Tag Archives: Gaza

Turkey and Israel

Turkey and Israel

by

Howard Adelman

I want to begin by fitting Turkish-Israeli relations within the context of the recent 1 November election, domestic policy and the overall foreign policy of Turkey. I begin with the elections. I had suggested last week that the increase in the vote for President Recep Tayyip Erdoğan’s Justice and Development Party (AKP) was partly due to a shift in conservative religious Kurdish votes in the south-eastern part of Turkey back to the AKP when the war with the Kurdish rebels (PKK) resumed after the June elections. The motivation – a fear of instability and/or a belief that the Kurdistan Workers’ Party (HDP) was linked to the PKK and/or the Patriotic Revolutionary Youth Movement (YDG-H) that had been so active in constructing blockades in Kurdish urban areas when the Turkish army resumed the war against the PKK. That interpretation has since been strongly challenged by one of the leading polling firms in Turkey, Konda, and its CEO, Bekir Ağirdir.

If indeed that shift had really taken place, it could mean that Erdoğan .no longer needed a war against the Kurds and demonization of the PKK to rally support for the AKP. He might become more flexible. That, in turn, would mean that the close relationship developing between the Kurds and the Israelis would become less consequential. However, part of the increased support of 8.7% for the AKP may not have been due to a shift in support of the Kurds at all, even though the HDP vote declined by almost a million votes.

In addition to the explained shift in my previous blog of votes from Saadet (Felicity) and Büyük Birlik (Great Unity), two parties which did not run in the 1 November election, and from the AKP’s rival on the right, the MHP, whose thunder Erdoğan had stolen with his resumption of the war against the PKK, 4% of the increase in the AKP vote was attributed by Konda, not as a shift from the HDP, but from voters who did not vote in the 6 June elections and new voters. That would mean that Erdoğan had little incentive in terms of domestic political support to resume peace negotiations with the PKK and to cease its war also against the Democratic Union Party (PYD) in northern Syria, a party that receives a great deal of unacknowledged support from Israel. As stated in my blogs on Turkish domestic and foreign policy, Erdoğan’s greatest fear is the creation of a safe haven for Turkish Kurdish fighters in northern Syria. He has been more than willing to curtail his recent aggression against the Islamic State (IS) in Syria to concentrate most of his forces against the PYD.

In the aftermath of the IS terrorist attacks on Paris, will that policy shift as a result of the current G-20 meeting in Antalya with Erdoğan in the chair? After all, the recent aggression of IS, the refugees and the war in Syria threaten to overshadow the economic issues which were supposed to dominate the agenda. Further, Turkey has assured Hamas that Israel’s role in both Syria and the Gaza Strip will be raised in the discussions  Though the emphasis was mostly on the war and the refugees in the statement issued by the EU before the attacks in Paris – “Meeting in Turkey in the midst of a refugee crisis due to conflicts in Syria and elsewhere; the G20 must rise to the challenge and lead a coordinated and innovative response to the crisis that recognizes its global nature and economic consequences and promotes greater international solidarity in protecting refugees,” – the priority given to conflict in the region and the refugees means that IS will definitely be at the top of the agenda.

After all, Turkey, in both its actions and its words, had signalled that its war in Syria will concentrate more and more on IS as a priority, a priority very much likely to increase in the aftermath of the Paris attacks. Turkey is a member of NATO. And in the aftermath of Paris, NATO is bound to have a much higher profile in the war against IS. Turkey will be pressured even more to play its part. Further, the EU badly needs Turkey’s cooperation in stemming the flow of refugees, particularly since Turkey promised to provide a safe haven for the refugees in northern Syria and invest there in container communities like those built so quickly in Germany.

Whatever the eventual policies, this shift in Turkish priorities will put a spotlight on Israel’s involvement in Syria. Just before the 1 November elections, IDF planes evidently bombed, not only IS sites on the Golan Heights and Hezbollah bases near Ras al-Ayn and Katifa along the Lebanese border, but also sent sorties towards the Damascus airport. Further, Turkey will have as much interest as Israel in driving a wedge between Iran and Russia. Russia and Iran may both be allies of Assad in Syria, but Russia focuses its energies on rebuilding the secular Syrian army while Iran tries to strengthen the religious Shiite (Alawite) irregular forces fighting for Assad, the parallel to Hezbollah in Lebanon. Numbering 200,000, with 20,000 volunteers from Iraq, Hezbollah from Lebanon and Taliban from Afghanistan, often led on the ground by seasoned Iranian officers – hence the almost 50 Iranian “adviser” casualties, most officers – Russia and Iran are setting the stage for the post war battle over succession, assuming Assad will be offered as a sacrifice for a deal with the West. But Iran, with boots on the ground, has the distinct advantage.

Israel is directly affected by this rivalry. Israel is the arch-enemy of Iran, and Iran has no interest in strengthening any force linked to Israel. On the other hand, Assad (assume the Syrian army) and Israel had established a modus vivendi over the last few decades. More recently, Israeli officials met with Russian representatives to ensure that Israeli and Russian warplanes do not clash over the skies of Syria. Further, Russia assured Israel that Hezbollah would not get Russian arms. This Israeli-Russian connection has been built on a foundation of increased trade between Russia and Israel, including advanced military equipment and military exchanges.

Of course, the primary source of friction between Israel and Turkey has been the Palestine issue, with the single main source of friction Israel’s attack against the Mavi Marmara in which Turks were killed. More particularly, Turkey has been a strong supporter of Hamas in the Gaza Strip. So it should be no surprise that when the election results were approaching a clear win for the AKP, almost the first voice of congratulations delivered to Erdoğan and Prime Minister Ahmet Davutoğlu was from Khaled Meshaal, head of Hamas’ political bureau and the deputy chair of the political bureau, Ismail Haniyeh. Erdoğan, promised both that he would put Israel’s violations of its historical role on the plaza of the Al-Aqsa Mosque on the Temple Mount on the agenda of the G-20.

However, Khaled Meshaal does not belong to the extreme wing of Hamas. Meshaal was the one who, in July 2014, aborted the planned attack by Hamas’ military wing using the tunnels that would have sent a seismic wave through the Middle East, perhaps as great as the recent IS attacks on Paris. Like Paris, the Hamas-planned attack was a highly sophisticated, coordinated and simultaneous one by three different 10-man teams from its elite force through three different underground tunnels, involving one detail infiltrating Israel to attack and kill residents of Kibbutz Kerem Shalom and return with civilian hostages, a second team to control the perimeter and a third to set a booby trap for the IDF when they rushed to the defence of the kibbutz. The goal was to trade Israeli hostages for Hamas members in Israeli prisons. Meschaal vetoed the plan in fear that the Israeli response would be so overwhelming, so much more even than the results of the 2014 Gaza War, that it would have left Gaza totally devastated with European voices silenced because the violence was triggered by such a daring Hamas initiative.

On the other hand, the link between Hamas and Erdoğan has become more important since the 4 November announcement that Hamas was seeking a unified Palestinian command in the current 3rd intifada against Israel that he hoped would facilitate Fatah-Hamas reconciliation. “Hamas believes in all of the resistance’s choices and in the importance of coordinating efforts under a united command to increase the intifada’s efforts.”

But to really understand Turkey’s actions and policies, it is necessary to shift from Gaza, which is a sideshow in the conflicts in the Middle East, to Israel’s relations with the Kurds (Ofra Bengio “Surprising Ties between Israel and the Kurds,” Middle East Quarterly Summer, 21:3, 2014), and Turkey’s response to that connection. Historically, the Kurdish move to separatism had been labeled the New Israel. As Christians and other minorities are cleansed first from Iraq and then other Middle Eastern countries, one stream of the Muslim response was to label the tendency of Kurds to seize independence and create a “Yahudistan” as another naqba. The slander went beyond defining a parallel, but suggested that Israel had a more nefarious role. The very recent effort of the Kurdish offensive to retake the city of Sinjar from IS should be read with this in mind.

Ironically, there is some ground for suggesting a connection between Israel and the movement towards independence. There are also many historical differences. After WWI, while the Balfour Declaration in 1917 promised a homeland for the Jewish people in Palestine, dividing up the Middle East in the Versailles Treaty after WWI denied granting the Kurds in Iraq, Iran, Syria and Turkey the status of an independent state for 30 million Kurds. In the early 1960s, at the height of the Cold War, Kurds, beginning in the autumn of 1961, once again saw their chance to rise up in Iraq. The Kurdish activist, Ismet Sherif Vanly, went to Israel to meet Prime Minister Levi Eshkol and Shimon Peres, with a result that Israel and the Kurds exchanged permanent representatives, an arrangement that secretly survived that crushing of Kurdish aspirations. The Kurdish leader, Mulla Muṣṭafa al-Barzānī, visited Israel both in 1967 and 1973. As a result, in 1967 he Kurds opened another front against Iraq, thereby preventing Iraq from joining the other Arab states in the Six Day War. Kissinger and the CIA blocked a similar attempt in 1973. (Hasan Kösebalaban (2011) Turkish Foreign Policy, Nationalism and Globalization, 181)

Only in 1980 did Prime Minister Menachem Begin disclose the humanitarian and subsequent arms support and dispatch of military advisers that Israel had given the Kurds during the 1965-75 Kurdish uprising. In the aftermath of the Kuwait War in the beginning of the 1990s, once again the Kurds rose up in Iraq to set up an independent state, an initiative that was totally crushed by Saddam Hussein as the West refused to come to the aid of the Kurds, even though Prime Minister Shamir of Israel made a plea to the West on behalf of the Kurds. Israelis became even more convinced that they could only rely on themselves.

What survived was an Israeli-Kurdish Friendship society which worked diligently to reinforce relations between Iraqi Kurds and Israel. A Kurdish-Israeli journal was even started – Israel-Kurd. The Kurds, unlike the Arab world, even invited Israelis to conferences in Kurdistan. In spite of these links, there have never been any formal relationships between the Kurdish leadership and Israel, partly so that the relationship would remain under the radar and not attract even more attention to the Kurds. American Jews also tried to serve as intermediaries between Kurds and the American government through the American Israel Public Affairs Committee (AIPAC) and its links with the Washington Kurdish Institute (WKI).

Israel’s relationship with the Iraqi Kurds was one thing, with the Turkish Kurds another, partly because Turkish and Israeli foreign policy had been aligned in the latter half of the twentieth century, at least until Erdoğan was elected Prime Minster, and the Kurdish PKK was viewed as a radical terrorist organization allied with Syria and the PLO. In Lebanon in 1982, volunteers from the PKK fought against the Israeli invasion of Lebanon, and, with the defeat and departure of the PLO from Lebanon, the PKK were given a safe haven in Syria. Netanyahu, when he was first Prime Minister, publicly supported Turkey in its fight against the PKK. The Israeli government was even accused of capturing Abdullah Öcalan, the founder of the PKK in 1978. Israel was accused of turning him over to the Turkish authorities, especially since Israel regarded him as a persona non grata after his anti-Semitic remarks. In fact, his capture in Nairobi in 1999, was a combined effort of the CIA and Turkish military intelligence. (Victor Ostrovsky, “Capture of Kurdish Rebel Leader Ocalan Recalls Mossad Collaboration with Both Turkey, Kurds,” Washington Report on Middle Eastern Affairs, April/May 1999)

When the war of the Kurds in Turkey resumed against Erdoğan in the 21st century and Erdoğan had become an outspoken critic of Israel, a rapprochement took place between the PKK and Israel. By 2005, Barzani openly defended Kurdish relations between Kurdistan in Iraq and Israel and Jalal Talabani, the President and head of the Patriotic Union of Kurdistan (PUK) and President of Iraq at the time, openly shook the hand of Israeli Defence Minister, Ehud Barak, in front of Mahmoud Abbas in Greece in April of 2008. It seemed clear that the two men had met before. Seymour Hersh even claimed that Israel had been arming and training the Kurds in Iraq, a claim echoed by Yedi’ot Aharonot which insisted it had evidence of Israeli military advisers training the Peshmerga.

Once the peace process initiated by Erdoğan in 2013 had been ended by him in June 2015, the relations between Israel and the PKK, and between Israel and Syrian Kurds, went up several notches. The Free Life Party of Kurdistan (PJAK) had close ties with the PKK and operated in both Iran and Kurdistan; Israeli ties with the PJAK deepened. For the first time, Israeli relations with the four very different parts of the nationalist Kurdish movement in Iran, Iraq, Syria and Turkey had become, more or less, aligned. How much was Israel willing to antagonize Turkey further by realigning its relations with the PKK? How willing is Erdoğan to bury the hatchet with Israel and perhaps even re-establish an exchange of ambassadors with Israel to give him a freer hand in fighting both the PKK and the Kurds in Syria? How willing are Putin and Obama to push Erdoğan towards such a reconciliation?

Not enough, evidently. On 24 October, Erdoğan claimed that the PYD in Syria remained an existential threat to the unity of Turkey, even while the U.S. was lending increased indirect support to the PYD and direct support to Iraqi Kurdistan’s Peshmerga in the fight against IS. The militant arm, the YPG (People’s Protection Units) of the PYD, collaborated with both the Free Syrian Army in the fight against both Assad and IS. However, Turkey was critical of American support for Syria’s Kurds and took umbrage at American concerns about human rights and freedom of the press in Turkey as four thugs, three of them open members of Erdoğan’s AKP, beat the popular columnist of Hürriyet, Ahmet Hakan, to a pulp. Erdoğan not only escalated the war against the PKK, but against the YPG as well.

But Erdoğan is now fighting a five-front war, against the secularists within Turkey, Güllenists within Turkey, and a more militant war against the PKK and the PYD, and, now against IS as well, the latter especially since two police were killed on 26 October in the raid against an IS hideout in Turkey. The West really only identifies with the latter war, but Turkey failed to take advantage of that when IS allegedly bombed the Kurd-dominated rally in Ankara and over 100 were killed. But the outpouring of sympathy for Turkey from the West was subdued compared to the response to the over 130 dead in Paris following the IS attacks there. Virtually no one takes Erdoğan’s claims seriously that the PKK and IS were allied in perpetrating the Ankara bombing.

In conclusion, as much as the West needs Turkey’s cooperation in the fight against IS, Turkey’s antagonism towards the Kurds in general and the PYD in Syria in particular, will keep any rapprochement with Israel at bay, especially since Israel is continuing to provide ammunition and arms, military training and diplomatic support to the PYD and, indirectly, the PKK. Where will Turkey end up now that the West is, or soon will be, in an all out war against IS? If Turkey aligns its policies more with the West and Israel reconciles to some degree with Turkey, will the West and Israel, more particularly, sacrifice their relations with the Syrian Kurds to rebuild its relations with Turkey? As long as the West has no troops on the ground, as long as Turkey continues to see the Kurds in Syria and the PKK as its main foe, in spite of joining the fight against IS, as long as the West needs Turkey in its fight against IS, then Israel will continue to be left out in the cold and will also likely continue strengthening its ties with the Kurds.

I suspect now that IS will be defeated in Syria, but that IS will also go underground more extensively in both Turkey and Europe. With the open battles between the police and IS terror cells in Turkey in October when Davutoğlu pronounced IS as ungrateful, presumably for all of Turkey’s previous covert support to IS, IS terrorists will continue to infiltrate Turkey as well as European states engaged in supporting the fight against Assad. However, because of Turkey’s resumption of war with the Kurds in both Syria and Turkey, Israel will continue to support the Kurds and Turkey’s animosity against Israel will remain intact. This is especially true since the public in Turkey still refuses to see IS as a mortal danger in contrast to the militant Kurds. Only about 15% of Turks believe that IS is a real danger to Turkey. And almost 60% of Turks believe that, even if IS was at the bottom of the two suicide bomber attacks in Turkey in October, IS is not a real threat to Turkey. 20% (see Gezici Research) even believe that the Turkish military intelligence was really behind the October suicide bombings, even if the perpetrators were from the IS.

Further, Turkey even denies the existence of significant numbers of Kurds in Tell Abyad, 5% instead of 40%. Of 250 Armenian families that escaped to Aleppo, only 50 have returned to Tell Abyad compared to the almost total return of the Kurds. Yet Erdoğan in October 2014 still claimed that, “I don’t want to argue whether Kobani is Kurdish or Arab. But its real name is Ayn al-Arab.” “Tell Abyad,” he recently added, “belongs to Arabs and Turkmen.” With such mindblindness, any effort to deepen relations between Turkey and Israel seems highly unlikely.

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UNHRC Report.2014 Gaza War.IV. Context and Ius ad Bellum

The UNHRC Report on the 2014 Gaza War

Part IV: Context and Ius ad Bellum

by

Howard Adelman

The section on context in the UNHRC Report on the 2014 Gaza War is packed with interesting material even though it only has five paragraphs, an odd fact in itself since exploring the reasons for going to war is 50% of the obligation of applying humanitarian law to violent conflicts. The section begins with the following two sentences: “The hostilities of 2014 erupted in the context of the protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip, and of the increasing number of rocket attacks on Israel. In the preceding months, there were few, if any, political prospects for reaching a solution to the conflict that would achieve peace and security for Palestinians and Israelis and realize the right to self-determination of the Palestinian people.”

There are five words about the rocket attacks on Israel. That item is placed second, sandwiched between continuing occupation by Israel and the fading possibility of achieving self-determination for the Palestinian people. The evaluation is almost explicit: continuing occupation provoked the rocket attacks in the context of the failure to achieve an independent Palestinian state. The opening part of the first sentence is about the “protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip.” This not only assumes that the Gaza Strip is occupied, as the UN officially does, but that the occupation of the West Bank and East Jerusalem is of the same order as that of the Gaza Strip. East Jerusalem, including the Old City, has already been relegated to a Palestinian state and regarded as under foreign occupation; the original 1947 UN resolution on partition putting Jerusalem neither under Jewish nor Arab control has been relegated to the dustbin of history. Further, only the failure to achieve self-determination of the Palestinian people is included as a receding goal; there is no mention of the security of Israelis. That is the context. Whatever one is to believe about the Middle East, this is not a statement of an impartial investigating body that presumably should either avoid taking sides, especially when unnecessary, or, at the very least, expressing some awareness of its own distinct bias.

The section on context is so short that I can reprint the whole of it following the opening two sentences quoted above of paragraph 53:

  1. The blockade of Gaza by Israel, fully implemented since 2007 and described by the Secretary-General as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70), was strangling the economy in Gaza and imposed severe restrictions on the rights of the Palestinians. Two previous rounds of hostilities in the Strip since 2008 had not only led to loss of life and injury but also weakened an already fragile infrastructure. Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma. In the West Bank, including East Jerusalem, settlement-related activities and settler violence continued to be at the core of most of the human rights violations against Palestinians. In the absence of any progress on the political front, the risk of a flare-up of the situation was evident.
  2. In the meantime, threats to the security of Israel remained all too real. Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity. According to one witness, residents of her kibbutz experienced regular panic attacks after a tunnel discovery in March 2014 and the explosion of an alleged tunnel exit on 8 July. Several other infiltration attempts were thwarted by the IDF during July and August.
  3. The events of summer 2014 were preceded by an agreement, reached on 23 April 2014 between the Palestinian Liberation Organization and Hamas, which sought to end Palestinian divisions. On 2 June 2014, President Abbas declared the formation of a Government of national consensus. The Government had yet to assume its full responsibilities in Gaza when active hostilities broke out in the Strip in July 2014, thereby leaving Hamas exercising government-like functions, as had been the case since June 2007.
  4. On 12 June 2014, three Israeli teenagers were kidnapped and brutally murdered in the West Bank. In response, Israel launched an extensive search and arrest operation, which lasted until the bodies of the teenagers were found on 30 June. On 2 July, a 16-year-old Palestinian teenager from East Jerusalem was viciously murdered by being burned alive and his body discovered in West Jerusalem in what appeared to be an act of revenge for the murdered Israeli teenagers. Tensions in the West Bank, including East Jerusalem, ran high, and were further fuelled by a rise in extreme anti-Palestinian rhetoric. Widespread protests and violent clashes ensued between Palestinians and the Israel Defense Forces.
  5. On 7 July 2014, the Israel Defense Forces commenced operation ‘Protective Edge’ in the Gaza Strip, with the stated objective of stopping the rocket attacks by Hamas and destroying its capabilities to conduct operations against Israel. The operation began during Ramadan, the Muslim month of fasting. After an initial phase focused on airstrikes, on 17 July 2014, Israel launched a ground operation, which it declared sought to degrade “terror organisations’ military infrastructure, and [… neutralize] their network of cross-border assault tunnels”.  A third phase began on 5 August and was characterized by alternating ceasefires and on-going air strikes. The operation concluded on 26 August when both Israel and Palestinian armed groups adhered to an unconditional ceasefire.

The causes and precipitators of the war are divided into two overall historical frames, the history of Israeli-Palestinian relations since 2007 and, secondly, the internal struggles between two factions among the Palestinians, Hamas in Gaza and Fatah in the West Bank.  Further, there are two geographically-based classes of factors: the situation in the West Bank and East Jerusalem and, secondly, the situation in Gaza. In the Report, the factors in the West Bank boiled down to four: i) the dim prospects of a peace agreement that would facilitate Palestinian self-determination; ii) settlement-related activities and settler violence that allegedly constituted the bulk of human rights violations against the Palestinian people; iii) the lack of political progress and the continuing Israel-inflicted human rights violations that had turned the West Bank into a tinder box in which the risk of a flare-up was evident; iv) the killing of three Israelis by Palestinians and the reprisal killing of a Palestinian by an Israeli.

As far as the situation in Gaza, four factors were also cited: i) the blockade; ii) the rocket attacks from Gaza onto Israel; iii) the digging of tunnels from Gaza into Israel; and iv) not the failure of but the prospect of  a reconciliation between the PA and Hamas. Let me deal with them all in reverse order.

Given that the apparent about-to-be-realized reconciliation between Hamas and the PA, one possible explanation for the outbreak of the war could possibly have been the use of war to disrupt the implementation of the agreement. The Report nowhere suggests this and simply notes that the reconciliation was underway. But it could have considered that argument. After all, in the seventeen months after Hamas took total control in Gaza in June 2007 following its electoral victory the year before, that is, following Hamas’ complete takeover of the Palestinian Authority national government within Gaza formed in March and headed by Ismail Haniya by a coup, in the course of and following the takeover, an estimated 600 Palestinians, one-quarter of the number purportedly killed in the fifty day Gaza War in 2014, were killed. In between May of 2008 for the next six years many more died, but not nearly the number in the initial militant phase of the conflict between Hamas and the PA, even including those murdered by Hamas under the cover of Operation Protective Edge. On all of this except for the last item, the Report is silent as if it is irrelevant to understanding the context.

Agreements of reconciliation, such as the May 2011 Cairo Reconciliation Agreement, were never implemented. In April 2014, two months before the outbreak of the Fifty Day Gaza War, an agreement was signed to form a unity government and hold elections. On 23 April 2004, both parties made a joint announcement about the formation of a new technocratic government prior to both parliamentary and presidential elections that would follow. The agreement said nothing about Israel, a two-state solution or the recognition of Israel by the Palestinian unity government, but President Abbas announced that the signing of the agreement was understood to imply both of these terms. On 2 June 2014, President Abbas swore in a new technocratic unity government.

President Benjamin Netanyahu denounced the agreement between Abbas and Hamas, that he repeatedly termed a terrorist organization committed to the destruction of Israel. Abbas issued a statement saying that Israel was out to sabotage the new government. Contrary to Netanyahu’s prophecies and warnings, the European Union, including France and the United Kingdom, as well as Russia, China, India, Turkey, welcomed the new unity government as a step towards peace. The Israeli cabinet, in contrast, voted to impose further unspecified sanctions against Palestine.

The war interrupted but did not end that process of Fatah-Hamas reconciliation even though Fatah stood aside, refusing to get involved militarily and allowing Hamas to be beaten to a pulp. The negotiations resumed in earnest after the war was over, but that process also recently came to naught. One might have thought all of this was pertinent to the issue of determining whether Israel initiated military action in Gaza to undermine the new unity government and once again set Hamas and the PA against one another. On the surface, this indeed did seem plausible. But there is no discussion of this in the Report. Perhaps it is because during Operation Protective Edge, Israel’s Shin Bet brought Abbas very convincing evidence that Hamas was plotting to depose Abbas and assume rule over the West Bank by activating its sleeper cells across the territory to instigate a third intifada.

Israel had not waited for Abbas to act. On 1 July, Israel launched Operation Brother’s Keeper, ostensibly in response to the kidnapping of the three Israeli teenagers (see later). The crackdown targeted Hamas’ militant cells and leadership in the West Bank resulting in 11 killed, 51 wounded and over 400 arrests, many of them recently released prisoners in the Gilat Shalit 1,100 prisoner exchange for Shalit’s return to Israel. Surely this was relevant to consider whether Hamas’ increased reign of rockets was at least understandable and, possibly, even justifiable.

Shin Bet’s evidence for a plot may have been false. After all, Abbas did revive the negotiations for a unity government. However, in the interim, Israel acted with force against Hamas in the West Bank, presumably with the blessing or perhaps only acquiescence of Fatah. Abbas did nothing to interfere with Israel’s sweep through the West Bank. However, whether or not there was secret cooperation between Fatah and Israel, surely the Israeli government’s serious concern about the formation of a new unity government with Hamas as a partner was at least relevant in understanding and trying to assess whether the instigation of all-out hostilities was warranted as a matter of self-defence, as Israel declared, or whether it was an act of aggression deliberately undertaken by Israel to destroy the prospect of a new unity government. In any case, if the latter was Israel’s objective, it did not work because negotiations over a new unity government started up again at the end of Operation Protective Edge. Further, by the summer of 2015, they had self-destructed on their own accord without any military intervention by the Israelis.

What about the blockade of Gaza and Hamas’ building of tunnels and sending rockets into Israel prior to the outbreak of the war? In 2007, after Hamas seized total power in Gaza, Hamas denounced the Oslo Accords, rejected the two-state solution and declared its objective to be the elimination of Israel. Surely, that is relevant as a possible casus belli. Israel initiated a land, sea and air blockade of Gaza. Israel had disengaged from Gaza. Instead of Palestinian society advancing its process of self-determination alongside that of Israel, the latter witnessed the emergence of a much more formidable and determined enemy in Gaza. This was the strongest blow that the Oslo Accords had received.

But this is not how the Commission wrote up the preceding events. Rather, with a weakened and already fragile infrastructure, “Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma.” The focus is on the Palestinian people as a whole. The different factions are not recognized. The people are raised to heroic status for their stamina in the face of great challenges. Now one could write the account much more from a Palestinian perspective than I did, but the contents in the report are written like first level history writing in which one side consists of heroes and the other of bullies and aggressors. Since it would be hard to dub Hamas as heroic, especially given the documentation of their actions, the virtuous attributes are assigned to the people as a whole. And no distinction is then made between the response of West Bankers who, whatever the inconveniences and hardships of the occupation, have economically prospered and strengthened the infrastructure, and the residents of Gaza whose infrastructure has been repeatedly destroyed by two previous violent encounters and whose re-investment in infrastructure has been significantly dedicated to building first quality attack tunnels and purchasing rockets and missiles.

The Report does say that, “threats to the security of Israel remained all too real.  Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity.”  Go back to 5 March 2014 when the Israeli navy intercepted a ship with a load of scores of long range missiles from Iran. Subsequently, Hamas spent its scarce funds for infrastructure on a monument to celebrate its rocket attacks that took the war into what Hamas dubbed the heart of the Zionist enemy. Reading the Report, one would never know that the EU, Canada, Japan and the U.S. as well as Israel had dubbed Hamas a terrorist organization, while the UK and Australia restricted that depiction to its military wing, the Izz ad-Din al-Qassam Brigades.

The Report provides as context that Hamas “increasingly launched rockets during June and July.” But rocket attacks went back to 2013. In January alone, 22 rockets were aimed at Israel; there were 9 in February and 65 in March. During the negotiations of a new unity government between Hamas and Fatah, rockets launched fell to 19 and 4 respectively in April and May, but then leaped again to 62 in June. Perhaps these figures seemed, in retrospect, insignificant in light of the 2,874 rockets Hamas rained on Israel in the opening month of the war. But surely these actions were relevant to depicting the context.

What about Palestinian activities in the West Bank? The key turning point that could have ignited the third intifada was the killing of two Palestinian teenagers on Nakba Day, 15 May 2014 by sniper fire. On 22 May, CNN broadcast evidence that the shots were not rubber bullets as the Israelis claimed, but live ammunition that had been fired against the Palestinian protesters, likely from the vicinity of Israel’s Ofer military prison. International demands for an independent investigation were ignored. On 12 June, possibly in reprisal for the shooting of two Palestinian teenagers, three Israeli teenagers were abducted in the West Bank and were eventually found dead.  Israel blamed Hamas which initially denied the charge, but Israel released documents showing that a Hamas member, Hussam Qawasmeh, had orchestrated the abductions after his brother had received $60,000 from Hamas in Gaza. On 20 August, Saleh al-Arouri, a Hamas leader in Turkey, acknowledged responsibility and said that the goal was to ignite a third intifada. Was this not relevant to the context?

The original specific goal of the abduction of the three Palestinian teenagers was evidently to hold the teenagers in return for the release of many more Palestinian prisoners, while, in the interim, sabotaging the progress on the Palestinian unity government as well as firing up the youth in the West Bank and demonstrating Hamas leadership even there. The PA confirmed Hamas responsibility. Then Hamas did as well, but insisted that it had no prior knowledge of the incident, did not condone the targeting of civilians but nevertheless celebrated the action as a response to oppression and an act of resistance. Since 2013 until these abductions, the PA and the Shin Bet together foiled about one hundred prior abduction attempts, the PA almost half of them. Was this not relevant to depicting the context? The incident triggered the reprisal Operation Brother’s Keeper by the Israeli military mentioned above, and human rights organizations, including Israel’s B’Tselem, denounced the disproportionate response. The denunciation could be expected from B’Tselem, but it also revealed that the human rights organizations did not interpret proportionally to mean the ratio of response and actions in relation to the military objective as required by humanitarian law, presumably foiling future kidnappings and preventing another intifada, but the ratio of the effects on each side.

However, suspicions about the real intentions of the Israelis rose when it was discovered that the Israelis did not learn of the deaths of the three teenagers on 30 June when the bodies were found, but had known for a long time that they had been killed. On the other side, Hamas significantly escalated its rocket attacks in response to Operation Brother’s Keeper. Negotiations between Israel and Hamas to halt and roll back the escalation broke down when Hamas added to its demand that Israeli reprisal bombings against Gazan targets be stopped in return for the cessation of rocket fire, but the conditions now included a demand that the blockade be immediately lifted and prisoners released. Hamas also escalated its rocket attacks once again. That is when Operation Protective Edge was launched.

Providing a far more adequate and fuller context would have only taken another page or two of the Report. Why was this aspect of the Report so impoverished and so deformed? Now I am not arguing that I have provided a more objective treatment than that provided by the Commission, only that it is much more complete. A much more complete picture was necessary for the Commission to assess to what degree the escalation of violent hostilities and their instigation into all-out warfare fell within the range of military actions permitted by the set of ius ad bellum criteria for going to war. Was Hamas the proper authority to escalate its rocket attacks since it was not the government of the Palestinian state, but only the political faction in de facto control of Gaza? Did each party warn the other? Certainly Israel announced that unless the rocket attacks ceased, Israel would launch a much more formidable response. In fact, from the Israeli side, it is very difficult to suggest under any of the criteria for evaluating breaches in ius ad bellum that Israel was in breach of any of them, including:

  • Proper authority
  • Fair warning
  • Just cause
  • Probability of success
  • Proportionality in resorting to military means
  • Last resort

On the other hand, the initiation and escalation of the violence by Hamas at best only satisfies the criterion of just cause. Hamas had no probability of success. If self-determination was simply the goal, then following the path of the PA would surely indicate a greater route to success. Resorting to an escalation in violence was only justified if Hamas had a larger goal, and Hamas was explicit in asserting that it did – the destruction of Israel. Given that goal, violence was not a last resort as it might have been if the goal was simply self-determination or lifting the blockade, but a requisite first step.

I can only speculate, but I presume this truncated and distorted account of context was so brief because nothing the Commission could have written would allow any detached reader to conclude that Hamas was justified in escalating the number of rockets fired at Israel according to humanitarian law governing the initiation of war. Quite the contrary. The best route to lifting the blockade would be to agree to giving up aggression against Israel and giving up its goal of eliminating Israel from the map of the world.

The initial substantive content of the Report instead of reinforcing the credibility of what would follow undermined it.

Next Blog: Ius in Bello – Hamas Violence Against Israel During the War

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

UNHRC Report.2014 Gaza WAR.I.Mandate

The UNHRC Report on the 2014 Gaza War

Part I: Mandate

by

Howard Adelman

The basic question is whether a) the United Nations Human Rights Council (UNHRC) was operating outside of its mandate field or its field of supposed expertise, and b) in setting up a commission of inquiry, its own presumptions about human rights law, for which it has a clear mandate, deformed in any way the application of humanitarian law in its analysis of the 2014 Gaza War.

On 24 June 2015, the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict delivered its report (A/HRC/29/52) (UN Gaza War 2014). The commission was set up by the UNHRC and the report was delivered as agenda item 7 under the more general heading, “Human rights situation in Palestine and other occupied Arab territories.” One year earlier, on 23 June 2014, when the Gaza war was still underway, the UNHRC adopted resolution A/HRC/RES/S-21/1 to establish the independent, international commission of inquiry to investigate all violations of international humanitarian law (my italics) 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, and to report to the Council at its twenty-eighth session in March 2015. The report was delivered only three months late. The mandate read as follows:

“Ensuring respect for international law (my italics) in the Occupied Palestinian Territory, including East Jerusalem”, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to “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 (my italics) 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 (my italics), and to report to the Council at its twenty-eighth session”.

However, the United Nations never mandated the UNHRC itself to investigate humanitarian law. Human rights, yes. Humanitarian law, no. Humanitarian law is not mentioned once in the long resolution of 15 March 2006 setting up the United Nations Human Rights Council to replace the United Nations Commission on Human Rights which had fallen into total disrepute. According to the website of the Commission as well as the UNHRC, the Commission of Inquiry interprets this mandate as including investigating the activities of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip and Israeli actions in the West Bank, including East Jerusalem, by looking into a broad range of alleged violations committed by all parties under the full range of human rights, including economic, social and cultural rights. [Note that humanitarian law is not mentioned in this section.]

Here again, Res. A/60/251 setting up UNHRC does refer to regional groupings of states and especially individual states, but nowhere can we find any mention of armed groups, military, violence, etc. The UNHRC was mandated to strengthen the promotion and protection of human rights around the globe, that is, the rights of individuals in relationship to the states in which they live or of which they may be members. The UNHRC was not given responsibility for protecting all aspects of international law, but only those aspects having to do with the relationship between states and its citizens or individuals living on the soil governed by a state. Two overlapping realms of international law – refugee law and humanitarian law – deal respectively with the rights of individuals who are not members of a state that provides for their protection and for the laws governing the initiation and conduct of war. Yet the mandate, now as specifically interpreted by the Commission, was to look into the actions of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip, the West Bank and East Jerusalem as a part of the West Bank.

Under humanitarian law, this would mean investigating what happens to prisoners of war, how the wounded are treated, how military personnel are treated, and how and whether the state makes a strong effort to distinguish between civilian and military personnel. When we examine the report in detail, it will be interesting to see what aspects of humanitarian law are covered and which are not. We are, however, no longer surprised that the UNHRC would decide to investigate the protections afforded civilians and the permitted military means used in the 2014 Gaza War. After all, five years earlier, on 12 January 2009, under almost similar wording, the UNHRC set up what came to be known as the Goldstone Commission.

The difference in wording is interesting. Resolution S-9/1 setting up the Goldstone Commission in 2009 decided to: “dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law (my italics) by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.” What a difference five years can make! Unlike the Goldstone Report, which was found to be so flawed, even by Richard Goldstone himself after it was published, the 2014 mandate mentions both belligerents and not just one (Israel) and does not restrict the investigation to Palestinian territories. The 2014 mandate does not predefine the war as unjust on the part of Israel by referring to the “current aggression” by Israel. In a more subtle shift, the reference to humanitarian law in the Goldstone Commission mandate followedthe investigation of the application of human rights law. In the 2014 mandate, the reference to humanitarian law precedes the reference to human rights law.

Recall that Mary Robinson, who eventually supported Richard Goldstone’s Report, partially because of her respect for him, and who had been the first person approached to head the 2009 Commission, refused to take the position as head of the 2009 Commission because the mandate was so one-sided and had been “guided not by human rights but by politics.”  Richard Goldstone himself, before taking the position, complained of its failure to take into account the actions of all parties in the conflict and informally received approval by the President that the Commission could broaden its mandate. However, the broadening seemed peripheral and, in any case, the UNHRC ignored the recommendation applicable to Hamas. Thus, Goldstone’s insistence that the informal broadening and the fact that his initiative received no objections at a plenary session of UNHRC was sufficient, proved incorrect, as did his chastisement of Hillary Clinton for her “tiresome and inept” criticisms of the one-sided nature of the mandate. This could not be done with the 2014 mandate which formally required the mission to look at all parties: Israel; the Palestinian Authority; Hamas, which governs Gaza; and other armed Palestinian groups. The two mandates, however, are similar in covering the West Bank, said to include East Jerusalem instead of being referred to as a separate entity, though the violent conflict did not take place there.

In 2009, Richard Goldstone in presenting his report said that he and his fellow commissioners had been motivated by four goals:

  • To uphold the principle of the rule of law and, more particularly, humanitarian and human rights law
  • To ensure the protection of civilians during armed conflict to the greatest extent possible
  • To ensure that no state or armed group should remain immune from accountability and justice
  • Finally,“out of a deep concern for the hundreds of civilians who needlessly died and those who suffered injury and dislocation of their lives.”

The key question in the 2014 inquiry would be the same. Were civilians “to the greatest extent possible” protected during an armed conflict? The question was not, were civilians protected to a reasonable degree in accordance with the laws of war? Because humanitarian law does not require that civilians be protected to the greatest extent possible, for, in the end, that would entail not going to war at all by either side. Killing per se is unlawful under human rights law. However, under humanitarian law, killing combatants is not unlawful and even the killing of civilians is permitted under the situation of “collateral damage” where deaths of civilians are permitted under the principle of proportionality, which is not about protecting civilians to the greatest extent possible, but requires balancing the incidental loss of civilian life or injury to civilians in relationship to the concrete and direct military advantage expected from a particular attack. In other words, it is not about the numbers killed relative to one another on each side, but whether those civilian deaths were proportionate to the military goals being pursued.

There is also an overlap between humanitarian and refugee law. Some of the norms applicable to the Gaza War require:

  1. If the territory is legally an occupied territory, the prohibition under the Fourth Geneva Convention of individual or mass forcible transfers, both within the occupied territory and beyond its borders; there is an exception – an occupying power is permitted  to “evacuate” the inhabitants of a particular area if this is necessary for the security of the civilian population or for imperative military reasons;
  2. Attacking belligerents is permitted, but attacking civilians and civilian property indiscriminately is prohibited;
  3. The duty to spare the civilian population as much as is feasible;
  4. The prohibition of reprisals against either the civilian population and its property.
  5. Permitting an unhindered passage of relief supplies and assistance.

Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome. To take up the latter point, in international studies a definitive distinction is made between humanitarian law, refugee law and human rights law. These three spheres overlap in their application, but the distinction does not. Human rights law deals with a state’s relationship to its citizens and other foreigners on its soil focusing on the protections of civilians from any oppression by a state. Refugee law deals with the rights of individuals who lack membership in a state that will protect them and are outside their state of normal residence, but, in situations of failing or disintegrating states, may even be living within their national home. Humanitarian law deals with the conduct of war, more particularly, though certainly not only, the protection of civilians affected by armed conflict. Unlike humanitarian law, which can never be suspended, some human rights treaties permit states to derogate from certain rights in times of public emergency and suspend certain key rights, including the right to life and the prohibition of torture or cruel, inhuman or degrading treatment or punishment.

The three spheres are said to overlap and complement each other. But, in reality, they are also at odds. After all, in war, targeting anyone for death, even if the person is a soldier, cannot be part of human rights law which, as interpreted in the last two decades, even restricts states from taking the lives of their own citizens even in cases of very heinous crimes. So it is very difficult to look at military behaviour through a military lens of humanitarian law if the primary glasses used are to assist in viewing that behaviour in terms of human rights violations. It is akin to using reading glasses to allow one to see distances more clearly.

Now it is well known that three agencies were set up to educate and monitor behaviour in each of these three fields – the UNHRC for human rights law, the UNHCR (High Commission) for refugee law, and the International Committee for the Red Cross (ICRC) for humanitarian law. So how come the UNHRC seems to be poaching on ICRC territory? One reason is conceptual.  ICRC in its 2005 statement on its own mandate, stated that, “International humanitarian law, refugee law and human rights law are complementary bodies of law that share a common goal, the protection of the lives, health and dignity of persons. They form a complex network of complementary protections and it is essential that we understand how they interact.” However, that is not how a coterie of human rights lawyers, researchers and professional actors who have made human rights their specialty, view it. For them, human rights is all encompassing and humanitarian law and refugee law are but specialized divisions of human rights law. The three fields are not related as overlapping, but one field is all-encompassing while the other two are subordinate.

But the rivalry is not just conceptual. This is quite evident. The UNHRC states unequivocally its imperial position: the UNHRC defines itself explicitly as the “principal human rights official of the United Nations.” But it is not the principal humanitarian law official of the international system. The ICRC, an organization much older than the UN itself, is. Yet the UNHRC saw no need to seek out the ICRC to forge a partnership to investigate the violent conflict in Gaza, or, for that matter, to cite the ICRC very much in its report. There is another reason, for the ICRC, unlike UNHRC, does not have a close relationship with any human rights organization, but particularly with the UNHRC which lacks a field presence. Further, human rights organizations define themselves as outspoken and, therefore, by their very nature, they speak out. ICRC, in contrast, has a confidential modus operandi.

But this does not explain why, of the 680 paragraphs and 1255 footnotes, ICRC is only referred to in 18 of them, that is just under 1%. Though ICRC was present and active in Gaza throughout the whole conflict, ICRC is only cited three times for evidence, each time with respect to Israeli behaviour – targeting civilians in an UNRWA school, targeting ambulance drivers and targeting the Gaza power plant. There is not one citation that says anything positive about Israel by the ICRC and no references to ICRC observations re Hamas conduct.

In addition to the three specific observational and interpretive issues, ICRC is cited three times with respect to two issues, the Palestinians aiming missiles at Israel, and here only to note that since the missiles could not be aimed properly, this would clearly be a mitigating circumstance in the degree to which they could found to be at fault. There are also two citations concerning Israel as an Occupying Power, not to discuss the legal issues raised, but to simply support the view that Israel has been an occupying power long before it invaded Gaza and even after it withdrew its troops.

The other 12 citations refer to ICRC as the definitive reference point on international humanitarian law, therefore granting in reality what they take away conceptually and concretely in the behaviour of UNHRC. Further, as the leading authority on humanitarian law, ICRC makes itself available to offer advice, particularly to the UNHRC, on the basic principles and guidelines applicable to various situations of alleged humanitarian law regulations. Why was so little attention paid to ICRC when it is clearly the most respected and widely recognized protector of humanitarian law as well as one of the most respected humanitarian organizations in the world? Most importantly, it is THE organization mandated under international law, including the Geneva Conventions, to both interpret humanitarian law and to protect the victims of armed conflict, including those wounded in war, combatants taken prisoner, the forcibly displaced and, most importantly for this report, the responsibility for protecting civilians and other non-combatants. Given ICRC’s well-known criticisms of some of Israel’s conduct, it could not be because ICRC is biased in favour of Israel. But ICRC is biased in favour of humanitarian law as a distinctive field, though overlapping with human right law, occupying a distinctly separate niche in international law.

In this analysis I will eventually discuss the key legal issues and the observations and interpretations of specific incidents where each of the belligerents were or could be found to be at fault. I will also compare the citations of ICRC compared to those attributed to such NGO human rights organizations as Amnesty International and Human Rights Watch who also presumptively assume a responsibility for humanitarian law, but almost always within a human rights frame. I will also question why the foremost authorities on applied humanitarian law are not cited or drawn upon for their experience in the application of international humanitarian law, namely the views of various Western armed forces on the ethical conduct of the war in accordance with international humanitarian law.

Just because the UNHRC is not the first among equals when it comes to humanitarian law, and just because it places international humanitarian law in a subordinate position to international human rights law, and just because its citations of the ICRC are so few, and even those few are feeble, does not mean that the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict could not conduct a proper investigation and deliver an excellent report. Certainly even on a cursory reading, it is much superior to the Goldstone report. If the Goldstone Report was worthy only of an E, a complete failure, a cursory reading of this report on the 2014 Gaza War appears to deserve at least a passing grade. Whether it will be a bare pass, a good pass or an excellent one will have to await our analysis.

One last word about the UNHRC’s own mandate and the mandate assigned to its commission. The Universal Declaration of Human Rights, the principles of which UNHRC is mandated to uphold, itself suggests that UNHRC in conducting this inquiry strayed both well outside its comfort zone as well as its responsibilities to the international community. For example, echoing Immanuel Kant, the preamble of that Declaration states unequivocally that its foundation is not only freedom and justice, but peace. Further, Article 3 states clearly that, “Everyone had the right to life, liberty and security of person.” War contradicts that and claims that belligerents have no right to life and no right to security, with the exception of the protection of civilians so long as that is possible given the strategies each side adopts. War by definition is a violation of human rights. But the Declaration is not concerned with violent conflict, either the reasons for going to war or the conduct of the war. It is concerned with such old standbys as freedom of speech, of assembly, as well as the new economic freedoms enunciated since the Universal Declaration was adopted. The latter document clearly refers to its mandate as focused on a state in relationship to individuals over whom it has charge.

International humanitarian law is about the conduct of states or quasi-state entities as they do battle, and primarily about the protection of individuals. Human rights are also about the protection of individuals. Those rights make up a very long list. However, by the time you get to Article 29 of the Declaration, the clear aspiration is peace. Article 28 reads: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Clearly that is aspirational since international order is stated as a precondition for the full realization of human rights. Yet the Declaration does not attend to the question of how an international peaceable kingdom can be established. The foundation of human rights law and international humanitarian law are fundamentally distinct.

If human rights are based on the universal declaration of 1948, international humanitarian law is based on the four Geneva Conventions of 1949 and the two additional protocols of 1977, as well as a number of specific treaties, such as Conventions on the use of specific weapons – such as phosphorous or poison gas – Conventions on the protection of cultural property during violent conflict, and all of these as interpreted by international jurisprudence. International law governs the initiation and conduct of armed conflict even if nowhere in the law is armed conflict defined. But somehow, we all seem to know what it is even when it is not defined. And certainly there was no dispute that humanitarian law applied to the Gaza conflict. However, just to be clear, the ICRC qualifies a situation of violence and then “sends a memorandum to the parties concerned setting out their obligations under international humanitarian law and offers its services.”

What constitutes an “unlawful killing” in situations of armed conflict must be assessed on the basis of the relevant rules of international humanitarian law, including the fact that combatants or other persons taking a direct part in hostilities may be attacked – even with lethal force; and that killing of civilians in certain circumstances must be assessed pursuant to international humanitarian law’s principle of proportionality which requires a balancing of the incidental loss of civilian life or injury to civilians with the concrete and direct military advantage expected from a particular attack.

I will pay a great deal of attention to the application of this principle by the Commission the objectivity and expertise of which depends in good part on the expertise and mental frameworks of the Commissioners.

Next blog: The Commissioners

William Schabas: Was He Pushed or Did He Jump?

William Schabas: Was He Pushed or Did He Jump?

by

Howard Adelman

On Tuesday, Prime Minister Benjamin Netanyahu called for scrapping the U.N. commission looking into Israeli actions last summer in Gaza since the Geneva-based U.N. Human Rights Council is an “anti-Israeli body” that had a proven track record of doing nothing about true human rights violations around the world. So why submit evidence to undermine the Chair of an inquiry into the last Gaza War at this time? And why submit it to the UNHRC and not just to the media?

In answer to the latter question, Israel lends some legitimacy to the UNHRC in submitting its information to it. At the same time, Israel wins brownie points with the UNHRC by giving the UNHRC 2-3 days advantage before the issue and the new evidence became public. Further, Israel recognizes that it cannot stop the inquiry. Israel will criticize the results, but this initiative gives the appearance of being less subversive of the proceedings of the UNHRC. No matter what the report says, because of the extreme bias of its sponsors and the absence of Israeli cooperation, any inquiry is bound to be seriously compromised. But, in the end, Israel would prefer a report that was less rather than more unfavourable. For the report becomes a reference point over time and not Israel’s denunciations. Since the report is at the writing and not the investigative stage, Israel would prefer a report less anti-Israel than one written by Bill which Israeli professionals saw as the most likely result.

I believe the key reason is to be found in the announcement of Rolando Gómez, a spokesman for the U.N. Human Rights Council, that accompanied the information on Bill Schabas’ resignation that current commission member Mary McGowan Davis would replace Schabas as chair and not Doudou Diène who, with his post-colonialist mindset and conviction that Israel is a late colonial outpost of the West, would be even more anti-Israel than Schabas. Davis was a third late appointment announced on 25 August, whereas William Schabas and Doudou Diène’s appointments were announced two weeks earlier on 11 August. This was a result of the farcical announcement by the UNHRC that Amal Alamuddin, a British-Lebanese lawyer and George Clooney’s then fiancée and now wife, was the third appointee. Amal Alamuddin issued a press release the next day insisting that she had never agreed to sit on the inquiry. The head of UNHRC, Navi Pillay, was left with mud all over her face.

Davis is a former prosecutor from New York, has been a New York Supreme Court judge (1986-1998) and has served the UN in a number of legal capacities – working to strengthen the public defender’s office in Afghanistan in 2004 and 2005 to mentor and to hone the analytical and trial advocacy skills of Afghan lawyers representing detainees in the local prisons. In the International Criminal Tribunal for Rwanda, she served as a consultant and offered trial advocacy training programs for prosecutors there. Her CV also lists her as doing work in Cambodia and Sierra Leone, but I do not know what she did on the crimes against humanities, human rights abuses and the war crimes investigations there. One of her very interesting observations is that, “courts that operate beneath the radar screen like this one in Kamituga (in the Democratic Republic of the Congo) are of equal or, perhaps, greater value” than the formal court system.

Her experience, however, culminated in her own post-Goldstone investigation of whether Israel had conducted satisfactory investigations of all charges of war crimes and crimes against humanity in the previous Gaza War. She had strenuously insisted that her inquiry had not been influenced by the Goldstone Report and was entirely independent. “Our work was completely separate from his work.” Her strenuous and adamant insistence on separating her report from that of the Goldstone Inquiry was the first initial promising sign that it might be fair.

McGowan Davis and Swedish Judge Lennart Aspergren (who served on the International Criminal Tribunal for Rwanda) also submitted their report to the United Nations Human Rights Council, but insisted that it was vastly different from the Goldstone effort. Even though they did hold hearings with victims of Israeli and Palestinian violence, their report was not intended and did not investigate Israeli military action in Gaza. Their mandate was to investigate and evaluate the respective Israeli and Palestinian investigations of claims of human rights abuses. The report began by praising the Turkel Commission inquiry into abuses in the May 2010 flotilla raid and the outstanding quality of that report which proved that Israel was capable of great impartiality and zealotry, even probing high-level decision making.

However, the inquiries into the conduct of the IDF in Operation Cast Lead did not match that standard. Of 400 investigations of claims of operational misconduct, few led to disciplinary action. Of 14 investigations into human rights violations, only two led to criminal charges. Further, right up until the publication of their report, Israel had not probed executive decisions related to Operation Cast Lead. Davis and Aspergen also criticized Israel for tardiness and lack of transparency. The report made no recommendations on reference to the International Criminal Court, but the UNHRC used the report to refer Israeli action in Operation Cast lead to the ICC.

Given the possible explanation that Israel wanted to see McGowan Davis replace him as chair, why did Bill resign, not only as chair but as a commissioner, for he then will have no input into the writing of the report? The following different reasons have been proffered for the resignation:

  1. The Protection Rationale

1.      Bill’s work in defence of human rights made him a huge target for malicious attacks, and this was but part of those attacks.

2.      “The situation in the committee became unbearable and I did not want the personal attacks of Netanyahu and Lieberman to detract from the truth, which will give justice to the victims.”

3.      “I resigned so that the personal attacks from Netanyahu and Lieberman do not affect the report itself”

4.      Schabas resigned so that the personal attacks by Netanyahu and Lieberman do not affect how the Report is received.

B.     The Impact on the Process and Work of the Inquiry

1.      The Israeli filing of the information led to the Human Rights Council’s executive on Monday seeking legal advice about his position from U.N. headquarters. In making this reference, customary practice requires stepping aside until the legal opinion is received.

2.      “I believe that it is difficult for the work to continue while a procedure is underway to consider whether the chair of the commission should be removed.”

  1. The claims from Israel that he was not objective led to the development of an investigation by the UNHRC, and this investigation led to his resignation.
  2. The resignation was the result of “the huge pressure Israel and the Zionist lobby put on the committee and its chairman” according to Hamas spokesman, Fawzi Barhoum; Palestinian official Hanan Ashrawi decried the Israeli efforts as “typical Israeli tactics” in which, “They try to intimidate, they try to slander, they try to discredit, they make it extremely difficult for anybody to take any position that would hold Israel accountable or investigating Israeli violations or Israeli war crimes.” Barhoum added that the Israeli pressure “is meant for impunity and killing the truth.”

Bill viewed his resignation as necessary to protect human rights, ensure justice for the victims (of Israel), protect the report and protect how the report is received. But it is difficult to see how his resignation could be helpful in any of these respects. Certainly, the resignation removes a distraction for the work of the commission, but how does it enhance human rights, victims’ justice, the report itself or its reception? Ironically, the latter two claims may have a degree of accuracy. For, I believe, in McGowan Davis’ hands, the report will both read more impartially, be more judicious and be received better even though Netanyahu and company are bound to jump on it no matter who writes the report or what it says. Thus, the report is likely to receive, relatively at least, a better reception. This may not have been Bill’s intention when offering the reasons for his resignation, but I suggest that this was both the reason for the Israeli action and the result of Bill’s resignation.

On the impact of the resignation on the process rather than substance of the inquiry, I see not one whit of truth that this was an exercise in political pressure or Israeli intimidation and such charges only discredit the people who make it. Israel not only had a right but a duty to present its evidence. Whether the evidence was sufficient to establish a conflict of interest is another thing. The resignation had nothing to do with charges that Bill would not be objective since that charge had been made repeatedly since his appointment both by friends and enemies of Bill’s. This item in that context seemed totally trivial, except that the issue was not about impartiality but about an alleged conflict of interest. Would the investigation of the legal office have intruded on the commission’s work? Only to the extent that Schabas would be expected, in these circumstances, to temporarily step aside. In that case, he could not influence the writing of the report in any case unless the UN lawyers responded quickly and exonerated Bill, but that is not their custom. So Bill was likely dead in the water anyway.

But his resignation comes at great cost to himself and at some cost to the credibility of the report. For Bill has not had his day “in court” as it were to prove he was not in a conflict of interest, hence leaving a bloody spot that, however much he will hereafter cry, “Out, out damn spot,” will colour his future career. But in the past, he has suffered far worse. And the resignation, except in so far as it improves the perception of impartiality of the report, is bound also to stain how it is received. An independent investigator to assess quickly whether Bill was in a conflict of interest would have better served Bill as well as protected the report in a better fashion.

However, that would entail a risk for the independent counsel might have concluded that Bill was indeed in a conflict of interest and that would have burdened the report with a much larger stain. So given what has happened since, given that Bill was between a rock and a hard place so that whatever choice he made, the outcome was not good, I believe he chose the less risky one precisely for the reasons he said, even if those reasons are unlikely to offer the protection he would like. But the succession might to some degree.

Bill Schabas’ Resignation

Bill Schabas’ Resignation

by

Howard Adelman

The rest of the documentation of Boko Haram’s atrocities in Nigeria will have to wait. William Schabas resigned three days ago as chair of the UN Inquiry Committee into the actions of both Israel and Hamas in Operation Protective Edge that took place in 2014. I have been mentally pre-occupied with the issue ever since, even though I was determined to complete this mini-series of blogs on Boko Haram in Nigeria. Why the urgency?

There is none. I will complete the Boko Haram documentation. An analysis of America’s involvement in Libya and the quadrangle of Jerusalem, Tehran, Buenos Aires and Washington have been waiting in line. But the line suddenly became longer. Further, in resigning, Schabas and the UN inquiry jumped to the front of the queue. Objectively, I could have waited. The investigative portion of the committee’s work had just been completed. It was beginning its writing phase. The report is due for completion next month. Nothing hangs on a quick write-up. Why now?

The reasons are internal, not external. Bill Schabas is a friend. I have been very critical of his appointment and his acceptance of that appointment. I am pleased he resigned and told him so. I know of his anti-Israel bias which I documented in an earlier blog (https://howardadelman.com/2014/08/12/bill-schabas/ ‎). I have been convinced that the bias could not help being infused in the report. It was not a simple bias. After all, in the past he has called for Netanyahu’s indictment as a war criminal and compared President Bashir actions in Darfur to those of Shimon Peres in dealing with the Palestinians. He disagreed that his past statements and positions should make him ineligible to take the position or that they would impair his impartiality. I could not disagree more. Now, I will never know whether I am correct. But that is not the reason for my current obsession with his resignation. I am simply puzzled by the timing, why Bill seems so easily to have fallen off the wall like Humpty Dumpty and the implications for the commission’s report.

I wrote Bill to ask if he wanted to share with me any information or elaborate further on why he resigned. He wrote back and said that he chose not to. So this blog is based on information accessible to everyone.

Before I analyze Bill’s resignation this week, let me summarize what I wrote in my previous blog after Ambassador Baudelaire Ndong Ella of Gabon, on behalf of the UN Human Rights Council (UNHRC), on 11 August 2014 announced that William A. Schabas had been named chair of a new panel of international experts charged with investigating “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.”

First, I was critical of the terms of reference of the commission which included East Jerusalem and the West Bank as well as Gaza, defined Gaza as an occupied territory, insisted the commission investigation begin on 13 June 2014 when Operation Protective Shield was launched and not when Hamas started raining rockets down on Israel, specifically excluded mentioning Hamas actions as part of the explicit terms of reference. The commission was instructed 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.”

Bill Schabas, I explained, accepted his appointment in spite of the self-evident bias of the UNHRC because Bill himself was biased as was a fellow panelist, Doudou Diene, a former UN prosecutor and “Special Rapporteur on Contemporary forms of Racism, Racial Discrimination, Xenophobia and related intolerance”, a scholar from Senegal. He had spoken at an anti-racism rally on 14 May 2009 and declared that, “racism is rooted in slavery and colonialism, including settler colonialism.” Israel’s occupation of Palestine continues a tradition of settler colonialism and racism, he insisted.

Israel refused to cooperate with the commission because of the partiality of Doudou Diene and Bill Schabas. I have had one impassioned argument in the past with Bill over a colleague, Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, who accepted a position on the Goldstone Commission, more formally, the United Nations Fact Finding Mission on the Gaza Conflict, even though, just prior to her appointment, she had written and pronounced judgment on Israel as criminal, the very same actions she was now asked to consider impartially as a member of an international inquiry. I argued that Christine should have recused herself and, if she did not, Richard Goldstone should have submitted his resignation. I argued, as did many others, that the reasons the commission was set up, the formulation of its mandate, the individuals appointed to it, the timeline boundaries, as well as many other factors indicated a strong perception of bias. The perception of bias was there for all to see when Richard Goldstone withdrew his own support, after the report was issued, from the claim that Israel intentionally targeted civilians (1 April 2011), but the three other members strongly criticized their own colleague, Richard Goldstone, for his retraction.

Bill insisted his colleagues were capable of acting as impartial judges in spite of their very strong assertions of guilt prior to their appointment. When he was appointed chair of the latest inquiry into Gaza, he repeatedly insisted he was capable of the same impartiality and lack of bias in spite of his previous strong written and oral condemnations of Israeli actions. He strongly defended to me and others his right to assume the position and insisted that he would ensure that the committee of inquiry proceeded in an impartial manner. At the same time, Bill has previously argued that impartiality is a misleading and even destructive criterion in drawing up commissions of inquiry or tribunals or selecting their agendas. For Bill, all international law is inherently political. Hence, in spite of his repeated pronouncements many times on Israel’s international criminality, he saw no need to recuse himself because “he is a scholar with integrity.”

Bill has in the past not only called for both Netanyahu and Peres to be prosecuted for crimes against humanity as I indicated above, but has also defended the Durban conference on racism. He has been accused of characterizing President Mahmoud Ahmadinejad of Iran as only a “provocative politician,” and paying no attention to his role as a persecutor of Baha’is and his being a notorious anti-Semite. These charges, which I myself previously repeated, are incorrect. Bill did serve as one of six commissioners on the Iran Tribunal Truth Commission from 18-22 June 2012. (http://www.irantribunal.com/index.php/en/sessions/truth-commission/306-findings-truth-commission) That commission reported on the heinous abuses in the arrests, brutal tortures and mass executions carried out by the regime between 1981 and 1988 and the impact of these brutalities on the families of the victims and the survivors of the torture and imprisonment.  The Truth Commission concluded:

“These violations of human rights were devised, instigated and executed (or caused to be executed) by a single central authority and as such the Islamic Republic of Iran is the only authority responsible for these acts.”

Bill has not been an apologist for Ahmadinejad but, in his most recent trip to Iran, accompanied Sandra Schulberg, producer of Nuremberg, Its Lesson for Today screening of the film for young Iranians. In the lion’s den, he spoke about the horrors of the Holocaust and the importance of the values of the Nuremberg trial in combating historic anti-Semitism. Though Bill is unquestionably very critical of Israel, he is neither an apologist nor one who even ignores anti-Semites.

That said, I have three major questions, at this specific point in time, why did Israel choose to present the United Nations Human Rights Commission with the key evidence that led to Bill’s resignation? Second, why was it sufficient to force Bill Schabas’ resignation? Third, what is the significance of the resignation since Bill insists that the report will not be affected by his resignation, and will be published as expected at the beginning of next month. Foreign Minister Lieberman of Israel agreed. For Lieberman contended that Bill’s resignation is not expected to change the contents of the report, but nevertheless celebrated Bill’s resignation as “a diplomatic achievement for Israel and the activities of its foreign ministry.”

Let me begin with what I find most puzzling – Israel’s decision to present evidence to a United Nations Human Rights Council with which it is not cooperating and which is purportedly not expected to change the content of the report. So why now? Why not wait until the report is issued and use the information collected to undermine the report when it is issued? Why choose this time if Israel’s actions are not expected to undermine the results? And why celebrate the resignation as a diplomatic victory? What was the evidence Israel presented three days ago to the UNHRC that set in motion Bill’s sudden resignation?

Israel had lodged a complaint before the UNHRC accusing Bill of “clear and documented bias against Israel,” specifically citing a “contractual relationship with the Palestinian side” prior to becoming head of the commission. Israel put before the UNHRC evidence that Bill had received $1,300 for a legal opinion he wrote for the Palestine Liberation Organization in 2012, an action which Bill acknowledged in the press conference at his resignation, but insisted that the opinion he wrote was of a “technical legal nature” drawn from scholarly work he had published and that he had not been hired or paid as an advocate on behalf of the PLO. It was no different than advice he had given to many other governments and organizations. Further, he insisted such advice constituted only “a tiny part” of what he called “his body of academic work.” In his letter of resignation, he admitted that he had written,

“a legal opinion for the ‘Negotiations Affairs Department/Palestinian Negotiations Support Project’ of the Palestine Liberation Organisation. The legal opinion was to consider the consequences of a UN General Assembly resolution upgrading Palestine’s status to that of a non-member state on the declaration that was lodged by Palestine with the International Criminal Court in January 2009. It also addressed whether accession should include acceptance of the amendments to the Statute adopted at Kampala and how the territorial jurisdiction of the Court might be applied. These are matters on which, as one of the academic specialists on the subject of the Rome Statute, I have frequently expressed myself in lectures and in publications. A 7-page opinion was provided on 28 October 2012 and I received remuneration of $1,300, as previously agreed. I have done no other consultation and provided no other opinions for the State of Palestine, the Palestinian Liberation Organisation or any other related body.”

So why did he accept the commission and why did he charge $1,300 if the advice was freely available by reading Bill’s writings? Why had Bill not disclosed this possible conflict of interest earlier to the UNHRC? Bill explained that he had not been asked to detail his consultancy work when he was appointed (curious indeed!), that, his views on the Israeli-Palestinian conflict had been well known and that he had pledged to serve “with independence and impartiality.” As he continued,

The complaint about my brief consultancy, as I understand it, is not about the content, which is of a technical legal nature, but the implication that in some way I am henceforth beholden to the Palestine Liberation Organisation. Perhaps there is also the suggestion that I might tailor my opinions in one direction in order to generate more such consulting for remuneration. If I were indeed motivated by financial gain, it would be hard to explain why I would have accepted the position as Chair of the Commission of Inquiry, to which I have gladly devoted several months of work and for which there is no remuneration whatsoever.

But in the complaint registered, there is no suggestion that he has been motivated by financial gain or that rendering the opinion would influence his future judgments about Gaza and Israel’s role. That is a red herring. This issue is one of an apparent conflict of interest. And that is quite separate from his past partial opinions on Israel and the question of whether he could be impartial in his current role. For impartiality is an ethical issue. An alleged conflict of interest is a legal issue. In law, accepting such a fee, on the surface, should disqualify one from accepting a role as a judge. And one cannot offer the excuse that the fee was for an opinion to the PLO, not Hamas, for the mandate of the commission included investigating Israel’s actions in both East Jerusalem and the West Bank.

“A conflict of interest occurs where a personal interest is sufficiently connected with public or professional duties that it results in a reasonable apprehension that the personal interest may influence the exercise of professional or public responsibilities.” It is not just, though it can be, an issue of benefitting financially. A conflict of interest arises if a person in a position of judgment about one entity (Israel) has worked on behalf of another entity (the PLO) which has adverse interests to that of Israel. Further, the rules of law demand vigilance with respect to possible conflicts of interest.

Note first that a conflict of interest is not the same as partiality. A person charged with the responsibility of making a judgment may, by his prior behaviour, actions and writing, have demonstrated pre-judgments which could affect his or her opinion, but total impartiality is not part of a job description. The absence of a conflict of interest is. An individual is normally disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. Not that it would, but that it might. The appearance of a conflict is sufficient for disqualification.

But was this a case of a conflict of interest? For Bill was not advocating on behalf of the PLO nor representing the PLO. He was serving as a technical expert on the law. But is this nevertheless not a procedural violation? Administrative law differentiates between legal work as an advocate or authorized representative and legal work as a technical specialist and consultant. Bill did not intervene in the ICC on behalf of the PLO. In Bill’s letter he is clearly suggesting that in law that he was not in a conflict of interest. I think he may be correct. So why did Israel use this material, and use it at this time, to undermine his role? Why did he resign? And what are the implications?

Aside from the issue of how Israel obtained such information, did Israel proffering this information expect and anticipate that it would lead to Bill’s resignation? I believe it was a tipping point. But Bill is both stubborn and arrogant and believes he has the divine capacity to bracket and rise above his past and render totally impartial judgments. I am not the only one critical of his belief. Persons of much more eminence than I have told Bill the same thing. Aryeh Neier, founding director of Human Rights Watch, former head of the ACLU, President Emeritus of George Soros’ Open Society Foundation, and a lecturer with Bill Schabas at the Paris School of International Affairs, concurs. So does Joseph Weiler, President of the European University Institute in Florence and Editor-in-Chief of the European Journal of International Law.

This issue is a tipping point, not because it provides a definitive legal case against him, but because in the current situation at the stage at which the commission is at, the process of dealing with the legal charge is so disruptive that the very legal process of adjudicating the issue would be an enormous distraction from the commission’s work. The information has set in process an unstoppable force which the ethical demands of impartiality had not. The information has resulted in a new and irreversible development which would make it impossible for Bill to continue no matter what the opinion might be of the legal department of the UN. The information was rovided by Israel on Friday in the full knowledge that it would serve to either tip the balance to force a resignation or, at the very least, undermine his moral authority as chair

Israel wanted Bill out now and believed it now had the case that would drive him out, and, as a fallback position, would undermine the work of the commission even further. Tomorrow I will deal with why Israel chose this time to push Bill over the cliff and why Bill agreed to jump rather than be pushed. I will also deal with the implications of his downfall on the contents of the report and its likely reception.

Tomorrow: Was He Pushed or Did He Jump? Why?

Mothers and Sons: When Your Boy Goes Off to War

Mothers and Sons: When Your Boy Goes Off to War

by

Howard Adelman

In David Grossman’s marvellous, but also exasperating, book, To the End of the Land, the heroine of the book, Ora, is a mother whose son has been called up for duty in the Israeli Defence Forces when a war has just started. Among the many options mothers have of dealing with such a frightening situation, instead of staying at home by the telephone and cancelling all personal pleasures, or keeping herself immersed in busy work, Ora took the path far less travelled. She recruited an old friend and lover, Ofer, to go hiking in the Galilee where, if she were busy hiking and not at home to answer the phone, miraculously the phone would not ring to deliver any bad news. So the reader is taken on a roller coaster ride of emotions and revelations as Ora and Ofer hike and camp in the Galilee hills. This blog is not intended to review the roller coaster ride Ora takes the reader on in northern Israel but rather to compare the son’s experience with that of his mother.

If the response Ora took was unusual, the situation in which she found herself is common in Israel. Lihi Lapid, another Israeli novelist (Woman of Valour), journalist and columnist, posted the following article:

“To Be An Israeli Mom”

To be an Israeli mom is – before you’re even an actual mother, to wait for the ultrasound exam to learn that everything is ok, but when the doctor says “it’s a boy” – to immediately imagine your foetus a soldier in uniform, with road dust in his hair, his rifle hanging on his shoulder and his eyes full of innocence. And to start being afraid.

To be an Israeli mom is to teach your daughter not to show weakness in front of her third grade classmates, because she has to be strong, so she doesn’t fall apart in front of her tough commander at basic training as a rookie soldier.

To be an Israeli mom is to complain about your country quite a bit, but always tell your children it’s the best place in the world.

To be an Israeli mom is to be involved, to “consume” the news like a drug addict, to protest for or against, and always feel responsible for what’s going on here, because it’s yours. It’s your state, and it’s your children that will protect it. And to know that you don’t have the option to be indifferent, not in this country. And sometimes – to agonize that you didn’t protest more.

To be an Israeli mom is to know about the situation no less than the staff sergeant, the commanding officer, and even the Chief of Staff. And if you meet them, to also let them know what YOU think should be done.

To be an Israeli mom is to be scared when the sirens go on, but to remember it’s important that your children don’t stress out, and won’t be afraid, so you take a deep breath and tend to them first, like you couldn’t be more calm and you’re not scared one bit.

To be an Israeli mom who lives by the border, near Lebanon in the north or Gaza in the south, is to be a part of a chain of the wonderful brave Israeli women, for whom guarding their homes is also guarding their country. And to hope this time would be the last.

To be an Israeli mom is to see field-training-uniform hanging on the laundry rope, and know how difficult it is to iron them. And to also know that the mother or father who irons them might shed a small tear which will probably be absorbed into the cloth, without leaving a trace, but which will have come from deep within the heart.

To be an Israeli mom it to not be able to look at the photos of our killed soldiers, and try not to think how they look like your own son. And then look at the photos and think it anyway.

To be an Israeli mom is to see a bereaved mother and feel how you run out of air, feel the sharp pain in your chest. It’s to know that the bereaved mother is not someone else – she is a mom exactly like you. And that it could have been you. And through that to feel you are soul sisters, and hurt with her. To want to hold and hug her, but at the same time to know you will never be able to actually ease her pain, and that there are no words.

To be an Israeli mom is to want one day to be a grandmother too. To be an Israeli grandma is to not to believe that both your grandson and granddaughter are being drafted to the army. After all, you were the one who told grandfather, when he went to war, that by the time you had grandchildren this would end. And to wonder whether it will ever end.

To be an Israeli mom is to know that all you want to give your children is security, and to realize that this is the one thing you cannot actually promise them. And still know for a fact that Israel is the most secure place for your child. (I know this cannot really be explained to anyone who is not an Israeli).

To be an Israeli mom is to want peace, but not be willing to give up safety or security. It’s to go through the current month in Israel and to know that an Israeli mom deserves to grow her children quietly. It’s to also know that one day peace will come.

Because peace is the promise of the Israeli mother.
And she is not the one to give-up.

One reader wrote a response. Here is an extract.

Every word of it describes precisely what we feel every day: Our happy moments along our sad or terrifying moments, the choice we make every day, choosing to live in a place which is homeland on one hand, and the center of a world conflict between 3 religions on the other hand. Looking straightforward into the eyes of a harsh reality forces you again and again, every day, to choose optimism instead of despair, choose hope for peace instead of knowledgeable interpretations about the impossibility of achieving it, choose looking at the beautiful face of humanity and solidarity while ignoring the ugliness of evil and terrorism…The times of Gaza war were very very difficult for A and me, as E participated there intensively. For known reasons I can’t write about it. He was risking his life and all we prayed was that nobody will knock on our door with terrible news. We stayed at home, didn’t want to go out, prayed for this temporary terrible tsunami to skip our house. The burden of our deep worry was very heavy this time. We were sticking to the news, both on T.V. and on the radio praying to hear about cease fire or political negotiations.  At war times I keep saying to myself “no news – good news”.

Mothers go through horror often much more terrifying than their sons or daughters on the military front. The woman who sent me the original article and the response had a son, Aryeh, in the recent Gaza War. She claimed that her husband was much more of a wreck than she was because he had a non-stop stream of news while she had retreated to the cottage and tried to live in a bubble. Though her son had phoned daily when he was mustered to Gaza, after he actually went in when the ground war started, communications were cut. “That was the difficult part, not knowing where he was or when we would hear from him again. We jumped every time the phone rang and slept with our cell phones on and beside us.”

Just nine days before Aryeh and his fellow Israeli troops were the last to withdraw from Gaza, ISIS or the Islamic State blew up a shrine in Mosul with which he shared a name. Aryeh is a young upstanding man whom I have known since he was a baby. He is a man of excellent character and virtue. Yesterday evening I interviewed him.

I asked Aryeh if he saw any similarity between himself and the approximately 100 Canadian volunteers fighting with ISIS. He responded that we all go to serve a cause we believe in. I was surprised at his answer and the additional remark that one man’s terrorist is another man’s crusader and champion, since I radically distinguish terrorists who capture and cut off the heads of Westerners versus Canadian volunteers who go overseas to serve in the Ukrainian or the Israeli armed forces. Of course, he too distinguished the two groups, but he also recognized similarities. For awhile, he did not know whether his volunteering to serve in a foreign army was legal, but subsequently learned that service abroad in the IDF is legal. In contrast, Canadians serving in an organization the Government of Canada has labeled as a terrorist one, including not only ISIS but Hamas, are engaged in illegal Canadian activity. Those individuals are branded as terrorists by the Canadian government.

I asked what training he had in the norms of a just war. I had to explain briefly what those just norms were. He could not recall any lessons and suggested from the instructions of officers, that they had been trained in just war theory because he and his other fellow grunts were taught, for example, never to shoot at a fleeing car except in three cases: 1) men are firing at you from the car; 2) if there has been a kidnapping; 3) he could not recall the third. I suggested that it was perhaps if they had evidence that the car was filled with explosives or if the car was bearing down on you. He could not remember.

For Aryeh, throughout his training, the army almost always appeared as a balagan (chaos but without the texture and feel of the disorder of the original Yiddish or Hebrew). However, once they were engaged in war, the infantry, the engineers, the intelligence units, the tank and artillery units and the dog unit all came together in a marvellously well-oiled machine of coordination and cooperation. Even then, and in spite of all the care taken, some soldiers were killed by friendly fire. He thought the figure was thirteen. When I returned to my desk, I checked. The IDF figures showed five deaths from friendly fire. I was unable to follow up on the discrepancy.

This war had cost the lives of at least five Israeli soldiers from friendly fire, about 8% of the sixty-six military deaths. On the Palestinian side, with equipment much more prone to mishaps and with units working far more independently without the command and control system of the Israeli army, it is estimated that at least 15% of the Hamas and Jihadi militants were killed by friendly fire – as well as far more civilians – or about 40-71 Palestinian militants depending on whether one relies on the Hamas figures of about 600 militant deaths or the Israeli figures of 1068 militants killed.

The first Israeli soldier to die in the Gaza War, 20-year old Eitan Barak serving as a commander in the Nahal brigade, was killed by friendly fire from a tank missile fired by another brigade, the very type of event that Aryeh described that took place near his position. He had been sent with his battalion to the Gaza front two weeks before the ground war started and six days before the actual war started. During those two weeks, the news that the units were going into Gaza or not were reversed many times. However, once his paratroop battalion under the command of the Givati brigade went into Gaza, with an artillery, a tank, an engineering unit, and even a dog unit, the hesitancy and reversals seemed largely to stop until just before the end of the ground war.

However, frustrating reversals did occur. His part of a platoon had taken a position in a house and had filled up special bags with sand to fortify the windows. That same evening, they were told to pack up; they were being withdrawn from there. They emptied the bags and were almost finished cleaning up when they were told the order had been rescinded and they had to refill the bags and fortify their position once again.

Aryeh had not spent all of the 18 days fighting in Gaza. He went in on a Thursday, nine days after the war began with the first troops entering Gaza. After five days, on the following Wednesday morning, his battalion was ordered out of Gaza. By the same evening, they were ordered back in. After another eight days, they left Gaza for some respite, but soon returned to the battle. He himself never found himself engaged in a fire fight. He shot no one and was never shot at. But one soldier in his battalion had been killed. In another incident, a terrorist came out of a tunnel 100-150 metres from his location, shot an RPG at an Israeli tank and another soldier was injured. In his own unit, a soldier was injured by a piece of shrapnel that went right though his leg and another by a sniper bullet that went through his neck, but he survived.

Though Aryeh had been in the war from the very beginning until the very end, the war had not been traumatic for him. Nevertheless, his sense of the contingency of life had become much more acute. Even though the situation was not akin to the action seen in the vast majority of war movies, he still censored what he told his parents sensitive to their fears and what they might imagine. When sent to the front, he told them he was in training. One of the two times he came out of Gaza for rest, his father, who had traveled from Canada, was there and they were able to hug and cry together.

Aryeh was largely engaged in blowing up tunnels with the main focus on tunnels going into Israel rather than the many logistical tunnels within Gaza. The engineers planted the actual explosives that blew up the tunnels. On his cell phone he showed me a picture of a mosque beside which the entrance of a tunnel had been built. He then showed me the picture of the tunnel exploding. The mosque was severely damaged in that explosion. The soldiers themselves had been ordered never to enter the tunnels, so the presumption I had made that the Israeli soldiers needed training in tunnel warfare was wrong. They did not fight in the tunnels. They only located them, traced their route and the engineer company destroyed them.

Near the very end of the war as units were being withdrawn and as the cease-fires were no sooner agreed upon than they fell apart, his unit was engaged in locating and protecting the engineers as they worked to blow up one final  tunnel they had located. When they were ordered to withdraw on 4 August, they felt they had only partially succeeded in totally destroying the last tunnel. But Aryeh felt very proud about the 32 tunnels they did locate and destroy.

Asked about the relatively high cost in military casualties, he said that is why they were in the army. They were there to sacrifice their lives for the protection of civilians. The few Israeli civilians killed (six plus one Thai foreign worker) was a testament to the IDF’s success. Just imagine if the planned attack on Rosh Hashanah of 200 Hamas and jihadi militants through the tunnels into Israel had taken place. Can one imagine how many Israeli civilian deaths there would have been? The soldiers, and the four sniffer dogs that had been killed, about which he felt particularly badly, were necessary sacrifices for the larger cause of protecting Israeli civilians.

Near the very end of the war, just an hour before the final real cease-fire came into effect, on a kibbutz next to Gaza that had been under almost constant code reds, Shahar Melamed, 43, a father of three children, and Zeevik Etzion, 55, a father of five, were outside repairing an electricity line damaged by a mortar attack earlier that day when they came under a barrage of fire from Gaza. Both men were killed.

Aryeh had also been very near the position where three Israeli soldiers had been killed near the end of the war. Initially, his unit had been told that two of them had been captured and kidnapped and then that figure was revised to only one. As it turned out, all three had been killed. But the believed kidnapping of an IDF soldier had triggered Operation Hannibal and his and other units were ordered to leave the work they were doing locating the last tunnel and aggressively ordered to penetrate further into Gaza to isolate the area of the alleged kidnapping.

Aryeh is very proud of what he and his fellow soldiers had done and accomplished in Gaza. He had no doubt that they had won. In the tension between those who believed that too much ordinance had been used and those who believed that the army had been held back and should have finished Hamas off, he sided with the government and thought it struck a reasonable balance between minimizing IDF casualties and destroying Hamas by debilitating Hamas to a very large degree.

Aryeh seemed less aware of the much larger media war in which Israel and Hamas had been engaged. For him, there was no question. Hamas was a terrorist group, perhaps not as bad as Islamic State, but nevertheless a group that ruthlessly, openly and in public killed civilians simply because someone claimed they were collaborators. He thought that the greatest victims of Hamas were the Palestinians they ruled over. He also conceded that the Hamas militants the IDF encountered this time had been much better trained, much better equipped and much more determined and tactical in fighting an urban war.

The most surprising part of the whole discussion was the number of soldiers Aryeh thought had been deployed in Gaza. He asked how many I thought. I replied that the highest figure I had read in an article by a purported expert on the Israeli military was 73,000. I had been very critical of that figure as highly exaggerated and thought the figure was less than 40,000. He said that the Israeli army went in with four battle groups. He knew the numbers in his own battle group and calculated there were 8,000 IDF soldiers who entered Gaza. According to him, at most 10,000 soldiers went into Gaza to fight against 21,000 to 30,000 Palestinian militants. The discrepancy between the 10,000 maximum and my figure of 40,000 may have come from my failure to distinguish between Israelis called up for duty and Israeli soldiers deployed on the ground in Gaza.

When asked about the pain and fear and suffering of his mother while he was in Gaza, he said that he was aware of it and tried to spare her as much worry as possible, but that it was part of the sacrifice of the war. He himself had emerged from the war relatively unscathed and was surprised to learn that I believed that his mother had been more significantly affected and had become more acutely aware of which of her friends offered and were capable of offering empathy and understanding the fears that she went through. Both parents were amazed at the outpouring of love and support from those outside their close circle. That meant so much while they waited to hear news.

I came away from my interview convinced that the parents of the Israeli soldiers in Gaza suffered far more than the soldiers themselves. This is probably the case with parents of Palestinians. The dread may also be akin to the fear and trembling parents experience when their children are suffering or have a severe illness.  Their pain might be even more acute than that of their children.

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

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

My Promised Land.X.GazaBeach

My Promised Land: The Triumph and Tragedy of Israel

by

Ari Shavit

X         Gaza Beach 1991

 

In this chapter Ari focuses on Gaza in 1991, before the intifada broke out just a few years after I and my oldest son crossed from Egypt into Gaza en route to Israel with a first stop a visit to Jeremy’s old girlfriend when he lived on a kibbutz for a year. They had remained friends and she had married and had a child by this time. She now lived on a kibbutz on the border of Gaza. To our surprise – which perhaps showed our naiveté – not one person we met on that kibbutz had ever visited Gaza.

Our introduction to Gaza was very shocking. When we entered from Egypt we were shunted off to one line for foreigners while Palestinians went into another line. We were treated with what then passed for Israeli civility while we watched Palestinians not simply being questioned but questioned in the most demeaning and humiliating way. I could not tell whether this was because the officer was originally from South Africa but I could not keep my mouth shut and reprimanded the officer for his incivility, which helped the Palestinians not one whit. It is to the credit of the Israelis that I was simply told to mind my own business.

Ari describes the successful systematic and determined use of oppression to put down the intifada, but it is possible that the same oppression could have been a factor in the break out of the intifada. Ari was sent there as part of his miluim service (reserve duty) and decided to report on what he saw rather than refuse to participate. He served as a prison guard for the detainees who were mostly “not terrorists but demonstrators and rock throwers”. many of them teenagers. For Ari, the officers were generally decent men trying to do their job. Our observations had been different. There were many different kinds of officers, some very considerate, kind and fair and others just bullies. Ari actually saw the same – some indifferent, some wishing all Arabs were dead and others considerate and humane.

What made my spine tingle was his listening to the beatings of prisoners in the interrogation room. It reminded me of the screams I used to hear from the Police Station at the corner of Markham   St. one block north of Bloor at London St.. We lived one block away on Palmerston   Ave and we could hear the screams in the late forties when the cops beat up prisoners, a practice which seemed to be standard at the time and comes back every time I watch a film noire movie. Ari is correct. “A person who has heard the screams of another is a transformed person. Whether he does something about it or not, he is transformed.” And all the screams of the past re-echo whether watching just a replica or hearing the real thing when visiting philosopher friends in a Tito jail in former Yugoslavia in Slovenia in the late sixties or listening to Tamils being “questioned” in a military base in Elephant Pass in Sri Lanka in 1982 when I myself was under arrest there by the Sri Lankan army.  

As Ari writes, “The interrogation ward becomes part of routine service, as if this is the way of the world.” (my italics) (233) Ari asks, “Are we the soldiers of evil? Are we agents of cruelty? Are we the heartless gatekeepers of oppression?” (234) Ari seems to answer yes but adds that these soldiers doing their duty are victims too. So he asks how all these non-evil people manage together to produce a result that is evil? For, in Ari’s eyes, Israelis were evil in Gaza. Israelis were evil in denying Palestinians human rights and civil rights and national rights. In doing so, the process corroded the souls of the Israelis forced into that situation. .

The question is, forced by the Israeli government or forced by circumstances? Or by both? Ari gets to the heart of the matter when he writes that, “Only our willingness to use force is what keeps us alive here.” (335) This is the real way of the world. The Palestinians have forced Israelis to be evil by rising up against the Israeli oppression. And Ari ends with a variation of his tragic fix. “we hold them by the balls and they hold us by the throat.” (236) “The tragedy never ends.” (238)

It does. It always has. And it always will.

If some humans make the laws and agree to be governed by the laws they make and through lawful activity express themselves and their thought, there are others ruled by law not of their making. Those are not subject to the rule of law but the rule of force. Life is organized so that the lives of those who live through and under the law can be preserved. Thereby those individuals have freedom and independence. Those governed by the law who cannot live through it completely lack freedom and independence. But the spirit of a people is preserved and enhanced by its pursuit of the freedom and independence of each of its members. It is only when that spirit can be preserved for both peoples in contention and the independence and freedom of the individuals in each can be enhanced can that spirit be a universal and not just a particular spirit.

Until the movement of forces in contention can become universally acknowledged through a peace between the two peoples, only then will every individual in both societies have freedom. Only then will force not simply be externalized but will be recognized for the coercion that it is by both peoples.. Freedom and living under and through the law will become owned and embraced by the contending peoples and forces. Then the tragedy will become a comedy.

Until then we will experience and observe the way of the world.

Three Movie Reviews.15.04.13

Three Movie Reviews 15.04.13

by

Howard Adelman

Blue Line

The Cave – Nekama

Rainbow – Keshet Be`Anan

Today is Yom Hazikaron (יום הזיכרון‎), Memorial Day, the day set aside to commemorate the Israeli Fallen Soldiers and Victims of Terrorism Remembrance Day (Yom Hazikaron l’Chalalei Ma’arachot Yisrael v’l’Nifgaei Peulot Ha’eivah יום הזיכרון לחללי מערכות ישראל ולנפגעי פעולות האיבה‎). This evening Yom Ha’atzmaut (יום העצמאות‎), Independence Day begins commemorating the Israeli Declaration of Independence in 1948 which then fell on the 15th of May but is celebrated in accordance with the Hebrew calendar on the 5th of Iyar. The above three films have everything to do with Yom Hazikaron, the second on the list in a perverse way, but all three have nothing to do with Yom Ha’atzmaut. That is to say, all three movies are about the military, but all three have nothing to say about politics. I saw all three at one showing last evening at the Toronto Jewish Film Festival (TJFF). The first was a delight. The second was wonderfully acted and very moving. And the third was magnificent.

Blue Line is a 20 minute 2011 short in Hindi, Hebrew and English made by Alain Sauma for French television. The film opens with a shot of blue painted boulders in a line, widens to a gorgeous shot of green hills and a small pond, and widens again until we see a UN peacekeeping observation post and then an Israeli observation post on the Israeli-Lebanese border. The scene is gorgeous and is probably intended to be located in the north-east in North Baalbek and the borders of Baalbek, Beka‘a, Hasbaya or North Rashaya. Based in Beirut, Sauma generally shoots commercials, such as a beautiful very short film asking for support for Gaza called Bring Gaza Back. He also shoots propaganda films against terrorism. This film has the usual stereotypes of armies, whether in the Israeli army or working as Indian peacekeepers. There is the soldier who wants to keep strictly to orders. Then there are the humanitarian soldiers who try to apply common sense when dealing with a small incident but in a zone that makes humanitarianism seem not only risky but a potential trigger for resumed fighting across a cease fire line. The action is initiated by a boy minding his cow in Lebanon and falling asleep on the job as his cow wanders across the cease fire line. The film is whimsical. Its humanity warms your heart until, in the end, the story is juxtaposed against the real war.

The Cave (Nekama) is an Israeli 22 min. short directed by Yoav Cohen, one of 13 Cohens who are filmmakers in Israel. He made the film as a student at the Sam Spiegel Film & Television School in Jerusalem. At first you are unsure what is going on. The fifty year old casually dressed bald man seen making a fire in a cave looks like an Israeli Mossad or Shin Bet agent. Then you see that he has a captured a youth in uniform, tied him up and gagged him. The kidnapper of the soldier speaks fluent Hebrew. Is the tied up youth a fellow from the Lebanese or Jordanian army or one of Arafat`s soldiers? If I was an Israeli, I would have recognized the insignia and caught on before three minutes of the film had passed. The soldier is Israeli. The kidnapper is an Arab, named Yusuf – it is not clear whether he is an Israeli Arab or from the West Bank. He has kidnapped the soldier and tied him up. Is this not where the Blue Line ended? No, for Yusuf has not kidnapped the soldier for political reasons, but to exact revenge for what he and his wife went through at the hands of Israeli soldiers. The acting by Yusuf Abu-Verda playing Yusuf is simply brilliant. The film is beautifully shot with a red camera so the details within the cave stand out. The script is almost poetic. It is a must see movie.

Imagine The Hurt Locker looking artificial beside this 41 minute film directed by Eliran Elya called Rainbow or Keshet Be`Anan. Documentary film footage is shown of real Israeli troop going through the sand and rocks in search of body parts for proper burial of dead soldiers whose armour carrier had been attacked and blown up. This took place in Gaza and this archival film is interwoven through the movie. The film is about a troop of half a dozen soldiers sent into Gaza to guard the body part collectors. When they are shot at, the soldiers take cover in a house that they find is occupied by a Palestinian family with a sullen father, a rather animated older grandmother and a brood of children, one in bed suffering from asthma. A wayward Israeli army photographer is found and forced to take cover with them; the photographer was assigned to their unit and simply went ahead on his own. We know from the start that the enterprising photographer obsessed with getting his shots will spell trouble. The claustrophobia of the house in which they take refuge makes the castle in the Israeli film Beaufort look roomy.

Again, there are a variety of types. The troop is made up of the self-centred soldier and the romantic wayward and even rash one, the do-gooder and the responsible Michael, the commanding officer, who tries to keep his troops safe without imposing unnecessarily on the trapped Palestinian family as the soldiers are periodically shot at by snipers. The film see-saws from situations of fear to the movements of well trained soldiers, from boredom to the religious soldier praying, from one soldier taking water belonging to the family when his own runs out to the medic helping the child. The film is fast-paced and taut, carried by suspense and fear but lightened up by camaraderie and care. Until the climax!

The director, Eliran Elya, and Producer, Oren Rogovin, were there for a Q&A. We learn that this exact situation took place when he was in the army. Rainbow was both the code name of the mission and the house that they had lined up to occupy while they protected the gatherers of the body parts. The White House was the source of the sniper fire but I would not read any political symbolism into that. With minor alterations, what is portrayed actually happened. Shockingly, this superb film was made with all volunteer labour and total dedication and cost $2000. The film is a fitting tribute to Yom Hazikaron.

The film was all the more poignant for me, as I am sure it was for so many Israelis. I recalled when my grandson was in the paratroopers on the Gaza border and his best friend was killed a few yards from him by a grenade from a grenade launcher. I phoned him not long after the event and what he said kept going through my head and cutting through my heart as I watched the film.

May peace come and may no more civilians be harassed or injured or killed and no more Israeli soldiers` lives sacrificed.

Three Movie Reviews15.04.13.doc