Israeli war crimes and bringing an end to impunity

On June 22, 2015, and almost a year after Israel’s assault on Gaza, the U.N. Human Rights Council independent commission of inquiry issued its report concluding that “serious violations of international humanitarian law and international human rights law by Israel and by Palestinian armed groups” occurred during the war. The report, like many earlier internationally sanctioned inquiries, constructed equivalence between the occupied and the occupier, which works to continuously obfuscate the nature of the death and destruction visited upon the region since 1948.

A serious problem exists in the international community, which has not taken Israel to task for its continued wanton violence, dispossession and destruction of Palestinian society. How many more reports, commissions, investigations and special envoys will have to visit the area, interview people, meet with important figures then issue a “balanced” report to be placed on the large Palestine bookshelf at the U.N., EU or U.S. State Department offices? When will the world take Israel’s war crimes seriously and issue warrants for arrest?

The commission was “concerned that impunity prevails” among Israeli forces as was evidenced “across the board” during the assault on Gaza. The impunity is built on the long track record of Israel being able to get away literally with murder without facing the consequences. On the contrary, the repeated phrase: “Israel has the right to defend itself,” is parroted by public figures across the Western world without stopping to consider the consequences and legal ramifications of granting an occupying power further authority to punish its imprisoned victims once more. The commission demanded that “Israel must break with its recent lamentable track record in holding wrongdoers accountable not only as a means to secure justice for victims but also to ensure the necessary guarantees for non-repetition.” However, who will bring accountability and under what authority?

Appropriately, the report said that “soldiers may have been following agreed military policy, but it may be that the policy itself violates the laws of war,” highlighting “the role of senior officials who set military policy in several areas” and, by extension, Israeli political leadership. Israel’s operational conduct, wrote the commission, “may have constituted military tactics reflective of a broader policy, approved at least tacitly by decision-makers at the highest levels of the government of Israel.” A point can be made that this military policy and practices can be traced all the way back to 1948 and massacres carried out against the Palestinians. It would have been the correct time for an unequivocal connection to be made considering that the majority of Gaza’s population is actually refugees from 1948 who were forcibly expelled by Israel.

The commission’s conclusion corroborates Israeli soldier testimonies released by Breaking the Silence, which provided firsthand accounts of orders given and how they were carried out on the battle field. “Anything still there is as good as dead” was an Israeli soldier’s description of the rules of engagement and how it was implemented.

The most noteworthy statement comes in the recommendation section where the commission observes: “The persistent lack of implementation of recommendations – made by previous commissions of inquiry, fact-finding missions, United Nations treaty bodies, special procedures and other United Nations bodies, in particular the secretary-general and the OHCHR [U.N. Office of the High Commissioner for Human Rights] – lies at the heart of the systematic recurrence of violations in Israel and the Occupied Palestinian Territory. Bearing in mind this wealth of guidance, the commission will not elaborate an exhaustive list of recommendations, which would repeat concerns registered by other bodies.” The commission daringly confirmed the obvious that numerous past investigations and inquiries produced reports, but all faced the same lack of implementation and conditions for the Palestinians continue to worsen.

The commission initially consisted of three appointed experts, but William Schabas, the initial Canadian chair of the group, was pressured to resign while Mary McGowan Davis and Doudou Diene took on the responsibility and spent almost a year collecting and analyzing the data to complile this report. All along, the Israeli government obstructed the work of the commission, refused to grant access and responded negatively to information requests that could clarify military orders and selected targets. The Israeli government went further by issuing a highly discredited preemptive report to distract from the mounting evidence of war crimes.

At the start, the report emphasized that as far as international law is concerned, Israel is the occupying power in the Gaza Strip and rejected Israel’s claim that the 2005 disengagement ended its obligations. Israel has maintained that it is not responsible for Gaza while all along maintaining total control and implementing a siege on the territory including regulating the caloric intake per person. “The commission concludes that Israel has maintained effective control of the Gaza Strip within the meaning of Article 42 of the 1907 Hague Regulations. The assessment that Gaza continues to be occupied by Israel is shared by the international community as articulated by the [U.N.] General Assembly and has been reaffirmed by … the Red Cross (ICRC) and the … International Criminal Court (ICC).”

As far as the conduct of hostilities, the commission examined the principles of distinction, proportionality and precautions, as they are generally measures agreed upon to assess military operations and their effort to minimize civilian causalities. In the span of 51 days, the Isreali Defense Forces undertook “more than 6,000 airstrikes” that “targeted attacks on residential and other buildings.” The immediate results: “According to the Office for the Coordination of Humanitarian Affairs (OCHA), 142 Palestinian families had three or more members killed in the same incident owing to the destruction of residential buildings, for a total of 742 fatalities. An even higher figure is reported by some nongovernmental organizations, which speak of 1,066 people, including 370 children and 241 women, killed inside their homes.” Not being able to examine every strike, the commission studied “in detail 15 strikes on residential buildings in the Gaza Strip in which a total of 216 people were killed, including 115 children and 50 women.”

The commission observed that Israeli military tactics showed disregard for “the obligation to minimize the effects on civilians.” Furthermore, it concluded that as far as “the importance of adhering to the principles of distinction and proportionality, the ICTY [International Criminal Tribunal for the Former Yugoslavia] has ruled that in some circumstances a ‘pattern of military conduct may turn out to jeopardize excessively the lives and assets of civilians.’ ” As to the massive destruction unleashed by Israel’s war machine on buildings and civilian infrastructure, the commission found “strong indications that these attacks could be disproportionate, and therefore amount to a war crime.” Also, “[t]he massive scale of destruction and the number of homes and civilian buildings attacked,” according to the commission, “raise concerns that Israel’s interpretation of what constitutes a ‘military objective’ is broader than the definition provided by international humanitarian law.” It further maintained that if “attacks have been directed against buildings that did not constitute a military objective, this may amount to a war crime.”

The commission report affirmed what the world already had known from the first moments Israel launched its murderous assault on Gaza, the largest open-air prison in the world. What the Palestinians are waiting for is accountability and the international community to answer for its continued support, silence and inaction toward Israel. While the commission’s report provides details, family names, military equipment and figures, it nevertheless lacks an enforcement mechanism, and more critically, the U.N. Security Council itself has up to this point been part of the problem.

It is up to the Palestinian leadership inside and outside the occupied territories to effectuate a change and move rapidly to bring Israeli leaders to face war crimes charges at the International Criminal Court (ICC). The Palestinian Authority has taken the first steps by officially delivering evidence to the ICC, however, a global public campaign should follow to pursue legally any and all Israeli leaders and commercial interests around the globe. The commission’s findings, if added to the earlier Goldstone report, provide ample ground for the campaign, which should be coupled with stronger support for the Boycott, Divest and Sanctions (BDS) movement. A commission’s report by itself has no legs to walk on, thus the responsibility is on human rights activists and grassroots organizers to be the walking feet of justice and bring an end to Israeli impunity.