Earlier this week, a United Nations Human Rights Council commission released a report on last summer’s Gaza war, which suggested that both Israel and Hamas had committed war crimes during the hostilities. Given that the report is 184 pages long, initial media write-ups of it understandably focused on general takeaways, and quoted much from the brief’s executive summary rather than its actual, specific contents. But as experts have gotten the chance to read through the entire report, more in-depth analyses are beginning to emerge, with the most detailed and damning coming today from The Lawfare Blog, a partner project of the Brookings Institution.
The authors of Lawfare’s analysis, Brookings senior fellow Benjamin Wittes and Lawfare associate editor Yishai Schwartz, do not mince words: “The UN Human Rights Council’s Independent Commission of Inquiry report on the 2014 Gaza war, released Monday, is a bad piece of work—bad in almost entirely predictable and boring ways, but no less bad for being bad and predictable,” they write.
To begin with, they argue, the entire investigation was fatally flawed from the outset, when both Israel and Hamas refused to cooperate with it:
The commission’s job here was impossible. It is impossible rigorously to analyze whether a given strike or set of strikes complies with [international humanitarian law] without a detailed investigation of what the operators and commanders in the moment knew and why they decided to act as they did. It is always tempting to look at large numbers of dead civilians and assume that the fact of the bodies implicates a targeting decision. But that’s rarely right. Without knowing whom the target was, what calculations as to civilian deaths commanders made, and what the expected military advantage of the strike was, a rigorous investigation simply can’t be done…
The instinct of both Hamas and the Israelis to decline the privilege of addressing the commission’s concerns is understandable, though for different reasons. Hamas, having an entire strategy built around violation of IHL, cannot answer questions about its conduct without implicating itself. Israel, meanwhile, has a deep and well-founded suspicion of UN activity, particularly activity of the Human Rights Council. And there was reason to expect this commission to be worse than earlier ones, not better. The result was that the commission was left making judgments based on a combination of the public record and interviews with victims about matters the merits of which centrally depend on the viewpoints of commanders and operators. There’s no way to do this well.
There are a lot ways, however, to do it badly.
The analysts proceed to comb through the report in careful detail, outlining how it repeatedly makes assumptions about Israeli conduct with insufficient evidence, and “gives the benefit of the doubt” to Hamas’s claims that they were not targeting civilians—contrary to the terrorist group’s own statements during the war.
Crucially, the authors note that the UN report largely ignores the implications of Hamas situating itself within Gaza’s population centers. This fact—which is not denied, only pushed aside, by the report—is essential for understanding why Israel targeted various structures in Gaza, and whether or not those strikes were justified. But the report is largely uninterested in such questions:
There are 667 paragraphs in the commission’s report, yet only 18 of them deal with the use of civilian infrastructure by Hamas for military purposes—starting with paragraph 466 (on page 123). That’s not because the commission concludes that Hamas did not, in fact, launch attacks from houses, schools, mosques, and the like. To the contrary, while it finds that it was unable to verify the extensive Israeli allegations of such behavior because of both “Israel’s denying the commission access to Gaza” and “Palestinian witnesses’ fear of reprisal by armed groups and the local authorities if they provided information,” the commission did verify “certain patterns of behavior.” These included firing rockets from downtown Gaza, placing command and control centers and tunnel entrances in civilian buildings, and firing from close proximity to hospitals, shelters, religious sites, and school. As the commission notes, “the obligation to avoid to the maximum extent possible locating military objectives within densely populated areas was not always complied with.”
This sentence appears on page 127, and that actually says a lot. The conduct of Hamas does not in any way shape the report’s evaluation of Israeli targeting or alter the way the authors look at Israeli conduct. When the commission describes a residence as “prima facie” not a valid military target, which it does repeatedly in assuming that attacks on houses that kill civilians are presumptively failures of discrimination, that is hard to justify in the context of a conflict in which—as the commission finally admits—Hamas often used civilian protected objects for military purposes and “it does not appear that this behavior was simply a consequence of the normal course of military operations.”
In a more rigorous report, Hamas’s tactics would be the fundamental lens through which Israeli conduct got analyzed. When one side systematically violates the rules designed to protect civilians, after all, and a lot of civilians then get killed, those systematic violations have to be central to the inquiry into the reasons for those civilian deaths. In this report, those systematic violations are an afterthought. And somewhat shockingly—and very tellingly—they are also entirely absent from the report’s “conclusions and recommendations.”
You can read the entire analysis at Lawfare here.