The UN Gaza Report: Heads I Win, Tails You Lose

One of the basic tenets of the law of armed conflict (LOAC) is the equal application of the laws: as Professor Adam Roberts explains, LOAC applies to all parties to a conflict and “as far as the application of the law is concerned, it is not relevant whether a belligerent force represents an autocracy or a democracy, nor is it relevant whether it represents the government of a single country or the will of the international community.” Unfortunately, the United Nations Human Rights Council’s Independent Commission of Inquiry has turned this principle on its head in its recently released report on the 2014 conflict in Gaza. Instead of equal application, the unifying thread in the report more accurately appears to be “heads I win, tails you lose."

There is much to explore and debate in the report (see Ben and Yishai’s post here and Geoff Corn’s report for JINSA here, for example), but in this post I want to focus on three specific areas where the Commission contorts or misapplies the law: warnings, civilian vs. military objects, and the role of context and policy or strategy in analyzing a party’s law compliance. In doing so, the report completely undermines the foundational notion of equal application of the law and relies on an effects-based analysis, which runs counter to LOAC’s basic premise, as I detail here.

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I. Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.” The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives. However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective. Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

This effects-based approach leads to absurd results when the Commission considers Hamas’s compliance with the obligation to issue effective advance warnings. Addressing a Hamas statement threatening the population of Tel Aviv to “wait for our rockets at this time” and encouraging the media to “direct cameras at the sky of Tel Aviv” at the designated time of 9 pm, the Commission interprets this threat to fire rockets indiscriminately at a metropolitan area of over one million people as a warning commensurate with Additional Protocol I’s parameters. Disregarding the fact that, by the very words of its own statement, Hamas was not trying to warn Israeli civilians, but rather sought to terrorize and intimidate them, the report states, “warning civilians in Tel Aviv that a rocket would be fired in the direction of the city at 9 p.m. provided the opportunity for residents to seek shelter.” (¶ 95). In looking only at effects (or here, perhaps imagined effects), the report produces the bizarre result of ratifying a threat to the civilian population and rejecting individualized phone calls as warnings. Indeed, only a few paragraphs later, the report notes that

Given the apparent absence of any possible military advantage, and statements by Palestinian armed groups that they intended to hit Israeli cities, the commission cannot exclude the possibility that the indiscriminate rocket attacks may constitute acts of violence whose primary purpose is to spread terror amongst the civilian population, in violation of the customary rule reflected in article 51(2) of Additional Protocol I and article 13(2) of Additional Protocol II. (¶ 99).

Categorizing Hamas’s threats as both the war crime of spreading terror among the civilian population and an effective advance warning to the civilian population is both baffling and wholly inconsistent with LOAC’s fundamental purposes and goals—and a perfect example of the Commission’s “heads I win, tails you lose” approach.

Second, the report uses this same methodology in reaching conclusions about the identification of military objectives and whether particular attacks (Hamas rocket and mortar attacks or Israeli air strikes or artillery) can be considered to be directed at military targets. In analyzing the legality of Israeli strikes on residential buildings in Gaza based on the definition of military objective in Article 52(2) of Additional Protocol I, the report places the onus on Israel to provide detailed factual information regarding how the person or building targeted constituted a military objective. As a first step, the report is correct in noting that in case of doubt about whether a civilian object is being used for military purposes, the presumption of civilian status remains. However, the report conflates the presumption of civilian status—which is a prospective obligation for the attacking forces in assessing the lawfulness of potential targets—with the burden of proof as applied in a criminal accountability setting. In essence, the report’s approach requires Israel to defend itself against charges of unlawful attacks on civilian objects by proving that a given building was a military objective, a complete reversal of the standards for any internationally acceptable accountability process, in which the prosecution must bear the burden of proof.

Interestingly, the Commission’s analysis of the targeting decisions of Hamas and other Palestinian armed groups bears little relation to its detailed discourse on Israeli practices. One might think—and perhaps with good reason—that there is not nearly as much to say about deliberate attacks on civilian areas and indiscriminate firing of rockets. After all, LOAC flatly prohibits both deliberate attacks on civilians and indiscriminate attacks, which are grave breaches of the Geneva Conventions and war crimes under the Rome Statute of the International Criminal Court. In reality, however, the report completely contorts both the facts and the law in actually sua sponte finding military objectives for Hamas attacks. For example, a Hamas mortar attack killed a Thai farm worker at a greenhouse in Netiv Ha’sara, near the border with Gaza. Unlike the analysis of Israeli attacks, the Commission does not demand information from Hamas about the intended target of the attack, the assessment of military advantage, or its analysis of civilians in the area. Instead, the Commission notes that there is a military base in the area, that the mortar likely landed approximately 100 to 800 meters from the base, and that the base “appears to have been targeted by Palestinian armed groups” (¶ 73) during the course of the conflict (but not on that same day). Set aside the fact that an Israeli strike landing several hundred meters from a possible target would be considered evidence of a reckless attack on civilians, based on the report’s reasoning (see, e.g., ¶¶ 410, 445-446), here we have the Commission affirmatively finding a military objective for an indiscriminate attack on civilians and civilian objects.

A final category involves the report’s treatment of context and broader policy or strategic considerations in assessing law compliance. Here again the report’s approach is entirely inconsistent. With regard to Israel’s actions, the report utterly ignores the context of an enemy that deliberately violates LOAC by co-mingling with the civilian population, using civilians and civilian objects as shields, and abusing protected sites for tactical and strategic advantage. Nowhere in the discussion of Israeli conduct does the report reference the nature of urban warfare against such an enemy, essentially ratifying Hamas’ conduct and strategy of exploiting Israel’s law compliance. At one point, the report directly rejects any injection of context or strategic considerations into Israeli decision-making (¶ 370, in the context of preventing the capture of Israeli soldiers). And yet, context is the central feature of the report’s analysis of the effectiveness of Israeli warnings, when the Commission rests its critique of Israel’s warnings on 1) the “fact that people were not sure in which direction to move as shelling and air strikes were taking place in many parts of Gaza”; and 2) many civilians “decided to stay in their homes [despite warnings] because they felt that they had nowhere else to go” (¶ 398). Likewise, the Commission seems overly willing to attribute effective warnings to Palestinian armed groups because “unlike in Gaza—residents could flee to other areas of Israel less exposed to threats, in great part due to the existence of the Iron Dome system.” (¶ 95).

In essence, this methodology translates to: if you are a country with advanced defense systems and the ability to provide shelters and secure locations for your citizens, your enemy can announce threats of rocket attacks and fire thousands of rockets indiscriminately—while at the same time, because your enemy embeds itself into the civilian population of a densely populated area, makes no effort to protect those civilians from the hazards of war but instead uses those civilians to shield its fighters from attack, you cannot launch attacks, even after individualized warnings. Once again, “heads I win, tails you lose.”

A host of other shortcomings riddle the report, especially the lack of appreciation for or examination of the operational realities that inform and lie at the heart of LOAC’s conduct of hostilities rules. Considering that the Commission regrets the lack of information and access from Israel, it is remarkably willing to reach conclusions nonetheless, perpetuating the effects-based analysis that is detrimental to the application of LOAC and poses great risks to the pursuit of lawful military operations in the future. Similarly, notwithstanding the report’s affirmation that capability is not determinative of legal obligations (¶ 97), the report reliance on such a “capabilities-based” approach at many junctures is equally harmful. For example: the Commission concludes that because Israel states that it abandons air strikes when civilians are detected in the area, it has the capability to determine the civilian status of persons in the area of a target—and therefore, if its strikes kill civilians, it must not have taken the necessary precautions. (¶ 230). Any number of operational complexities play a role in the consequences of an attack on a lawful military objective, which is why, as the Commission itself explains at the beginning of the report, “the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime.” (¶ 21). Unfortunately, that statement is forgotten in the face of the effects- and capabilities-based approach throughout the report.