The Balancing Act 2

"The UN Report [officially, Report of the Detailed Findings of the Independent Commission of Inquiry Established Pursuant to to Human Rights Council Resolution S21/1 (22 June 2015)] set the stage for its indictment of Hamas by citing directly or indirectly official Israeli sources depicting a formidable Hamas weapons arsenal. But the battlefield performance of these weapons strongly suggested that the bulk of them consisted of little more than enhanced fireworks. The Report also dutifully regurgitated Israeli claims regarding the dazzling performance of the Iron Dome antimissile defense system, even though recognized experts and the facts on the ground refuted them. In an unusual acknowledgment, the Report did observe that  according to 'security experts,' Hamas's 'declared official policy' during [Operation] Protective Edge [in 2014] was 'to focus on military or semi-military targets and to avoid other targets, especially civilians.' It went on to document instances in which Hamas appeared to be targeting Israeli combatants and military objectives, while Israel itself acknowledged that Hamas mortar shells killed ten IDF combatants positioned on the Israeli side of the border. The report also observed that Hamas attempted 'in a few instances' to warn Israeli civilians of impending attacks and, in fact, these Hamas alerts were more effective than those issued by Israel 'because - unlike in Gaza - residents could flee to other areas of Israel less exposed to threats.' However, the Report found that the 'vast majority' of Hamas projectiles targeted 'population centers in Israel.' It devoted fully 15 paragraphs in graphic detail the effects of these Hamas attacks, even though only six civilians in Israel were killed and property damage was negligible. It is often suggested (although not by the Report) that if so few civilians died it was only on account of Iron Dome... The argument is factually false - Iron Dome probably didn't save many and perhaps not any lives - and even if it were true, irrelevant: if additional civilians would have been killed absent Israel's civil defense/shelter system and structurally sound edifices, should the casualty account then tally how many Israelis would have died if they lived in sub-standard, Gaza-like conditions? If calculation were to be based on 'all things being equal,' it abstracts from the root injustice that Israel and Palestine are not equal.

"The UN Report found that Hamas's projectile attacks 'may' have constituted 'war crimes':

*Hamas rocket attacks - 'rockets cannot be directed at a specific military objective and therefore strikes employing these weapons constitute indiscriminate attacks'; 'statements... indicate intent to direct those attacks against civilians';
*Hamas mortar attacks - 'statements... indicate in some cases... intent to target civilian communities... if they were used to target civilians or civilian objects, this would be a violation of the principle of distinction'; '[in] the cases in which attacks were directed at military objectives located amidst or in close vicinity to civilians or civilian objects, mortars are not the most appropriate weapons. The imprecise nature of mortars makes it difficult for an attacking party using this weapon in an area in which there is a concentration of civilians to distinguish between civilians and civilian objects and and the military objective of the attack.'

"In its defense, Hamas pleaded that 'Palestinian rockets are 'primitive' and not very technologically advanced but nevertheless the factions attempted to direct their rockets at military targets in Israel.' The Report curtly and coldly rejoined: 'The military capacity of the parties to a conflict is irrelevant to their obligation to respect the prohibition against indiscriminate attacks.' The humanitarian rationale behind prohibiting use of indiscriminate weapons is self-evident. But (in)discriminateness is a relative notion. It varies according to the most sophisticated guidance system currently available for a particular line of weaponry. So it is equally self-evident that the prohibition against indiscriminate weapons discriminates against poor states or nonstate actors that cannot afford cutting-edge technology. In the instant case, the Report effectively criminalized nearly the whole of Hamas's primitive arsenal.. And thereby it denied Gaza the 'inherent' right (anchored in the UN Charter) of armed self-defense, and the right (effectively sanctioned by international law) of armed resistance in its self-determination struggle. Even if it is admitted that notwithstanding its discriminatory effects, cogent reasons might be adduced to preserve intact the prohibition, still it hardly befits a human rights document to peremptorily dismiss as 'irrelevant' a wholly reasonable (if debatable) objection. It also warrants attention how much more sensitive the Report was to Israeli concerns. For example, the Report 'recognizes the dilemma that Israel faces in releasing information that would disclose in detail the targets of military strikes, given that such information may be classified and jeopardize intelligence sources.' Although it still placed 'the onus... on Israel to provide sufficient details on its targeting decisions to allow an independent assessment of the legality of the attacks,' the Report not only evinced a sensitivity absent in its high-handed dismissal of Hamas, but it also credited the Israeli alibi that information was withheld out of security concerns, and not because its release may undercut official lies. The Report proceeded to infer a sinister motive lurking behind Hamas rocket attacks. If these projectiles couldn't accurately target military objectives, then the Report 'cannot exclude the possibility that the indiscriminate rocket attacks may may constitute acts of violence whose primary purpose is to spread terror amongst the civilian population.' Spreading terror might have been Hamas's motive, but other possible motives also leap to mind. The rocket attacks could have been 'belligerent reprisals' (which international law does not forbid) to compel Israel to cease and desist from its terroristic assault on Gazan society. The Report itself noted that Hamas 'issued a statement confirming [its] intention to target Israeli civilians in response to Israel's 'targeting of Palestinian civilians in their homes and shelters.' Or consider the motive professed by Hamas leader Khalid Mishal during Operation Cast Lead (2008-9): 'Our modest, home-made rockets are our cry of protest to the world.' One wonders why the Report did not entertain these more benign possibilities.

"International law requires all parties to a conflict to 'take all feasible precautions in the choice of means and methods of attack with a view to avoiding... injury to civilians and damage to civilian objects.' The UN Report alleged that despite substantial impediments to its investigation, it was able to divine 'patterns of behavior' by Hamas that breached this legal obligation. It cited a quartet of incidents where Hamas fired rockets in close proximity to civilians. As it happens, Amnesty pointed to the identical four incidents in its indictment of Hamas. The duplication suggests a paucity of corroborative evidence. The Report also cited a handful of instances where Hamas 'conducted 'military operations within or in close proximity to sites benefiting from special protection under international law' - in particular, the environs of two to three schools and a church. These incidents were also cited in earlier investigations. The Report further noted that 'official Israeli' sources repeatedly accused Hamas of violating the 'feasible precautions' obligation, but it 'was not able to independently verify' these allegations. The Report acknowledged that the 'feasible precautions' obligation 'is not absolute'; that 'even if there are areas that are not residential, Gaza's small size and its population density make it particularly difficult for armed groups always to comply' with the obligation; and that several signatories to the relevant international instrument stipulated that 'for densely populated countries, the requirement to avoid locating military objectives within densely populated areas would be difficult to apply.' Still, the Report concluded that in light of 'the number of cases' in which Hamas 'carried out military operations within or in the immediate vicinity of civilian objects and specifically protected objects, it does not appear that this behavior was simply a consequence of the normal course of military operations,' and, 'therefore,' the law 'was not always complied with.' Although this was a cautious and qualified finding, the question must nonetheless be posed, Did the Report substantiate it? It would have to show that the instances it documented gave proof of a deliberate Hamas choice not to avoid civilian and protected objects, and were not just random events consequent on 'the normal course of military operations' in a densely populated civilian terrain. But the handful of incidents recycled by the Report, during a 51-day armed conflict in which Hamas fired seven thousand projectiles and engaged an invading army with unprecedented combat losses on both sides, does not appear to reach the evidentiary threshold of a 'pattern.' The Report not only failed to substantiate its qualified assertion but also indulged in groundless speculation. For example, it stated that 'if it is confirmed that in using... locations to conduct military operations, armed groups did so with the intent to use the presence of civilians or persons hors de combat... to prevent their military assets from being attacked, this would constitute a violation of the customary law prohibition to use human shields' and 'would amount to a war crime.' But the Report didn't provide a scintilla of evidence demonstrating such 'intent.' What was the point of such baseless conjecture, of which this is just one example, except to plant a false image in the reader's mind, or to appease Israel, which repeatedly accused Hamas of human shielding, or both? In its most audacious - or outrageous - speculation, the report verged on criminalizing nonviolent civil resistance as it posited that Hamas might wrongly exploit it:

'In one case of the bombing of a residential building examined by the commission, information gathered indicates that following a specific warning by the IDF that the house was to be targeted, several people went to the roof of the house in order to 'protect' the house. Should they have been directed to do so by members of Palestinian armed groups, this would amount to the use of of the presence of civilians in an attempt to shield a military objective from attack, in violation of the customary law prohibition to use human shields. With regard to this incident, the commission is disturbed by the reported call by the spokesperson of Hamas to the people of Gaza to adopt the practice of of shielding their homes from attack by going up on their roofs. Although the call is directed to the residents of Gaza, it can be seen and understood as an encouragement to Palestinian groups to use human shields.'

"Instead of showing compassion for Gazans as they risked life and limb to protect their, and their neighbors', family homes, the Report zeroed in on Hamas in order to deny it, on purely conjectural grounds, one of the few means of nonviolent resistance available to it in the midst of an annihilative attack - even going so far as to brand the Islamic movement's encouragement of such self-willed, heartrending acts, whose spiritual lineage traces back to Gandhi, an embryonic war crime It is also cause for sheer bewilderment why the Report designated an unambiguously civilian dwelling as a 'military objective' - did it automatically lose its protective status once Israel decided to target it, or did the Report start from the premise that everyone and everything in Gaza was, if not aligned, than alloyed with terrorism?" (Gaza: An Inquest into Its Martyrdom, Norman Finkelstein, 2018, pp 315-22)

To be continued...