Both Israelis and Palestinians may have committed war crimes during the 2014 Gaza war, a United Nations Human Rights Council commission of inquiry said in a highly anticipated 200-page report it published in Geneva on Monday.
“The commission was able to gather substantial information pointing to serious violations of international humanitarian law and international human rights law by Israel and by Palestinian armed groups,” the report said.
“In some cases, these violations may amount to war crimes,” it said.
The report called for individual IDF soldiers, as well as top decision makers in Israel’s military and political echelons, to be held accountable if they violated international law.
But the problem could extend to the IDF itself, the report said.
“In many cases, individual soldiers may have been following agreed military policy, but it may be that the [IDF] policy itself violates the laws of war,” the report concluded.
With respect to extrajudicial executions of alleged “collaborators” by Palestinian armed groups, the report said such actions amount to a war crime.
The Palestinian Authority is expected to make use of this report when it submits a war crimes complaint against Israel to the International Criminal Court, possibly as early as this week.
The report called on both sides “to cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened.”
At a press conference in Geneva on Monday, former NY Supreme Court Judge Mary McGowan Davis, who headed the Gaza probe, and her co-author, legal expert Doudou Diene of Senegal, stopped short of calling for a war crimes suit at the ICC.
McGowan Davis clarified that the report’s conclusions should not be interpreted as a verdict with regard to last summer’s conflict between Hamas and other armed Palestinian groups and Israel.
“This is not a judicial process. We have no subpoena power and we do not take sworn testimony,” McGowan Davis said.
“We do not talk in the report about evidence. What we have collected instead are witness accounts, submissions and other material that could point the way to a more thorough investigation into what happened in the summer of 2014 in Gaza, the West Bank, east Jerusalem and in Israel in order to determine whether conduct by either side violated the laws of war,” she said.
“The most that we can hope for is that we will push the ball of justice a little further down the field,” McGowan Davis said.
“We have heard heart-rending testimony from many people who want the world to acknowledge their suffering and who have come forward to the UN in an effort to seek justice and peace,” McGowan Davis said.
She spoke of a Gaza father whose home was bombed in July. When he awoke in a hospital, he learned that 19 members of his family had died, including his sister, mother, and children.
“As he put it, ‘We all died that day, even those who survived,’” McGowan Davis recalled.
Israeli officials slammed the report, taking exception to the way it appeared to place Palestinian terrorist groups, which fired from schools, mosques, and hospitals, on an equal footing with the IDF. They were also upset that the report concluded that attempts to defend Israel’s citizens from rocket attacks could constitute a war crime.
“Shame on you [UNHRC],” Education Minister Naftali Bennett said.
McGowan Davis later told Channel 2 that any armed group has to respect international law, saying both the IDF and Palestinian armed groups have this obligation and the report evaluated the extent to which they did so.
“Israel does not commit war crimes,” Prime Minister Benjamin Netanyahu told the Likud faction in the Knesset right after the report’s release. “It was defending itself against terrorist organizations that were committing war crimes,” he added.
IDF actions, Netanyahu said, meets the standard set by international law.
From the start, Israel refused to cooperate with the UNHRC probe, which it believed was akin to a kangaroo court whose war-crimes conclusions were obvious given its mandate.
The government did not allow investigators to enter Israel or the Palestinians territories, forcing the UNHRC investigatory team to rely on documents, audio-visual evidence, and witness interviews done either in Jordan or Geneva.
Israel took particular issue with the initial August appointment of Canadian legal expert William Schabas to head the probe, because he already had publicly stated that he believed Netanyahu should be sued for war crimes by the ICC.
Schabas resigned in February after it was discovered that the Palestine Liberation Organization had hired him briefly as a legal consultant in 2012. He was replaced by McGowan Davis who, along with Diene, already had been working with him.
Both McGowan Davis and Diene complained at the Monday press conference about the harm the lack of cooperation from Israel caused their investigation.
Israel had not released sufficient information about its decision-making process during Operation Protective Edge to allow for an independent body to properly assess whether the IDF met the standards set by international law, the report stated.
Still, that did not prevent McGowan Davis and Diene from compiling a substantive document and drawing conclusions about the actions of both sides.
They were particularly concerned by Israel’s use of explosive weapons in densely populated civilian areas of Gaza, irrespective of the presence of armed groups in that area.
Nor were they swayed by steps the IDF took to warn civilians in advance of bombings, stating that they were not effective in all cases.
“These attacks [on residential areas] raise concerns that Israel’s interpretation of what constitutes a ‘military objective’ may be broader than the definition provided for by international humanitarian law,” the report said. It added that such actions “raise questions with regard to the respect by the Israel Defense Forces of the rules of distinction, precaution and proportionality.”
McGowan Davis underscored this point at the Geneva press conference when she spoke of the 50-day war in which, according to the UN, 2,251 Palestinians were killed, including 1,462 Palestinian civilians, of whom 299 were women and 551 were children.
The IDF should have changed the way it conducted the war after understanding the level of civilian casualties that were occurring, she said.
“It becomes clear very early on [in the war] that huge numbers of families are dying in these houses that are targeted by large bombs.
“It must become apparent to someone [in the IDF] that the rules of engagement that are supposed to protect civilian lives are not effective, so those who were in the position to make the kind of decision to change the course of the operation should have done so,” McGowan Davis said.
On a positive note with regard to Israel, McGowan Davis said the country does have a “robust” investigatory mechanism in place, while the authorities in Gaza do not and would likely not put one in place in the future.
Both she and Diene called for greater accountability from both Israelis and armed Palestinian groups. Violators of human rights should not be allowed to act with impunity, they said.
Israel has a “lamentable track record” on holding wrongdoers accountable, the report said, calling for Israeli “enactment of provisions that impose direct criminal liability on military commanders and civilian superiors for offenses committed by their subordinates.”
Looking at the broader picture the report asked Israel to address the “structural issue” that resolves the conflict such as unconditionally lifting the Gaza blockade; ceasing all settlement- related activity including the transfer of population; and taking down the security barrier and granting Palestinians the right to self-determination, which means statehood.
It also urged Israel to sign the Rome Statute.
With respect to the Palestinians, the report called on them to investigate wrongdoing including by the Palestinian Authority, Gaza authorities and armed Palestinian groups, and asked the Palestinians to put in place a national unity government; respect the principle of proportionality; end all attacks on Israeli civilians and civilian objects; and stop rocket attacks and “other actions that may spread terror among the civilian population in Israel.”
It spoke of the rocket attacks against Israel and underground tunnels Hamas built to use against Israel during the war as possible war crimes, noting that between July 7 and August 26, 2014, “Palestinian armed groups fired 4,881 rockets and 1,753 mortars towards Israel, killing six civilians and injuring as many as 1,600 people, including 270 children.”
During that time six Israeli civilians were killed and 67 soldiers, the report said.
PLO chief negotiator Saeb Erekat said in response: "The State of Palestine will review the findings and recommendations of the commission. As we begin to do so, we urge the international community to recall that the only true path to peace lies in ending the Israeli occupation that began in 1967 and in ending crime and the impunity with which it continues to be perpetrated against our people." Hamas, in a statement posted on its website, called for prosecuting Israeli leaders, but ignored accusations against it.
"Hamas welcomes the condemnation of the Zionist occupation stated in the UN report because of its [Israel's] aggression against Gaza and Israel?s commission of war crimes. This requires bringing leaders of the occupation before the International Criminal Court." The UNHRC report, which will be debated in Geneva on June 29, is the second such document to completed.
In the aftermath of Israel's military action in Gaza in December 2008 and January 2009, the UNHRC dispatched a fact-finding mission led by South African Jurist Richard Goldstone.
That report, submitted in September 2009, similarly concluded that both Israel and armed Palestinian groups had committed possible war crimes. But the report, which received a lot of publicity, did not lead to any concrete action because the Palestinians at that time, did not have the ability to appeal to the ICC.
In 2011 Goldstone repudiated his own report, stating with regard to IDF actions that, "Civilians were not intentionally targeted" and "If I had known then what I know now, the Goldstone Report would have been a different document"Reuters contributed to this report.