Asymmetric Legal Enforcement in Gaza

by Julian Ku

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.

http://opiniojuris.org/2009/02/19/asymmetric-legal-enforcement-in-gaza/

3 Responses

  1. “But it is almost certainly true that Israelis actually face the possibility of legal punishment, whereas it seems fairly clear that no Palestinan does.”

    I can hardly recall the last time someone was actually prosecuted and convicted for war crimes in Israel, even though the state piles up bodies in region every year. Kahan commission is probably the best example of Israeli war crimes investigation, where after a few thousand slaughtered Sharon was forced to resign, only to be able to come back as a Prime Minister. You would probably get 25-to-life in any international tribunal for a crime of such scale. “Facing the possibility” is not even close to being good enough.

    Of course Hamas is no better; they certainly commit war crimes in their assymetrical warfare. But saying that Israel could claim some kind of “purity of arms” in war crimes investigation is too far fetched.

  2. As we must have learned over the last several years, investigations do not ensure justice and sometimes obfuscate the truth.  Rare is the armed, non-state actor with any system to investigate or punish war crimes, let alone desire.  National investigations might be inherently biased in favor of their nationals.  As for national tribunals, assuming you get that far, the problem is that an asymmetrical battlefield provides plenty of ambiguity.  That ambiguity results in doubt of guilt at trial – and a national tribunal will naturally resolve any doubt in favor of its national (if for no other reason than a lack of self-awareness and self-identification with the accused coupled with a lack thereof with the victim).  Even in situations where it may seem obvious that something has gone terribly wrong, there may be a plausible explanation for it that will be accepted when individuals acting in good faith resolve questions of doubt.

    My point is that no human rights organization has a burden of proof when reporting possible war crimes, and certainly not one of proof “beyond a reasonable doubt.”  This is not to say that bad things don’t happen on the battlefield or that such organizations act in bad faith.  It is merely to note that even the most earnest investigator or prosecutor may not always be able to prove a crime, or serious crime, occurred when faced with evidentiary limitations and a burden of proof.  The irony is that as many people call that a failure of the rule of law as call it a victory.  It merely depends upon whether their focus is the putative victim or the accused.

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