the particular incident referred to above, several buildings in Gaza were apparently destroyed by an Israeli attack. The Commission looked at the civilian death toll from that attack. It admitted it had found evidence the buildings might have had a military significance (ibid, p.4 paragraph 39).

That’s important. IHL requires that, when civilians are present, a target must have military significance. Otherwise, civilian deaths related to an attack could be war crimes.

But immediately after the Commission acknowledged the building could have been a legitimate military target, it did something the International Committee of the Red Cross (icrc) suggests one shouldn’t do: it second-guessed the motivation of the attacker (the IDF) (“Customary IHL, Practice, By Country, Israel, Rule 14”. Icrc. org/customary-ihl, no date): it stated that it was in no position to determine if the IDF attack on those apartment buildings actually had a military reason (ibid).

This statement has, by definition, no basis in fact. What’s it doing in a Report that’s supposed to be fact-based?  Why does the Commission second-guess what the IDF thought, especially when the icrc has expressed a cautionary warning against doing that in an IHL matter? Why suggest that a possible military target was not a military target?

If there was a purpose to such speculation, that purpose wasn’t made clear. But the speculation certainly prejudices a reader against Israel. It raises the possibility that Israeli attacks in Gaza did not have military purpose.

What’s curious about this speculation is that the Commission, in the very next sentence, says, “It appears that the potential targets [in those buildings] were mostly individuals who were or who could have been present in the building at the time it was hit, presumably on account of their alleged links to the police, Hamas or an armed group” (ibid). That suggests that the IDF did have reason to believe that bona fide military targets were in those buildings. So why, in the previous sentence, did the Commission suggest the buildings might not have been bona fide military targets?

The Report never says. Yet, the Commission includes this sort of anti-Israel speculation repeatedly throughout the Report. It strikes me as a form of subliminal suggestion—against Israel. It has no place in a professional, fact-based Report.

Such suggestion is not the essence of an objective investigation. It’s the essence of an attempt to influence the reader to a pre-determined conclusion.

Is that the UN goal here?

In the next sentence, the Commission took the trouble to parse for you its interpretation of IHL. It stated, “international law provides that persons may be targeted only [my emphasis] if they participate directly in hostilities or are members of organized armed groups with a continuous combat function” (ibid).

The key word here is, ‘only’. It suggests that if the IDF had no knowledge that individuals in those buildings were participating directly in hostilities or were part of a group that maintained ‘a continuous combat function’, it had no legal right to hit those buildings.

Again, what purpose—other than to raise suspicions against Israel—does such a statement serve?  This is an important question because this interpretation of IHL is absolutely false.

It reveals a complete ignorance of how IHL is supposed to work.

The IDF military commander who ordered that attack is under no legal obligation to know for a fact that people in those buildings ‘actively participated in hostilities or were members of a combat group’ in order to be legally able to attack.

Yes, that IDF commander does have legal requirements he must meet before he attacks. But none of them have to do with knowing precisely the military standing of people in that building: first, he must have a military objective when attacking those buildings. Second, he must have ‘reasonable’ belief that the buildings contain a military significance. Third, he must calculate, at his discretion, if potential incidental civilian casualties are proportionate to the military objective he hopes to accomplish with an attack.

He is not required to have direct evidence of anything or anyone in those buildings. He must simply demonstrate ‘reasonableness’ for his decision-making.

To help him reach that ‘reasonableness’, the IDF places lawyers specially trained in this subject at the point of command. Those lawyers make sure that the commanders’ ‘reasonableness’ meets standards established by the IDF.

Hamas has no such lawyers. Hamas does not follow any IHL requirements. Hamas does not require reasonableness when its commanders order an attack against Israel. Hamas uses no lawyers specially trained in IHL code. Hamas does not require that targets must have a military significance. Hamas, in other words, violates IHL requirements with virtually every battle decision it makes. Israel conforms to IHL requirements—and has records to prove it.

The Commission neglected to mention the existence of these two very different legal realities. These realities make the IDF and Hamas two very, very different combatants in the eyes of IHL. One, Israel, conforms to IHL requirements. It really does ‘follow the laws of war’.

The other combatant, Hamas, flaunts IHL. It rejects any pretence at legality in war.

That distinction alone should focus the Commission’s attention on Hamas’ performance in war. But it doesn’t. Instead, the Commission focused on misapplying IHL, misrepresenting facts (I’ll talk more about this later this week)—and using subliminal suggestion--to cast suspicion on Israel.

That’s not using IHL to determine what happened in Gaza. That’s using a bastardized interpretation of IHL to harm Israel.

I’ll have more to say later in the week.


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