The United Nations report on last summer’s Gaza war was released Monday, launching the various allegations and recommendations contained therein on a journey through various international organizations.
Some fear that the report’s accusations will inspire the International Criminal Court at The Hague to investigate Israelis for war crimes, but legal experts say that Mary McGowan Davis’s effort will have limited impact on the court’s activity, if any.
On June 29, the Human Rights Council will debate the report in Geneva. It is then up to that body, which commissioned the report, to decide what happens next. Theoretically, the council could simply bury it, but that’s probably not going to happen.
Despite Israeli diplomats’ current efforts to convince friendly countries to reject the report, the council will likely adopt a resolution accepting its recommendations and sending it to New York, where it would be discussed again in a few months. The UN General Assembly can also be expected to adopt the report, call for its implementation and send it to the Security Council.
And that’s pretty much where the buck stops.
“There will be no action on it. It’s not an operational report,” said Robbie Sabel, a professor of international law and former legal adviser to the Foreign Ministry. The Security Council may decide to hold a meeting on the report, but that is unlikely, he said.
Recent precedent shows that the international community warmly welcomes reports on Gaza wars. In October 2009, the Human Rights Council adopted a resolution that welcomed the Goldstone report, condemned Israel for refusing to cooperate with the fact-finding mission, endorsed its recommendations and recommended that the General Assembly consider it as well. The resolution was accepted, with 25 yes votes to 6 nays and 11 abstentions.
Two months later, the General Assembly overwhelmingly voted in favor (114 to 18, with 44 abstentions) of a resolution adopting the report and requesting it be forwarded to the Security Council. The resolution gave Israelis and Palestinians three months to conduct “independent, credible investigations” into accusations of human rights violations during Operation Cast Lead of 2008-9.
(At around the same time, the US House of Representatives passed a resolution denouncing the report as “irredeemably biased and unworthy of further consideration or legitimacy.”)
Israelis consider the UN a lost cause, an irrelevant and corrupt organization that will never treat Israel fairly due to the built-in Arab majority. But some pundits fear that the Human Rights Council report’s accusation of Israeli war crimes and its bemoaning the country’s “lamentable track record in holding wrongdoers accountable” was meant to signal to the ICC prosecutor Fatou Bensouda that there is indeed room for her to launch an investigation of Israel, as the Palestinians have been requesting.
Indeed, the report subtly hints at the council’s inclination when it calls on the warring parties to “cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened.” It also calls on Israel to sign the Rome Statute and join the ICC, and on the international community to “support actively” the court’s work in the Palestinian territories.
Others, however, argue that the court is meant to conduct its own legal analysis and therefore cannot take the McGowan Davis report seriously. The commission of inquiry that produced the document was given a “biased mandate” by a “biased organization,” and therefore Israel needn’t be concerned about Bensouda giving it much weight, said Alan Baker, a former legal adviser to Israel’s Foreign Ministry.
“The Arab countries will probably add a provision [to the General Assembly resolution] calling for the report to be forwarded to the ICC’s prosecutor,” he predicted. “But it means nothing. This report is not a legal document. It’s a political document.”
For the report to become any type of judicial document, it would have to be backed up by solid evidence, added Baker, who participated in the drafting of the Rome Statute, the court’s founding document. “I therefore don’t think Israel has to worry. We have all the legal response at our disposal. But the Palestinians will make political hay out of it.”
After the Palestinians joined the Hague-based court in April, Bensouda opened a preliminary examination into alleged crimes committed during and after Operation Protective Edge.
If anything, McGowan Davis’s report might increase the ICC’s enthusiasm to move from that preliminary stage to a full investigation, said Sabel, the international law professor. “It may give them ideas, but not more than that. The ICC is a court; this report is not evidence,” he asserted. The report was written in general terms and doesn’t name individuals suspected of war crimes; hence, it does not provide the court with much ammunition against Israeli soldiers who fought in Gaza.
Before Bensouda decides whether to launch a full investigation, she will have to consider all publicly available information. That certainly includes the Human Rights Council report, but also Jerusalem’s own account of the Gaza war, which cogently explains Israel’s point of view.
Jerusalem has not yet decided whether it will cooperate directly with the prosecutor’s preliminary examination, but the 275-page document it released last week goes to great lengths to demonstrate that Israel is conducting its own independent investigations into alleged wrongdoing. This was clearly done to signal to the court that the condition of complementarity is not being met in this case and that is therefore lacks a mandate to investigate. (The ICC’s statute says it only has a mandate to investigate a country if that country doesn’t investigate itself.)
It is unclear at this point whether this is enough for Bensouda. “If I don’t have the information that I’m requesting,” she told the Guardian last month, “I will be forced to find it from elsewhere, or I may perhaps be forced to just go with just one side of the story. That is why I think it’s in the best interest of both sides to provide my office with information.”
But even if she proceeds to launch an investigation to determine whether Israelis should be indicted, the prosecution will have to do its own homework to build a case that could stand up in a court of law. The UN’s Gaza report makes for good headlines and will keep UN officials busy for weeks to come, but it doesn’t provide any evidence that will help get Israelis in the dock in The Hague.