UN Gaza war report signals Israel's top leaders toward The Hague

UN report on Gaza war likely to bolster international criminal court inquiry

Analysis: Report on 2014 Gaza conflict, claiming Israeli and Palestinian factions violated international law, will give momentum to ICC preliminary examination

GUARDIAN

The UN’s inquiry into the 2014 Gaza war issues a rallying call for suspected war criminals “at all levels of the political and military establishments” to be brought to justice, but as the report itself wearily concedes, that is unlikely to happen soon.

However, the report is likely to bolster the international criminal court’s preliminary examination of last summer’s conflict, increasing the likelihood that a full investigation will eventually follow. 

UN accuses Israel and Hamas of possible war crimes during 2014 Gaza conflict

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The UN commission identifies a culture of impunity surrounding Palestinian militant groups and the Israeli military alike, and the immediate reaction from both camps suggests this culture will remain highly resistant to change. Hamaswelcomed the report but noted only how it applied to the Israeli occupation, ignoring its finding on potential Palestinian abuses. Binyamin Netanyahu and other Israeli officials rejected the report as inherently biased on the grounds that it had been commissioned by the UN human rights council.

“You can see the reactions of the prime minister [Netanyahu] and other ministers, dismissing the implications of this report because it came from the human rights council,” said Yael Stein, research director of B’Tselem, an Israeli human rights organisation. “And there are problems with the council. But nobody is looking at what is actually written in this report. They just close the discussion.”

While there is little prospect of any greater procedural restraint being imposed on the operations of militant groups in Gaza, Israel is evaluating the findings of an earlier inquiry on the use of military force, known as the Turkel commission. However, those recommendations principally refer to the workings of the Military Advocate General office inside the Israeli military, and rights groups say none of the reforms would give it jurisdiction over senior officers or politicians.

“Even if all the Turkel recommendations were implemented, we think it would have no effect on the ground,” Stein said. “The bottom line is that the whole system is not built for accountability.” 

In the absence of meaningful internal change, the UN report looks to potential legal intervention from outside. It calls on the international community to “exercise universal jurisdiction to try international crimes in national courts”. This is a reference to the capability of prosecutors in some European countries to issue arrest warrants based on allegations of war crimes or crimes against humanity committed elsewhere. 

It was the principle behind the detention of the Chilean ex-dictator, Augusto Pinochet, in London in 1998, acting on a Spanish request, and it was the reason Israeli ministers were wary of travelling to Britain five years ago. But since then, universal jurisdiction guidelines have been tightened in the UK and several other European countries in a way that makes them less potentially threatening to Israeli ministers.

The main impact of the new UN report is likely to be felt indirectly through the momentum it gives the ICC preliminary examination into the Gaza conflict, started earlier this year. A spokeswoman for the court in The Hague said prosecutors there were studying the commission’s findings.

“The preliminary examination is still ongoing. It is an independent and impartial process; and the office [of the prosecutor] continues to gather information from multiple reliable sources, which will assist it in arriving at a fully informed decision at the end of the process,” the spokeswoman said in an email. Unconfirmed reports in Israel said ICC investigators were expected to travel to Gaza next month.

Fred Abrahams, a researcher at Human Rights Watch, said: “The report’s conclusions on the failures of Israel and Hamas to seriously investigate alleged war crimes will likely get the ICC’s immediate attention.”

However, David Bosco, the author of a book on the ICC, predicted it could be a long time until the ICC examination became a fully fledged investigation. 

“A five- or six-month preliminary examination is not all that unusual. but in the end I would expect that this preliminary examination would last much longer than many others, in part because of the political and institutional backdrop,” said Bosco, who is an assistant professor at American University in Washington. 

“It’s worth noting that Palestine itself has still not formally referred its situation to the court, although the court has jurisdiction. The prosecutor may take that as a sign that Palestinian leaders are uncertain about whether they actually want a full investigation. And that may increase the prosecutor’s hesitation.”