by Toby Cadman
On 23 July 2014 the outgoing UN High Commissioner for Human Rights, Navanethem Pillay, condemned the escalation of military action in Gaza, saying that both sides may have committed war crimes. In an emergency session at the UN Human Rights Council she condemned both the IDF and Hamas for failing to protect civilians. She stated that “there seems to be a strong possibility that international law has been violated, in a manner that could amount to war crimes.”
Israel’s Justice Minister Tzipi Livni responded that Israel’s actions were in accordance with international law.
Officials have now confirmed that more than 750 Palestinians and 33 Israelis have been killed in the last 17 days. Accordingly to the UN Humanitarian Chief, Valerie Amos, 119,000 people are now sheltering in UN schools with lack of food and clean water becoming a serious concern. Regrettably, an attack on one of the UN-run schools in Gaza has left 15 people dead and more than 200 injured.
In an emergency session of the UN Human Rights Council, held 23 July 2014, the 47-member council majority adopted a resolution proposed by the State of Palestine with 29 votes in favour and 17 abstentions (including the UK, France and Germany). The United States was the only Member State to vote against the resolution. However, it is important to recall that the newly appointed US Ambassador the UN Human Rights Council recently stated that he intends to fight the anti-Israel bias in the Council.
Whilst the adopted resolution used language such as condemning the “the widespread, systematic and gross violations of human rights” it called for an independent commission of inquiry to investigate all violations of international human rights law in the occupied territories.
It is clear that the international community is becoming more united as each day passes in its condemnation of the escalating violence. Notably, the United States still refuses to condemn Israel and continues to rely on Israel’s right to defend itself. It is also notable that in addition to the United States, two other permanent members of the UN Security Council, the United Kingdom and France, abstained in the recent UN Human Rights Council vote.
That is as clear an indication as one needs to demonstrate that even if the UN sends an International Commission of Inquiry into Israel, which is increasingly likely, and assuming that Israel and Palestine cooperate, which is a big assumption, it is highly unlikely that the UN Security Council will adopt a resolution referring the situation to the International Criminal Court in The Hague with the power of a veto open to one or more of the permanent members. This is likely to give Russia and China the opportunity to play the ‘hypocrisy card’ considering the comments made in reference to the Russia-China veto concerning a Syrian referral by the Unites States. Interestingly, when the UN Security Council recently considered the French-sponsored Syria resolution the United States conditioned its support on any investigation into the atrocities in Syria to specifically exclude the Golan Heights.
Regardless of the politics, the escalation of hostilities in Gaza must remain of great concern and any attacks on civilians, whether Israeli or Palestinian, must be condemned in the strongest terms. It is of course recognised that any State under attack has to right to defend its sovereign integrity and its civilians. However, such a right must extend to both sides of the conflict and any use of force must be strictly proportionate.
Self-defence is a legal defence to a prosecution for unlawfully killing or injuring someone. If the defence is successful then the effect is that the killing or injury is deemed lawful. The general legal principle of self-defence, in lay terms, holds that a person who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary. Furthermore, relevant to this issue is the right of a person to use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large. What is deemed to be reasonable force raises two key questions: (a) was the use of force necessary in the circumstances, i.e. was there a need for any force at all? and (b) was the force used reasonable in the circumstances?
The position advanced by the Government of Israel is that they are acting in self-defence against Hamas, a proscribed group, terrorising the civilian population with the launching of thousands of rockets into Israel. They consider their actions to be strictly necessary and proportionate to the risk faced. In fact, they go much further and consider their security forces to be exercising the highest moral standards and their actions to be highly restrained. A reference to the British wartime Prime Minister, Winston Churchill, and his ordering of the bombing of Dresden in response to the German bombing of London in the final months of the Second World War has been used as a comparison.
To further the point, the Israeli Ambassador to the United States of America, Ron Dermer, declared that:
“Israel deserves more than the support of the international community. Israel deserves the admiration of the international community. No military in history has taken greater care than the IDF to protect innocents of the other side.”
Ambassador Dermer has even gone so far to suggest that the IDF should be awarded the Nobel Peace Prize. Even if one were to accept that the Israeli actions were legitimate, the fact that more than 700 civilians, including numerous women and children, have died in the last 17 days and several thousand have been injured should certainly not be an endorsement of restraint and certainly not an award for one of the most coveted international honours.
Foreign relations, and perhaps in particular, armed conflicts, are full of contradictions and oxymoronic statements. The Israel-Palestine conflict is by no means an exception. However, recent events have perhaps brought this to the fore even more starkly. The Israeli Prime Minister, Binyamin Netanyahu speaking at an emergency cabinet meeting in Tel Aviv stated that:
“There is not a more moral army than the IDF, and we do not want to harm even one innocent civilian. Not even one. We are operating only against terror targets.”
To make such a statement is commendable, and would be even more so if it were true. Actions however speak larger than words, and unfortunately the evidence on the ground in Gaza would appear to contradict the Prime Minister’s statement.
If it were accepted that the IDF is operating according to highest moral code and that none should dare criticise its actions, this does not account for the destruction caused to homes, medical facilities, schools and other non-military targets. Most notably is the bombing of a beach in Gaza, resulting in the deaths of four children. Not only is such an attack far from a demonstration of morality, but it would also appear to contradict the suggestion that the IDF is operating only against terror targets. How can a group of children playing on a beach be deemed a legitimate terror targets?
Some may consider that the question is not even deserving of a response. However, on the basis of the Prime Minister’s statement, the IDF would have us believe that the children on the beach were a legitimate threat to the security of Israel. If there had been an immediate statement of contrition. If there had been immediate recognition that a terrible mistake had been committed and a full inquiry ordered then the position might be very different indeed. However, the response has been to blame Hamas for forcing the IDF to target non-military targets. It is clear that what is needed now is an international judicial process that is capable of bringing those persons to justice who have committed acts that constitute war crimes.
In order for the Israeli Government to take the moral high ground it will need to establish that its targeted campaign has selected legitimate military or terror targets. It is not suggested for a moment that Israel should sit back and allow its citizens to be terrorised by a campaign of targeted rockets into civilian areas. However, it is difficult to understand how the targeting of a hospital or a school constitutes a legitimate military target. It has been reported that a dozen shells hit the Al Aqsa hospital in the town of Deir el-Balah, killing 4, and wounding another 60. In this particular attack, shells hit the administrative building, the intensive care unit, and the surgery department. Again the question must be asked, how is a hospital a legitimate military target. Clearly, if a military unit is using a hospital or a school for clandestine military or terror purposes, then an attack may be considered legitimate. However, this is a matter that must be considered on its facts and it does not give either side to the conflict blanket immunity to bomb non-military targets.
It is not just individual attacks that undermine the Prime Minister’s comments. Concern has also been expressed for some time over the specific weapons being used by the IDF. In particular, concern was raised in a previous incursion over the use of white phosphorus in circumstances where it may constitute a war crime. The recent conflict in Gaza however raises new concerns over munitions, in particular the apparent use of Dense Inert Metal Explosive, or ‘DIME’ weapons, and the apparent use of ‘Flechette’ shells.
It is correct to point out that neither DIME weapons, nor Flechette shells are prohibited weapons. However, their continued use in Gaza raises significant concerns and further investigation is required.
DIME weapons are intended to minimise collateral damage by limiting the blast radius, however, the continual bombardment of Gaza makes that aspect of the weapon moot. What is known however is that the injuries caused by such weapons are horrific, causing life threatening injuries and future handicaps. A point that will require further investigation is whether shells used by Israel containing tungsten, which may be carcinogenic at certain levels, is whether the levels used are sufficiently high to cause long-term effects. As is the case with experimental weapons, the long term after effects are seldom known until it is too late.
The use of flechette shells is perhaps more concerning. A flechette shell upon impact sprays out thousands of tiny potentially lethal metal darts. According to the Palestinian Centre for Human Rights, six flechette shells were fired towards the village of Khuzaa on 17 July 2014. It is noted that at present this is an unsubstantiated allegation and that even if established the use of such shells is not unlawful per se, however, having regard to rules of international humanitarian law, the use of such munitions in Gaza may well be unlawful depending on the context. When the use of such weapons was put to the IDF; a spokesman for the army stated that:
"As a rule, the IDF only employs weapons that have been determined lawful under international law, and in a manner which fully conforms with the laws of armed conflict”.
The concern with this statement, is the use of the words ‘as a rule’, clearly inferring that there are circumstances when they do not. It will need to be established as to whether this one of those circumstances when they do not, as it is difficult to see how such weapons are being used in accordance with international humanitarian law in such a densely populated area.
It is a fundamental obligation that injury to innocent civilians must be avoided wherever possible. Consequently, imprecise weapons which are likely to result in significant numbers of civilian casualties are prohibited. Taking this into account, it is clear that such a shell is imprecise and cannot be used for targeted campaigns of military necessity. A parallel can perhaps be drawn to the use of cluster munitions which again are imprecise and kill indiscriminately and have been the subject of significant campaigns to prohibit their continued use.
Not wishing to second guess the intentions of the Israeli PM, Benjamin Netanyahu, it is entirely possible that the level of restraint that he was referring to was the warnings given to residents to flee before their homes were bombed. Again, it could be seen that the IDF are trying to limit civilian casualties by offering such warnings. However, the question has been repeatedly raised as where civilians are supposed to flee?
Gaza is already one of the most densely populated areas in the world, and with the IDF suggesting that civilians should evacuate over 45% of the land, that leaves precious little safe haven. The Egyptian border is closed and the El-Sisi military regime, accused itself of committing atrocities against its own people, have already provided the Israeli Government with political support. This coupled with the fact that places of safety, namely non-military structures, are being shelled indiscriminately, there is little safe haven. Gaza is subject to a blockade, simply put there is nowhere for civilians to run.
We must therefore consider the statement made by the Prime Minister again. Can an army be considered as displaying the highest moral standards, when it shells a beach, a school and a hospital, when it uses munitions that may cause on long term health complications and cause injuries that doctors have difficulty treating, when it uses munitions in a densely populated area that are indiscriminate, are designed to cause damage and death over a widespread area, and when it tells people to evacuate before bombing knowing there is nowhere for civilians to seek refuge.
This campaign is not only causing civilian casualties on both sides it is now at risk of creating a refugee catastrophe at a time where neighbouring countries are unable to cope with rising numbers from Syria and Iraq.
It is clear that both sides to the conflict have now engaged in conduct that may constitute war crimes. There is an overwhelming need for a system of truth, justice and accountability. For the reasons already alluded to it is unlikely that the ICC Prosecutor will be granted the authority to investigate. Therefore, what is now needed is a comprehensive strategy. Any brokered ceasefire will have little chance of success and there will not be long-term stability unless those responsible, on both sides of the conflict, are brought to justice. It is quite clear that it is too early for any national reconciliation process until a meaningful ceasefire is agreed.
In terms of a justice mechanism it is clear that any process will need to be supervised by the international community in the interim. As was the case immediately after the cessation of hostilities in Bosnia and Herzegovina in early 1996, it was considered that the peace process, under the Dayton Peace Accords, was at risk of collapse due to political arrests and lack of due process. It was agreed in Rome in February 1996 that a system of international oversight was required.
This process, which became known as the ‘Rules of the Road’, was a set of procedures that stipulated no person could be arrested for war crimes on the basis of a national arrest warrant unless it had been approved by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia. Whilst the Rules of the Road process was an imperfect system it allowed the peace process to continue and a system of justice and accountability to take shape. With several hundred individuals already in administrative detention and the likelihood for this number to increase, it may now be time for truth, justice and accountability to be integrated into a comprehensive peace process and an internationally supervised ‘Rules of the Road’ to be started in Palestine.
Toby Cadman is an international criminal law specialist. He is a barrister member at Nine Bedford Row International Chambers in London and a member of the International Criminal Bureau in The Hague.
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