Another anti-Israel diatribe

The McGowan Davis Report failed to objectively examine the problems of armed conflict in built-up areas.

By ROBBIE SABEL

JULY 16, 2015 15:59

Updated: JULY 16, 2015 16:53

Mary McGowan Davis (photo credit: REUTERS) — Mary McGowan Davis

(photo credit: REUTERS)

MILITARY ACTIVITY in a built-up area is the bane of every regular army. It inevitably means endangering the lives of one’s own soldiers and of innocent civilians.

It is perfectly legitimate for the UN to set up objective commissions of inquiry to report on how armies act or should act in such circumstances. Thus, it could well have been legitimate for the UN to examine whether the IDF at times used excessive firepower during Operation Protective Edge in Gaza, last summer.

However, the United Nations Independent Commission of Inquiry on the 2014 Gaza conflict was no such objective undertaking.

The UN Human Rights Council, which mandated the probe, is composed of 47 states. Its constitution states that the criterion for membership includes “the candidate states’ contribution to the promotion and protection of human rights.” Present members of the council, who, according to the UN, presumably fulfill this criterion, include Morocco, Pakistan, Algeria, Bangladesh, China, Congo, Cuba, Russia, Saudi Arabia, the United Arab Emirates and Venezuela.

Israel is the only state that is a permanent agenda item, not Sudan, nor Syria, nor Iraq – only Israel. In the past, the council has examined civil war situations but never an international conflict. Yet, in recent years, Israel has twice been the subject of such an inquiry.

Logically, such a commission of inquiry should be composed of impartial experts on the laws of armed conflict, who would compare the behavior of the Israeli army with those of other democratic states fighting in built-up areas like Gaza.

However, not one of the members of the present Gaza Commission, headed by former New York Supreme Court Justice Mary McGowan Davis, was an expert on the laws of armed conflict. There was not even a pretense of comparing IDF behavior with that of other democratic armies.

Before being appointed, the first chairman of the commission, William A. Schabas, was on record as saying that Prime Minister Benjamin Netanyahu should be indicted for war crimes, showing his bias before the commission’s work had even begun. Schabas was forced to resign, not because of his lack of impartiality, but because he had not disclosed that he acted as a paid legal adviser to the PLO.

When the council appointed a commission of inquiry to investigate the Syrian situation, its mandate was “to investigate all alleged violations of international human rights law.” However, where Israel was concerned, the verdict seemed to be decided in advance as the mandate of the commission was “to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem” – the word “alleged,” applied to Syrian conduct, was significantly omitted in the Israeli case.

The McGowan Davis commission’s report quotes, without comment and apparently with a straight face, Hamas’s statement that it is determined “to promote the rule of law, the respect for the judiciary, the separation of powers, the respect for human rights” and “to strengthen the establishment of democracy.”

It also seems to put great faith in the Hamas military wing’s Al Qassam Brigades’ declared official policy that it aims “to focus on military or semi-military targets and to avoid other targets, especially civilian” and the assurance of the Gazan authorities that “Palestinian armed groups did not target civilians.” This despite 50 days of incessant rocket and missile fire at Israeli civilian concentrations.

Where Israel’s actions are concerned, the commission does not hesitate to reach definitive negative conclusions. For instance, “There are strong indications that the IDF’s Shuja’iya operation on 19 and 20 July was conducted in violation of the prohibition of indiscriminate attacks and may amount to a war crime.”

As regards Hamas’s actions, however, the report invariably uses vague language such as, “The commission cannot exclude the possibility that the indiscriminate rocket attacks may constitute acts of violence whose primary purpose is to spread terror”; “the commission cannot exclude the possibility that [Hamas] military activity took place within or around the hospital”; and “the obligation to avoid to the maximum extent possible locating military objectives within densely populated areas was not always complied with.”

Similarly, regarding Hamas’s mortar fire, the commission states, “if they were used to target civilians,” this “would be a violation” and would be “likely to constitute a violation.” And, regarding Hamas’s attack tunnels – the commission “cannot conclusively determine the intent of Palestinian armed groups.”

FURTHER, EVEN after quoting Hamas directives to its civilian population to ignore IDF warnings of impending attacks, “the commission cannot conclude that the authorities in Gaza had the specific intent to use the presence of civilians to protect Palestinian armed groups from attack.”

Although the report refers to the principle of proportionality – that civilian casualties must be proportional to the strategic importance of the military objective under attack – there is no attempt whatsoever to examine the military necessity or advantage of attacking, say, rockets about to be launched against Israel, or what might be considered acceptable proportional civilian casualties. Instead, there is a blanket condemnation of civilian casualties.

The report states that “a number of Israeli NGOs were reluctant to cooperate with the commission of inquiry, fearing in some cases that there could be negative repercussions on their work.” This is very surprising in view of the activities of the large number of Israeli NGOs that publish reports vehemently criticizing Israeli policy and institutions; in fact, a great deal of the material used by the commission comes from such Israeli NGOs.

On the other hand, the report states, “In the case of some Palestinian NGOs, the decision to cooperate came at an extremely late stage of the commission’s work.”

Could it be there were some Gazan NGOs that “feared negative repercussions?” The report seems to think not. Yet this seemingly benign assessment is contradicted in a different part of the report where the problems facing human rights organizations in Gaza are detailed.

Israel faced a dilemma on the question of cooperating with the commission. The commission states that both Israel and Hamas refused to cooperate with the inquiry and that their lack of cooperation prevented the commission from reaching definitive conclusions. Israel fully cooperated with past commissions of inquiry appointed by the UN Secretary General when the mandate was neutral and the members were deemed impartial. Had Israel cooperated, the report of the commission might have been more balanced.

However, in view of the one-sided mandate and the bias of the initial chairman, such an outcome seemed unlikely. Israel was apprehensive that its cooperation might have had the effect of legitimizing a blatantly prejudiced commission. In fact, Israel did provide information indirectly, but only some of it is reflected in the report.

The commission apparently drew lessons from the even more deeply flawed Goldstone Report, issued after the 2008-9 Operation Cast Lead in Gaza.

Significantly, this time the report refrained from claiming that it was Israel’s deliberate policy to target civilians.

However, it attempts to imprint the same message by innuendo.

In the opinion of the commission, Gaza is still under Israeli occupation, despite the unilateral withdrawal of all Israeli forces and civilians in 2005. For the commission, the real context of the 2014 military conflict was this presumed occupation.

In the opinion of the commission, the fact that rockets were fired at Israel from the Gaza strip is of only secondary importance as a cause of the conflict.

The commission’s main rationale for finding that Gaza is still occupied is based on the premise that Israel has “the capacity to send troops to make its presence felt.” According to this criterion, Canada and Mexico could be deemed to be under US military occupation. The fact that Israel withdrew its army and forcibly evacuated all Israeli settlers was noted by the report but not considered relevant.

Throughout the report there are signs that certain members of the commission tried to take a more balanced view. Although there is criticism of Israeli internal investigation procedures, the commission commends the “strenuous efforts” made by Israel in this regard.

As for the Palestinians, the commission states categorically, “The Palestinian authorities have consistently failed to ensure that perpetrators of violations” are brought to justice and “there appears to be no concerted effort to investigate allegations of violations.”

Unfortunately, what could have been a worthwhile legal effort to examine the problems of armed conflict in built-up areas was allowed to degenerate into yet another anti-Israel diatribe.

This is not to the UN’s credit.

Robbie Sabel is a professor of international law at the Hebrew University of Jerusalem and a former legal adviser to the Foreign Ministry.