The Human Rights Council’s independent inquiry is full of suspicions of war crimes. More important is what it has to say about how Israel investigates those allegations, and what that means for the International Criminal Court.
To the relief of Israel and the chagrin of many others, the UN report into last summer’s war in Gaza is not an indictment of Israel. It does not declare conclusively that Israel committed war crimes and it is certainly not one-sided. The Human Rights Council report released on Monday is valuable, nevertheless, when read as a preview of what might transpire in a much more consequential body investigating the 2014 war — the International Criminal Court.
The independent commission of inquiry does not have any real authority. Although its researchers and on-the-ground support staff from the OHCHR are highly respected and among the more credible international organizations doing such research in Gaza, its work still goes to one of the most politicized and almost satirically anti-Israel bodies in the international system — the UN Human Rights Council.
Furthermore, the lack of access Israel and Hamas provided to the commission of inquiry greatly reduces its ability to make any definitive conclusions. The report is peppered with language like: “may amount to war crimes”; “strong indications that … amount to a war crime”; and, “if confirmed … would constitute a war crime.” The only instance about which war crimes are spoken of declaratively is the case of the extra-judicial executions of Palestinian collaborators in Gaza.
But even if the commission of inquiry had been given full access, and if it were able to gather enough evidence to say definitively that war crimes were committed, it still cannot do anything about it. That’s where the ICC comes in.
Ironically or not, the question of whether war crimes were actually committed is not the most significant factor that will determine whether the ICC launches any criminal investigations or hands down indictments on Gaza. Certainly, without suspected war crimes there would be no investigations or indictments. But in order for the ICC to have jurisdiction over suspected crimes in the first place, certain conditions must be met — first and foremost, a concept called complementarity.
Complementarity means that if Israel investigates its own soldiers for suspected violations of international law, and if it does so in good faith, then the ICC has no jurisdiction. But once the ICC believes that Israel is unwilling or incapable of investigating itself then it may indeed have jurisdiction over war crimes committed by its citizens.
And here is where the UN report gets interesting. Nobody was surprised by the sexier sections and conclusions of the report. The headlines published across the world on Monday — “UN Gaza report slams Israel, Hamas for possible war crimes” — could have been written six months, or even a year ago. A much less exciting section, on accountability, is where we can begin to draw conclusions that might be indicative of what might happen down the road in the ICC.
The UN report notes a number of significant shortfalls in Israel’s systems for investigating its own military. Israel’s Military Advocate General, for instance, faces significant conflicts of interest when deciding when to investigate and prosecute soldiers: the same IDF lawyers that advise soldiers and officers on the legality of their actions in combat are later asked to judge whether their conduct was legal. Secondly, the report notes that war crimes themselves do not exist in Israeli law, making their prosecution understandably difficult. Thirdly, the concept of command responsibility does not exist in Israeli military law, meaning that lowly soldiers are most often those who face consequences for seemingly isolated acts. And lastly, the rates of investigations, indictment and conviction into alleged war crimes are very low.
From a cursory review, one might be tempted to conclude that the UN report indicates Israel is not sufficiently fulfilling complementarity, thus increasing the risk of the ICC jurisdiction. Indeed, in its conclusions, the report expresses “[concern] that impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces.”
But the report’s choice of words is greatly important. Whereas it declares that Palestinian investigatory actions are “woefully inadequate” and, in the case of Gaza completely absent, Israeli investigative mechanisms are described merely as having “flaws” and room for improvement. The report’s authors “look forward” to seeing the results of pending domestic Israeli inquiries. In other words, the UN commission of inquiry believes that Israel has the mechanisms in place to investigate itself; only its willingness is called into question.
When International Criminal Court Prosecutor Fatou Bensouda decides whether to launch an official investigation into alleged war crimes committed in Gaza, there will be an incredibly high bar for showing that the complementarity test has been met. Even the UN inquiry, dispatched by one of the most politicized international body, has now shied from declaring that Israel is incapable of investigating itself. Showing that it is unwilling to do so will be a monumental task for Bensouda.