Click photo to download. Caption: Richard Goldstone (left), head of the United Nations Fact-Finding Mission on the Gaza Conflict of 2008-9, addresses the press after the presentation of its report to the UN Human Rights Council on Sept. 29, 2009 in Geneva, Switzerland. Goldstone would eventually retract his controversial report. Credit: UN Photo/Jean-Marc Ferré.
By Eli Wishnivetski/JNS.org
Now that the latest Israel-Hamas conflict has come to a close—should the 12th attempted cease-fire hold—the battlefield moves from Gaza to the court of public opinion.
Although both sides are invoking violations of international law in the conflict, the United Nations—by virtue of its stature—is the main vehicle propelling such allegations. A full month before the conflict ended, the U.N. in late July had already announced an investigation into alleged Israeli “war crimes” in Gaza, and in mid-August the international body named the members of a three-person panel that will conduct the probe.
How should a scrupulous application of international law treat Israel’s Operation Protective Edge and Hamas’s actions in the conflict? That is no small question, because the outcome of the U.N. investigation will be the commonly accepted verdict on the matter.
The international humanitarian laws regulating conduct of armed conflicts are the 1949 Geneva Conventions, along with their official commentaries. Three additional Protocols that purport to clarify and add various provisions were instituted in 1977. Since not all nations have ratified the Protocols—notably including the U.S., Israel, and the U.N. non-member observer state “Palestine”—the protocols’ application falls outside the scope of the investigative committee.
As the issue at hand pertains to the protection of civilians in wartime, the Fourth Geneva Convention and its derivative commentaries are predominantly pertinent.
Article 149 of the Fourth Geneva Convention institutes a procedure by which an inquiry into a violation of the Convention is to be carried out. Any investigation into an alleged violation must be conducted through an agreement between the parties—either via negotiated procedures or an appointment of a mutually agreed-upon umpire. The process to appoint an investigative three-person panel is palpably specific.
The panel’s members must be drawn from a list of eight “neutral” and “qualified” nominees—four from each opponent. Each side appoints one member to the panel. The third, should the parties disagree, is appointed by the International Court of Justice. The Convention certainly prohibits one party to the conflict, or even a third party, to unilaterally determine the members of an investigative panel.
Severe doubt is cast on the neutrality of the Gaza probe’s nominees. Commission head and Canadian academic William Schabas, for example, has publicly stated that Israeli Prime Minister Benjamin Netanyahu should be indicted on the basis of the Goldstone Report, an investigation into the 2008-9 Gaza war that was eventually retracted by its author. Inconveniently, Ehud Olmert—not Netanyahu—was calling the shots as Israel’s prime minister during that conflict.
The three-member panel, as currently constructed, fails to comply with most procedural requirements of the Fourth Geneva Convention.
Despite the procedural failings, it is worthwhile to ask whether the U.N.’s case against Israel works on its merits. The shelling of Gaza hospitals, the most damning of allegations, is also the most instructive. Hospitals are explicitly off-limits, according to Article 18 of the Convention, and are recommended to be “situated as far as possible from [military] objectives.” A hospital encapsulates all claims of civilian harm—it may board women, children, and the sick or wounded.
The Convention’s Articles, however, also explicitly mention the positive obligation of all parties in the conflict to “respect” and “protect” the hospitals. The Convention makes clear that “the presence of a protected person may not be used to render certain points or areas immune from military operations.” Acts of “belligerents” that compel “civilians to remain… to serve as a protective screen for the fighting troops” are considered “shocking.” These acts are condemned as “cruel and barbaric” and are deemed to fall outside the “ruses of war.”
Particularly instructive is Article 19, which overtly discontinues the protection afforded to hospitals in the event that “they are used to commit… acts harmful to the enemy.” Examples of harmful acts include utilizing a hospital as a military observation post, to harbor able-bodied combatants, to store arms or ammunitions or as a center from which to coordinate fighting troops.
Although cessation of protection must be mitigated with warnings and reasonable time to evacuate, perpetuation of acts harmful to the enemy from a hospital is condemned because “such acts may lessen the protective value of the Convention,” causing the “life and security of the patients” to be “very seriously affected by its consequences.”
Application of the legal considerations
The Palestinian death toll during Operation Protective Edge surpassed 2,000, according to the Palestinian Health Ministry, with civilians accounting for 30-50 percent of the casualties—giving rise to widespread allegations of war crimes by Israel, whose death toll was 70. Despite that disparity and the harrowing imagery from Gaza, it would appear that Israel is not in violation of international humanitarian law as outlined by the Geneva Conventions.
The Israel Defense Forces (IDF) has been tasked with ending the rocket threat emanating out of Gaza. The rocket attacks, according to the U.N., constitute a war crime due to their professed indiscriminate nature. Although the U.N. generally views those crimes as nominal, Hamas’s exploits in Gaza are quite dispositive. Extensive reporting from Gaza has made it apparent that Hamas has deliberately utilized the civilian population in order either gain the protection of the Geneva Conventions or implicate Israeli soldiers as violators thereof.
In July, nearly 3,000 rockets were fired into Israel from among the civilian populace, including from residential areas and hospital zones. Hamas utilizes schools as weapons depots, mosques as fortified military outposts, and residential homes as hideouts and launch sites. It fails to carry military insignia into combat and uses ambulances for transportation. It appears to skillfully use the dense construct of civilian residences as a collective fortress from which to carry out its military objectives. Hamas insists on civilians remaining in areas of military operations, at times through forcible detention. Civilian casualties, the use of human shields, and the repression of journalists comprise Hamas’s documented strategy.
In failing to “respect” and “protect” the hospitals—and instead opting for conducting military operations inside or within close proximity of hospitals—Hamas triggered the Article 19 discontinuation of legal “protection.” Rather than situating its operations “as far as possible” from the hospitals, Hamas has set up regional commands and media centers within them and is perpetuating acts harmful to its enemy through rocket or gun fires. Hamas’s conduct is directly analogous to the contemplated exclusions of protected status under the Convention.
For its part, Israel must still satisfy the mitigation requirements of the Convention. By providing warnings—through phone calls, messages, and pamphlets—and allowing civilians a moderate amount of time to evacuate targets of airstrikes, the IDF has reasonably fulfilled its legal obligation. The oft-raised objection that Gazan evacuees have nowhere to go is not contemplated by the Convention. Displacement is not a justification to remain at a site known to be targeted.
Implications of the legal considerations
The U.N.’s investigations of Israel are typically controversial ventures—none more so than the 2009 Goldstone commission, a paradigm of baseless accusations not grounded in law. The circumstances of the 2008-9 Gaza war were all but identical to the current clash, complete with substantiation of civilian abuse by Gaza terrorists. The Goldstone Report still concluded that there was no evidence of such conduct, instead opting for labeling Israel as a human rights violator.
Judge Richard Goldstone retracted his report in April 2011, admitting that civilians were not intentionally targeted by Israel “as a matter of policy,” and that the fact that Hamas intentionally committed crimes against civilians “goes without saying.” Goldstone exposed the commission’s partiality, stating that it did not have “evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.”
The meticulous documentation by the IDF and the foreign independent media of the facts on the ground leaves the presently appointed three-person U.N. commission with an opportunity. The panel is presented with a case in which it can competently frame Hamas’s terrorist tactics as illegal. Rather than poisoning the well against Israel and Jews, an unequivocal consequence of the Goldstone Report, the panel can prove to be on the side of the law. In doing so, it can begin to steer the U.N. back onto the road towards credibility and to reclaiming its authority as the arbiter in matters of human rights and international law.
Eli Wishnivetski is a lawyer and freelance writer based in New York City.
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