Part IX: Application of Just War Norms to the Gaza War

by

Howard Adelman

On 23 July, the Human Rights Council of the United Nations set up the Schabas Commission (A/HRC/RES S-21/1 which can be found at A-HRC-S-212-I_en-1(1).doc) The resolution was not set up just to look into the possibility of war crimes committed in the conduct of the 2014 Fifty Day Gaza War between Hamas and Israel. The war would not end for another month. The Report was entitled, “Ensuring respect for international law in the Occupied Palestinian Territory, including East Jerusalem”.

Though Bill Schabas insisted to me that the preamble was just UN boilerplate, the mandate clearly biases the inquiry in at least four ways:
a) presuming that Gaza is occupied by Israel – the preamble explicitly emphasized “the obligations of Israel as the occupying Power to ensure the welfare and safety of the Palestinian civilian population under its occupation in the West Bank, including East Jerusalem, and in the Gaza Strip (my italics), and noting Israel’s wilful abdication and rejection of its obligations in this regard;
b) inclusion of the West Bank and East Jerusalem where no war took place;
c) exclusion of Israel where thousands of rockets fired from Gaza landed;
d) a clear lack of balance between the overwhelming focus on Israeli actions and the few sideline references to actions of Hamas in Gaza without once mentioning Hamas.

But clashes did take place over the war in both the West Bank and East Jerusalem. On Thursday evening, 24 July, just after the Inquiry Commission was set up, protests took place in East Jerusalem. 20 protesters were arrested for throwing rocks. The Border Police prevented men over 50 years of age from attending the al-Aqsa Mosque just as Ramadan was ending.

In addition, there were a number of protests in the West Bank where Palestinian civilians were killed. On Saturday 26 July, one of the last days of Ramadan, Eid Fdilat from the al-Aroub camp near Hebron and 14-year-old Nasri Mahmoud in Beit Faijar near Bethlehem, who were killed in clashes the day before, were buried. In Beit Omar, two men aged 27 and 47 were killed in protests. In Hawara south of Nablus, two young men aged 21 and 22 were killed. In total, 10 Palestinians were killed and 200 wounded in those Friday protests following prayers in which protesters threw both rocks and Molotov cocktails at police and, according to Israel, even used live ammunition. Fearing a third intifada and determined to suppress it at once, Israeli Border Police fired stun grenades, and both rubber and live bullets at the protesters.

The main catalyst for the protests was the killing by an Israeli missile on Thursday 24 July of at least 10 civilians who had taken shelter along with 3,000 other Gazans in an UNRWA facility as described in an earlier blog, though, as I said there, the depiction has been challenged as a staged event following a misfired Hamas rocket but with only prima facie evidence and insufficient proof.

This time it was not only mullahs giving sermons in mosques that had stirred up the protests in a “day of anger” against the almost 1,000 Gazans (BBC reported 800) killed in the Gaza War in just over two weeks. Palestinian President Mahmoud Abbas, who heretofore had been silent and acquiescent concerning Israel’s reprisals, first against Hamas in the West Bank and then against Gaza, now called for demonstrations, demonstrations which were organized mainly by Hamas supporters if the number of Hamas flags held up in the protests offered any indication.

However, the commission covering the West Bank and East Jerusalem as well as Gaza was set up before the clashes and deaths of Palestinians in the West Bank. Further, these killings were not part of just war international law but only human rights law. The effect, at the very least, explicitly conjoined human rights and international just war law into a single inquiry. The preamble to the inquiry affirmed “the applicability of international human rights law and international humanitarian law, in particular the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem.”

However, one clause in the preamble could have referred to Hamas behaviour in Gaza – the reference to the fact that “the deliberate targeting of civilians and other protected persons and the perpetration of systematic, flagrant and widespread violations of applicable international humanitarian law and international human rights law in situations of armed conflict constitute grave breaches and a threat to international peace and security.” However, the clause immediately following referred only to Israel; Hamas is never explicitly mentioned.

Deploring the massive Israeli military operations in the Occupied Palestinian Territory, including East Jerusalem, since 13 June 2014, which have involved disproportionate and indiscriminate attacks and resulted in grave violations of the human rights of the Palestinian civilian population, including through the most recent Israeli military assault on the occupied Gaza Strip, the latest in a series of military aggressions by Israel, and actions of mass closure, mass arrest and the killing of civilians in the occupied West Bank.

It would appear that the Human Rights Council had already prejudged the outcome of an inquiry by pronouncing in advance that Israeli actions in the Gaza War were disproportionate in its use of firepower and did not properly discriminate between militants and civilians. If the preamble indicated bias, the singular focus on Israel in the mandate clauses pulled no punches. The Human Rights Council in its 23rd of July resolution in its second clause,

2. Condemns in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations carried out in the Occupied Palestinian Territory since 13 June 2014, particularly the latest Israeli military assault on the occupied Gaza Strip, by air, land and sea, which has involved disproportionate and indiscriminate attacks, including aerial bombardment of civilian areas, the targeting of civilians and civilian properties in collective punishment contrary to international law, and other actions, including the targeting of medical and humanitarian personnel, that may amount to international crimes, directly resulting in the killing of more than 650 Palestinians, most of them civilians and more than 170 of whom are children, the injury of more than 4,000 people and the wanton destruction of homes, vital infrastructure and public properties;
The prejudgement in advance of the inquiry and in setting up the inquiry is as explicit as one could make it. It is as if a trial of an alleged criminal began with the explicit condemnation of guilt not just by the prosecutor but by the court. The UNHRC assumes its role to be one of prosecutor, judge and jury rolled into one entitled to draw conclusions of guilt before a truly independent investigation had been held and certainly before any trial.

The mandate may appear to be balanced when the next clause condemned “all violence against civilians wherever it occurs, including the killing of two Israeli civilians as a result of rocket fire.” But the mandate no sooner makes this brief and indirect reference to Hamas rocket fire than it implicitly restricts the inquiry to the very few situations in which civilians in Israel were killed. The mandate takes away even an appearance of balance by immediately subsuming Hamas’ actions within the same clause by referring to the obligations of “all parties” concerned to respect their obligations under international humanitarian law and international human rights law.

Another clause of the preamble reaffirmed the findings of the Goldstone Commission and placed this new inquiry clearly as a continuation of that previous one, especially in the context of the Commission making statements on the Gaza War that Israel was deliberately targeting civilians, in spite of Goldstone’s own retraction of that finding..
Gravely concerned at the lack of implementation of the recommendations contained in the report of the United Nations Fact-Finding Mission on the Gaza Conflict of 2009, and convinced that lack of accountability for violations of international law reinforces a culture of impunity, leading to a recurrence of violations and seriously endangering the maintenance of international peace,
The preamble even made reference to Israel’s construction of the security barrier and the Council’s conclusion that this was a violation of human rights. For the Human Rights Council, “systemic impunity for international law violations has created a justice crisis in the Occupied Palestinian Territory that warrants action, including accountability for international crimes.”

The mandate does not call for a cessation of rocket fire from Gaza but does call for “an immediate cessation of Israeli military assaults throughout the Occupied Palestinian Territory, including East Jerusalem, and an end to attacks against all civilians, including Israeli civilians.” Clause 6 of the mandate explicitly “Demands that Israel, the occupying Power (my italics), immediately and fully end its illegal closure of the occupied Gaza Strip, which in itself amounts to collective punishment of the Palestinian civilian population, including through the immediate, sustained and unconditional opening of the crossings for the flow of humanitarian aid, commercial goods and persons to and from the Gaza Strip, in compliance with its obligations under international humanitarian law.” Of course, this was precisely the objective of Hamas in initiating the war. One would never have a clue that humanitarian aid continued to flow across the crossing points into Gaza throughout the war or that Egypt had closed the crossing into Rafah completely.

There is no reference to the three Israeli Yeshiva teenagers abducted and murdered, but the mandate does explicitly refer to the murder of one Palestinian boy by extremist Jewish thugs, for the mandate “Expresses grave concern at the rising number of incidents of violence, destruction, harassment, provocation and incitement by extremist Israeli settlers illegally transferred to the Occupied Palestinian Territory, including East Jerusalem, against Palestinian civilians, including children, and their properties, and condemns in the strongest terms the resulting perpetration of hate crimes.”

If the mandate was really serious about investigating the use of civilians, it would not only call on Israel to protect civilians as much as possible, but would call on Hamas, the governing authority in Gaza, to ensure civilian protection. The mandate explicitly ignores this fact and makes no reference to the possible use by Hamas of “human shields”.

So when the Human Rights Council

Decides to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014, whether before, during or after, to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults, and to report to the Council at its twenty-eighth session;
one can only sigh and despair at the total surrender of principles of neutrality and impartiality. One can only raise one’s eyebrows in wonder at the use of the word “independent” when the commission of inquiry is to operate under the auspices of the Human Rights Council and to be conducted by individuals appointed by the President of the Council.

When the only party to vote against this overtly totally biased and disreputable resolution was the United States, and when pusillanimous states, such as Austria, Britain, Germany, the Czech Republic, France, Ireland, Italy, Japan and Korea, only abstained along with a few other small countries, it is little wonder that Israel has virtually no trust in the procedures of the UN. When the countries supporting the resolution and ensuring its majority include Algeria, Cuba, Ethiopia, Kuwait, Pakistan, the Russian Federation, the United Arab Emirates and Vietnam, one has to ask how and why Bill Schabas would accept such an appointment. The mandate and the process exceed any decent norms of fairness. Why Latin American countries — such as Argentina, Chile, Mexico, Costa Rica — also supported such a resolution has to be of concern to Israel and those who believe in a UN run as much as possible, especially in the area of human rights, on as impartial a basis as possible.

The appointment of Bill Schabas to head the commission also has to be regarded as a serious disappointment, He is certainly an excellent scholar and expert on international law, but when it comes to Israel, he had already pronounced on the illegality of Israeli actions in Gaza. He should have recused himself as a scholar given our commitment, however imperfectly, to the academic values of impartiality, objectivity, detachment, disinterestedness and open-mindedness, especially when charged with an inquiry into such a contentious area. Now it is clear that there can be no objectivity in an absolute sense since objectivity is itself a value commitment and is to be understood against a background that defines and enjoins neutrality in approaching contentious issues. This approach requires judgement, so there is no absolute neutrality and impartiality. There is, however, a big difference between the effort to maximize neutrality and impartiality both in appearance and substance and the virtual absence of these criteria. There is very little sense of neutrality and judgement in the terms of reference of the Commission or in its appointees.

Neutrality and impartiality are the key ingredients with respect to any adjudication, particularly when there is a conflict between two parties. These two qualities are especially important if the “neutral” party is to influence the actions and behaviour of the belligerents. However, the Commission seems obsessed with scoring points against Israel, countering “impunity” and holding Israel “responsible” rather than enhancing the rule of international law to truly protect civilians, especially in times and places of war.

What could have been done? A three person commission made up of a very respected Israeli academic on international law, an equally highly respected Palestinian academic or jurist with expertise on international law, and a third appointment drawn from the international community with an equally stellar reputation and agreed to by both the Israeli and the Palestinian appointee could have been charged with looking into specific alleged charges of possible breaches of international just war laws. Any of the three would have to recuse him or herself if they had made any public pronouncements on the illegality or immorality of the case. This may be akin to finding precious gems or locating a fair jury in a highly publicized murder trial where the depiction of the alleged murdered was widely distributed, but it is difficult not impossible. And it is the first principle of ensuring justice. But “justice’ seems to be a word unfamiliar to the Human Rights Council.

The human rights of Palestinians in the territories should not have been merged with a just war inquiry if only because there is already a debate among international law experts on whether just war theory is merely a sub-category of universal human rights or whether it has to be understood in conjunction with the reality of war which in its very essence is not an activity primarily concerned with human rights, though, in my view, and that of many others, going to war and conduct in war should be bounded by certain limitations governed by just law principles, but these are neither subordinate to nor subsumed under human rights principles.

This alludes to a much larger issue – the effort of cosmopolitan international philosophers and legal theorists to subsume all international ethical and legal issues under a human rights rubric versus those who consider that human rights law is not a monotheistic secular religion but exists and lives among various overlapping constellations of ethical principles — such as those governing the conduct of war or those regarding the treatment of refugees. The irony is that it seems to be the cosmopolitan theorists who are most likely to allow bias and partiality to infect their analyses whereas ethicists or lawyers, for example, conjoined to the military in th United States, for example, seem far more capable of a detached approach when examining specific cases in which accusations have been made about abuses of the norms of just war.

Tomorrow: Part X Reconciling War Strategy and International Law