UNHRC Report 2014 Gaza War.III.Methodology

The UNHRC Report on the 2014 Gaza War

Part III: Methodology

by

Howard Adelman

How one investigates is as important as who does the investigation (the previous blog) and what framework one brings to the investigation (the first blog in this series).  Further, how one communicates the results of one’s investigation is integrally related to what is revealed, but I will reserve the discussion of that aspect of the methodology only after we examine the majority of the Report. For the context of how results are conveyed is as important as the context of the actual events themselves and the methodology for determining facts.

The Commission never visited Gaza. Israel never even acknowledged the repeated requests from the 2014 Gaza War Commission to permit entry from Israel. Egypt would not even allow the Commission to enter via the Rafah crossing, allegedly due to the security situation (para. 3). However, as we read on, Egypt’s refusal was irrelevant. Why?

“Israel also regulates all (my italics) crossings allowing access to and from Gaza. While it is true that the Rafah crossing is governed by Egypt, Israel still exercises a large degree of control, as only Palestinians holding passports are allowed to cross, and passports can only be issued to people featuring on the Israeli generated population registry.” (para. 29) Israel controls who gets passports in Gaza. Why is this claim made? Israel “controls the Palestinian population registry, which is common to both the West Bank and Gaza, and Palestinian ID-cards can only be issued or modified with Israeli approval.”

Assertions like this undercut the credibility of the report. Though most readers of the report will be unfamiliar with the so-called passport war, the basic facts are these:

  • The PA, not Israel, overwhelmingly controls who receives passports in Gaza
  • The PA issues approximately 500 passports per business day to Gaza residents
  • The PA is the party, not Egypt, which restricts the issuance of passports based on vague security concerns
  • Egypt’s restrictions are imposed, not only for security reasons, but to prevent overstayers and using Egypt as a place to escape from living in Gaza
  • Hamas has a record of confiscating passports held by members of Fatah, in part in retaliation for the PA limitations on who gets passports
  • Gaza human rights organizations have campaigned to end the practice; thus A-Dameer, one of the Gaza-based human rights organizations, once declared that, “The PA automatically prevents people affiliated with Hamas from receiving passports. We have appealed to the prime minister on the matter, but have so far received no response.”
  • The enforcement of these practices shifts depending on the character of the relations between Hamas and Fatah at the time
  • The major obstacle to leaving Gaza has not been the absence of passports, but the possibility of entry to either Egypt or Israel, both of which restrict entry, but Egypt has permitted students to cross, those seeking medical services, those with visas to other countries and those en route to attend the annual haj pilgrimage
  • Israel’s veto rights based on the Oslo accords over the Palestinian population registry is almost totally irrelevant to the issue over the issuance of passports, and is a red herring if ever there was one.

Why would the commission damage its credibility over such a side issue? Because, just as in referring to the Palestinian State, the Commission is committed to reinforcing the position that Israel is an occupying power, for an occupying power has additional responsibilities that an alien belligerent does not have. This is a clear example of ideology more than even a human rights frame influencing the content of the Report.

However, by and large the writing of the Report has not been influenced by the imposition of such crass uses of ideology. The Commission has relied on expert witnesses, especially when it had to determine the type of weapons used in a specific incident. However, witnesses who might contest the findings are not used. In using expert witnesses from the medical field to reinforce the source of death or injury, the Commission does not explain why medical doctors concerned with children’s health in Israel were not interviewed, but those in Gaza were.

However, the Commission has primarily relied on affected individuals through written submissions (500) and interviews (280), and on other witnesses primarily from human rights organizations. I will later offer a hypothesis to explain this source as the primary evidence in the documentation. The Commission also heard from representatives of the government of the West Bank, as indicated above, referred to as the representatives of the Palestinian State. No explanation is offered for that designation. Nor is there any consideration presented of how such a designation might in itself determine Israel’s non-participation in the process and whether such a designation arose after Israel’s refusal to participate or was one of the provocations that incited Israel to remain aloof from the proceedings of the Commission.

The Commission claimed that “a number of Israeli non-governmental organizations were reluctant to cooperate with the Commission of Inquiry, fearing in some cases that there could be negative repercussions on their work.” This is hard to believe and no back-up is provided for this contention. Certainly B’Tselem, Israel’s premier human rights organization, seemed to show no reluctance in offering evidence and is extensively cited in the Report.

Those who were not interviewed rather than those who were may be of somewhat greater significance. I mentioned two types of missing witnesses above, Israeli doctors and military experts on the use of weapons who might contradict the findings of the one military expert employed. A military expert on munitions was consulted to determine types of weapons used. That testimony, which is included in the details of each of the incidents described, reinforces the sense of detachment and concern with factual detail in the Report, but there is no reference to other military experts who might have a different view, and, if so, how the Commission adjudicated between and among differences. We will have to see when we examine the detailed descriptions whether this was significant. Alternatively, was there sufficient consensus such that the attention to detail on the munitions had another purpose that explains why this needed to be included in such detail. This is especially important since there is relatively very little in the Report, as there was in the Goldstone Report, discussing weapons banned by international humanitarian agreements.

There is no record of interviewing military personnel on either side or experts from either side or from other armies, or experts in humanitarian law, mainly the ICRC already discussed, other than from human rights organizations. The Commission also relied on satellite imagery, video and photographic evidence. But all of these sources, both neglected and included, were subsidiary. The Commission “gave particular weight to first-hand testimonies, recognizing the limitations resulting from the fact that the interviews were done remotely, the lapse in time since the incidents occurred, and the possibility of reprisals.”

The primary method in examining and presenting the evidence of the depiction of individual incidents is the use of “reasonable grounds” as the measure of what took place. That is, what “a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.” (para. 19) Such a determination is based on the reliability and credibility of the source related to the objectivity and quality of the evidence and the methodology by which the evidence was obtained. The validity and veracity of the information itself was evidently based on cross-section comparisons. In examining the presentation of individual incidents, we will have to see if a major method of scientific objectivity was used, namely what checks were used to see if the evidence was false – known as the application of the principle of falsifiability, or whether that principle was employed at all.

This allows me to segue into a very different methodology altogether, and not one even mentioned or discussed in the methodology section –s literary and stylistic methods of presentation as well as issues related to determining scientific reliability and objectivity. First, it is very interesting that the Commission decided to place the depiction of the damages to Israeli civilians and property first. Of the almost 500 paragraphs in the Report which constitute the bulk of its material, only 50, or 10%, deal with attacks from Gaza against Israel. 90% deal with incidents of civilian deaths and injuries and property damage in Gaza. That may be justified because the proportions represent the different degrees of damage done by each side to the other, something that will have to be determined by a specific examination of incidents.

Before the Commission gets into the examination of the specific incidents, it offers an account of the legal framework it uses and of the context in which it places its investigation and the conflict that occurred. On the matter of the legal framework, the Report discusses three area of international law – humanitarian law (14 paragraphs), human rights law (8 paragraphs) and international criminal law (5 paragraphs).  The proportion given to each type of law is no indication of the importance in compiling the Report. For when one studies the Report, it is clear that the overwhelming framework for examining the legal issues in the conflict is humanitarian law.

On the issue of humanitarian law, the Report presents the most relevant principles for the conduct of war and presents them fairly and succinctly.  However, the Report offers no explanation of why it neglected to deal with other very relevant principles of humanitarian law. The first concerns not the conduct of war (ius in bello), the means and methods of engaging in a violent conflict, but the reasons for going to war in the first place (ius ad bellum). The Geneva and Hague Conventions are summarized as well as some follow-up treaties and references to customary international law, but case law seems to be reserved largely as citations in depicting and analyzing specific incidents. There is only an implicit and glancing reference to the reasons each side had for engaging in war in the first place and the extent to which the initiation of hostilities was justified.

This point is crucial. For both strands of international humanitarian law are critical to analyzing a conflict. To what extent does the Report engage in such discussions and what reason, if any, is offered for the relative inattention? The section on humanitarian law dutifully lists all the relevant international instruments. However, the focus of the discussion overwhelmingly concentrates on reinforcing the claim that Israel is an occupying power because:

  • Israel still occupies part of the Palestinian entity, namely the West Bank and East Jerusalem, and occupation of only part of a territory is sufficient to define a party as an occupying one
  • Israel exercises effective control over Gaza, not because it any longer has troops on the ground, but because it retains the capacity to launch troops easily into Gaza
  • Israel continues to control the air space and marine access
  • Israel exercises de facto control over the Gazan economy
  • As mentioned above, Israel controls not only access and egress via the crossings into Israel, but over the crossing into Gaza through its veto over the Palestinian population registry and, hence, over who does or does not get passports.

However, the key criterion of the readiness militarily to occupy a territory is whether a country, in this case, Israel, can at will assume physical control of the territory. Since Israel, by the war itself, gave proof that it could NOT do this both in beginning hostilities against Gaza as well as in the staging of those hostilities – conducting a ground war only after a period of air war – Israel could not be an occupying power by this criterion. The interesting point is that the Report cites the relevant measure but engages in no discussion of whether the measure is or is not applicable. It merely assumes that Israel had the capability in spite of the massive evidence to the contrary. It is not simply that the massive evidence is ignored, but even the argument is totally bracketed.

Nor does the Report get onto the issue of necessary versus sufficient conditions. Each criterion the Report cites is a criterion for determining occupational status. The question is whether they amount to sufficient conditions only in combination? Or does the presence of any one by itself determine whether one state is in occupation of another territory? The Report is written not in the form of a social science investigation, which considers and weighs the arguments for each side in a contentious controversy, but in the form of a prosecutorial notification before a court citing only evidence and arguments for the viewpoint it is putting forth, a viewpoint which reflects the position of the UNHRC and majority of members of the UN when it comes to the Gaza case (but not the case of Russia in the Ukraine, for example).

Perhaps Israel is legally an occupying power. The evidence as presented is totally unpersuasive and defies common sense. For if Israel were really in control of Gaza, how did Hamas manage to smuggle all those missiles and mortars into Gaza? Surely Israel’s going to war and the way it went to war are the best indicators that it did not exercise effective control over Gaza. If the issue of effective control of air space and of maritime access and of occupying a part of the territory of a state were key, then given the American extra-territorial military role on the Dew line in Canada, and its deployment of nuclear-armed missiles in the north of Canada contrary to general public knowledge, the United States, one might argue, has been an occupier of Canada, quite aside from the fact that America is by far the most important influence on the Canadian economy. The absurdity of such a claim, that America is an occupying power in Canada, should at the very least instigate the Commission to present the arguments and evidence for the other side in full instead of dismissing them as simply incidental and troublesome claims by the party, namely Israel, which allegedly wants to disown its responsibilities.

If the primary emphasis is on the issue of humanitarian law, why the big emphasis on the issue of occupation? And why does the issue take so much of the space within the humanitarian law section when the key issue of occupation seems to be the applicability of human rights law and the point the Report makes at the end of the discussion of human rights law: “victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.” (para. 46) If Israel is an occupying power, then Israel is accountable to Gazan residents for justifying its behaviour and the relationship is not just one between two alien entities, Israel and Gaza.

The Report not only neglects key issues of humanitarian law. First, it avoids the critical issue of the justification for going to war in the first place. However, even other issues in the conduct of war than proportionality, distinction between combatants and non-combatants and the choice of military weapons used, are not discussed. Why is there no discussion of the principle of humane treatment? That principle prohibits violence to life and person, torture, taking hostages, treating the enemy population, whether combatants or non-combatants, in a humiliating and degrading manner, executions without due process and proper legal protections. In fact, the principle of humane treatment is referred to only once in the Report, not in the paragraphs discussing humanitarian law, but in a depiction of one incident of claimed mistreatment by Israeli troops. In paragraph 342, the Report cites the relevant Articles 27 and 29 of the Geneva Convention IV, and then makes the claim that in several cases, Palestinians were detained in their homes in Khuza’a, and then insulted, threatened with death and ill-treated by members of the IDF.

Quite aside from whether Israeli soldiers behaved this way in this incident – which will be discussed in another blog – or whether this was an exceptional incident, the real issue is why was the principle of humane treatment never discussed in the legal section and only cited once as far as I could find in the whole document?  After all, the Report does discuss and describe the extra-judicial execution of alleged collaborators (paras. 490-502), describing them as not uncommon, as mostly perpetrated against those imprisoned in Gaza before the outbreak of the war, ostensibly as a warning against other potential collaborators. These were among the most heinous breaches of the principle of humane treatment, and infinitely worse than the alleged conduct of the Israeli soldiers in this one incident cited. The Report documented 21 incidents in total (there were others), at least 11 of them from persons previously incarcerated in Al-Katiba prison. “On 7 August, Al Qassam Brigades, the armed branch of Hamas, claimed responsibility for the 5 August executions, declaring that the persons executed were ‘found guilty of giving information on the whereabouts of fighters and civilian houses’.” (para. 495)

Overt abductions, torture, extra-judicial killings, kangaroo trials in some cases, are all severe breaches of the principle of humane treatment, some evidently for strictly political reasons to dispose of Fatah personnel during war when the killings would not be noticed. It is interesting that the Report includes a promise made by the PA that the government would investigate at least 25 cases under this rubric “once it recovers control of the Gaza Strip” and the PA did not mean recovering control from Israel. This and other comments all challenge the Report’s assumption more than conclusion that Israel was an occupying power in control of Gaza. Another relevant aspect is that witnesses in Gaza refused to come forward and be acknowledged lest revenge be meted out against them.

The Report has to be applauded by inclusion of these incidents and pointing them out as breaches of the Geneva Conventions. But then why not discuss the applicable principle of humane treatment in the legal section? Why the overall emphasis on proportionality? There are other principles that are also ignored, one related to the principle of non-discrimination which directly overlaps with human rights principles. So is the principle ignored of preferential protection for women and children non-combatants, more particularly, protecting women from rape or assault, and prohibiting children from being combatants? Ignoring rape and assault of women might be understandable since neither side had a reputation for engaging in such activities. But there is plenty of evidence and certainly far more allegations that the militant groups in Gaza had no compunction against the use of child soldiers. Did the Commission not have a responsibility to investigate such allegations?

Once the principles of ius ad bellum were ignored, and which will be discussed in much greater detail in my next blog dealing with context, the playing down of the principle of humane treatment and of the gender issue may have been given little play because the condemnations overwhelmingly bring Gaza militants to the forefront and allow Israeli troops to appear much better in following such norms. But this is a mere speculation. We shall have to establish whether it has greater importance when we get deeper into the Report.

Next: Context and the Justification for Going to War

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