Few Palestinian voices in reports

Reports from Ma’an news and Al Jazeera; an interview with former IDF lawyer who thinks a referral to the ICC highly improbable.

Hamas militants surround Palestinians suspected of collaborating with Israel before executing them in Gaza City, August 22, 2014. The summary executions of 21 alleged collaborators were identified in the UNHRC report as extra-judicial killings and a war crime. No Palestinian political authority has held anyone accountable. Photo from Reuters.

Will the UN’s Gaza report force change?

By IRIN / Ma’an news
June 23, 2015

JERUSALEM — A United Nations investigation accusing Israel and Palestinian armed groups of alleged war crimes in last summer’s Gaza conflict caused a stir on Monday.

The report singled out Israel for its use of explosive weapons with wide-ranging effects in heavily populated areas, and said Palestinian militants sent rockets indiscriminately into Israel.

Both Israel’s Ministry of Foreign Affairs and Hamas hit back at the Committee of Inquiry’s report immediately, with Israel calling the UN Human Rights Council (UNHRC), which commissioned the report, “a notoriously biased institution.” Hamas denied any culpability for war crimes.

So will the report — which includes details of both Israeli and Palestinian militant practices that targeted civilians — lead to real change?

The case for no

Those who argue it won’t can point to one obvious precedent.

In September 2009, a Human Rights Council fact-finding mission — headed by South African jurist Richard Goldstone — issued a report on the 2008-2009 Gaza war — accusing both Hamas and Israel of deliberately targeting civilians.

UNHRC and General Assembly endorsed the report, but the Security Council never debated the issue. As such, the case was never sent to the International Criminal Court (ICC).

Anthony Dworkin, Senior Policy Fellow at the European Council on Foreign Relations (ECFR) and an expert on war crimes said that although nothing concrete came out of the controversial Goldstone Report, “it was the first time that a kind of potentially credible international body had looked at Israel’s military standards.”
Then in 2011, Goldstone famously himself backed away from the report’s conclusion that Israel purposely targeted civilians. His former colleagues stood by their findings.

Yossi Mekelberg, Associate Fellow at the Chatham House think-tank, said Goldstone’s retraction caused “big harm,” to the reputation of UNHRC.

For many, then, this latest document is likely to be just another Goldstone Report.

Hugh Lovatt, coordinator of the European Council on Foreign Relations’ Israel/Palestine program, said: “The international community [was] not wiling to enforce these recommendations [in past reports], which leads to the undermining of international law itself.”

Chances of the report sparking change from within Israel are small as UNHRC’s reputation within the country is pretty awful.

The council has long faced accusations of anti-Israel bias — critics argue disproportionate focus has been placed on the country, and note the past prominent membership of Libyan dictator Muammar Qaddafi’s Libya.
So within Israel, many automatically dismiss the findings, according to Robbie Sabel, a law professor at Jerusalem’s Hebrew University and a former legal advisor to Israel’s team at the UN.

Israeli Prime Minister Benjamin Netanyahu’s response to the report was typical when he attacked UNHRC, saying: “The commission that wrote it is under a committee that does everything but protect human rights.”

Sabel said the council is now seen as “so biased it will be ignored by Israel,” meaning there would be “no practical results” from the report, which he called “warped.”

The case for yes

Yet for others there are reasons to be positive that the report could have an impact in a way that Goldstone’s couldn’t.

This is because in April Palestine officially became a member of the ICC in the face of opposition from the US and Israel.

The ICC has opened a preliminary examination into the situation in Palestine, the step that determines whether there is basis to continue to a full investigation, and later this week the Palestinian Authority plans to submit evidence to the court — of which Israel is not a member — on last summer’s war. After Goldstone’s report the Security Council would have been needed to ask for ICC intervention, but this is no longer necessary.

Although the report does not mention the ICC examination — aside from recommending that Israel join the court — Lovatt suggests “such a document could form the basis for further proceedings at the ICC.” A Palestinian government source told IRIN that he did not know if the report would be included in this week’s submission, but he was “sure that the ICC already has the report and they are looking into it.”

ECFR’s Dworkin said that while the report would not have a legal impact on the ICC, it may very well influence how the prosecutor goes forward. “This one additional element that will be there when the office of the prosecution decides how to proceed. In itself it wont change anything or have direct consequences but it will feed into ongoing debate and climate of opinion in which the prosecutor makes its decision.”
Sabel, however, argued the report “cannot be used as evidence at the ICC.”

Palestinian negotiator Saeb Erekat issued a statement Monday, saying Palestine would review the report. “As we begin to do so, we urge the international community to recall that the only true path to peace lies in ending the Israeli occupation that began in 1967, and in ending crime and the impunity with which it continues to be perpetrated against our people.”

For Chatham House’s Mekelberg, there is another key difference from 2009 in that the world has become increasingly frustrated with the intransigence of Netanyahu’s government. This, he said, might lead countries to push harder for change.

“I sense the change, whether it will materialize into something real I don’t know.”
Mekelberg argued that whether or not the council itself is flawed, the documentation of human rights abuses by both Hamas and Israel is useful.

“At the end of the day I think anyone that looks at what happened last year in Gaza knows there were violations… [this report] should encourage the international community to put more effort into ending this conflict otherwise there will be another round.”

UN: Possible war crimes by both sides in Gaza

Independent UN investigators find that Israel and Palestinian groups committed serious abuses during 2014 conflict.

By Al Jazeera
June 22, 2015

An independent UN commission of inquiry has found that both Israel and Palestinian groups committed serious abuses that could amount to “war crimes”.

The commission released its report on the 50-day conflict on Monday.

“The extent of the devastation and human suffering in Gaza was unprecedented and will impact generations to come,” New York Judge Mary McGowan Davis, the chair of the commission, said in a statement.

The report decried the “huge firepower” used in Gaza, with Israel launching more than 6,000 air strikes and firing 50,000 artillery shells during the 50-day operation.

“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,” the report said.
“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.

“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 civilians, which violate international humanitarian law and may amount to a war crime.”

Ghazi Hamad, deputy foreign minister, Hamas. Photo from Globe and Mail video. Denies that Hamas targetted civilians (but not that rockets were fired indiscriminately).

Gaza in ruins

The independent investigators also condemned Palestinian armed groups for executing those suspected of collaborating with Israel.

The commission, composed of chair Davis and Senegalese lawyer and human rights expert Doudou Diene, was launched a year ago at the request of the Palestinians.

“We must remember that the victims are not just numbers … they are individual people,” Davis said as she released the report in Geneva.

Al Jazeera’s James Bays, reporting from the UN headquarters in New York, said the report was “very damning” towards the Israeli government.

Al Jazeera’s Imtiaz Tyab, reporting from West Jerusalem, said that the report called on both sides to show political leadership and to cooperate with International Criminal Court investigators.

He said Israel immediately labelled the UN commission’s report as “morally flawed” and “grossly biased”.

A ceasefire last August ended 50 days of fighting between Gaza fighters and Israel.

Criticism of report

The UN has previously said that most of the 2,139 Palestinians killed in the conflict were civilians, while 66 Israeli soldiers, six Israeli civilians and one Thai national also died.

Israeli air strikes and shelling hammered the densely populated enclave dominated by the Hamas movement, causing widespread destruction of homes and schools.

Benjamin Netanyahu, Israel’s prime minister, dismissed the report as “notoriously biased”, accusing Palestinian groups of “deliberately targeting civilians, while deliberately hiding behind Palestinian civilians”.

Israel had blocked access to Gaza and other areas of the occupied territories, when the UN made the request to carry out the investigation last year.

Gaza’s Hamas rulers also rejected the report, with Ghazi Hamad, a senior official, saying that its rockets and mortars were aimed at Israeli military sites, not at civilians.

Hamad also criticised the report, for what he said was a false balance between victims and killers.

Pnina Sharvit-Baruch when a guest lecturer in International Humanitarian Law at Valaparaiso university.

Former IDF lawyer finds UN report on Gaza war ‘relatively balanced’

Pnina Sharvit-Baruch, the former head of the IDF’s Department of International Law, tells Al-Monitor in an interview that though the UN report on the Gaza war was fairly impartial, it cannot be used as the basis for a criminal indictment.

By Mazal Mualem, trans. Danny Wool, Al Monitor / Palestine Pulse
June 23, 2015

Just hours after the United Nations Human Rights Council released its findings June 22, attorney Col. (Res.) Pnina Sharvit-Baruch offered Al-Monitor this assessment: “

In terms of a criminal indictment, Israel has no reason to worry about the International Criminal Court in The Hague. The UNHRC report on Operation Protective Edge didn’t investigate the events on a criminal level, so it cannot be used as evidence. Furthermore, Israel can provide its own explanations for any claims that it presents.

Israel had been preparing itself for the release of the report for the past few days. As was expected, the report was met with harsh criticism from the right. Prime Minister Benjamin Netanyahu called for the UN Commission of Inquiry’s findings to be ignored, since the report it produced was “biased.” The chairman of HaBayit HaYehudi, Education Minister Naftali Bennett, claimed that the report had “blood on its hands.” The attacks on the report were not limited to the right. Tzipi Livni and Yair Lapid, former ministers who were members of the security Cabinet during the conflict in the south, spoke out against the UN commission’s comparison of the Israel Defence Forces (IDF) to the Hamas terrorist organization. Lapid went so far as to accuse the commission of hypocrisy, stating cynically, “We will not risk the lives of Israeli soldiers and civilians for the sake of three lawyers from the United Nations. … In the end, they accuse us of knowing how to prevent Israeli soldiers from dying, so we are not prepared to die just to please some lawyer sitting in the United Nations.”

However, most experts and other commentators disagreed with the politicians. They claimed that the report is relatively balanced, especially when compared with the Goldstone Report, written by a similar UN commission in 2009, in the wake of Operation Cast Lead in the Gaza Strip.

Despite the sigh of relief from many about the the report being relatively balanced, Israel still rejects it. Israel claims that the report was born in sin because you cannot compare Israel to Hamas, which is a murderous terror organization.

Sharvit-Baruch is now a senior researcher at the Institute for National Security Studies. In the past, she was head of the IDF’s Department of International Law. She served in that position during Operation Cast Lead and was in charge of all legal counsel pertaining to international and administrative law. In this capacity, she advised senior IDF and government figures on issues such as the laws pertaining to combat, occupation and fighting terrorism. After the release of the Goldstone Report, she came under fire from leftist organizations for her role in Operation Cast Lead, as that report accused Israel of war crimes and military assaults on civilians.

The text of her interview with Al-Monitor follows:

Al-Monitor:  Do you share the assessment that the current report is tempered and balanced, especially when compared with the Goldstone Report?

Sharvit-Baruch:  The general impression is that the members of the commission tried to be balanced. In my opinion, if William Schabas [who resigned over claims that he had ties to the Palestinian Authority] had remained the chairman of the commission, the situation would be dramatically different. He had a very clear anti-Israel agenda. I am under the impression that the report was written very cautiously, and that the materials that it contains cannot be used to prepare a criminal indictment. The report lacks the decisiveness of the Goldstone Report. The commission describes the chain of events, while leaving the question of who is to blame open. The term “war crimes” is used, but in general, the accusations are couched in very cautious terms. The impression that this is a relatively balanced report is based on a comparison to the Goldstone Report, which was disturbing in every possible way, as far as Israel was concerned. The Goldstone Report contended that Israel had an explicit intent to harm civilians.

In general, the precedent set by the Goldstone Report created the expectation that this report would be similar, which is why we say that this is really not as bad as we feared. Nevertheless, the report is very critical. While it is true that its criticism also targets Hamas, it is still impossible to ignore its criticism of Israel.

I don’t think that there was an anti-Israel agenda. Nevertheless, the commission received its mandate from the United Nations Human Rights Council, which is clearly an anti-Israeli body. As a result, this is not a positive report, as far as Israel is concerned.

How does the report treat the issue of military targets, as opposed to civilian targets?

S-B:  While the report provides detailed descriptions of the IDF’s attacks on civilian structures in Gaza, it also points out that in some instances, these were actually attacks on military targets. In six incidents, it did not find evidence of military targets, which means that the burden of proof rests with Israel. Nevertheless, it also notes that Israel cannot reveal its sources to prove that these buildings really were Hamas military targets.

 To what extent will the report damage Israel’s image?

S-B:  Any report that is critical of Israel by claiming that the Israeli government is responsible for attacks against civilians becomes a weapon in the hands of our critics. It is reasonable to assume that they will mine those quotes that are favorable to them, and as already mentioned, there is no shortage of such quotes in the report. For example, the members of the commission insinuate that the highest levels of the Israeli government were responsible for the policies that led to Israeli war crimes, and there are descriptions of firepower being used indiscriminately and disproportionately. This report will find its place in the canon of criticism against Israel. That should come as no surprise.

What about the explanations provided by some of the Israeli witnesses? Are the explanations taken into account in the report?

S-B:  The report does provide room for explanations of most of the incidents, and even goes so far as to provide some explanations of its own. Some of its criticism should certainly be studied. It is no different from the kind of criticism that any other army in a similar situation might be subjected to. All other armies use artillery. When it comes to the basic rules of warfare that apply to us, the IDF doesn’t act any differently from any other army. I am in contact with the legal counsels of various other militaries. We speak the same language, we are subject to the same rules and we face the same moral dilemmas that derive from conducting operations within a civilian population.

Was Israel mistaken when it refused to co-operate with the commission of inquiry, claiming that the report’s conclusions were known in advance?

S-B:  I believe that even if there were no formal co-operation, data was transferred in roundabout ways and there were ways to get our position across. All in all, the commission heard from Israelis. The problem is that we are talking about an investigative body that, at its core, is hostile to Israel. In my opinion, the members of the commission were subjected to external pressures, because the conclusions suddenly hint that it is IDF policy to target civilians. In general, the very idea that there is enough perspective during the fighting to change what is happening in the field is problematic. Fighting takes place in a chaotic space and has a dynamic all its own.

 As a veteran of Operation Cast Lead and the Goldstone Report, which shocked Israel with its severity, do you think that Israel learned any lessons as far as public diplomacy is concerned? Perhaps its conduct this time around (taking into account the possibility of an inquiry commission in the aftermath) caused the current report to be more balanced?

S-B:  Certainly. There were some improvements. For example, one of the lessons derived from the Goldstone Report related to documentation. When it came to that, we were very weak during Operation Cast Lead. Now that we have documentation of Hamas firing from hospitals, the entire situation changes, because it is impossible to refute that kind of evidence. That is why I believe that the matter of documentation has improved considerably since Operation Cast Lead, and that the IDF now recognizes how important it is. As for everything to do with the disproportionality of fighting in civilian territory, however, there was no dramatic shift on our part, because the distinction and the precautions we take existed then as well.

How does Israel react to the fact that the report also criticizes Hamas?

S-B:  To some degree, we are satisfied that they were critical of Hamas as well, because they usually focus on Israel and lay all the guilt on it. In this report, however, they note that Hamas fired over 4,800 rockets and 1,700 mortar rounds at Israel, causing injury and death to Israeli civilians. Then, of course, the commission gave the number of Palestinians who were hurt, including over 700 civilian casualties. Even if the accusations that we engaged in premeditated attacks on civilian targets have no real basis in fact, there is not much we can do about them.

Our efforts to convince anyone that we are the victim are destined for failure. That is frustrating and hard to take. It is very difficult to relay the sense of threat faced by Israelis as a result of being subjected to rocket fire, especially to people who do not really understand what war is like. By the way, from my experiences, when we speak to the Serbs, for instance, they are quick to understand our position. In the end, however, there is nothing to be done about it. A photograph showing a [Palestinian] rocket with a plume of smoke rising to the sky [as it is destroyed by Israel’s air defence system] does not have the same impact as photos of children’s bodies.