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Lessons from the UN Gaza report: Next stop, ICC?

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.

Palestinian school girls walk across a destroyed part of Shujayea neighborhood, Gaza city, November 4th, 2014. (Photo by Anne Paq/Activestills.org)

Palestinian school girls walk across a destroyed part of Shujayea neighborhood, Gaza city, November 4th, 2014. (Photo by Anne Paq/Activestills.org)

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.

An Israeli APC along the Gaza border, July 9, 2014. (Activestills.org)

An Israeli APC along the Gaza border, July 9, 2014. (Activestills.org)

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.

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    COMMENTS

    1. Ginger Eis

      Bad article!

      It is astounding, is it not, that Michael Omer-Man would make an astonishing leap from (a) alleged war crimes to (b) discussing the principle of Complementarity without ever discussing (c) Jurisdiction even for once, but instead confuses Jurisdiction with Admissibility! If the ICC does not have Jurisdiction, the question of Complementarity does not arise in the jungle of International “law”. Jurisdiction does NOT flow from the absence of Complementarity! Therefore the FIRST and MOST important question to be answered in the instant case is whether or not the ICC has Jurisdiction with regard to the alleged war crimes of the Gaza war. The provisions of Article 17(1)(a)(b)(c)(d) of the Rome Statute of the ICC wherein the principles of ‘Gravity’ and ‘Complementarity’ are laid down, concern “admissibility” and NOT Jurisdiction – contrary to the presentations and pretentions of Mr. Omer-Man. A case is admissible if it has enough Gravity and the requirements of Complementarity are not met. But, BEFORE you even get to decide on Gravity and Complementarity, the ICC’s Jurisdiction must first and foremost have been established beyond doubt!

      The ICC exerts Jurisdiction only on the basis of nationality or territoriality except in cases referred to it by the UNSC! Therefore, the ICC may only exercise Jurisdiction if any of the following conditions are met:

      a. The accused is a national of a State Party or a State otherwise accepting the jurisdiction of the Court;
      b. The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or
      c. The United Nations Security Council has referred the situation to the Prosecutor, irrespective of the nationality of the accused or the location of the crime.

      We can rule out that any of the above condition is currently fulfilled or likely to be fulfilled in the future. I am well aware of UNGA Resolution A/67/L.28, 26 November 2012, but this Resolution has no force of law!

      Reply to Comment
      • Yeah, Right

        Ginger, speaking nonsense: …”We can rule out that any of the above condition is currently fulfilled”

        Ahem. This condition:
        “b. The crime took place on the territory of a State Party or a State otherwise accepting the jurisdiction of the Court; or”
        was “ruled in” at the ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT in December 2014.

        You can read it and weep here, Ginger:
        http://www.icc-cpi.int/iccdocs/asp_docs/ASP13/OR/ICC-ASP-13-20-ENG-OR-Vol-I.pdf

        Note that there is not one but two references to “the State of Palestine” in that document, which means that as far as the state parties to the Rome Statute were concerned they considered Palestine to be “a state”.

        Which cleared up things immensely – regardless of your current befuddlement – which is why Palestine was able to deposit its ratification of the Rome Statute in January 2015, and the treaty came into force for Palestine in April 2015.

        Ginger: “I am well aware of UNGA Resolution A/67/L.28, 26 November 2012, but this Resolution has no force of law!”

        Rather a red herring, that.

        What matters is whether (or not, as the case may be) the state parties to the Rome Statute considers that Palestine is “a state according to the purpose of the Rome Statute”.

        Which they do, which means that – as far as the ICC is concerned – it is.

        Reply to Comment
        • BigCat

          Another rambling mumbo jumbo from this confuse donkey-head called “yeahright”. How about citing the page number of the long document you referenced to support your mumbo jumbo? We will take up your other mumbo jumbos later.

          Reply to Comment
          • Yeah, Right

            I have no interest in blowing your nose and wiping your arse for you, BigCat.

            Lazy sod.

            I’ve given you the link to that document, and you can read it and be informed, or not read it and remain As Ignorant As Ginger.

            I don’t care either way.

            Reply to Comment
          • BigCat

            What’s the problem, you donkey-head? Can’t cite the page? Is that why you are sooo angry, going berserk and bonkers and hallucinating about Ginger? That’s hardly a surprise, is it, donkey-head?

            Reply to Comment
    2. Richard Witty

      It also prominently discusses Hamas war crimes.

      Reply to Comment
    3. Yeah, Right

      I wouldn’t be all that concerned by the notion that “the UN commission of inquiry believes that Israel has the mechanisms in place to investigate itself; only its willingness is called into question”

      After all, the question of “unwillingness” is central to the Rome Statute’s articles regarding admissibility.

      Here, in fact:
      “(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;”

      The court is therefore not going to be impressed with how “mechanistic” Israel’s court system is, so long as it comes to the conclusion that Israel is using that court system for the purpose of shielding its war criminals from prosecution by the ICC.

      That’s hardly a secret, is it?

      Reply to Comment
      • BigCat

        “That’s hardly a secret, is it”?

        It is a secret that only YOU are aware of – in your donkey-head.

        Reply to Comment
        • Yeah, Right

          And there you have it: BigCat has just outed himself as the only person on Planet Earth who *doesn’t* realise that the IDF is conducting these sham “investigations” because of their belief that doing so will stymie the ICC.

          Heck, I doubt that even Ginger is that gourmless.

          Reply to Comment
          • Gustav

            Would one buy a used car from this man who calls himself by the dubious name of [Yeah Right]?

            …before one is tempted to say ‘yes’, looky here on the following thread. He outs himself as a man who doesn’t even own up to words which he himself uttered…

            http://972mag.com/occupation-is-the-problem-not-the-people-talking-about-it/107897/

            [Yeah Right]:”I will now point out to you that I have never once used the word “legit” in this oh-so-tedious thread.”

            Oh dear. Now he is in denial.

            So tell me, sunshine, who posted the following words earlier on this thread, in response to Pedro’s post?….

            [Yeah Right]:”Because – du’oh! – the acquisition of territory by war was perfectly legit Way Back Then…”

            Yep, it was little old you, you little rascal. Don’t be bashful… Own up for once in your miserable life!!!

            Reply to Comment
      • BigCat

        “That’s hardly a secret, is it”?

        It is a secret only YOU are aware of – in your donkey-head, that is.

        Reply to Comment
    4. Pedro X

      On the way home from work yesterday, I heard the Chairwoman of the UN report say that the heavy use of weapons on Gaza by Israel was legal but wrong. In other words she knows that Israel complies with the laws of war but she thinks that the waging of war is wrong when it results in civilian deaths. She thinks that if casualties involving civilians are too high the army attacking the army embedded in amongst the civilians should not be able to defend themselves or their country. I can hear Hamas and Hezbollah laughing with glee thinking that their policies of building and operating military complexes in civilian areas is gaining the approval of the human rights agency of the UN.

      Reply to Comment
      • Ben

        I’m just curious. Just where in the cramped, teeming fishbowl of Gaza would a guerrilla military force build a military complex that would be hidden enough so as to not invite instant obliteration by Israel followed by the instant derision by the Israeli military and the Israeli man in the street as to how stupid those Arabs are to build a military complex out in the open like that? And the Kirya is NOT located in central Tel Aviv?

        Reply to Comment
        • BigCat

          An now even YOU understand why HAMAS embeds itself amongst the civilian population, inside their homes and beneath their homes, while fighting a war against Israel. YOU, Brian alias “Ben” alias “MuslimJew” alias “Giora Me’ir” alias “No Politics BS” (Lol…) alias etc., has once again confirmed the reality which is that HAMAS uses its civilians as human shields and responsible for their deaths!

          Reply to Comment
        • Gustav

          “I’m just curious. Just where in the cramped, teeming fishbowl of Gaza would a guerrilla military force build a military complex that would be hidden enough so as to not invite instant obliteration by Israel”

          As usual, our Benny misses the point entirely.

          If Hamas chooses to make war on us, then we are perfectly entitled to wipe out their military infrastructure wherever they put it.

          Of course, if they would not make war on us, then we wouldn’t have to. Eh, Benny?

          Reply to Comment
        • Pedro X

          More than 20% of Gaza is agricultural or scrub land. Hamas could have located its fighting forces in areas away from urban areas. They could have operated from military bases in former Israeli communities in Gaza. They chose to embed their fighters in a civilian population to make it harder for Israel to target their fighters, missile launchers, supply depots and command positions and to use Gazan deaths for propaganda purposes. The Israeli army captured instructions specifically telling Hamas fighters to operate from among civilians because Israel would hesitate to shoot and if they did they would kill Gazan civilians.

          No doubt if Hamas fought according to the laws of war, and stopped using its civilian population to protect its missiles, it would lose more quickly than it does now but with much less injury, loss of life and destruction to civilians in Gaza.

          The bottom line is that Hamas is a criminal, terrorist organization which has no right under international law or even Palestinian war to engage in war. The international community should seek to eliminate Hamas and all forms of support to it.

          Reply to Comment