All Heat and No Fire

The human rights machinery of the United Nations is gearing up to investigate the conflict in Gaza. Its new investigative commission has a mandate to look into abuses by all sides in Gaza, but public attention has centered on whether Israeli forces committed crimes during its weeks-long air and ground operations. Most observers acknowledge that Hamas’s indiscriminate — if usually ineffective — rocket attacks are illegal, but the question of whether Israel’s targeting policy crossed the legal line has been hotly disputed. Don’t expect clarity anytime soon. Recent history suggests that the U.N.’s investigation won’t produce consensus — and won’t pave the way for prosecutions either.

It’s not just the facts of what happened on the ground in Gaza that are disputed; so are the U.N.’s bona fides in conducting the investigation. On July 23, the U.N.’s 48-member Human Rights Council voted to create an investigative commission. Supporters of the resolution included an array of heavyweights, including Brazil, China, Indonesia, Pakistan, Russia, and Saudi Arabia. But the Council’s decision was far from unanimous. The United States opposed the resolution and 17 other countries, including most European members, abstained.

Last week, the president of the Council, a diplomat from Gabon, formally named the members of the investigative commission. The selection of Canadian academic William Schabas as the commission’s chair generated particular controversy. Schabas has been a vocal critic of Israeli policy and once called for Israeli Prime Minister Benyamin Netanyahu to be in the dock of the International Criminal Court (ICC). A full-page ad sponsored by a pro-Israel group describes Schabas as a "friend of Ahmadinejad" and an "enemy of Israel." Many Israelis, it’s fair to say, have written off the U.N.’s inquiry before it has even begun.

Israel’s frustration aside, the U.N. commission’s work will go ahead and it will almost certainly find that Israel violated the laws of war. The U.N.’s own top official for human rights, Navi Pillay, a former ICC judge herself, has already said there is a "strong possibility" that Israel (and Hamas) have committed war crimes. The advocacy organization Human Rights Watch (HRW) has identified more than a dozen Israeli strikes that it believes did not target militants. It has argued that other strikes were likely criminal, including the shelling of a power station and the targeting of militants’ homes as a form of collective punishment. HRW official Sarah Leah Whitson has argued that several Israeli attacks "did not appear directed at a legitimate military target, or the attack was launched despite the likelihood of civilian harm being disproportionate to the military gain."

Israel has responded to similar accusations during previous military action in Gaza, Lebanon, and the West Bank. And its experience with a U.N. commission created during the 2009 Gaza conflict is likely shaping its legal and political response now. Israel chose not to participate formally with that inquiry, led by South African jurist Richard Goldstone. The commission he led ultimately produced the controversial Goldstone Report, which found that Israel committed multiple violations of international law.

Convinced it can’t get a fair shake from the U.N., Israel will likely produce its own assessment of the operation, which will highlight what it regularly describes as unprecedented measures to protect civilians, including blizzards of leaflets and the "roof-knocking" tactic that gives a building’s inhabitants time to evacuate. Israeli officials have insisted that Hamas bears central responsibility for civilian deaths by intentionally knitting its operations into civilian institutions and private homes — launching attacks from schools, hospitals, and mosques, and by encouraging residents not to flee even when warned. "It is regrettable civilians are killed," Israeli justice minister Tzipi Livni said during the fighting, "but when we call on them to vacate and Hamas calls on them to stay, then that is what happens."

In many cases, the dispute over Israel’s tactics will come down to the venerable but knotty legal concept of proportionality. Israel is not often accused of deliberately attacking civilians, but it is routinely charged with using excessive force in ways it must understand will cause significant civilian harm. The dilemma is that there is no precise or easily applied standard for weighing the military value of a target against the civilian cost. According to the International Committee of the Red Cross, proportionality means that states may not launch attacks in which civilian harm "would be excessive in relation to the concrete and direct military advantage anticipated." But how do you compute the military advantage? And how do you determine what the soldiers involved knew about the likely civilian impact?

If the international legal system were akin to a well-developed domestic one, those questions would be hashed out at trial, with a prosecutor making the case for criminal conduct and judges issuing the final decision. But what prosecutor and judges will handle cases related to Gaza? Human rights groups have urged the Palestinian Authority to become a member of the International Criminal Court (ICC), a move that could give that Hague-based court jurisdiction over Gaza. Under intense pressure from the United States and Europe, the government of Mahmoud Abbas has thus far shied away from joining the ICC. Nor has it taken the less dramatic step of reactivating its 2009 declaration designed to give the court jurisdiction over its territory. Even if the Palestinians do finally play the ICC card, it’s not at all certain the court will wade into the dispute. The ICC prosecutor has strong incentives to keep away from Palestine, and she would have wide discretion in choosing whether or not to open a full investigation there. 

With the ICC likely on the sidelines, the actors with the clearest mandate to prosecute war crimes are the parties themselves.

Nobody’s holding out hope that Hamas will prosecute its own. The situation in Israel is somewhat more complex. In the wake of the 2008-2009 Gaza operation, Israel did initiate an enquiry into several incidents during the offensive. Three years after the operation, however, an Israeli human rights organization concluded that the government’s investigations had been a hollow exercise that provided no real accountability. There’s a slim possibility of "universal jurisdiction" prosecutions by other states, which could bring charges against Israeli or Hamas officials on the theory that every state has a right and obligation to prosecute serious international crimes. Those prosecutions carry significant diplomatic complications, however, and it’s unlikely the relevant courts would be able to get hold of suspects in any case. 

The most likely outcome is therefore a replay of the U.N. investigation that followed the 2008-2009 Gaza war. Like the earlier Goldstone Report, this new U.N. inquiry will find evidence of war crimes by both sides, but will focus on Israeli culpability; Israel will reject the report as biased; and the world will take sides, mostly based on their already cemented views of the conflict. As the accusations and counteraccusations fly, meanwhile, the formal international mechanisms that could put alleged perpetrators on trial and probe evidence in detail will stand idle. Like so much else in this dispute, the U.N.’s probe will generate plenty of heat — but no clear resolution.