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UN Gaza War Report Leaves No Room for Israeli Self-Defense: Jonathan S. Tobin, Commentary, June 22, 2015 — After months of anticipation, the report by the United Nations Human Rights Council about last summer’s Gaza war is out today and its contents are no surprise .
UNHRC Report: Less Biased, But No Less Lethal: Yonah Jeremy Bob, Jerusalem Post, June 23, 2015— While seriously problematic from the Israeli legal perspective, the UN Human Rights Council’s report on the 2014 Gaza war, made public on Monday, is far less biased than the Goldstone Report on the 2008-9 Gaza fighting.
Latest Study Offers Another Gloomy View of Eternal Stalemate Between Israel and Gaza: National Post, June 23, 2015 — It’s all so depressingly familiar now: another war in the Middle East, another report.
Next Time, Ask a General: Mitch Ginsburg, Times of Israel, June 22, 2015 — The UN report on last summer’s Gaza war, while more even-handed than its predecessor — written shortly after the 2008-2009 conflict — is still willfully or perhaps unknowingly ignorant of modern military affairs.
Attorneys at War: Willy Stern, Weekly Standard, June 15, 2015
Ahead of UN Report on 2014 Gaza War, Multinational Mission of Generals Find: "Israel Not Only Met But Significantly Exceeded International Legal Standards": UN Watch, June 12, 2015
The Schabes Report Had ‘Biased Mandate’ and ‘Unreliable Sources’: Hana Levi Julian, Jewish Press, June 22, 2015
The Gaza War 2014: Hirsh Goodman and Dore Gold, eds., JCPA, June 2015
Filling in the Blanks: Documenting Missing Dimensions in UN and
NGO Investigations of the Gaza Conflict: Gerald M. Steinberg and Anne Herzberg, eds., NGO Monitor, June 2015
UN GAZA WAR REPORT LEAVES NO ROOM FOR ISRAELI SELF-DEFENSE
Jonathan S. Tobin
Commentary, June 22, 2015
After months of anticipation, the report by the United Nations Human Rights Council about last summer’s Gaza war is out today and its contents are no surprise. While the UNHRC acknowledged that Hamas’s indiscriminate firing of rockets and missiles at Israeli cities and towns were acts of terrorism, it concentrated most of its fire on Israel’s attempts to defend its territory and citizens. The UNHRC not only described Israeli actions as “disproportionate and indiscriminate” but also considers the blockade of Gaza to be a violation of Palestinian human rights and should be investigated by the International Criminal Court.
But while the toll of Palestinian civilian deaths was a tragedy, the UN Gaza war report is predictably skewed not just in terms of its mischaracterization of what were, in fact, highly restrictive rules of engagement that often put Israel Defense Forces personnel in danger, but also seeming to grant Hamas impunity to wage a terror war against Israel’s existence. In effect, what the UNHRC is doing is to create rules that allow Hamas to hide amid a civilian population, using them as human shields, and then to claim those trying to stop terror are the real criminals. The United States must not only reject this dangerous precedent, but it ought to withdraw from a biased UN agency that seems to exist largely to single out the Jewish state for unfair treatment.
The UNHRC takes the view that the large number of Palestinians who were killed by Israeli fire around or in their homes is, almost by definition, proof that the IDF misbehaved. Just as wrongheaded is the claim that Israel’s efforts to warn Palestinians to leave specific areas or even specific structures is insufficient to ward off charges of war crimes. But as this feature by Willy Stern published this month by the Weekly Standard shows, the legal process by which IDF strikes are approved is geared toward saving civilian lives goes beyond any notion of what international law requires. Indeed, the Israeli rules, which often endanger Israeli soldiers and allow terrorists to escape simply because of the possibility that civilians might be harmed, are such that they go well beyond the practices what other Western nations, including the United States in its conflicts in Afghanistan, Pakistan, and Iraq observe.
But when one boils down the UN report to its essentials, it comes to this: The only sort of Israeli action in Gaza that might pass the HRC’s test would be if Israeli soldiers knocked on every door and politely asked if there were any terrorists there and then left if they were told there weren’t. The fact that Hamas deliberately fires its rockets amid and from civilian structures places those in those buildings in harm’s way. Israel tries to warn civilians to leave and even goes to extreme measures such as firing duds at buildings in order to get noncombatants to evacuate them. But Hamas made it clear to civilians that those fleeing the fighting would be considered collaborators if they didn’t stay put. That’s a death threat that Gazans rightly treat as more worrisome than the prospect of being caught in a firefight involving the Israelis. The UNHRC standard is damaging to Israel, but it also hurts the Palestinians since it effectively leaves them at the mercy of the Islamist tyrants that have seized control of Gaza.
Moreover, asking the Israelis not to use heavy weapons in urban areas essentially gives Hamas a further incentive to dig in, as it did, in residential neighborhoods and then dare the Israelis to try to root them out. The results of such actions are sometimes tragic. Though any such deaths are awful, given the scale of the fighting initiated by Hamas, a death toll of even the number of civilians claimed by the UNHRC (other reports place the number of civilians much lower since the UN wrongly allows the Palestinians to declare many Hamas personnel to be noncombatants) is actually quite low. As I noted last week, the fact that other reports and even the verdict of the Chairman of the Joint Chiefs of Staff of the United States is that Israel not only acted properly but also constituted a model for the conduct of armed forces in asymmetrical conflicts illustrates the UNHRC’s bias.
But the main question to be asked here is how a war launched by a terrorist organization operating an independent Palestinian state in all but name can be defended against by the victims of their attacks without incurring some civilian casualties. The point is not just that Hamas’s goal is to kill as many Jewish civilians as possible while the IDF goes to extreme lengths to avoid such deaths. Rather, it is that once a terrorist group sets up operations in an area under its control, sovereign nations attacked by these killers must have the right to conduct defensive operations intended to halt rocket fire and the use of tunnels for kidnapping and murder. If the soldiers of such nations are to be deemed war criminals for using heavy weapons or for mistakes that inevitably happen in the heat of battle amid the fog of war, then what the UNHRC is doing is to create rules that give the terrorists impunity.
Moreover, if blockades of areas run by such terrorists bent on destroying their neighbors — the purpose of Hamas’s “resistance to Israel is not to adjust its borders in the West Bank, but to eliminate the Jewish state — are also illegal, then such criminal groups will likewise be granted impunity to set up such states and conduct wars without fear of international sanctions. That Israel’s blockade of Gaza ensured that food and medical supplies continued to flow into the strip even during the war proves how absurd the UN standards are when applied to Israel.
It is that last phrase that is the operative concept at work here. We know that the UN would not dare label any military operation such as the one conducted by Israel as illegal were it carried out by any other nation. The UNHRC largely ignores real human rights crises elsewhere in the world (including next door to Israel in Syria where hundreds of thousands have died) in order to concentrate its condemnations on the Jewish state. The fact that the chair of this commission who guided it for most of its life was a bitter critic of Israel and issued statements prejudging its outcome made this bias even more explicit.
In the end, the UNHRC report does nothing to clarify how nations should conduct wars. But it does tell us everything we need to know about the need for civilized nations to cease supporting an agency that purports to speak in the name of human rights but instead bolsters hate.
UNHRC REPORT: LESS BIASED, BUT NO LESS LETHAL
Yonah Jeremy Bob
Jerusalem Post, June 23, 2015
While seriously problematic from the Israeli legal perspective, the UN Human Rights Council’s report on the 2014 Gaza war, made public on Monday, is far less biased than the Goldstone Report on the 2008-9 Gaza fighting. However, where it attacks the IDF’s conduct, in some ways it is far more sophisticated than Goldstone. In addition, whereas the International Criminal Court in 2008- 9 was just a distant threat, it now sees the Palestinians as having a state that can officially file war crimes complaints and is deep into a preliminary examination of the Israeli-Palestinian conflict.
At a macro level and looking toward the ICC, the main problems the UNHRC report poses for Israel are the questions of command responsibility, whether Israel can disclose enough information to show its attacks on residences were justified, and whether it can defend its policy of using artillery even after pervasive reports of civilian casualties caused by such weaponry. Command responsibility refers to the idea that senior military and political leaders can be found guilty of war crimes if their targeting policies violate the laws of armed conflict. The State Comptroller’s Office is the only authority that has been tasked by Israel to look into the issue, making its coming report an urgent matter, if only to show that the government and defense community are not ignoring it.
It can be argued that Israel made an unforced error in failing to enact a law spelling out command responsibility, as had been suggested in 2013 by the quasi-governmental Turkel Commission, which looked into the 2010 Mavi Marmara incident in which naval commandos killed 10 Turkish activists trying to run the Gaza blockade. However, it can also be argued that waiting for publication of the UNHRC report helped clarify the issues on which Israel should press forward more quickly.
Regarding disclosure, Israel will likely say it has divulged far more in the way of operational details in its investigations of alleged war crimes than any other country. This might be true, but it could also consider disclosing even more details in an effort to fight for the high ground in the legitimacy debate, even if the details are less than what the HRC’s investigative commission appeared to demand – which is a standard that seemed to brush off the need to protect intelligence sources without citing a basis under the laws of armed conflict.
As for the use of artillery, Israel will likely confront questions about its policy by attacking the commission’s level of military expertise. The HRC report makes reference to having had a military expert involved to assess military issues, but certain aspects of its conclusions will likely raise an Israeli accusation that those who authored the report did not understand the exigencies of what is feasible on the battlefield. One example might be where the report rejects the IDF’s claim that in a particular instance, aerial support was not available.
The report rejects the IDF’s explanation of its use of what the commission viewed as less-accurate weaponry, arguing that the country’s vast air power belied the claim of a lack of aerial support – although this rejection appears weak since it is not based on any factual knowledge of the circumstances. In fairness to the report, Israel did not cooperate with the HRC commission, in some instances forcing it to make estimates. Many, even on the Israeli side, consider the decision against cooperation to have been tactically imprudent.
But Israel can hardly be slammed too hard for its decision not to cooperate, since it was chaired for most of its existence by Canadian legal expert William Schabas, who eventually resigned over disclosures that he had accepted payment from the PLO for prior legal advice. On a micro level, Israel has its work cut out for it in defending itself against specific war crimes allegations regarding the August 1 Hannibal Protocol incident, attacks in the Shejaia neighborhood on July 19, 20 and 30, and particularly troubling incidents like the July 16 naval shelling that killed four boys on Gaza beach. Despite Israel’s detailed explanation as to why it closed its own investigation into the Gaza beach incident, the report questions whether Israel could not have done more to clarify that the four boys were not Hamas personnel. Similar questions are likely to be raised across the board.
From the Israeli perspective, the report is far harsher on Hamas than were past UN reports, whether it be over indiscriminate rocket fire or purposely using civilian areas to stage attacks. In one surprising instance, the report even suggests that Hamas could be guilty of war crimes not only for murder and attempted murder from the direct lethal power of its rockets, but could also be guilty of the more indirect war crime of terrorizing a populace. The report also clearly rebukes Hamas for storing weapons in UN facilities and other civilian locations.
Despite all of its findings against Hamas, however, the report manages to find a way on most issues to skew toward a final conclusion that condemns Israel and employs a moral equivalence between the sides without really explaining its basis. Ultimately, on all of the points where Israel is likely to attack the findings, the report focuses far more than did past reports on areas where Israeli legal defenses could be more vulnerable. In addition, many of its findings against Israel are more nuanced and less blanket than in the past. This combination could prove legally lethal as the ICC considers whether to further inject itself into the Israeli-Palestinian conflict.
LATEST STUDY OFFERS ANOTHER GLOOMY VIEW OF
ETERNAL STALEMATE BETWEEN ISRAEL AND GAZA
National Post, June 23, 2015
It’s all so depressingly familiar now: another war in the Middle East, another report. Monday’s release of the United Nations Human Rights Council’s findings into last year’s conflict between Israel and Palestinian terrorists in the Gaza Strip made grim enough reading on its own, with its vivid descriptions of innocent civilians, on both sides, torn apart by heavy weapons. The certainty of such events repeating themselves makes reading it all the gloomier a task.
The report, which notes that it did not receive co-operation from either side, was the product of interviews with witnesses, reviews of photographic and video evidence and publicly released materials. The conclusions are about what you would expect: both Israel and various Palestinian terror organizations are cited for probable war crimes. In Israel’s case, the concerns mostly lie with the use of heavy weapons in populated areas, resulting in more civilian casualties than can be justified on the basis of military necessity. In the case of the Palestinian terror groups, the report condemns firing mostly unguided weapons into populated areas, or simply declaring population centres to be military bases. Likewise the observed pattern of basing long-range weapons and troops in the immediate vicinity of schools, hospitals, mosques and homes.
On balance, the report is generally reasonable, and includes some suggestions Israel could do well to adopt, including limiting use of the heaviest artillery calibres and largest air-dropped bombs in populated areas, as well as providing more time to evacuate dwellings selected for targeted destruction. The report also lamented that, in many instances, Israel did not provide much justification for why certain targets were selected for destruction, while conceding that in many instances, Israel may well have had such justification, which it refused to share for reasons of operational security.
The problem with the report, as with others before it, is that it misses the point. Yes, the Israel Defense Forces can and should learn from every conflict, and find ways to do better — though they already show more restraint than any nation should reasonably be expected to. But there is simply no way to compare the conduct of Israel, a Western democracy with civilian-led armed forces, with Gaza — essentially a terrorist enclave run by numerous, often competing armed groups, which tragically happen to share the same geographic space as a million trapped civilians.
Israel would no doubt prefer to fight its battles out in an open field somewhere, where it can bring all its high-tech military might to bear in a crushing, decisive military blow. Unfortunately, it happens to be located next to a heavily populated urban area full of well-armed people that hate it — and who aren’t shy about launching attacks from civilian installations, among other violations of the laws of war. Israel has tried unilaterally withdrawing all its troops from the area; that hasn’t precisely worked out. So long as groups in Gaza continue to rain rockets and mortars on Israeli civilians, and dig tunnels below the border, Israel will have to keep defending itself where its enemies are attacking it from — with all the carnage that urban fighting inevitably entails.
It’s a bleak reality, but a reality nonetheless. The only real cause for hope can be found on Israel’s other borders: those with Jordan, Egypt and even the West Bank. Israel is clearly capable of living in peace with Muslim, Arab neighbours. In Gaza, it lacks only a willing partner. Israel should indeed read this latest UN report, and implement such of its recommendations as make military and moral sense. But until and unless fresh leadership comes to Gaza, it will still face the same existential dilemma.
Mitch Ginsburg
Times of Israel, June 22, 2015
The UN report on last summer’s Gaza war, while more even-handed than its predecessor — written shortly after the 2008-2009 conflict — is still willfully or perhaps unknowingly ignorant of modern military affairs. What it needed, aside from Israeli cooperation and an open mind, was a general, preferably one who has commanded troops under fire in either Iraq or Afghanistan.
The first thing this officer could have provided is perspective. Whether one accepts the UN death toll, as provided by the Hamas Interior Ministry, or the Israeli one, an international reader still has no way of knowing if the tragic toll in human life — of civilians as opposed to enemy combatants — is disproportionately or even outrageously high.
A senior Israeli officer told me during the war, after detailing all that is being done to spare civilians, that even if the ratio comes out as one militant killed for every two civilians, “I’d sign off on that.” He said the US ratio in Iraq was far worse than that. Since there are no UN reports investigating US or British actions in Iraq or Afghanistan, and no independent organization chronicling the precise ratios, it is hard to know.
A general would have helped, too, with an understanding of artillery and mortar use. The report actually cited a Times of Israel article about the need to restrict the use of “statistical” weapons in an urban surrounding. This is true. It is needed. But the report fails to discern between offensive targeting and defensive fire. In Shejaiya, with Hamas handling is military operations “de facto” from al-Wafa hospital, according to an Israeli investigation, the intense artillery blasts, consisting of 600 rounds within the span of an hour, was defensive. It was needed because Israeli troops were trapped under fire. A more serious report would discern the difference between these two situations.
Another problem is the lack of study of Hamas doctrine. The claim that Israel may have committed war crimes by failing to differentiate between civilians and combatants could use a careful illustration of the way Hamas builds its own fortifications — hiding weapons in mosques, and situating rockets near schools and medical clinics. That said, the report is right to put the onus on Israel’s Military Advocate General’s Corps to investigate the Israel Defense Forces. Of course, distinguishing between enemies and civilians is difficult during a modern war and it is complicated by an enemy that often poses as a civilian — either wearing women’s clothes or traveling in an ambulance. But if the IDF is to credibly counter the stated “lamentable track record in holding wrongdoers accountable,” it must, for instance, either charge the soldiers involved in the July 23 and July 25 incidents in Khuza’a — in which civilians waving white flags were targeted and, in one case, killed — or explain the details of the incident.
The final operational issue is proportionality. There is no formula to judge whether an attacking army is acting within the confines of that law. And yet it is possible that the army, as the report asserts, may have exceeded its limits during the hours immediately after the August 1 abduction of Lt. Hadar Goldin. Operating amid the shock of a Hamas-ruptured ceasefire and the news of a soldier’s abduction — an Israeli Achilles’ heel — the army reportedly fired 2,000 pieces of ordnance on Rafah during the morning hours. Dozens of civilians were killed. The report states that, according to some, “the proportionality test may take into account strategic considerations in determining the military advantage.” In other words, that denying Hamas the leverage of holding an Israeli captive is central to Israel’s military objective and therefore a massive counter-strike is warranted. The commission rejected this out of hand, stating that this “is not [a] valid consideration.” The leverage, the report explained, “does not depend solely on the capture of a soldier, but on how the Government of Israel decides to react to the capture in the aftermath.”
This isolated case requires the opinion of the MAG Corps as the IDF looks ahead to future conflicts, in which the enemy will continue to try and attack Israel’s soft spot. A military authority on the panel, though, along with Israeli cooperation and a willingness to accept Israeli facts about the army’s targeting practices — and not merely the anonymous testimony of Breaking the Silence — would likely have shown the truth about this war: It was awful, of course, but while the Palestinians undoubtedly suffered and continue to suffer more than Israelis, the very fact of this suffering does not make the IDF and the government of Israel guilty of systemic war crimes. The report did spread the blame to Hamas and inserted some doubt into its own rather far-reaching allegations, stating that Israel “may” have committed war crimes, rather than stating it as fact, as Judge Richard Goldstone did in 2009, before reality forced him to recant.
Attorneys at War: Willy Stern, Weekly Standard, June 15, 2015 —For three straight days starting on July 15, 2014, the Israel Defense Forces (IDF) made thousands of phone calls to the residents of Shejaiya in northern Gaza. The locals were encouraged to evacuate their homes before IDF tanks rolled across the border.
Ahead of UN Report on 2014 Gaza War, Multinational Mission of Generals Find: "Israel Not Only Met But Significantly Exceeded International Legal Standards": UN Watch, June 12, 2015—The report of the UN's controversial Schabas-Davis commission of inquiry on Gaza is to be released imminently, and will be debated on Monday, June 29th, before the Human Rights Council.
The Schabes Report Had ‘Biased Mandate’ and ‘Unreliable Sources’: Hana Levi Julian, Jewish Press, June 22, 2015 —Israeli officials continue to analyze The Schabes Report sparked by the United Nations Human Rights Commission, and authored by the Independent Commission of Inquiry on the 2014 Gaza Conflict.” Most have noted the striking anti-Israel bias in the report.
The Gaza War 2014: Hirsh Goodman and Dore Gold, eds., JCPA, June 2015—Israel was the target of thousands of rockets and mortar attacks against its civilian population, with some Israeli areas targeted that had three times the population density of Gaza. Israel clearly acted out of self-defense. – See more at: http://jcpa.org/the-gaza-war-2014/#sthash.UGfoDD6f.dpuf
Filling in the Blanks: Documenting Missing Dimensions in UN and NGO Investigations of the Gaza Conflict: Gerald M. Steinberg and Anne Herzberg, eds., NGO Monitor, June 2015—This report provides an independent, fully-sourced, systematic, and detailed documentation on some of the key issues related to the renewal of intense conflict between Hamas and Israel during July and August 2014.
