Did the UN Commission of Inquiry Properly Analyze the War in Gaza?

On June 12, 2024, the UN Human Rights Council’s Commission of Inquiry on Israel (COI) issued its fifth report (the Report).[1] The COI was founded in 2021 with a unique mandate to investigate Israel – and no other country — in perpetuity for any possible violations of international law. The Report assessed whether the Israeli Defense Force (IDF) and Hamas have complied with the laws of war, formally known as international humanitarian law (IHL), during their current war in Gaza. Most of the Report focused on the IDF and accused it of widespread IHL violations.

The Report is potentially significant. If its findings are incorporated in the pending war crime prosecutions of Israel at the International Court of Justice (ICJ) or the International Criminal Court (ICC), either court would be more likely to reach a guilty verdict. That would be a miscarriage of justice because the Report misconstrued the applicable legal standards, resulting in skewed findings. This review of the Report’s main contentions shows where its reasoning went wrong.

Applicable rules of IHL

IHL balances the military need to fight a war effectively with the humanitarian need to minimize civilian harm.[2] In matters of wartime targeting for attacks, IHL applies a standard of good faith and requires a fresh good faith evaluation at the targeting stage of each attack. The good faith analysis starts by applying the rule of “distinction,” which requires the commander to distinguish between the military object and any nearby civilian objects.[3] If the commander foresees a risk of harm to civilians, then the rule of “proportionality” requires the decision-maker to take all feasible precautions to ensure the civilian harm does not exceed the military gain.[4] Note that proportionality is estimated before the attack. The judgment call is not culpable based on the outcome of the attack, even if the resulting civilian harm is greater than expected. The rule of “precaution” similarly requires the individual to employ all feasible measures to execute the military operation in a manner that avoids, or at least minimizes, civilian harm.[5]

The good faith targeting standard considers the circumstances of each attack. In the fog of war, mistakes, though sometimes tragic, are expected. For example, information available to the commander may be inaccurate, or at least inaccurate at the time of the attack. A party may treat citizens as human shields to frustrate the enemy’s targeting task. Terrorist groups such as Hamas and Hezbollah are infamous for using human shields. A targeting decision may be rushed if the commander’s own troops are under attack. A low-impact type of ordinance may not be accessible. For these reasons, the fact that a military action may sadly result in civilian death does not necessarily mean the commander failed the good faith test.

Lack of reliable evidence

A major shortcoming in the Report is the lack of reliable evidence. Israel did not participate in the COI’s investigation due to the commission’s track record of anti-Israel bias, so the COI staff could not enter Gaza or ask IDF commanders how they made their targeting decisions. That means the COI could not assess whether the targeting was done in good faith. The validity of a targeting decision hinges on the information available to the commander, not information available to the COI. In U.S. law, if a prosecutor lacks sufficient evidence to bring a case, the charges are dismissed.[6]

The Report’s superficial anecdotes, retold from unnamed sources, reveal unprofessional methods of gathering evidence. In one paragraph, the Report contends without independent verification that certain anonymously posted videos and photos show no place in Gaza is safe. According to another unsubstantiated passage, “several individuals” complained they were attacked while evacuating. A third sentence alleged, based on uncited “credible reports,” that Israeli troops demolished civilian homes. Such hearsay would not be admissible in any legitimate legal forum.

Failure to review on a per-attack basis

Another repeated flaw in the Report is the failure to perform targeting reviews on a per-attack basis. In one section of the Report, the COI recites Hamas’s unverified figures on the total number of Palestinians killed in the war. In another section it lists the total number of Gaza targets supposedly destroyed. Those aggregate figures are not legally relevant to any particular attack – all the more so when they are unverified and, given their source, inherently not credible.

By the same token, the Report’s sweeping generalizations about warfare are not legally germane or even accurate. One such statement asserts that the use of “heavy payload” bombs is “incompatible” with IHL when dropped in a densely populated urban area. IHL imposes no limit on the type of bombs that may be used in densely populated areas. The permissibility of a given weapon depends on the circumstances of the given case. A more curious abstraction in the Report claims the IDF’s use of artificial intelligence reflects “a broad interpretation of military objectives.” But again, the point of a targeting review is to determine the good faith validity of a specific attack.

Misuse of rule of distinction

In addition, the COI misapplies the rule of distinction. The Report declares that Israeli forces destroyed civilian structures such as homes, schools, and hospitals, and therefore Israel meant to cause civilian harm in violation of IHL.

Nowhere does the Report acknowledge Hamas’s pervasive use of civilian sites for military purposes such as missile factories, command posts, and ammo dumps. That is just the kind of tactic that deprives an enemy commander of the information needed to distinguish between military and civilian targets. When a civilian site is converted to a military one, it undermines the rule of distinction and thereby loses its IHL-protected status. The COI should have studied each damaged site to determine whether it was fair game for attack.

Hamas breaches the rule of distinction in other respects overlooked by the Report. The militants do not wear uniforms as required by IHL. Instead, they fight disguised as civilians. Their terror tunnels run under homes, schools, and hospitals. They transform Palestinian civilians and Israeli hostages into human shields. And they use civilian vehicles for military transport. Hamas also lets Palestinian civilians participate directly in hostilities (e.g. by transporting combatants to an attack, serving as lookouts for ambushes, and planting improvised explosive devices). The Report should have admitted that when these supporters of Hamas act as combatants they are just as subject to lawful attack as members of Hamas.

To the extent that Hamas’s defiance of the distinction rule prevents Israel from making good faith distinctions between Hamas operatives and civilians, it is Hamas, not Israel, that should bear any resulting IHL liability.

Misuse of rule of proportionality

The COI also mishandles the rule of proportionality. Many passages in the Report assert that the IDF destroys entire homes and neighborhoods and therefore violates the proportionality rule. But as noted above, the rule focuses on good faith expectations of civilian harm at the targeting stage of an attack, not the extent of fallout from the attack. Also recall that the legal process compares the expected civilian consequences with the expected military advantage to see if the potential civilian harm would be excessive.

In another recounted incident, where an IDF tank allegedly fired on a car, the Report deemed the IDF action disproportionate. But the COI again failed to review the targeting stage of the supposed attack or weigh the expected military need against the expected civilian harm.

Misuse of rule of precaution

For the rule of precaution, the COI applied standards that are not legally required. Some of the innovations appeared in the COI’s review of the civilian evacuations within Gaza. Although the Report acknowledged that the IDF had properly given evacuation orders in Arabic and used various methods of outreach, it still concluded that the evacuations flouted the precaution rule. One of the criticisms decreed that the IDF should have scheduled longer “tactical pauses” in combat to give the evacuees more time to escape. Another rebuke insisted the IDF should have provided special evacuation assistance to the elderly, sick, and disabled. Yet another reprimand said Israel must not force Gazans to evacuate multiple times.

None of these measures is compulsory. As noted above, the rule of precaution requires all “feasible” measures to avoid or minimize civilian harm under the given circumstances. The IDF’s evacuation arrangements represented enormous precautionary efforts, many taken at great risk to the safety of Israeli personnel. Beyond that, it may not have been feasible for the IDF to schedule longer tactical pauses or provide the other above-listed accommodations. Had the COI conducted the applicable feasibility analysis, it may well have resolved the issue in Israel’s favor.

The Report concocted another breach of the precaution rule when it condemned the IDF for suspending a practice called “roof knocking.” A roof knock is a burst of non-explosive ordinance delivered by an air force plane on the roof of a building to warn of an impending aerial attack. Roof knocking is not legally required. Israel devised the technique voluntarily to help clear civilians from sites targeted for bombing. In fact, no advance warning of an attack is required if the attacking party believes in good faith it would lose the element of surprise or risk harm to its troops.

Implications for ICJ and ICC

The COI is obligated by its mandate to conduct investigations “in accordance with international law standards.”[7] Unfortunately, the Report missed that mark. Indeed, the Report’s failure to properly state, much less apply, the rules of per-attack review, distinction, proportionality and precaution, cast grave doubt on any reliance by the ICJ and the ICC on that document. Those tribunals would be well advised to avoid any reliance on the clearly deficient Report in their pending cases against Israel.

—

[1] UN Human Rights Council, 56^th Regular Session of the Human Rights Council, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel, A/HRC/56/26 (“advance unedited version” issued June 12, 2024), https://www.ohchr.org/en/hr-bodies/hrc/regular-sessions/session56/list-reports. Associated with the Report were two “conference room papers,” one for Israel and the other for Hamas, which served as detailed versions of the Report. Conference Room Papers on Hamas and Israel, A/HRC/56/CRP.3 and A/HRC/56/CRP.4 (June 12, 2024), https://www.ohchr.org/en/hr-bodies/hrc/regular-sessions/session56/list-reports.

[2] For a good introduction to the relevant law, See ICRC Interpretive Guidance, Part I, Recommendations of the ICRC, Interpretative Guidance on the Notion of Direct Participants in Hostilities (last viewed June 25, 2024), https://casebook.icrc.org/case-study/icrc-interpretive-guidance-notion-direct-participation-hostilities#:~:text=Civilians%20lose%20protection%20against%20direct,against%20direct%20attack%2C%20for%20as; International Expert Meeting Report: The Principle of Proportionality (September 13, 2018), https://www.icrc.org/en/document/international-expert-meeting-report-principle-proportionality; and Precautions Under the Law Governing the Conduct of Hostilities, Legal Division of ICRC (2006), chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://international-review.icrc.org/sites/default/files/irrc_864_5_0.pdf.

[3] The rule states: “Parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.” https://ihl-databases.icrc.org/en/customary-ihl/v1/rule1.

[4] The rule states: “Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.” https://ihl-databases.icrc.org/en/customary-ihl/v1/rule14.

[5] The rule states: “In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimize, incidental loss of civilian life, injury to civilians and damage to civilian objects.” https://ihl-databases.icrc.org/en/customary-ihl/v1/rule15.

[6] See Offices of the United States Attorneys, US Department of Justice, Steps in the Federal Criminal Process, Pre-Trial Motions (last viewed July 1, 2024), https://www.justice.gov/usao/justice-101/pretrial-motions.

[7] UN Human Rights Council, The Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel (May 27, 2021), https://www.ohchr.org/en/hr-bodies/hrc/co-israel/index.