‘War crimes’ investigation should follow UN inquiry into Gaza conflict

There were no great surprises in the findings of the UN’s commission of inquiry into the 2014 Gaza conflict. Unlike previous similar reports that were left to gather dust after the initial controversy died down, what is different today is the changing international legal environment. There is a process in train to investigate and potentially prosecute individuals on both sides alleged to have been responsible for war crimes.

This report is the latest in a number on the 2014 conflict and corroborates many of the earlier findings of Amnesty International, Human Rights Watch and Israeli rights organisation B'Tselem. The UN commission was not a criminal investigation. It contains no conclusions regarding specific individual responsibility for war crimes. Nevertheless, its findings provide sources of potentially significant evidence for investigators from the International Criminal Court.

It stated that it had received credible allegations that both sides had committed war crimes during the conflict, which killed more than 2,140 Palestinians, most of them civilians, and 73 people on the Israeli side, primarily soldiers.

The commission did not accept Israeli arguments that its military conducts its own inquiries into the allegations of war crimes. It found that a more independent review of the actions by Israeli forces was necessary.

In a damming indictment of the conduct of hostilities by Israeli forces, the commission pointed the finger of blame at senior Israeli political and military figures. The report declared the fact that Israel did not revise its practice of air strikes, even after their dire effects on civilians became apparent, raised questions of whether this was part of a broader policy which was at least tacitly approved at the highest level of government.

Such a finding has serious implications for the investigative process being undertaken by the International Criminal Court. Among the deficiencies identified in the Israeli inquiries into the conduct of its forces was the interpretation of military objectives in a way that was inconsistent with international law. There was also an emphasis on the criminal responsibility of the field soldier without examining the overall policy decided at higher levels.

These issues are important for determining whether Israel is fulfilling the requirements under the principle of complementarity, according to which the International Criminal Court will not deal with an issue a country is conducting its own genuine investigation of the matter.

Indiscriminate firing

The report also condemned the indiscriminate firing of thousands of rockets and mortars by Palestinian militants into Israel. It found that these appeared to have been intended to spread terror among Israeli civilians. Such acts are in violation of the principle of distinction, a fundamental tenet of the law of armed conflict that prohibits attacks that do not distinguish between combatants and civilians. The commission also condemned the extrajudicial killing of alleged collaborators as a war crime.

The commission, echoing the findings of an earlier Amnesty International report, focused on the targeting of residential buildings in Gaza by Israel that led to the deaths of entire families and devastated whole neighbourhoods. The report drew attention to the fact that disproportionate attacks are forbidden. These are attacks that an Israeli commander should have anticipated would cause widespread civilian deaths or damage to civilian property.

After considering the circumstances and the data, the commission expressed concern that this principle was violated in a way that could constitute a war crime.

Israel had earlier sought to defend its conduct in the Gaza conflict as both lawful and legitimate in a detailed inter-ministerial report. Although acknowledging that numerous civilians were caught in the hostilities, the report claimed that Israel did not intentionally target civilians.

However, a report published last month by Breaking the Silence, an Israeli veterans organisation, compiled devastating testimony from Israeli soldiers regarding indiscriminate use of force by Israeli forces in Gaza.

The UN commission urged all sides and the international community to cooperate with the International Criminal Court in The Hague. The commission’s findings will be carefully examined by the chief prosecutor at the court. The report is likely to be significant in any decision by the prosecutor as to whether to move from a preliminary examination of the situation in the Palestinian territory, including events in Gaza, to a fully fledged investigation.

Calls to support International Criminal Court prosecution have been backed by Palestinian human rights NGOs such as Al-Haq and political activists, who for many years have been advocating for an end to the perception that Israel is above the law and that its actions are not punishable. It is one of the few issues on which there is some degree of unity among Palestinian factions. Unfortunately, the wheels of international justice move slowly and it will be many years before we see if those alleged to have committed war crimes are held to account.

Prof Ray Murphy teaches the law of armed conflict at the Irish Centre for Human Rights, School of Law, NUI Galway