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"The Gaza Offensive and Ending Israel’s Legal Impunity" by Will Youmans

Thursday, May 7, 2009

Palestine Center Brief No. 176

By Will Youmans

Overview

The announcement by the United Nations Human Rights Council (UNHRC) of the formation of a fact-finding mission to investigate alleged war crimes during the Israeli offensive in the Gaza Strip from 27 December 2008 to 18 January 2009 is both warranted and necessary to establish the facts and to determine if international legal transgressions occurred. The team of investigators, which includes two notable jurists, a military specialist and an international legal scholar, is meeting in Geneva this week before beginning their fact-finding mission next week.

Israel previously refused to cooperate with the panel of jurists tasked with the investigation.¹ UN Spokesman Rolando Gomez reported this week that the team was assured by Israeli and Palestinian authorities that the mission can proceed, a notable departure from previous Israeli obstruction of two investigations into Gaza.² The extent of cooperation by Hamas and Israel will be seen in the coming weeks. It was reported that Israel was comforted that the eminent South African judge and former International War Crimes Prosecutor Richard Goldstone, the team's head, would be fair and impartial. Goldstone, a trustee of Hebrew University, has been described in the Jewish press as a "Jewish South African with close ties to Israel."³

International and regional human rights groups helped push for broad cooperation. Human Rights Watch and Amnesty International lobbied the U.S. and the EU to pressure Israel to cooperate.⁴ Ten Israeli human rights organizations called "for an external, extra-military investigation and called on Israel to cooperate with the United Nations investigation," according to the BBC.⁵

Beyond fact-finding, the inquiry, or international institutions, should contemplate and propose mechanisms that would enforce accountability, such as an internationally-mandated tribunal or other means of giving actionable substance to its findings. However, political obstacles--namely the American government's interest in re-establishing peace talks--will block most effective measures of accountability; international legal enforcement is often seen as a threat to, rather than a basis of, peace negotiations. The American effort to bring about Israeli acceptance of the two-state solution means it will maintain its diplomatic protection of the country for the fear that ostracizing the country will encourage its disengagement. This strategy has proven to be faulty.

Its impunity has only engendered more extreme Israeli violations of international law--from settlement construction, to land appropriations, to extra-legal assassinations and mass collective punishment. International institutions that the United States supports could better encourage Israeli compliance with international norms, which is consistent with dominant prescriptions for peace. In other words, it is vital to re-establish the domain of international law if there is to be movement towards a peace that comports with relevant UN resolutions, such as UN Security Council Resolution 242.

This all depends on a credible, legitimate investigation. While the team is going to consider violations committed both by Hamas and Israel, war crimes by one party are not a defense for war crimes by another. This will present the international community with an interesting array of choices, but only if the world powers do not continue to prioritize the political track over international law. This information brief overviews the investigation and applicable international law, highlights a few areas of Israeli transgressions and analyzes the need for accountability.

The Investigation

The appointment of the eminent jurist, South African Judge Richard Goldstone, who was the chief UN prosecutor for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, came after a widespread call for the United Nations to take seriously the allegations about, as well as the applicability of international law to, Israel's actions in Gaza. In March, Judge Goldstone himself signed on to a letter with fifteen other prominent individuals and Amnesty International calling for an "investigation of gross violations of the laws of war, committed by all parties to the Gaza conflict."⁶

Although the 47-member UN Human Rights Council voted overwhelmingly to arrange an inquiry into "grave" human rights violations on January 12, putting together an actual inquiry proved difficult. Israel and its allies opposed the resolution as one-sided.

The inquiry will look into possible war crimes committed by Hamas and other Palestinian parties that intentionally targeted civilians. The UN Human Rights Council President Martin Uhomoibhi said the fact-finding mission would deal "with all violations."⁷ Goldstone will take a broader view and argued that such an inquiry is necessary. He said, "[i]t is in the interest of all Palestinians and Israelis that the allegations of war crimes and serious human rights violations related to the recent conflict on all sides be investigated."⁸

Critics doubt Israel will be held accountable. They can point to international inaction following the International Court of Justice's 2004 advisory opinion on the wall Israel is constructing in the West Bank. Israel's flaunting of the ICJ opinion challenged directly the reach of international law and the United States acquiesced. More recently, a senior Israeli foreign ministry official indicated Israel would deny the four-person delegation's entrance into the country.⁹ Israel has turned back other UN personnel, such as UN Special Rapporteur for the Occupied Territories, Richard Falk, late last year. It also refused to cooperate with an earlier UN mission in Beit Hanoun led by the South African Archbishop Desmond Tutu.¹⁰ Again, American complicity enabled this.

Israel conducted its own investigations into its military's conduct and found it free of wrongdoing.¹¹ This does not preclude the Goldstone investigation. Legally, it may not prevent other countries from invoking universal jurisdiction as the basis for trying Israeli officials for war crimes in the future. Recently, a Spanish judge ruled that its National Court could investigate Israel for a potential "crime against humanity" for a 2002 bombing in Gaza. To assassinate suspected Hamas commander, Salah Shehadeh, Israel bombed his building, killing 15 people and wounding 150 others. The judge who gave the case a green light rejected objections that Israel's internal investigation preempts a third country from examining the case. The judge wrote, "Israel judicial authorities have not begun any criminal proceeding to determine if the events could lead to some type of penal responsibility."¹²

How the international community and the United States, especially, react to the Goldstone findings may indicate whether Israel continues to enjoy impunity from international law. Hamas, which is already sanctioned by the world's powers, may prove to be as deserving of repercussions as Israel is; but the party has not enjoyed the historic immunity Israel has.

The Investigation and International Law

The investigation should look into whether Israel met its obligations under international law. There are two prevailing legal questions that should be considered. First, did the Israeli attack contravene international law itself? Second, did Israel's conduct violate any of the established laws of war?

This inquiry must examine whether Israel was in compliance with the United Nations' Charter. It says recourse to force can only be in self-defense and as a last resort after exhausting all other remedies. Other international humanitarian laws can apply to peacetime behaviors, such as Israel's embargo of the Gaza Strip. One source of such law is the London Agreement. It outlined punishable crimes in the planning of war for the purpose of the Nuremberg Tribunals. Therefore, "crimes against the peace" are also considered part of customary international law.

The laws of war are established by the four Geneva Conventions and the two protocols (Israel is party to the former but not the latter). The Fourth Geneva Convention, for instance, provides for numerous protections civilians must enjoy in times of war and under any military occupation by a foreign power. Article 3 expressly forbids violence to life and person, hostage-taking, outrages upon personal dignity and denying people certain aspects of fair trials. Articles 13 to 26 also lay out the obligations of belligerent parties towards civilians of the country under attack.

A National Lawyers Guild delegation to Gaza issued a detailed report suggesting violations of the following international legal principles emanating from treaties and custom: the principle of distinction, meaning attacks should distinguish between military and civilian targets; the principle of proportionality, which says the attacks should be proportionate to the ends sought; and the obligation to provide medical care as well as the prohibition on attacking medical facilities and personnel, inter alia. The NLG study is based on a delegation to Gaza that detailed first-hand evidence of Israeli violations. The study concludes that an expert inquiry is necessary for a more conclusive investigation.¹³

In the months since the cessation of the attack, numerous allegations of Israeli misconduct emerged. An impartial, fact-finding investigation is justified by the gravity of the allegations, the high proportion of civilian casualties and the failure of the Israeli government to seriously investigate them. Also, not every violation is a war crime. Ultimately, criminal intent will need to be established, as only grave breaches can be prosecuted.

Israel’s legal position invokes Article 51 of the United Nations charter, which gives states the right to military action in the name of self-defense. The investigation will need to evaluate the merit of this claim.

Despite Israel's opposition to the investigation, the international community's credibility depends on decisive action. There are too many documented instances that could constitute prima facie violations, potential grave breaches, for the international body to avoid a full investigation with the serious intent to prosecute.

Allegations of Israeli Transgressions

The fact-finding mission will be looking into a conflict that left behind a considerable number of civilians. According to the Israeli military's estimates, they killed 1,166 Palestinians, 709 (60 percent) of whom were "terror operatives." If the remaining 40 percent were civilians, this implies a 3 to 2 ratio of militant to civilian deaths. While there is no numerical trigger, such a proportion should necessarily raise questions into the extent by which the military avoided civilian casualties. Richard Falk, relayed different estimates in a report to the UN General Assembly: Of the 1,434 Palestinians killed, 960 (67 percent) were civilians, including 121 women and 288 children. The United Nations News Service reports that Israel "left at least 1,300 Palestinians dead and some 5,300 injured."¹⁵

1) Proportionality, Distinction and Targeting Civilians

In a New York Times op-ed, George Bisharat outlined six possible areas of war crimes.¹⁶ He argued that Israel deliberately attacked civilian targets. This is only permissible when it makes "an effective contribution to military action." Israeli military officials described a strategy of a generalized attack on non-military institutions. One general said, "We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings." Israeli military spokeswoman, Maj. Avital Leibovich, declared "anything affiliated with Hamas" as "a legitimate target."

Bisharat listed sites the Israeli military destroyed or damaged: "mosques, hospitals, factories, schools, a key sewage plant, institutions like the parliament, the main ministries, the central prison and police stations, and thousands of houses." This calls into question whether Israel properly distinguished between military and non-military targets.

While Palestinian accounts are bountiful, the release of soldier's testimonies made such an inquiry requisite. A leading Israeli newspaper, Ha'aretz, published the personal stories of a group of Israeli fighters who graduated from the Yitzhak Rabin pre-military preparatory course at Oranim Academic College in Tivon.¹⁷ In summary, the report announced, "Israeli forces killed Palestinian civilians under permissive rules of engagement and intentionally destroyed their property." An Israeli military investigation closed on the subject, finding no criminal activities and dismissing the soldiers' stories in the news reports as "hearsay."¹⁸

There is more evidence of broad destruction of residential areas. The International Committee of the Red Cross (ICRC) released videos exposing the extent of the damage. According to the ICRC, patches of the Gaza Strip "were wiped out, leaving the people who lived there without homes." They found that "10,000 houses have been partially or completely ruined because of the Israeli operation."¹⁹

2) Targeting Medical Workers and Police

There is also strong evidence that Israel directly targeted specially protected classes of persons, medical workers and police. A team of five international medical experts sponsored by the Israeli branch of Physicians for Human Rights and the Palestinian Medical Relief Society interviewed 44 civilians and health workers in Gaza. Their report presents evidence that Israeli troops attacked Palestinian medical workers to prevent them from helping wounded people. The team gathered "individual cases in which soldiers had been within seeing, hearing and speaking distance of their victims for significant stretches of time" and had "denied wounded people access to lifesaving medical care, or even shot at civilians at short range."²⁰

This corroborated earlier ICRC accusations that Israel intentionally delayed ambulances and denied them safe access in at least one instance. In a statement, ICRC said it believes "the Israeli military failed to meet its obligation under international humanitarian law to care for and evacuated the wounded."²¹ However, Dominik Stillhart, ICRC deputy director of operations, said this was for the International Criminal Court (ICC), not the ICRC, to adjudicate. The ICC, however, lacks jurisdiction since Israel is not a ratified signatory to the Rome Statute. The ICC could gain jurisdiction if the case were referred by the UN Security Council. Without a proper, formal and fair investigation, it is impossible for any such case to proceed.

Professor John Dugard, the former UN special rapporteur on human rights in the Occupied Palestinian Territory and visiting distinguished professor of law at Duke University, spoke recently at the Palestine Center.²² He described the "opening salvo," in which Israel killed fifteen policemen as a potential transgression of international law. He said, "Israelis view policemen as militants whereas in fact policemen are, under international law, classified as civilians." Professor Dugard has visited the Gaza Strip twice each year since 2001 and previously "witnessed evidence of horrendous bombings and killings and house destructions." "But," he added, "the most recent attack surpassed all the others."

3) Attack Justified?

For Falk, the questions of proportionality and distinction are not central. His report states, "Recourse to force was not legally justified given the circumstances and diplomatic alternatives available, and was potentially a crime against peace." Similarly, the high rate of civilians suggests Israel either disregarded, or never considered, whether proper distinction between civilian and military targets was even possible. Without the possibility of distinction, the attack was legally dubious from the start. Also, he raises the question of whether Israel was truly acting in self-defense. He cited Hamas efforts to procure a new truce as well as Israeli provocations during the truce period as evidence that Israel may have not been. Another question is whether it faced "imminent" attack and exhausted all its non-violent options.

Falk also suggested that by denying Palestinians the right to flee Gaza and bombarding the tiny strip, Israel committed an "unprecedented belligerent" move. In light of the difficulty Israel had distinguishing between military and civilian targets, this resulted in a high degree of civilian casualties. Though international law has not conceived of such an offense, the panel should evaluate it as a possible breach of other norms.

The UN team must also consider Israeli policies since the offensive ended as well. Prior to the hostilities, during and since, Israel has maintained a blockade of Gaza. By systematically denying food and medicines to the civilians, Israel is undermining prohibitions against collective punishment, such as Article 33 of the Fourth Geneva Convention.²³ The embargo banned such staples as lentils, tea and pasta, as noted by two American Congressmen who visited Gaza.²⁴ Falk named the embargo as a "massive violation of the Fourth Geneva Convention."

Accountability

Special Rapporteur Falk proposed an empowered expert inquiry, rather than a mere investigation. Beyond the scope, he argued the panel should consider the applicability of the ad hoc tribunals in the former Yugoslavia and Rwanda, especially the jurisprudence they relied upon to examine and prosecute war crimes and crimes against humanity in those respective sites. Ultimately, he argues, the "most efficient mechanism for assessing accountability would be to establish, under the authority of the Security Council, an ad hoc criminal tribunal for occupied Gaza."

The National Lawyers Guild report suggested something similar:

The United Nations to establish a commission of inquiry mandated to conduct a comprehensive and independent investigation into the gross violations of international humanitarian law reported herein and to issue recommendations for the establishment of an International Criminal Tribunal for Israel (ICTI) as a 'subsidiary organ' under U.N. Charter Article 22 to prosecute Israel's top generals and other military and political leaders for gross violations of the law.

Accountability should not be a controversial expectation. However, given the political ramifications and power of Israel and the states granting it support, it will be very unlikely to lead to anything more than the investigation it is mandated with. That has become a consensus position of sorts, even if it falls below the standards of international law. One critic who accused Falk of downplaying Israel's self-defense argument still agreed that it "should be investigated thoroughly."²⁵

Conclusion: Credibility, American Policy and the United Nations

UN Human Rights Council President Martin Uhomoibhi elaborated on the rationale for the inquiry. "The ultimate purpose of the council," he said, "will not be served if that mandate does not allow for the establishment of an independent and impartial fact-finding mission…that would gain the credibility of all sides." Given the United Nations' role as the leading institution embodying international law, there are simply too many serious allegations of war crimes and crimes against humanity to not investigate. However, the record already suggests that more than an investigation is needed.

Weakening international regimes is ultimately at odds with the United States' agenda of a two-state solution since it, and its long-term credibility, are rooted in international law. This means a serious system of accountability must be considered if the facts prompt its establishment. Yet, the international rule of law will likely be subordinated to the potential for an Israeli engagement in peace negotiations.

Such investigations face a difficult paradox. An actual mechanism of accountability is likely required for the undertaking to be seen as credible. Given the trend of prioritizing peace processes over international law application, it is unlikely the powerful states will risk Israeli engagement at the negotiating table for the sake of the integrity of international law. Even in the face of international sanctions, Israel would effectively hold hostage the prospects of a negotiated peace since punishing Israel is nearly unimaginable in American politics. The United States is eager enough for negotiations that it would acquiesce to Israeli legal intransigence. Recent proposals by Israeli leaders, such as Defense Minister Ehud Barak, suggest Israeli re-engagement will be full of qualifications and pre-conditions as to render an agreement unlikely, yet possible enough to pursue.²⁶ The American strategy of taming international law to the benefit of Israel shields it from a credible source of pressure.

There is a related paradox. The forces and pressures at work, as well as the history of such inquiries, suggest the investigation will have the teeth of a paper tiger. Yet, the text of the findings must be true to the facts. The end result is usually a disproportionate testament to Israeli impunity: strong findings combined with punitive inaction. This puts the institutions of international law in an awkward position vis-à-vis an international community and observers expecting more. International institutions end up as marginal forces in the cause of peace, as they are effectively blocked by the United States in the name of a non-existent process.

As enthusiastic as many are for a renewed American commitment to the two-state solution, its efforts to shield Israel from international law will undermine its own agenda. Israeli impunity will shield it from international norms. Peace will rest on an American power subject to its own internal whims and politically fluid regional goals. In short, the United States is strong enough to block the international community but is too interested to construct a credible process rooted in international law. Strengthening the hand of the international community will ultimately best serve the interests of peace. This means allowing for international, coordinated action to push Israeli compliance.

Will Youmans is a former Palestine Center fellow.

The views expressed in this information brief are those of the author and do not necessarily reflect those of The Jerusalem Fund.

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