BICOM

Key Points

• The report suggests that actions on both sides may in some cases amount to war crimes; an equivalence rejected by Israel, which took extensive efforts to avoid civilian casualties.
• Israel did not cooperate with the inquiry due to the biased nature of the United Nations Human Rights Council (UNHRC) resolution commissioning it, which was described as “fundamentally unbalanced” by British Foreign Secretary Phillip Hammond and the initial appointment of William Schabas as chair. Consequently, the inquiry had no access to sensitive information which would explain particular IDF actions.
• The criticisms of Israel’s conduct contrast the findings of a report by a multinational mission of Generals, which found that “Israel not only met but significantly exceeded international legal standards.”
• Investigations by the Israeli Military Advocate General into the IDF’s own conduct are on-going.

What is covered by the report?

• The report investigates Israeli military actions in the Gaza Strip and West Bank and the actions of Palestinian armed groups beginning 13 June 2014. The time-period was set by the UNHRC Resolution S/21-1 in July 2014 to include Israel’s reaction to the kidnapping and murder of three teenagers in the West Bank, but excludes that kidnapping itself.
• The report suggests that actions on both sides may in some cases amount to war crimes, and includes recommendations for Israel, the Palestinian Authority and international community on ensuring accountability and changing policies which impact human rights on both sides.
• The report calls on the international community to support ongoing ICC preliminary examination and recommends the UNHRC to consider conducting a review of the implementation of its recommendations.

What does it say about Palestinian actions?

• According to the report, the evidence “strongly suggests that the primary purpose of the rocket attacks [by Palestinian armed groups in the Gaza Strip] was to spread terror among the civilian population.” The report expresses “serious concerns with regard to the inherently indiscriminate nature of most of the projectiles directed towards Israel.”
• The report finds that Palestinian groups endangered Gazan civilians by firing rockets in populated areas, citing the example of 13 civilians killed by a Palestinian rocket in the Al Shati on 28 July 2014.
• According to the report, “the frequency of reports of Palestinian armed groups carrying out military operations in the immediate vicinity of civilian objects … suggests that such conduct could have been avoided on a number of occasions.”
• The report expresses concerns that “authorities in Gaza reportedly encouraged residents not to heed the warning given by the IDF.”
• The report criticises Gazan authorities for the summary execution of 21 alleged “collaborators”.
• The commission concludes that investigations by Palestinian authorities are “woefully inadequate,” with no investigations conducted by authorities in Gaza.

What does it say about Israeli actions?

• The report focuses on a number of practices carried out by the IDF in its operations in the Gaza Strip and West Bank. These include: the use of wide-area impact explosive weapons in densely populated areas; the definition of military objectives; the targeting of residential buildings in which several members of the same family were killed; the effectiveness of precautionary measures to prevent civilian casualties; the “Hannibal directive” involving very heavy use of firepower to prevent the kidnap of soldiers; the use of live fire ammunition for crowd control in the West Bank; and the apparent lack of distinction between civilians and fighters when neighbourhoods are declared “sterile combat zones”.
• The report includes harrowing descriptions of the impact of military actions on Gazan civilians.
• The report describes Israel’s attempts to warn civilians in targeted areas, including through leaflets, telephone or text messages, loudspeakers and radio announcements. However, it expresses concern that Israel did not re-examine the effectiveness of these measures in the light of mounting civilian casualties when civilians did not heed warnings. With respect to strikes on residential buildings, it expresses concern that: “the strikes may have constituted military tactics reflective of a broader policy.”
• The commission notes steps taken by Israel to investigate alleged violations of the Law of Armed Conflict, but claims that “flaws remain … with respect to the state’s adherence to international standards.” The commission expresses concern that “impunity prevails across the board for violations of international humanitarian law and international human rights law.”
• The report calls on Israel to lift the blockade on Gaza and end settlement activity in the West Bank.

What are the key problems and omissions?

Problems with the commissioning of the inquiry

• The United Nations Human Rights Council (UNHRC) resolution commissioning the inquiry was described as “fundamentally unbalanced” by British Foreign Secretary Phillip Hammond. Past UNHRC singling out of Israel has been criticised by UN Secretary General Ban Ki-moon.
• Professor William Schabas was initially appointed to lead the commission, despite previously having publicly expressed a desire to see Israeli leaders on trial and having served as a paid consultant for the PLO.
• The bias of the UNHRC Resolution and the appointment of Schabas led Israel not to cooperate, meaning the inquiry had no access to sensitive information which would explain particular IDF actions.
• The UN Secretary General praised Israeli cooperation with a UN Board of Inquiry into damage to UN facilities during Operation Protective Edge, which reported in April 2014.

Contested findings

• A multi-national group of former-chiefs of staff, generals and politicians concluded its own investigation into the IDF’s conduct during Operation Protective Edge, finding that “Israel not only met a reasonable international standard of observance of the laws of armed conflict, but in many cases significantly exceeded that standard.”
• A report by a multinational mission of Generals placed a far greater emphasis on Hamas’s use of human shields, concluding “Hamas launched attacks against Israel from the heart of its own civilian communities in Gaza and positioned its munitions and military forces there also, including in schools, hospitals and mosques.
• The same report by military experts found that “none of us is aware of any army that takes such extensive measures as did the IDF last summer to protect the lives of the civilian population in such circumstances.” Similarly, the Chairman of the U.S. Joint Chiefs of Staff, Gen. Martin Dempsey, announced on November 6, 2014, that Israel had gone to “extraordinary lengths to limit collateral damage and prevent civilian casualties in the Gaza conflict.”
• The report’s criticisms of Israeli investigations into its own conduct contrast with those of an independent Israeli commission chaired by former Israel Supreme Court Justice Jacob Turkel in 2013, which included Nobel Peace laureate Lord David Trimble as one of two independent observers. Lord Trimble wrote in a letter accompanying the Turkel report, that whilst there was room for improvement, “taken as a whole, Israeli law and practice will stand comparison with the best in the world.” Those criticisms also come despite the fact that Israel’s own investigations are on-going.
• The report cites UN agency figures suggesting that civilians made up 65 per cent of the Palestinian casualties, though an Israeli NGO investigation of the names suggests the figure may be closer to 50 per cent.

Other notable omissions

• The context section of the report refers to the Israeli blockade but makes no reference to Israel’s complete withdrawal from the Gaza Strip in 2005, the political ideology and policies of Hamas (including its commitment to the destruction of Israel through armed struggle), the involvement of regional actors in arming Hamas and the dramatic expansion of the range of its rockets.
• The report ignores the Egyptian role in the blockade in Gaza and their contribution to the escalation of tensions in the period prior to the conflict.
• The report does not discuss Israel’s attempts to avoid the conflict with repeated declarations by Israel that quiet would be met with quiet.
• The report does not discuss the significance of Hamas rejection of ceasefires, especially the July 15 Egyptian proposed ceasefire, which Israel accepted and which preceded Israel’s ground operations.