Another Episode in the Lawfare Saga: UN Ignores the Law Yet Again

Although I should not be surprised, I am dismayed that the United Nations has once again used its podium of alleged international legal authority and legitimacy to attack and unfairly malign Israel, the only democratic, law-abiding and human rights respecting state in the Middle East. The report of the Independent Commission of Inquiry  on the 2014 Gaza Conflict  is biased, improperly influenced and without basis in fact or reality.

Throughout its report, the Commission draws illogical conclusions. It attributes intention to kill to the IDF when it specifically targeted buildings where munitions were stored, and from which rockets were being fired indiscriminately at Israeli civilian populations. However, when assessing the aim of Palestinians who were firing these rockets, the Commission found that the indiscriminate nature of the trajectory of the rockets illustrates that the intent of the rocket launchers was to spread terror, but not to kill. The Commission further refuses to acknowledge the obvious purpose of the 32 tunnels built from Gaza into Southern Israel: to terrorize the civilian population of Israel and, ultimately, to kidnap Israeli citizens. The report makes no mention of the syringes, tranquilizers and handcuffs found inside the tunnels, but it instead declares that the Commission “cannot conclusively determine the intent of Palestinian armed groups with regard to the construction and use of these tunnels. However, the Commission observes that during the period under examination, the tunnels were only used to conduct attacks directed at IDF positions in Israel in the vicinity of the Green Line, which are legitimate military targets.” It is absurd that the Commission is unable to evenhandedly assess the motives of Palestinian leadership in the creation of the terror tunnels, but has no objection to calling Israel’s destruction of these tunnels a war crime. The refusal of this body, created and vested under the authority of the UN’s Human Rights Council, to address the widespread financial and humanitarian corruption of the Palestinian leadership, which could have diverted the $3 million per tunnel to humanitarian use for a population so lacking in basic needs, is disgraceful.

While tasked with investigating violations of the Laws of Armed Conflict, the Commission fails to acknowledge the comprehensive and transparent internal investigations undertaken by both the Israel Defense Forces and the Israeli Ministry of Foreign Affairs (MFA)  to identify “exceptional incidents” which resulted in civilian casualties. Both of these probes were undertaken with the express purpose of aligning IDF actions with international legal standards, and with the intention of preventing civilian casualties in future conflicts. While these investigations concluded that the proper international legal processes were scrupulously heeded in each and every IDF strike, it would be laughable to suggest that Palestinian leadership undertook similar investigations into civilian deaths or the use of improper tactics of warfare by Hamas combatants during the conflict. This disparity was obviously ignored by the Commission.

In fact, the Hamas combat manuals retrieved by the IDF inside Gaza reveal conclusively that Hamas and other Palestinian militant leaders operate in precisely the opposite way, flagrantly and intentionally violating the Laws of Armed Conflict with the stated goal of leveraging the civilian death toll to improperly influence the international narrative. The MFA’s investigation found that “Hamas combat manuals and training materials recovered by IDF forces in the Gaza Strip demonstrate that Hamas’ strategy was to deliberately draw the hostilities into the urban terrain, and to use built-up areas and the presence of the civilian population for tactical advantage and political gain.” If this strategy wasn’t abundantly clear, the Commission could have referred to a simple population density map, which would show that although Gaza has several densely populated areas, most notably Gaza City, Beit Hanoun and Khan Younis, the rest of the Strip is sparsely populated. If militants wanted to spare civilians, they would fight from less populated areas. If they did that, however, “Palestinian civilian casualties would decrease dramatically, but the casualty rate among Hamas terrorists would increase dramatically.”

Quite obviously, then, the goal of the Palestinian militant leadership was to use its civilian population as a human shield for its combatants and its weapons. It is appalling that the Commission could fail to identify these actions as war crimes. The Palestinian leadership’s homicidal use of the Palestinian people in this fashion is further evidenced by the storing of rockets and other munitions in UN facilities, including UNRWA schools. Although the report, unsurprisingly, does not mention the several discoveries of rockets hidden in these locations, it repeatedly attacks Israel for killing civilians and attacking UN buildings. Even after UNRWA itself condemned the placement of rockets in its schools, saying this was a “flagrant violation” of international law, and even after UN Secretary General Ban Ki-Moon express[ed] his outrage and regret at [Hamas’s] placing of weapons in a UN-administered school [and] endangering the lives of innocent children,” the UN still holds Israel accountable for civilian deaths associated with IDF strikes in these locations.

The MFA report also found that “[t]he Hamas-run Ministry of Interior in the Gaza Strip published guidelines for ‘social media activists’, encouraging the inflation of civilian fatality figures: ‘anyone killed or martyred is to be called a civilian from the Gaza Strip or Palestine, before we talk about his status in jihad or his military rank. Don’t forget to always add ‘innocent civilian’ or ‘innocent citizen’ in your description of those killed in Israeli attacks on the Gaza Strip.'” Somehow, these figures were incorporated into the UN Commission’s calculation of civilian casualties in Gaza, without any independent fact-checking. When discussing the civilian death toll in the Gaza Strip, the Commission repeatedly evokes emotional language to reprimand Israel for actions taken in self-defense. Further, by incorporating the Hamas civilian casualty count into its findings, the Commission ignores the fact that “even human rights group antagonistic to Israel acknowledge … that Hamas probably counts among the ‘civilians killed by Israel’ the following groups: Palestinians killed by Hamas as collaborators; Palestinians killed through domestic violence; Palestinians killed by errant Hamas rockets or mortars; […] Palestinians who died naturally during the conflict [or] the reported 162 children who died while performing child slave labor in building their terror tunnels.”According to scholar and Professor Alan Dershowitz, “Hamas also defines combatants to include only armed fighters who were killed while fighting Israelis. They exclude Hamas supporters who build tunnels, who allow their homes to be used to store and fire rockets, Hamas policemen, members of the Hamas political wing and others who work hand in hand with the armed terrorists.”

The UN’s report is replete with references and citations to other reports submitted by NGOs with profound and notorious biases against the Jewish state and its legal right to defend its citizens and territory, including B’Tselem, Amnesty International, the Palestinian Center for Human Rights, Human Rights Watch, Adalah, and Breaking the Silence. It is unclear whether the Commission took into consideration the facts presented in reports submitted by NGOs and other groups, such as the submission by The Lawfare Project, which conclusively examined numerous violations of international law by Hamas and other armed Palestinians as they waged this war against the Israeli civilian population with total impunity. It is also apparent based on the report’s citations that its conclusions relied more heavily on NGO submissions than on professional or independent fact-finders or empirical evidence. It is ironic that a so-called fact-finding mission could undertake this investigation with such deliberate disregard for the facts.

Unfortunately, the United Nations seems not to have learned anything from the Goldstone fiasco, where the judge whose name branded the UN’s report publicly repudiated the report’s conclusions  and expressed his intense regret for having participated in such a deficient exercise under the guise of international legal legitimacy. After more than two years of controversy surrounding the Goldstone Report, Judge Goldstone emphatically rejected the notion that Israel targets civilians as a matter of policy, and yet the United Nations found it fruitful to put together another inherently biased commission, headed initially by a paid Palestinian Authority consultant, to examine the conclusions it already held as self-evident before any investigations were opened.

Finally, the Commission fails to consider the conclusions of the group most relevant to the investigation and most experienced in the matters being investigated: a multi-national group of former-chiefs of staff, generals and politicians. The findings of these trained and experienced professionals were that “Israel not only met a reasonable international standard of observance of the Laws of Armed Conflict, but in many cases significantly exceeded that standard.” According to these military experts, “none of us is aware of any army that takes such extensive measures as did the IDF last summer to protect the lives of the civilian population in such circumstances … Israel’s humanitarian efforts to reduce the suffering of the civilian population in Gaza … were often far in excess of the requirements of the Geneva Conventions … In some cases, Israel’s scrupulous adherence to the laws of war cost Israeli soldiers’ and civilians’ lives.”

In fact, many international legal scholars claim that Israel has gone too far in protecting civilians during armed conflict and say that the humanitarian standards set by Israel in its conflicts in Gaza set a dangerous precedent for other asymmetric conflicts against terrorists around the world. Michael Schmitt, director of the Stockton Center for the Study for International Law at the United States Naval War College, argued that “[t]he IDF’s warnings certainly go beyond what the law requires, but they also sometimes go beyond what would be operational good sense elsewhere.” In other words, if the United States and other Western militaries bound themselves to the standards set by Israel in the war against terror, we would be tying our own hands in a crippling and tactically disadvantageous way.

It is to the detriment of the Palestinian people and mankind as a whole when the rule of law is manipulated so profoundly and unabashedly. We, as members of the law-abiding and human rights respecting community of nations, must continue to combat lawfare in all its pernicious forms and to repudiate grossly biased and inaccurate claims advanced by any legal authority, commission or tribunal that undermines our laws and legal systems.

About the Author
Amanda is the Director of Legal Affairs at The Lawfare Project. She previously practiced securities litigation in New York City. Amanda studied diplomatic history and public policy at the University of Pennsylvania as well as international law and human rights at Cardozo law school. She has worked extensively in the areas of policy and human rights with organizations such as Shurat HaDin - Israel Law Center; Bet Tzedek Legal Services Clinic; the Holocaust, Genocide and Human Rights Program; and the Anti-Defamation League. Amanda is a member of the Young Leadership board of Friends of the IDF.