UNHRC Report 2014 Gaza War.II.The Commissioners

The UNHRC Report on the 2014 Gaza War

Part II: The Commissioners

by

Howard Adelman

In my last blog, I wrote, “Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome.” In that blog I also indicated that the intellectual frame of any commission set up by the UNHRC, quite aside from whether it followed standards of objectivity and impartiality, would be one which endorsed the universal sovereignty of human rights over all other international norms. That this frame would govern the examination of the conduct of the belligerents in the 2014 Gaza War. However, the degree of impartiality and objectivity of the commissioners themselves will certainly be important.

My friend Bill Schabas has been the first one named to head the commission. The fact that he had already pronounced himself on finding Israel guilty of war crimes and crimes against humanity, and had insisted that his dream would have been to see Prime Minister Netanyahu in the dock before the International Criminal Court, did not seem to deter the UNHRC from making the appointment or Bill from accepting it. I personally wrote Bill and then spoke to him to ask him to recuse himself. I was far from the only one. There were a plethora of human rights experts worldwide that gave the same advice. These included Aryeh Neier, founding director of Human Rights Watch and another friend of Bill’s (Bill and Aryeh both lecture at the Paris School of International Affairs), Mordechai Kremnitzer who works with the Israeli human rights organization, B’Tselem, and Joseph Weiler, President of the European University Institute in Florence, who holds the European Union Jean Monnet Chair at New York University School of Law and is Editor-in-Chief of the European Journal of International Law. There were many others.

The appointment seemed to indicate an even worse outcome than the Goldstone Report. Bill insisted that he could maintain his objectivity in spite of his previous pronouncements, and that added to my concern rather than alleviating it. However, when it was revealed that Bill had accepted a small consultancy retainer with the PLO in 2012 to offer a legal opinion, that did him in. He was forced to resign, but only after he had run the inquiry for over six months.

A fellow commissioner, an American jurist, took over. Mary McGowan Davis became chair. Davis had been a member of the 2010 Committee of Independent Experts that was in charge of reviewing whether and how Israel (and the Palestinians) had behaved in response to the Goldstone recommendations. Israel was required to investigate about 400 suspected incidents of breaches of humanitarian law. In the conclusions of her inquiry, Davis criticized Israel for not opening investigations into those who designed, planned, ordered and oversaw Operation Cast Lead as called for by the Goldstone Report. She criticized Hamas for not investigating the launching of mortars and rockets into Israel. She criticized Israel again for taking too long in conducting its investigations while acknowledging the enormous scale and challenge to Israel to completing its work. She did commend Israel for the resources and the effort devoted to the task. The results of her committee’s work evidently were a key factor that influenced Richard Goldstone to withdraw his claim that Israel deliberately targeted civilians, though that only meant he was now anathema to both Israel and the supporters of the UNHRC which allowed the report to stand.

Davis’ modestly claimed that her responsibilities as chair of the post-Goldstone commission work were simply to implement the mandate of the Committee to “monitor and assess the investigations by both sides and to report back to the Human Rights Council.” It was not to make recommendations about what should be done with the findings. However, she did express the belief that if her committee embraced the principles of an impartial and fair investigation, that in itself would push forward the notion of a peace agreement based on transparency, accountability and justice. To that end, she insisted, the committee had to be seen to be delivering justice, especially by the victims on both sides. This perspective in itself was a considerable contrast to the evident partiality of Bill Schabas on the substantive issues of the conflict.  On the other hand, if she had already accepted to serve beside Bill on the Commission of Inquiry and had not insisted that Bill recuse himself as a condition for her taking up her post, one is forced to question how strongly she upholds the principle that justice must not only be done but must be seen to be done.

Davis honed her legal skills in a tough jurisdiction as a former Assistant U.S. Attorney for the Eastern District of New York. She had risen to become an Acting New York Supreme Court Justice. If I were even a half-decent journalist and not an ersatz one, I would have been able to find out why she had not been made a full member of the New York Supreme Court, why she retired from that position when she was clearly relatively young and full of energy. I would at lease have been able to analyze her judgements or her earlier role as a federal prosecutor. But I am not a journalist, let alone a good one, so I have no new information even on her beginnings as a defender of human rights. Because of my own previous work, I did know that she had been a consultant to the International Criminal tribunal in Rwanda, but I have no clue on how she performed except that she had also served to mentor criminal defense lawyers appearing before that court. That in itself is some measure of respect for her impartiality and her commitment to due process. Nevertheless, I was still bothered by her willingness to sit on a commission subordinate to Bill who should have unequivocally recused himself long before the issue of his consultancy emerged, especially important because Bill ran the inquiry for so many months before he resigned and Davis took over for the final almost 5 months.

I was wary on other grounds. After all, Davis had agreed previously and again this time to work under UNHRC auspices in spite of its record of a totally deformed focus on Israel in disregard of any reasonable standard of impartiality. She had said nothing about why the UNHRC had failed to launch an investigation into Hamas for reigning missiles and rockets against civilian targets in Israel and only launched an investigation once Israel once again invaded Gaza. Further, she had been congratulatory to the Palestinian Authority for cooperating with her 2010 investigation. This stood in contrast to Israel’s non-cooperation. Israel had only just initiated its self-examination. She ignored the views of Melanie Khanna, who served under Hilary Clinton, and who presented the American view that the UNHRC had an overwhelming record of a disproportionate focus on Israel and that Israel had at least demonstrated an ability to engage in self-scrutiny. Contrast this to the PA, which, while it offered full cooperation with Davis’ previous investigation, had shown no record of promptness or ability at critical self-scrutiny. Contrast this with Hamas, which also did not cooperate with Davis’ investigations and certainly never publicly investigated its own conduct.

Beyond these obvious considerations, there is the dilemma of the role of such reports, even as that of the Davis investigation into compliance. This certainly was true even with the Goldstone recommendations. After all, reports are useful tools of propaganda by all those states, ostensibly in favour of transparent impartial justice but, oblivious to those standards in the behaviour of their own states. Further, these Arab and Muslim countries   were exclusively interested only in those aspects of her investigation that focused on Israel as the culpable party. Even Amnesty International seemed to see its task as demonstrating impartiality, not by carefully weighing the faults and shortcomings of the respective parties, but ensuring that AI condemned Hamas and Israel equally. How does one operate within such a partial context of both the international community and the UNHRC more specifically? Davis has chosen to try to advance the cause of impartiality from within the auspices of the UNHRC while Israel is committed to non-cooperation with a body that has an almost perfect track record of bias.

All of this is beside the much deeper bias of the intellectual framework of the imperial sovereignty of human rights in contrast with the view of overlapping as well as competing international norms of human rights versus humanitarian law. Is Israel better off boycotting the whole proceedings or should Israel have chosen to cooperate with the investigation in spite of the record of biases of the organization under which it was operating? Did the second (originally third) commissioner tilt the balance towards greater impartiality or towards reinforcing the inherited biases of the UNHRC?

Doudou Diène (Senegal) earned his first degree in philosophy from Senegal’s Concours Général from which he graduated with the top prize. (As a philosopher, I am already predisposed, at least initially, to a favourable attitude towards him.) Diène holds a law degree from the University of Caen (France), a doctorate in public law from the University of Paris, and a diploma in political science from the Institut d’Études Politiques in Paris. After a long career at UNESCO, including two years as UNESCO’s Deputy Assistant Director-General for External Relations and subsequently as Acting Director of the Bureau of Public Information, he served as the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance for six years from 2002 to 2008. From 2011 to 2014, he served as the Independent Expert on the situation of human rights in Côte d’Ivoire. The fact that he worked for 6 years for the discredited UN Commission on Human Rights, the predecessor to the UNHRC, does not work in his favour. Further, there is no evidence from his background that he had any expertise in international humanitarian law however much an expert he was on intercultural and interreligious cultural dialogue. One might expect him to be fair-minded and impartial, while not expecting him to think outside the imperial role of human rights.

The report itself should prove to be very interesting reading.

X: Reconciling Strategy and Just War Norms

X: Reconciling Strategy and Just War Norms

by

Howard Adelman

Some military strategies are much more compatible with international just war norms than others. Some are totally incompatible. Thus, in Iraq and Afghanistan, an application of strategy that makes the battle for the hearts and minds of a population rather than one which regards the whole population as potential enemies is almost bound to be more sensitive to just war norms, at least for the dominant power. However, even a war based on the belief that the enemy population must itself be demoralized and force must be used to destroy support for its leadership, but which purports to follow just war norms, is not a strategy of “total war” in which a dominant power simply blasts a civilian population to smithereens. The latter is totally incompatible with the application of just war norms.

An insurrectionary military group, such as ISIS, the Islamic State of Iraq and al-Sham (to be distinguished from the ancient Egyptian goddess, Isis), or ISIL (the Islamic State of Iraq and the Levant) is not the same as Hamas. When Ramadan began, Abu Muhammad al-Adnani announced that henceforth the ISIS leader, Abu Bakr al-Baghdadi, would be known as the caliph and ISIS itself would be just the Islamic State. The Islamic State, which fights by directly exterminating civilian populations of those it regards as heretics, is not to be equated with Hamas or the Muslim Brotherhood. Hamas is not an advocate of “total war” from an insurrectionist perspective. Yet it is quite willing to reign rockets on the civilian population of Israel, but does not advocate the extermination of Israelis as heretics. The Hamas military arm is not even made up of Jihadists even though Hamas and Islamic Jihad often collaborated in the war against Israel.

But Hamas may be more dangerous than ISIS when the hearts and minds of Westerners enter the equation. After all, Hamas won in a fair election and has a degree of political legitimacy. Though Hamas has murdered alleged collaborators and even Fatah lackeys when Hamas first took power, it has not targeted uninvolved civilians for slaughter. ISIS cannot even get along with other terror groups like al-Qaeda or the al-Qaeda-affiliated Al-Nusra Front. In contrast, Hamas has agreed to enter a coalition government with the Palestinian Authority without even getting any cabinet posts.

Whereas ISIS is fighting a bloody media war to gain recruits and conquer more territory and economic assets to become self-sustaining, the Hamas media war is aimed at the hearts and minds of Europeans and Arab states to gain support and help escape its economic isolation and its severely restricted geographical area. Hamas is an economic basket case with its society largely funded by external, including Western, donors, not an economically rich terrorist machine expanding its territory and sources of economic exploitation. Hamas is fighting a media war to win the hearts and minds of Europeans. Hamas has been able, in part, to rule for seven years because of Western “humanitarian” aid and Western human rights protesters opposed to the blockade, at least the blockade imposed by Israel.

The difference between the two organizations is best illustrated by the UN political attacks against Israel for firing rockets in its own self-defence against Hamas and Gaza while the UN largely silently cheers when a country like the US, which is not directly threatened by ISIS, uses drones and Western fighter jets to shoot up trucks loaded with armed jihadists as they cross the desert of Iraq. The UN even pays for the education of almost half the citizens of Gaza, openly criticizes Israel, and acts as an apologist for Hamas even though its schools are used not only to house refugees but to store rockets.

The most common thread connecting Hamas and ISIS is not the Muslim religion (which is so variable in the interpretations of its texts), but the reliance of each organization on the twin legs of militancy and martyrdom. Both are used to restore and enhance each organization’s popularity. Both are children of the modern age of communications. ISIS may broadcast its beheadings and Hamas may hide its kangaroo justice, but the reason in each case is the same – to selectively use different types of militancy to defend and advance their respective positions in the Muslim and then the larger world.

The most significant difference is that Hamas is embedded in a dense civilian population; ISIS is not. The main strike force used by Hamas was not its rockets but its military units on the ground who fought soldiers of the IDF. However, the question in whether they used “human shields”, that is embedded themselves so deeply in the civilian population and in such various ways that it became very difficult if not impossible for their enemies to fight them without killing civilians either in total error, as when significant numbers of civilians were in a location where there were no militants nearby and Israel could not offer a strategic reason for targeting that locale, or because a belligerent was close by without the knowledge of the Gaza civilians and sometimes without the IDF knowing that civilians were close by. However, sometimes civilians were coerced or induced or even cooperated to host militants, in which case is the civilian complicit and therefore subject to being attacked by the IDF? In each of these different cases, the ethical criticism of Israel would be quite different as would be the application of the norms by which the action is judged.

In the case of the air war, the rockets and mortars shot off by Hamas had no guidance systems so could not be used unless civilian targets were acceptable. Even if Hamas wanted to discriminate between Israeli civilians and military units, it was unable to do so without totally disabling its storehouse of rockets. If the types of weapons available to fight an air war are such that they, by their very nature, cannot discriminate between civilians and militants, does that make what Hamas does automatically a war crime. However, if, in actual practice, those rockets and mortars kill and maim relatively few civilians, if, in fact, one application of just war theory would lead to the total immobilization of Hamas’ air weapons – its rockets and mortars – does the imperative of Hamas to use the weapons trump concerns about discriminating between civilian and military targets? The very fact that we can ask this question means that Hamas is not outside the bounds of international humanitarian law and is accountable under that law. Hamas, to repeat, is not an extremist warrior jihadist group indifferent to moral and legal norms.

Both the Israeli government and Hamas fought a war in which each side was governed by just war norms. Both sides targeted civilian buildings, but there seemed to be no intention on either side of using its military hardware and firepower to wantonly kill civilians on the other side in spite of what Israel has said about Hamas or what Hamas has claimed about Israel. As Benny Morris described with respect to the latter, Israel demonstrated “no willingness to exact a heavy price in blood from the enemy’s civilians.” Nevertheless, Israel was willing to tolerate more collateral damage to civilian targets and to civilians than would otherwise have been the case if Israel had adopted a strategy of trying to win the hearts and minds of Gazans. Hamas was willing to adopt military weapons that landed on civilian targets and maimed and wounded civilians on the ground when faced with the alternative of being almost totally defanged

The problem of applying just war norms in an impartial and detached manner is much more difficult when a war strategy includes civilian demoralization as part of its strategy versus a war that tries to win over a population and alienate it from its leaders. Nevertheless, unless a more forceful response was the dominant strategy, it is unlikely we would be concerned very much about just war norms. For the norms of discrimination between civilians and militants and the principles of proportionality would be much more scrupulously followed.

This means that, in the Gaza War, just war norms can be applied since there is no a priori way of condemning either side. On the other hand, on each side there are bound to be cases where it is crucial to look into whether the norms of discrimination between civilians and militants and of proportionality were attended to properly in the conduct of the war.  However, it is first necessary to understand whether the war was just in the first place.

In the case of Israel, the answer is fairly easy — unless one already has a built-in prejudice in one’s approach to the Zionist state. The 2014 Gaza War was clearly and unequivocally a war of national defence against a party reigning rockets down on its civilian population. This is true even if Israel might have provoked the war by rounding up Hamas operatives in the West Bank after the killing of three teenage Yeshiva boys by Hamas operatives, either as a rogue operation or one under the direct control of Hamas. What makes the Hamas position problematic is that its ultimate aim is to exterminate Zionism and destroy the product of the self-determination of the Jewish people. If Olmert had not imposed a blockade when Hamas came to power, the aggressive intent of Hamas would have been clearer. But Israel would have won a moral battle in international eyes but at the cost of a much stronger, better armed and more militant Hamas. Israel is unwilling to bet on Hamas becoming moderate in order to legitimate itself when, if Israel loses the bet, its very existence is put at risk.

Nevertheless, the existential threat to Israel does not permit Israel to engage in total war against the civilian population of Gaza. And it does not do so and has not done so. But Israel has chosen to ignore the hearts and minds of Gazans and to win each battle by diminishing its military capacity and enhancing the fear of Israeli reprisals. As a result of adopting such an approach, Israel is more tolerant of collateral damage than it would be otherwise, and many more civilians in Gaza were maimed and killed than if the alternative strategy were adopted. But unless one is a Rousseauian purist with human rights trumping everything, just war norms are not there to determine strategy but to determine whether the execution of that strategy falls within just war norms.

In some cases, the implementation of the strategy may not have conformed with just war standards. In general, Israel clearly went out of its way to spare the lives of civilians, once the caveat is accepted that it adopted a more militant strategy than an opposing strategy which would have encouraged more attention and consideration of just war norms. This does not mean Israel in its militancy abused just war norms. There may indeed be instances where Israel was careless or indifferent to the civilian collateral damage. That has to be ascertained by gathering case-by-case evidence and cannot be accomplished by a priori begging the question.  

Hamas has to be judged by the same norms and within the context of the strategy it chose to adopt. It could have, and I think it should have, adopted the path of peace that Fatah eventually adopted to seek a resolution of the Palestinian-Israeli conflict. But the strategy it did adopt neither put it outside the application of just war norms nor allows independent judges to determine in advance that Hamas was guilty of criminal activity. Given the choices it faced and the military means at hand, could the killing of civilians be seen as collateral damage? However, if Hamas can be shown to have been complicit in the killing of the three Yeshiva students, that was a criminal act and should be seen as such. So probably was the kangaroo justice meted out to alleged collaborators. But given the context, the fact that either side chose to deal with the situation by a more militant strategy than I personally saw as imprudent and unnecessary does not mean either side broke the norms of just war.

I recognize that I am interpreting the application of just war norms from a contextual or Grotian perspective and not an absolutist Kantian perspective that makes human rights the absolute ruler in applying international norms to the exclusion of any real genuine concern with military strategy. The Kantian or deontological approach has become the reigning doctrine in human rights organizations and for international legal experts and philosophers, but it is not the dominant outlook for teaching the application of just war norms in military colleges. For obvious reasons. Military colleges are there to teach people how to win wars and to do so with sensitivity and consideration of just war norms. They are not there to prevent armies from adopting strategies and methods which might lead them to lose.

On a personal note, it is relatively easy to combat the realists who would totally ignore and subvert just war norms, and the moralists who also subvert just war norms by trying to use them to rule out war but in the end merely support the weaker party in a conflict and, thereby, indirectly contribute to the civilian death toll. What is really difficult is trying to uphold just war norms in the face of more militant strategies, whether employed by the Israeli government or by Hamas, but applying those norms in as impartial and objective way as possible.