Johnny Green
Tinker, Tailor, Soldier, Spy

The New UN Gaza Report: A Brief Analysis

Undoubtedly much will be written, said, yelled, posted, discussed, published and examined regarding the new Report on the 2014 round of hostilities in Gaza, commissioned by the United Nations Human Rights Council. A comprehensive, thorough and impartial review will require more time and qualifications than most people can afford or muster. That said, the following are a few basic points arising out of a brief, cursory analysis of the Report, focusing primarily on the final “Conclusions and Recommendations” section.[1]

When considering the style and tone of the Report, and in contrast to sensationalist headlines you’ll no doubt encounter, the Report uses surprisingly muted language in many instances where the experienced reader (familiar with UNHRC rhetoric) would expect otherwise. One glaring aspect of this is the reluctance to pronounce decisively or conclusively on Israel’s conduct; instead, the report often adopts cautious terminology which could best be described as “speculative”. Examples abound, such as these: “In some cases, these violations may amount to war crimes.”, “The commission is concerned that…”, “Questions arise regarding…”, “… it may be that the policy itself violates the laws of war.”, “… raises questions about potential violations…”, etc.

Compare that with the forceful (indeed, vicious) terminology used in the infamous and discredited 2009 UNHRC Goldstone Report: “The Mission found numerous instances of deliberate attacks on civilians and civilian objects (individuals, whole families, houses, mosques) in violation of the fundamental international humanitarian law principle of distinction…”, and “The Mission also finds that the Israeli armed forces unlawfully and wantonly attacked and destroyed without military necessity…”, along with many, many more such claims, accompanied by clear-cut accusations of war-crimes and of international law violations.

The difference is striking. The new Report is far less willing to assert positive violations committed by Israel. The same can be said for the “Principal Findings” section (which is the bulk of the Report). This departure from the standard UNHRC tone regarding Israeli military conduct should not go unnoticed and merits further examination, and even measured praise (or at least a grunt of acknowledgement).

The final “Recommendations” sub-section assumes a slightly more confident tone, and merits our brief consideration, despite being ultimately flawed and contradictory. The first portion can be largely described as obligatory and ambiguous lip-service, with requisite references to “all parties” and calls for general adherence to international humanitarian law (i.e. the laws of war) and for implementation of previous UNHRC recommendations, which is then followed by the more detailed and concrete recommendations for each side of the conflict.

Unmistakably, the most prominent recommendation for Israel is that the country conduct a review of its military policies, so as to “ensure compliance” with international law, and the Report emphasizes a list of policy sub-groups to be reviewed. The sub-groups themselves are extremely vague, including “The definition of military objectives” (yep, that’s really there), and “The tactics of targeting residential buildings”. Remarkably, and not to be disregarded, the call for review does not go so far as to suggest abolishment of any particular policy or practice.

It’s worth dwelling on the “list” of LOAC (the Laws of Armed Conflict) sub-groups for a moment. Each and every policy sub-group constitutes a textbook element of modern counter-terror warfare, involving urban warfare in civilian-populated areas, and each one is universally acknowledged as a highly complex and volatile issue. While the Report makes no attempt at properly analyzing Israeli policy and practice in the context of the listed issues, a thorough study was in fact recently conducted by two directors of the Stockton Center for the Study of International Law at the U.S. Naval War College. The study tackles issues of Israeli policies and compares them with accepted standards of LOAC and concludes: “Israeli targeting practices and positions on the LOAC are broadly within the mainstream of contemporary state practice… we concluded that IDF positions on targeting law largely track those of the United States military. Moreover, even when they differ, the Israeli approach remains within the ambit of generally acceptable State practice… we found that their approach to targeting is consistent with the law and, in many cases, worthy of emulation.” Their detailed reports will be appearing in academic and military journals.

This point is significant because it aptly demonstrates that it is indeed very difficult to criticize Israeli military policy on the grounds of a concrete and comprehensive review of LOAC. The Report’s recommendations on this issue are “mild” at the outset, despite being the “backbone” of the criticism against Israel, and are substantively easily countered.

The closest the Report comes to issuing operative recommendations is in section 681, and this is not the venue to explore each of the individual points raised. Suffice to say that they are peripheral, in the sense that they do not directly concern the conduct of hostilities in Gaza or any hostilities for that matter, but rather regard broader issues of the Israeli-Palestinian conflict (e.g., “to cease all settlement-related activity”). However, two of these “operative” suggestions are worth mentioning.

First, the Report urges Israel “to lift, immediately and unconditionally, the blockade on Gaza.” The suggestion is legally curious and logically absurd. Legally, the United Nations Panel of Inquiry into the 2010 Flotilla Incident had thoroughly examined the blockade of Gaza following the famous “Mavi Marmama” incident and had concluded thus in its final report: “The Panel therefore concludes that Israel’s naval blockade was legal… Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was imposed as a legitimate security measure in order to prevent weapons from entering Gaza by sea and its implementation complied with the requirements of international law.” The current Report offers no arguments as to why this may have changed and neglects to point out why the Israeli blockade on Gaza is in any way contrary to international law. The suggestion is therefore devoid of any legal basis.

Logically, the suggestion is on even shakier ground. Simply phrased, the Israelis imposed a blockade in the first place claiming Hamas was smuggling weapons into Gaza; Hamas then waged war on Israel using weapons it indeed successfully smuggled into Gaza (despite the blockade); consequentially, Israel concluded it was absolutely correct in imposing the blockade, and Hamas simply proved that it would be far more deadly if allowed to freely import goods. What twisted logic could lead one to conclude the need to remove the blockade as a consequence of Hamas’s acquisition of weapons and aggression?

Second, the Report suggests Israel “accede to the Rome Statute”, meaning become a member state of the International Criminal Court, granting the ICC jurisdiction to try Israeli officials over alleged war crimes. While the actual consequences and risks of such a decision merit a separate essay, it is sufficient to point out that the United States is not a signatory to the Rome Statute. When the leading world military power and “practitioner” of armed conflict is not a member-state of the ICC, it’s hard to claim that other countries are somehow obligated to become members.

All in all, the Report was never going to amount to a major “threat” to Israeli policy, especially due to the shaky credibility of the UNHRC and its lack of legally binding power. Yet it could have been a great deal worse, both materially and in its tone, and there is room for measured satisfaction, considering the circumstances.


[1] This essay examines the full “detailed” report and not the condensed executive summary published by UNHRC.

About the Author
Yonatan (Johnny) Green is the Executive Director of the Israel Law & Liberty Forum. He is a qualified attorney in both Israel and the State of New York. He was born and raised in Israel to parents from the US and the UK.
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