International law is equally applicable to both Israel and Palestinian armed groups, Mary McGowan Davis told the UN Human Rights Council in Geneva on Monday as she presented a report that said the IDF and Hamas may have committed war crimes last summer.
“Many complained about objectivity and equivalence that the Commission of Inquiry [the Gaza probe] seems to have given to both sides in the conflict,” McGowan Davis said.
The American jurist headed the two-person fact-finding mission that authored a 500- page report on last summer’s war between Gaza and Hamas.
Israel had charged that the report created an erroneous equivalence between the IDF, which was defending the country from indiscriminate rocket fire from Gaza, and terrorist groups that fire at civilian areas in Israel from hospitals, schools and mosques.
McGowan Davis, however, said neither she nor her co-author, Senegalese legal expert Doudou Diène, had personally made that equivalence.
“This is the law that treats the parties in the same manner, the same standing,” said McGowan Davis, who is a former NY Supreme Court judge.
The probe’s mandate was to apply the laws of war, including the principles of distinction, disproportionate force and prevention, she said.
“Those policies apply equally to all the combatants.”
That is the reason for the apparent evenhandedness that brought complaints from both sides,” McGowan Davis said.
She noted that the International Criminal Court was conducting a preliminary examination to see if the situation in the Palestinian territories met the criteria for the ICC’s involvement.
It’s the first preliminary step necessary for the court to take up war crimes charges against Israelis.
“Our recommendation to the council and the international community is to cooperate with whatever the demands are of that preliminary investigation,” she said.
“We will see what the preliminary examination will lead to,” she added.
McGowan Davis also welcomed the news that the Palestinian Authority was creating an investigatory body to examine its own violations of human rights.
In her report, she and Diène had complained about the PA’s lack of such internal investigations. She told the council that Israel, in contrast, had conducted internal investigations, though she found them wanting.
The IDF has not changed policy since last summer, even though it was clear many civilians were killed during its attacks in Gaza, she said.
“Indeed, the fact that there appears not to have been a change in policy or tactics despite substantial 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,” she said.
McGowan Davis also charged the Palestinian armed groups with war crimes for its extrajudicial killings and with possible war crimes for its indiscriminate rocket attacks against Israel.
“Palestinian armed groups regularly conducted operations from densely populated areas and, in some cases, fired mortars from specially protected buildings. These actions by Palestinian armed groups increased the risk to the civilian population and civilian objects in Gaza,” McGowan Davis said.
“In some cases, rockets fired by armed groups fell short, resulting in deaths and wounding of civilians in Gaza. The questionable conduct of these armed groups does not, however, modify Israel’s own obligations to abide by international law,” she said.
PLO Ambassador to the UN Ibrahim Khraishi complained to the UNHRC that the report failed to charge Israel with crimes against humanity.
Israel, he said, “continues to act with impunity” and will do so until it is held accountable for its actions.
Israel did not participate in the debate, both because it believes the report is biased and because it objects in general to Agenda Item 7, under which the report was presented.
Outside the UNHRC, pro-Israeli activists rallied against the report.
Nongovernmental organizations such as UN Watch and NGO Monitor held panel discussion with experts who testified that Israel upheld international law during the debate.
The UNHRC devotes Agenda Item 7 to Israel at each of its sessions. Israel is the only country that the UNHRC is mandated to debate at each session.
The UNHRC is expected to propose on Tuesday a resolution regarding the report, which will be voted on at the end of the week, as it completes its 29th session.
In the 50-day war last year, more than 2,100 Palestinians were killed, mostly civilians. Israel put the number of its dead at 67 soldiers and six civilians.Reuters contributed to this report.