Israel came out of its first major round of UN reports on alleged war crimes during the summer 2014 Gaza War bruised, but likely far better than might have been publicly expected.
Of the seven IDF attack-incidents reviewed in UN Secretary General’s Ban Ki-Moon’s Board of Inquiry, three lead to multiple Palestinian deaths, in total killing 44 (as of now presumed civilians), while others led to injuring 277.
While Ban condemned the deaths in the harshest language and laid responsibility for the incidents at Israel’s feet, the report did not accuse Israel of war crimes.
Part of that relates to the BOI’s function more as a fact-finding mechanism suggesting strategic lesson to be learned as opposed to offering legal conclusions.
In contrast, the next UN round, the UN Human Rights Council report expected to be released on June 29, may have harsher legal conclusions, both because the UNHRC takes a harsher stance with Israel in general and because it is much more of a legal report.
But part of the not mentioning war crimes was Ban’s respecting (so far) IDF investigations in rooting out any illegalities, with him repeatedly citing those investigations as the next step to keep an eye on.
In the incident most likely to lead to indictments of IDF soldiers by the IDF prosecution, 12-14 died and 93 were injured. The IDF had already announced a criminal investigation of this incident in September 2014.
Still, the UN narrative recognizes that the IDF issued warnings and that 80-90% of civilians had in fact evacuated. If the IDF soldiers involved claim they thought the warnings had been heeded they might have a criminal defense, even if they might face disciplinary action for loose judgment.
Also, the IDF claimed that there was rocket fire emanating from areas around the school.
Though the UN interviews of people in the area yielded the view that rockets were not fired from nearby, there is always a debate as to whether Palestinian civilians always see Hamas’ fighters, who move around fast, and even if they do, if they are intimidated into pretending they do not.
The UN implicitly admits this in another section of the report where it discusses three UNRWA facilities where Gaza fighters illegally kept weapons and two facilities where it essentially admitted fighters had used the facilities as stations to fire rockets.
Discussing the hidden weapons, it admits that they were missed in UNRWA inspections and in each case the weapons were completely or partially removed without UNRWA noticing the removal until it was completed.
From the report, it appears that rocket attacks and hiding and removing weapons was likely accomplished at the UN facilities through a combination of what Ban himself called weak security and inspection procedures and from UNRWA hiring around 900 local Palestinian temp-security personnel.
These personnel may have missed security breaches either because they were underpaid (which Ban criticizes) and did their duties poorly or because they were mass-hired fast without proper vetting and included Hamas sympathizers or double-agents.
If the IDF determines that firing at the rocket firers, including the school, was a military necessity and a military object, the soldiers again might have a criminal defense and might only face disciplinary proceedings.
For the soldiers to be indicted and convicted, IDF prosecutors would need to prove beyond a reasonable doubt that the school was not a military object or that the attack blatantly failed the proportionality test regarding the expected risk to civilians.
They would also need to prove that the soldiers fired on it or close to it despite excessive risk to civilians out of illegal considerations like anger or otherwise disregarding the law of armed conflict.
If the IDF does not have a detailed explanation of why the attack was proportional, this, in the worst case, could be a fault-line where the UN could press for ICC intervention.
In another deadly incident, the IDF admitted the UN was hit, but said the UN was not the target. While the IDF is investigating, that means that the attack was likely a misfire.
If so, the two likely scenarios are no consequences at all for the IDF soldiers involved if the misfire is viewed as solely technical, or disciplinary actions if they violated or were sloppy about the rules of engagement and thereby contributed to the misfire.
The third incident is the least likely to have criminal charges though disciplinary charges are possible.
It appears that the Palestinian civilian deaths in the UN facility were caused by an IDF missile attack on three Islamic Jihad members on motorcycle, with the impact on the Palestinians being caused by the power of the blast which hit the motorcycle close to the facility.
The IDF told the UN that it would not have targeted the motorcycle at the moment it did had it realized that it would hit it so close to the UN facility, but by the time the missile was fired and the proximity was noticed, it was too late.
This is a known regular problem and fault-line in the law of armed conflict with striking moving targets.
It is unlikely the IDF will find criminal charges and disciplinary charges would only be if the air force personnel involved were loose in considering the area where the motorcycle was moving.
The IDF had a variety of explanations for the other four incidents, but none of them involved Palestinian deaths so they are least likely to get ICC attention.
In all, for seven attacks on UN facilities leading to 44 Palestinian deaths and 277 injured, that probably only one incident might lead to ICC intervention, and even that only if the ICC does not file indictments itself or fails to give a thorough explanation, puts Israel in much better shape than it might have expected as the fog of the Gaza war lifted in late August.
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