Asymmetric Legal Enforcement in Gaza
As this BBC report suggests, investigating war crimes in the Israel-Gaza conflict is a pretty much hopeless task because there is no single entity with the expertise, knowledge, and legitimacy to find out the “truth.” Any investigation, whether it is the UN or the ICC or Human Rights Watch, will be simply dismissed by the two sides as biased. So I rashly predict that there will be no international investigation. This leaves us with the national mechanisms, which is what UN Secretary-General Ban has said is the proper level of investigation. But this means, in effect, that only Israelis are subject to law of war-enforcement measures.
Israel at least has a mechanism for conducting investigations of its own people who might have committed war crimes Its armed forces are governed by the law of war and its armed forces are subject to military command and control as well as civilian judicial review. Indeed, if it were subject to ICC jurisdiction, Israel would have a decent case for claiming to have fulfilled its duty to investigate and punish war crimes committed by its nationals or on its territory.
The Deputy Spokesman at the Israeli Ministry of Foreign Affairs, Andy David, told the BBC that “Israel investigates all its actions regardless of outside calls.” He said the country did not need “external intervention to conduct any investigation”.
He said: “Israel acts according to international laws and with highest regards to morality during combat, even beyond the requirement of the law.”
A spokesperson for the Israeli army said the hits near the UN school and on the UN compound were being investigated.
The same cannot be said for the Palestinians. Notice this response:
The Israeli army, and a number of human rights groups, say Hamas violated the rules of war by using civilians as human shields.
Human Right Watch says Hamas has done nothing to investigate.
A senior Hamas official, Ahmed Youssef, said allegations of violations were “completely baseless and nonsense”, the result of the “Israeli propaganda machine of fabrication”. He said there were “no violations by Hamas.”
Mr Youssef added: “It was ridiculous to say human shields were used. No Palestinian would use another Palestinian as a human shield”.
He said Human Rights Watch was not a credible institution, taking its findings from Israel. “They need to ask the people of Gaza what happened,” he said.
I wish I could believe Mr. Youssef, but any lawyer would find this response lacking, and it doesn’t seem to fulfill the requirements of conducting national investigations under the ICC Statute.
Therefore, one of the ironies here is that Israelis are much more likely to be held accountable and punished for violations of the laws of war than any Palestinian. This does not mean the Israelis have perfect law compliance. But it is almost certainly true that Israelis actually face the possibility of legal punishment, whereas it seems fairly clear that no Palestinan does.