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Analysis: UN statements on Gaza op show balance
By YONAH JEREMY BOB
11/22/2012
Declaring IAF strikes "war crimes" a complex issue and depend on closeness of sites to military targets.
 
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.

Next, Colville 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 damaged.

In the past, one would expect a clear condemnation that these Israeli actions, according to the UN, had violated international law.

But 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 complex issue.”

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 win.

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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 on.

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.

First, legally “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” legally.

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.

The Goldstone Report on Operation Cast Lead sometimes stated that civilians had nowhere to run to even if they wanted to evacuate an area.

That assertion 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 escalation.”

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 conflict.

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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