by Mitchell Plitnick
The United Nations Human Rights Council’s (UNHRC) report on last summer’s fighting between Israel and Hamas came out on June 15. Before the ink on it was even dry, the Israeli government was condemning it as biased, and accusing the UN of trying to prevent Israel from defending itself.
The allegations, both against Israel and by Israel against the report, are very familiar and very serious. We need to consider soberly the points raised by the UNHRC report as well as the rebuttals Israel has made.
Is there bias regarding Israel at the United Nations Human Rights Council?
It would be wholly disingenuous of anyone to deny that Israel has a legitimate gripe about its treatment at the UNHRC. The Council is, as one would expect, a highly politicized body. The issue of human rights is particularly easy to politicize; any country can be called out for human rights violations. Depending on the point of view of the accuser, it might be the United States, Saudi Arabia, Cuba, Venezuela, Kenya, Russia, China, Bolivia, or the United Arab Emirates that seem undeserving of the seats they currently hold on the Council.
That being said, Israel is the only country that “merits” a permanent spot on the UNHRC’s agenda and Israel has been condemned there far more often than any other single country. There is no calculus that can justify singling Israel out in such a manner. Worse, this singling out of Israel undermines the Council’s legitimacy when it tries to exercise its mandate in Israel, the West Bank and Gaza.
Some argue, with good reason, that this type of bias against Israel is a sort of “balance” to the near-immunity Israel gets from the Security Council thanks to the United States’ repeated use of its veto power in that body. It is certainly true that both the use and threat of the US veto has prevented dozens of Security Council resolutions. But rather than balance things for Israel, this only exacerbates the problem.
What Israel needs, and what most Israelis want, is for Israel to be treated like any other country, and particularly like other Western democracies. The occupation is the major obstacle to this, of course, but Israel is done no favors by this tit for tat game at the UN. The HRC should judge and treat Israel no differently from any other country. It should remove Israel from unique status in the Council’s agenda. By the same token, Israel must be held accountable for its actions, especially considering the fact that it has held millions of people without basic rights and freedoms for nearly half a century.
The United States says the process for selecting the investigative committee was flawed. True?
The Council appointed the investigators. The one real expert on International Humanitarian Law (IHL) was the original head of the committee, William Schabas. He was a controversial figure and, while the issue over which he was forced to resign (he had done some minor consulting work for the Palestine Liberation Organization for which he was paid a small fee) was very thin, he had stated two years earlier that he believed that Israeli Prime Minister Benjamin Netanyahu should be “in the dock of an international court.”
In truth, Schabas had also expressed concern about Israel’s survival and very likely could have investigated the Gaza war impartially. However, it should have been obvious from the beginning that Schabas was vulnerable and would provide an easy target for the United States and Israel to attack the commission’s work. The remaining commission members, while fine jurists, were not specifically IHL experts. While the report adheres religiously to IHL and was as well-documented as was possible, these realities left the report vulnerable to attacks on its credibility.
So was the report credible?
The report is not flawless; it never could be, given the fact that neither Israel nor Hamas cooperated with the investigation. The report, for example, places blame on Israeli commanders who were forbidden by their government to testify as to what information they did or did not have regarding conditions on the ground in Gaza. The conclusions, based on the information the investigators were granted, were strong, but the absence of the testimonies of Israeli commanders obviously compromises the conclusions.
However, given these limitations, the report has a great deal of credibility. Conclusions were supported by the evidence, and despite the reticence of Israel and Hamas, the investigators had enough evidence to reach credible conclusions. Accusations by Israel of bias are based on the history of the UNHRC or other factors, but not on the actual contents of the report. When one reads the full report, it is impossible to conclude that there is bias present. Hamas’ crimes are treated with all the severity they deserve. The Palestinian Authority, which was not a direct antagonist in the fighting and which was the only body to cooperate with the investigation is also taken to task for having “consistently failed to prosecute” people under its jurisdiction who have committed war crimes.
The report does not state that war crimes definitely occurred, but it lays out evidence of them having been committed by both Israel and Palestinian armed groups, including Hamas. Israel’s complaint that since those are designated terrorist groups they should not be judged by the same standard as Israel is simply not consistent with the law. Under IHL, combatants, whether state actors or militant groups, are expected to adhere to the same rules. When Hamas fires rockets they cannot aim with any precision, they fail to meet the standard of IHL, just as Israel does when it uses highly imprecise artillery. Part of Israel’s discomfort at this reality surely is that it, unlike any Palestinian group, has a more than ample supply of much more precise weapons. The report also raises serious and disturbing questions about why the level of civilian casualties and damage in Gaza was so high when Israel did use weapons that are more precise.
The report discomfits Israeli leaders even more by suggesting that there are serious questions of policy, including the policy of the civilian government in the conduct of the war raised by the Gaza war. However, Israel does itself no favors by trying to bury the report rather than confront these questions. If the conduct of this war was defensible, Israel is more than capable of working with its allies to establish that fact in a transparent and credible investigation. That Israel chooses not to do so and that the United States helps it avoid such important questions only diminishes Israel’s standing in the world, and continues the erosion of the values that most Israelis hold dear.
What should happen now?
The United States has blocked any possibility of the Security Council acting on the report. That is a terrible mistake. The Council need not accept the report whole cloth, but there are other options.
Israel, as a sovereign state, has a right and responsibility to protect its citizens. Israeli and Palestinians civilians, no matter the grievances that exist, are entitled to the protection of IHL equally. As the report reflects, Hamas and other Palestinian groups stated their intention to target Israeli civilians, and the weapons they used could not be controlled to offer civilians any protection. In the event, Israeli civilians were clearly under fire.
In Gaza, the civilian impact was massive and tragic. The report raises many questions about Israeli rules of engagement and strongly suggests that these fall well short of IHL requirements. However, while acknowledging that Gaza is very small and densely populated, the report also strongly suggests that there were more than a few incidents where Hamas used civilian areas to launch attacks at Israel as a tactic, not out of sheer necessity.
Military forces fighting guerilla groups in urban areas are increasingly characterizing warfare, not only in Israel and Gaza but also around the world. The questions raised in the Gaza war, therefore, are not only important for accountability there, but to begin to ask the question of how countries should defend their citizens against such tactics. Can there be a clearer responsibility for the Security Council than to ask and answer that question?
Dealing with that question could be a small bit of good that comes out of the horrific suffering in Gaza that is still going on today. The preponderance of reports from NGOs in Israel and internationally as well as this latest piece, strongly suggest that Israel and Hamas both committed war crimes. Simply moving on and burying this report will only ensure it will happen again. An investigation that involves Israel, the United States and the international community can be seen as credible, and can begin to address these questions.
Israel, and any other country involved in asymmetrical warfare needs a clearer set of rules for what it can do as well as for what it cannot. IHL was written at a time where regular militaries fighting each other defined most warfare. That is no longer the case. Consideration of modern conflicts as well as monitoring and enforcement mechanisms is a crucial next step. Gaza is an opportunity to take that step. We should not let it be buried.
Originally published in the Foundation for Middle East Peace blog