Analysis: War’s aftermath is a battle of legal tactics

Israel must decide whether to cooperate with United Nations investigation on Gaza operation.

By YONAH JEREMY BOB
UNRWA school damaged by fighting in Gaza (photo credit: REUTERS)
UNRWA school damaged by fighting in Gaza
(photo credit: REUTERS)
To cooperate or not to cooperate – that is the question.
The state has a fateful decision ahead of it about whether to cooperate with the impending UN investigation of war crimes allegations against the IDF during the (possibly) just ended Operation Protective Edge.
The state decided not to cooperate with the Goldstone Report on the 2008- 2009 Operation Cast Lead, and despite some rumblings, there was no equivalent UN investigation into the 2012 Operation Pillar of Defense.
Those defending the non-cooperation with the Goldstone Report say it helped delegitimize the report and gave Israel a freer hand in attacking the report, which accused the Jewish state of deliberately attacking civilians, for bias.
On the flip side, the informal information that Israel presented to the Goldstone Commission was essentially ignored since it was not considered from official state sources – meaning, that the state had negligible impact on the report’s findings.
Legitimacy is important, but it is a public relations or diplomatic issue, not a legal issue in the strict sense of making any difference in a potential case before the International Criminal Court.
In contrast, if there are cases filed against Israelis before the ICC, and that is still an awfully big if, the impending UN report will be the starting point for much of the concrete legal discussion.
Of course, the report may not serve as specific evidence for specific cases, as witnesses, ballistics and other hard evidence would need to be provided, but past war crimes cases show that reports describing overall trends are heavily relied on by judges trying to assimilate massive amounts of information.
However biased Israel believes the report will be, any information it gives the investigators that influences the report in the least could help Israel in any real court stage at a later date, and will be better than no influence.
For example, convincing investigators that a specific incident cannot be looked at simply as an unthinking deliberate attack, but as a debate about whether warnings given to evacuate were sufficient enough transforms an incident into an issue about nuance.
Also, just because Israel cooperates with the investigators, it does not bind Israel to cooperating with the ICC itself.
Israel has also ignored the International Court of Justice’s 2004 ruling that its West Bank barrier is illegal and must be removed without significant long-term consequences.
Israel could decide not to cooperate with the ICC if it viewed an impending trial as biased.
The state might be more constrained in attacking the report’s conclusions, but it could still attack them for bias, and again, the report’s general legitimacy is more of a diplomatic issue.
With the ICC a real threat now more than in 2009, the state will need to think seriously not just about diplomatic consequences, but also about legal consequences.