There are many reasons commentators have argued against any outside inquiries into Israel’s behaviour in the occupied territories, Gaza and East Jerusalem. One is the charge that such investigations are motivated by antisemitism. They may be. But they also may not be. An a priori condemnation of such inquiries on the basis of such a charge is not only a singularly false premise for launching or not launching an investigation, but the effects are also terrible with respect to launching any investigation into an act that is allegedly antisemitic. Further, the weaponization of antisemitism in this way contributes to bringing the new international definition into disrepute. Any attempts to silence criticism of Israel by tarring such criticism with the label of antisemitism is, most times, a false flag. Instead, criticisms or defence of such investigations must be made on the merits and demerits of the case.

However, there is a larger context that does have to be taken into account beyond the merits of the alleged criminality of a type of action. The situation must be viewed not only in terms of concerns with justice but also whether it is intended to undermine efforts at advancing the prospects for peace. The new initiatives in this regard coincidentally correspond with the effective end of the Oslo era of Palestinian-Israeli peacemaking and substituting lawfare in place of diplomacy just as diplomacy had once largely replaced violence.

The problem with the resort to lawfare, to engaging in the Israeli-Palestinian conflict neither on the battlefield nor in the corridors of power, but in legal courts is that, in a point I made in my last blog, nowhere has the court of law advanced the peace process even when it advances the cause of justice. Justice must be done and must be seen to be done. But the use of criminal law to fight political battles is a misuse of such law and, in the long run, an ineffective one.

International law is critical to ending conflict, but the law envisioned concerns mutually binding commitments of peace treaties and not criminal law. Commitments made by both sides under existing agreements are critical. One such commitment is an agreement to settle the conflict through negotiations. However, that does not mean that serving justice is ignored. It just means that the use and abuse of the ICC should not be made as a substitute for negotiations, that is, to make an end run around such negotiations.

Though the shift from diplomacy to lawfare is understandable in a conflict situation that is now very asymmetrical. unilateral initiatives in The Hague are used to offset unilateral actions and achievements of the other side – the decline in American financial support for the Palestinians, the recognition of Jerusalem as the capital of Israel, the move of the American embassy to Jerusalem, the abandonment of conditioning other peace agreements between Israel and Arab states on advances in Israeli-Palestinian negotiations and, most important of all, the creeping annexation by Israel. Disregard for the sovereignty and independence of the Palestinians should not substitute for the need for diplomacy. For not only is peace not served, but a distortion of justice usually emerges in the wake of the shift.

I have written a series of blogs before on the 2014 50-day Gaza War in relationship to just war theory and military strategy. They can be found on Google and on WordPress under Howard Adelman. As I wrote then, “War is a matter of both prudential and strategic considerations and ethics. The latter allow international society to be governed by a system of norms, while the former recognizes that war is part of international society and one way by which states, or state-entities, try to settle their differences.” For a discussion of the norms themselves, please review those blogs.

I did not then and I will not here consider whether the rain of rockets aimed at civilian targets by Hamas forces prior to the war constituted a war crime. Though I believe an easy assessment would lead to such a conclusion given the civilian nature of almost all the targets, my purpose here is to focus on alleged Israeli war crimes. A major part of the defence relies on the policy and practice of Hamas in using civilian shields to safeguard rocket installations, planning and logistics centres. This does not mean that the strategy worked. It just meant that when the civilians were ignored and became collateral damage to any attack, Israel lost out in terms of the war for public opinion and possibly of a trial in the International Criminal Court.

On 6 November 2014, U.S. General Martin Dempsey, Chairman of the Joint Chiefs of Staff, stated that Israel went to “extraordinary lengths” to limit civilian casualties and collateral damage during its Operation Protective Edge in July-August 2014.  However, argument by authority is of little help when it comes to such disputes, if only because the U.S. is such an important ally of Israel. This was even true during this period when Barack Obama was president, and he was clearly not a cheerleader for Israeli policy under Prime Minister Netanyahu.

One issue was how force was deployed. Was it used discriminately or indiscriminately as was the case with Hamas rockets? On this issue there seems to be little controversy. The Israeli force from the air and on the ground targeted two main military resources belonging to Hamas: 1) the network of tunnels within Gaza as well as those that crossed into Israel, and 2) the places where missile batteries were camouflaged. The initial air war targeted the latter. The subsequent ground war focused on the former.

The issue was then not the strategy, but the care taken in such operations in dense urban settings to minimize collateral damage against civilians. Carpet bombing as practiced by the allies in WWII was avoided. The focus on military targets in the air attacks is supported not only by the IDF correlation maps of military targets in relationship to air strikes, but also by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) in its publication, Gaza Crisis Atlas which documents the concentration of the 12,000 strikes (with some exceptions) that impacted, damaged, severely damaged or destroyed identified military targets and avoided civilian populations more generally.

In fact, almost 80% of those targets were within three kilometers from the Israeli border, primarily the northern and north-eastern border, located there to maximize the effectiveness of Hamas rockets that lacked guidance systems. The remainder were mostly along the eastern border. The map is prima facie evidence that Israel did not indiscriminately target civilians, though, given the density of Gaza, significant damage to the civilian population could not have been avoided.

However, it is insufficient to simply aim your bombs at military targets. Was the intelligence operational in identifying the target, the location and the civilians likely to be impacted? Was the assessment of the weapons to be used compared to the weapons and munitions available to the enemy adequate? That is, did the weapons have the appropriate level of precision to minimize the effects on civilians? What was the assessment of the impact on civilians? Was there an independent determination of the legality of the operation?

Preparations have to be in place to minimize errors and, afterwards, to investigate whether, when errors in targeting occurred, negligence or even malevolent intent was involved. Was the preparation to mitigate civilian damage adequate? Were the investigations following the attack both thorough and scrupulous given the general principle that anticipated and actual “collateral damage” (civilian casualties) could not be excessive “in relation to the anticipated military benefit of the attack.”? (Lt. Colonel (res.) David Benjamin, IDF, “Israel, Gaza and Humanitarian Law: Efforts to Limit Civilian Casualties,” in The Gaza War 2014, eds Hirsh Goodman and Dore Gold)

Israel claims it has a “highly developed state apparatus for legal supervision and enforcement” to ensure compliance with this principle. Did the ICC investigate that claim when it initiated the preliminary investigation in 2015 into the Israeli conduct of the war? I have found no evidence that it did when the ICC investigated the death of 2251 civilians. Quite the reverse. The 2016 published preliminary investigation focused on “the extent of the devastation and human suffering.” Quite aside from the criteria to determine “extent,” extent is incidental to a war crimes investigation. The issue was whether the military means to eliminate the missile capabilities were proportionate to that effort and whether systems were in place to minimize civilian casualties.

Chief Prosecutor Bensouda of the ICC, based on the preliminary investigation, concluded that the information available showed that the IDF “intentionally launched disproportionate attacks.” Yet the IDF professes to follow the principle of “Purity of Arms,” namely that “includes the duty to use force only when and to the extent necessary to maintain one’s humanity during combat, to refrain from harming persons uninvolved in combat and prisoners, and to do everything in one’s power to prevent harm to their persons, dignity, and property.”

Though the 207-page initial investigative report is marked, “Top Secret,” (in other words I have been unable to read it), in fact we do know that the ICC preliminary investigation did not even wait for the completion of Israel’s own investigation to review its adequacy before it initiated what was supposed to be “a last resort” effort if the IDF investigation proved inadequate. Further, the report documented not only a policy of using human shields, but that three UN facilities were used by the Palestinians in Gaza both for storing and shooting missiles, both mortars and rockets. In one of those attacks by Israel, 44 Palestinian civilians were killed and 227 were wounded as they sought shelter in the UN facility.

Ban Ki-moon, the UN Secretary-General, stated that, “The fact that they [UN facilities] were used by those involved in the fighting to store their weaponry and, in two cases, probably to fire from, is unacceptable. It serves to undermine the confidence that all concerned should have that United Nations premises are civilian objects and therefore may not be made the object of attack.” The IDF insisted that, Israel makes every effort to avoid harm to sensitive sites.

There is no indication that the ICC investigated the Israeli claim that its Military Advocate General’s Corps (MAG) was independent of the normal chain of command and did, as claimed, provide appropriate legal advice and training to military officers and whether the instructions in international law prepared by the IDF’s School of Military Law were adequate and comprehensive. When investigations proved that charges were warranted, did the IDF conduct independent military trials? These questions were not answered because they did not seem to be asked.

Yet an earlier inquiry, the Turkel Commission (2012), which included a former Judge Advocate General of Canada who is directly responsible for supervising the Canadian military adherence to international law and the administration of military justice, concluded that, although some improvements could be made, overall, the Israeli investigative system was consistent with the requirements of international humanitarian law. “The examination and investigation mechanisms in Israel for complaints and claims of violations of the laws of armed conflict generally comply with Israel’s obligations under international law.” The recommendation that Israel initiate a fact-finding mechanism was, in fact, adopted in time for the 2014 Gaza War – the Fact Finding Assessment Mechanism (FFAM).

In spite of the failure of the ICC to evaluate Israel’s own investigation and legal system and its workings, Israel, unlike Hamas, [that time] cooperated fully with the 2015 preliminary investigation. Further, of thirteen criminal investigations launched from the 100 or so alleged cases referred to it (nine of which were immediately dismissed as frivolous), the IDF specifically probed alleged breaches in humanitarian law when it investigated, for example, the mortar attack on an UNRWA school in Bet Hanoun on 24 July resulting in the deaths of 15 civilians.

There were other IDF investigations:

• 16 July alleged attack leading to the deaths of four children on the beach in Gaza
• The 19 July alleged shooting in Dahaniya of a woman
• The 25 July deaths of two ambulance drivers – one in Khan Younis, the other in Beit Hanoun
• The 27 July IDF strikes leading to the deaths of 27 civilians in an attack on the Abu Jama family house
• The 29 July alleged shooting death of an individual carrying a white flag in Khirbeit Haza’a
• The Alleged mistreatment of a 17-year-old youth in Khirbeit Haza’a;

In support of IDF efforts, probably the best known are IDF efforts to warn civilians even in claimed cases of assault. Dropping leaflets from the air, engaging in “roof-knocking” (nearby harmless explosions), broadcasts, text messaging and phoning are all used so that, when there is a failure, it is more spectacular. There is no better indicator of a country’s commitment to protecting civil than when its armed forces, even in a planned assault, issues warnings and loses the element of surprise.