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Shlomo Levin

UN Accusations, Israel’s Response: What Gives?

Photo by Daniel Klein on Unsplash

On June 12th the United Nations Human Rights Council (UNHRC) released the results of an investigation into the Gaza war. This included a 59 page section that does a reasonable job of documenting Hamas atrocities. It accuses Hamas of hostage taking, indiscriminate rocket fire, sexual and gender based violence, and more.

The report also includes a 126 page critique of Israel’s military response which accuses Israel of a long list of war crimes and crimes against humanity. Most prominent are intentionally targeting civilians and civilian infrastructure, using starvation as a method of war, attacking military targets with disproportionate force that causes undue harm to civilians, and forcible transfer of the civilian population. The report also includes a section on crimes it alleges Israel has committed in the West Bank and additional violations of human rights law.

Israel, of course, maintains that its military scrupulously follows humanitarian law and denies all these violations. To those ends, it quickly released a 12 page document detailing what it sees as the flaws and errors in the UNHRC report. Its main complaints are that the report evaluates the legality of military strikes based only on results, does not take into account operational constraints faced by the Israeli military, and relies on casualty numbers provided by Hamas.

Hamas Casualty Figures

Israel’s point about Hamas casualty numbers is well taken, as these figures are not verified and may well be manipulated for propaganda purposes. Furthermore, the officials who compile these numbers refuse to distinguish between militants and civilians, merely claiming that ‘the vast majority’ are women and children. A precise breakdown of militants and civilians is critical, however, for determining potential war crimes. Israel also says that individuals killed by Hamas, such as by malfunctioning rockets, are included in the list, along with people whose deaths have no connection to the war. The UNHRC undoubtedly used these casualty figures because it has no others to go on, but Israel is correct that they can hardly constitute a solid basis for war crimes allegations.

Legality of Strikes Determined by Intention, Not Result

The legality of a military strike must be based on information available at the time the strike is ordered, not on the results. For example, a commander who orders the bombing of a civilian target is liable for committing a war crime even if by some miracle the bomb fails to detonate and no one is harmed. So too the opposite- if a commander orders a strike on a warehouse that intelligence has identified as being used as an arms depot, that commander is not guilty of a war crime even if after the fact it turns out the intelligence was wrong.

Israel points out that the UNHRC bases its accusations on the fact that the result of many Israeli strikes seems to have been either harm to civilians only or disproportionate civilian harm. But the UNHRC has no way of knowing what information was available to Israeli commanders when the strike was ordered. It is possible Israel had reason to believe the intended target was military in nature, which could make the attack legal even if the information later proved to be mistaken. It’s also possible that a weapon malfunctioned, or that the attack did destroy a valid military target, such as a tunnel, and the UNHRC is unaware.

UN Lacks Knowledge of Operational Limitations

Furthermore, the UNHRC often faults Israel for not using precision guided munitions when carrying out strikes in urban areas, or for using munitions that are larger than necessary for its military purpose. The UNHRC says Israel is thus committing the crime of failing to distinguish between military and civilian targets.

Israel retorts once more that the UNHRC lacks enough knowledge to make these allegations. It has no way of knowing the operational necessities of Israel’s military- exactly what types of guided munitions Israel has available in what quantities, the intelligence Israel has about the nature of the target and what size munition would be needed to destroy it, and so forth. Therefore Israel once again says the UNHRC lacks any solid factual basis for its allegations.

Israel Says Trust Us

It should be pointed out, though, that while Israel’s points are valid the UNHRC’s lack of information is largely because Israel refuses to reveal it. The UNHRC requested Israel’s input into its investigation numerous times, and in each case Israel refused to cooperate. Israel claims that the commission is biased against it, and it may have good reason to believe that based on commission members’ prior statements and some elements of its final report. But the fact remains that much of Israel’s reply to the commission basically amounts to saying that everyone should trust us. Even though Israel’s military strikes have left many thousands dead and much of Gaza destroyed, Israel claims it was all based on information that makes it legal. But sorry, for security reasons that information must be kept secret. Unfortunately, in the current political environment, the world is not going to grant Israel such deference.

It’s also true that no military can reasonably be expected to reveal the full intelligence information on which it bases its military targeting for fear of exposing its means and methods to the enemy, and no military would make public its operational limitations, capabilities of its weapons, or its weapon supplies. This means that outside groups such as the UNHRC will always face severe hurdles in investigating war crimes unless they can obtain the cooperation of the army they are investigating. This is simply an unavoidable obstacle to the enforcement of humanitarian law.

Is This The Right Question To Ask?

Perhaps a better way to look at the issue is to recognize that whether Israel follows humanitarian law or not, a war waged in the densely populated Gaza strip with the aim of completely destroying Hamas will inevitably cause massive destruction. The fact that Hamas may deliberately increase this by hiding its fighters in population centers and using human shields doesn’t change the fact that such a war would in any case be devastating to Gaza’s population. Is it worth it? Is trying to destroy Hamas militarily the best way of achieving peace and security in the long run? These questions are moral and political rather than legal, so they are not part of the UNHRC report. But maybe those are the real questions we need to be talking about, after all.

About the Author
Shlomo Levin received Rabbinic ordination from the Israeli Chief Rabbinate and Yeshivat Hamivtar, and an M.A. in International Law and Human RIghts from the United Nations University for Peace in Costa Rica. He is the author of the Human Rights Haggadah, which highlights human rights issues in the Passover story with Jewish and secular sources along and questions for discussion. Learn more at http://www.hrhaggadah.com.
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