Nobody expects UN statements about Israel and international law during a
conflict to be complimentary.
But so far the statements, with some
exceptions, have been surprisingly balanced and have not created any new legal
problems for Israel.
Rupert Colville, spokesman for Navi Pillay, the UN
High Commissioner for Human Rights, refrained on Tuesday from condemning Israel
for violating international law, while raising questions about its compliance.
Colville started by reminding Israel to take precautions and all possible
measures to avoid hitting civilians and civilian property.
cited UN statistics that 57 Palestinian civilians have been killed and 31
residences as well as schools, religious sites and two media buildings have been
In the past, one would expect a clear condemnation that these
Israeli actions, according to the UN, had violated international law.
Colville’s next statement continued: “As to whether these would be war crimes,
that would depend very much on the circumstances of each individual episode as
to whether there was a valid [military] target nearby or not, but that’s a very
In one sentence, Colville adopted Israel’s main legal
talking points, which arose particularly during the legal battles that ensued
after Operation Cast Lead in 2009.
Those points are that when analyzing a
controversial legal war-related issue, the conclusion must depend on the
circumstances of each individual episode, the presence of a valid military
target and that the analysis is complex.
Analyzing each attack separately
with the understanding that if there was a military target nearby, the strike
won’t be declared illegal, is a legal battle that Israel can
Colville’s acknowledgment that one can’t make across-the-board
general statements about war crimes just because civilians have died and
civilian property damaged was also important, recognizing that analyzing each
attack in the foggy circumstances of war is a complex challenge that does not
allow for rushing to judgment.
Israel tends to lose legal battles that
are decided in the public sphere by rushed first impressions and tends to
(lately) win many battles where commissions meticulously and over time review
the facts on the ground.
Colville also unequivocally condemned
“indiscriminate rocket attacks” against “civilians in Israel,” leaving no doubt
that Hamas’s actions have no legal justification to fall back
Colville then noted with doubt Israel’s claim that it is doing all it
can to protect civilians, saying that there are “a lot” of civilian casualties
and that Jerusalem’s claim as to whether it is following the “principle of
precaution” would “need further examination.”
But if Colville contends
that Israel is not doing enough to protect civilians, he will need to provide
better evidence than that “a lot” of civilians have died.
“a lot” of casualties is undefined in international law. The total number of
civilian deaths in a war may be highly relevant morally and for public
relations, but legally it essentially has no status.
Beyond that, until
new information arises, it may be hard for the UN to argue convincingly that 57
deaths out of around 120 killed (meaning more than half were combatants) and out
of more than 1,300 air strikes could be called “a lot” or “excessive”
The ratios of civilian deaths to combatants that have been
reported in most recent wars have been much worse.
Colville would also
need to offer specific evidence or find in a later “examination” evidence of a
lack of precaution on Israel’s side to avoid civilian deaths.
The IDF has
reported dropping leaflets, making telephone calls, executing warning shots or
intentional misses of targets and using many precisionguided weapons to warn
civilians to leave areas about to be attacked and reduce casualties.
Goldstone Report on Operation Cast Lead sometimes stated that civilians had
nowhere to run to even if they wanted to evacuate an area.
was debatable even then, but so far, unlike in Operation Cast Lead, there has
been no ground fighting. A primary reason the Goldstone Report cited for not
being able to evacuate was nearby ground fighting.
So the UN would need
to show a danger other than nearby ground fighting that prevented evacuation
prior to the time of the attack.
Finally, UN Secretary-General Ban Ki-moon
said on Tuesday that an Israeli ground invasion would be “a dangerous
Foreign Minister Avigdor Liberman and others have responded
to this statement, but the fact is that at the end of the day, Ki-Moon’s
statement has no legal status and constitutes no legal warning. At most it is
his own diplomatic opinion that he is trying to use to pressure Israel to make a
political decision not to attack.
The IDF would say that whether to move
forward with a ground invasion or not is entirely a political-security decision
with no legal obstacle, since Israel and Hamas are in an ongoing state of armed
If Israel undertakes or undertook a ground operation, each
attack in the operation would then be evaluated for its legality and no legal
claim exists or could be brought against it just for “escalating.”
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