Explosion in Gaza City.
In last week’s session, the UN Human Rights Council adopted yet another slew of
Israel-bashing resolutions, one of which urges that the UN Security Council refer
the “situation in the Occupied Territories” to the International Criminal Court.
This comes after the second of two “Committees of Experts” appointed by the
UNHRC submitted its report on Israel’s and the Palestinians’ investigations into
allegations of war crimes and crimes against humanity contained in the UNHRC’s
Fact Finding Mission Report (the Goldstone Report). What was predictably
overlooked in the Council’s rush to denigrate Israel was the fact that in
substantive (rather than quantitative) terms, the reports compiled by the
Committees contain much more in the way of vindication of Israel’s legal
processes than criticism.
First, the reports accept that, in principle,
it is legitimate that allegations of misconduct of military personnel are
investigated by military authorities. This runs counter to the popular claim
that the military is incapable of investigating itself.
reports acknowledge that there are built-in structural guarantees to ensure the
professional independence of the IDF’s Military Advocate General’s
On top of this, the fact that both the attorneygeneral and the
Supreme Court exercise civilian oversight of the military legal apparatus and
that any interested party can petition the Supreme Court to overturn a decision
of the military authorities is described as “a commendable mechanism to protect
The reports also make mention of the “commendable
practice” whereby Palestinians can file claims for compensation in
MOREOVER, THE reports acknowledge that Israel “has dedicated
significant resources to investigate over 400 allegations of operational
misconduct in Gaza. Given the scale of this undertaking, it is unsurprising that
in 2011 much remains to be accomplished.”
Of particular note is the fact
that the second Committee’s report views the mechanism of the Turkel Commission
as an appropriate framework to investigate questions of policy and the actions
of high-level decision makers. Here it should be recalled that not only did the
Turkel Commission vindicate the actions of the IDF in the Gaza flotilla affair,
but the same body is currently examining whether Israel’s system of
investigating violations of international law by its own personnel conforms to
international standards. This can be taken to mean that, in the Committee’s
view, the findings of the Turkel Commission on this matter should carry
considerable weight for those entrusted with determining whether Israel has
adequately investigated allegations made in the Goldstone Report.
should be noted that the report’s conclusions were reached in the absence of
cooperation by Israeli authorities, a fact lamented by the Committees, which
relied on NGOs and materials available in the public domain.
the reports also contain criticism of the Israeli investigation process.
However, the primary criticism hinges on a point which the Committees themselves
concede to be debatable.
They make much weather of the fact that the
military advocate general fulfills the dual function of both chief legal adviser
to the IDF as well as chief prosecuting authority. They argue that this might
impact on his impartiality, but at the same time concede that this “does not
automatically lead to a conflict of interests or lack of
The Committees also see a major shortcoming in that Israel
has not appointed an independent body, such as the Turkel Commission, to
investigate the actions of those who “designed, planned, ordered and oversaw”
Operation Cast Lead. Of course, this would be necessary if one seriously
believed the outrageous accusation (à la Richard Goldstone) that Israel had a
policy of systematically and deliberately attacking the civilian population and
While the reports also devote an inordinate amount of
their text to nitpicking at the minutia of individual Israeli investigations,
this has the effect of reinforcing the serious and sophisticated nature of the
Israeli efforts. Furthermore, the juxtaposition of the Committees’
treatment of Israeli investigations along with its treatment of the
“investigations” being conducted by those who are termed “the de-facto rulers of
Gaza” – where there is clearly nothing to nitpick at – only serves to highlight
the absence of any intention by Hamas to address the deliberate and
indiscriminate launching of missiles at Israeli civilians. Notably, the second
report also places a focus on the lack of redress for the Israeli victims of the
In short, the big picture that emerges from the reports is of a
sophisticated, independent and concerted investigation process on the Israeli
side. Fair-minded people would have difficulty squaring this picture with the
vindictive demand to haul Israelis before the International Criminal Court.
Regrettably, when it comes to Israel, fairness has never been the strong suit of
the Human Rights Council.The writer is an international law consultant
and a former senior legal adviser to the IDF.
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