As June 29, the day when the UN is expected to issue its delayed report on alleged war crimes during the summer war in Gaza approaches, every opinion on the issue could impact how the International Criminal Court treats the issues.
The defining issue, which will likely make or break whether the ICC prosecutor moves from the current preliminary examination to a full criminal investigation is whether it views the IDF’s targeting principles and investigations of its own soldiers as reasonable.
Into this context, the report by leading law of armed conflict expert Michael Schmitt as well as US Army Maj. (and lawyer) John Merriam, which reflects positively on Israel’s targeting principles after getting unprecedented insider access, could have a significant impact.
The report accepts Israel’s central narratives on a range of key issues, which influence the prism of how each potential war crimes incident is perceived, including: focusing on individual incidents versus the raw volume of 2,100 Palestinian civilian deaths, taking into account Israeli civilians feeling uniquely threatened by rocket attacks and their aversion to soldier-casualties since the IDF is a conscript force, taking into account Israelis’ aversion to soldier kidnappings because of past strategic consequences and acknowledging the IDF’s unusually precise intelligence because of its proximity to its adversary.
All of these points color how one views incidents that could be seen as accidental or deliberate mistakes and incidents where intelligence was imperfect, leading to civilian casualties as being legal tragedies in the fog of war or based on overzealousness.
The report also takes the IDF’s side or respectfully disagrees with the IDF, treating it as having a reasonable position on a variety of tactical scenarios where its positions are not accepted by human rights groups and will be in play before the ICC.
It says that Hamas police forces and media can be attacked in certain circumstances, though many human rights critics disagree.
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Factories that produce cement supports, which can only be used for stabilizing Hamas tunnels are also considered targetable in the report, though that too is contested.
Other debated positions in the report include targeting the financing apparatus of an adversary’s war-making, with a split between the report’s authors on what level of evidence needs to directly connect an area of financing to a specific attack, but the report clearly gives the IDF room to target some Hamas financing areas.
On the cutting-edge issue of defining some “voluntary human shields” as direct participants in hostilities instead of as civilians, the report endorses the Israeli position as consistent with the US perspective and mentions that the IDF does not declare civilians direct participants simply because they unreasonably ignore warnings (if they are not deliberately being human shields.) Further, the report endorses the IDF’s controversial roof-knocking tactic, in which it fires a non-exploding missile at a roof to scare the civilians out of a building (often after they have ignored telephone warnings) before attacking with a bomb, as “far exceeding” what is legally required.
It calls criticism of this tactic “counter-factual and counter-normative” since the buildings are already “converted” into military targets because Hamas fighters are using them and other warnings did not work.
In certain areas, the report even goes beyond the IDF’s on-record positions. One example is where the IDF would not express an opinion on whether individuals transporting weapons through tunnels from Egypt into Gaza are targetable (as opposed to those moving weapons around within Gaza tunnels or those who are using the weapons), but the report says such persons would be targetable.
On the major point of how much doubt is acceptable regarding intelligence of whether civilians have evacuated an area, the report accepts the IDF’s standard – a key point since in many of the worst incidents, IDF intelligence failed, though the IDF argues the failures were inevitable byproducts of the heat of battle.
Where the report disagrees with the IDF or suggests changes, it is still with respect.
One of the report’s authors says the IDF must use precision weapons to surgically target only that part of multi-floor building where Hamas is present since it has that capability.
The other author and the IDF say the IDF may choose such a conservative strategy out of legitimacy concerns above the law, but can legally target the whole building.
The report also questions why the IDF does not have embedded legal advisers in its forward ground command attack units as the US does and as the IDF does for the air force and at the higher command levels.
It also somewhat questions the degree of aversion to soldier casualties and how much the threat to civilians from rocket attacks should be taken into military necessity calculations when the Iron Dome air defense system protected Israeli civilians almost perfectly.
But it does not declare these issues violations.
Maybe the key line in the report is a rejection of some criticism of the IDF because the alternative position would “quite simply be illogical in light of the reality of the conflicts Israel faces.”
Human rights critics tend to downplay at least some aspects of the IDF’s realities in fighting Hamas with answers such as that it is not their job to figure out how to fight Hamas, only how to protect civilians.
If the ICC takes the same approach, then the IDF may be in deep trouble, especially if it does not file indictments in some of the incidents where multiple Palestinian civilians (some in the dozens) died.
But if the ICC takes or is influenced by the Schmitt approach, an approach which gained far greater access to the IDF than the IDF’s critics have had, it will be hard to justify getting more deeply involved in the Israeli-Palestinian conflict.
In any event, the Schmitt report could further shift US legal opinion in the IDF’s favor, which will impact whether the ICC wants to gamble on such an explosive area.
The fact that the report happened shows the positive potential impacts when the IDF lifts its veil of secrecy.
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