(26 June 2015) The Report of the Commission of Inquiry: Significant Conclusions and Avoidable Weaknesses



BADIL Resource Center (BADIL) welcomes the report of the Commission of Inquiry as an important step towards the realization of accountability for perpetrators of international crimes, whatever their identity, and towards the delivery of justice to those who have suffered as a result of such crimes. To this end, the report arrives at a number of highly significant conclusions, but also, regrettably, suffers from a number of crucial ambiguities and omissions. The value of the report, then, lies not just in its content and conclusions, but in the lessons which can be taken from it, and its ability to inform future criminal investigations into Israeli practices within the occupied Palestinian territory (oPt).

The report details the thousands of Palestinian deaths which resulted from Israel’s 50-day assault on the Gaza Strip, highlighting Israeli attacks on Palestinian civilians and civilian objects which were conducted in the absence of any legal justification, and links such attacks to a ‘broader policy’ which received approval from the highest echelons of the Israeli government.

The report correctly identifies these large numbers of civilian casualties and devastation of civilian objects as an entirely foreseeable result of such attacks, which were directed at densely populated civilian areas and conducted with imprecise weaponry at times which maximized the chance of civilians being present. Moreover, the report highlights how Israeli authorities continued to pursue such unlawful policies even after their effects had become well known.

As such, the report makes clear that Israeli practices failed to comply with two central principles of International Humanitarian Law (IHL) - those of distinction and proportionality – whilst, in its adopted ‘warning’ methods, Israel also manifestly failed to limit civilian casualties as per its obligations with respect to precaution under the same branch of law. It also reaffirmed that the Gaza Strip is subject to military occupation by Israel, thus conferring upon Israel a host of legal obligations under International Humanitarian Law, whilst simultaneously detailing a number of critical and fundamental failures in Israel’s own investigatory processes as to the legality of its actions and policies inside the oPt.

Yet the report, and its potential impact, is weakened by a number of structural flaws.

Though the report identifies unlawful Israeli attacks operating as part of an apparent policy, no effort is made to consider these acts through the appropriate lens of crimes against humanity. This analytical omission is particularly surprising given the Commission’s mandate to perform its functions ‘with a view to avoiding and ending impunity and ensuring that those responsible are held accountable’. Such a mandate would appear to demand that all acts are considered against the most grave criminal offences supported by the evidence at hand, yet this does not appear to have been achieved in the present report.

Nor did the report consider the legal implications of Israel’s forced displacement of half a million Palestinians inside the Gaza Strip, with 100,000 Palestinians remaining displaced today. Given the devastating impact of this displacement on those affected, the scale of the displacement, it coming as a direct result of apparent Israeli policies (all features which the report identifies) and the status of specific acts of forced displacement as war crimes or crimes against humanity, the failure to apply the framework of IHL and relevant international customary rules in this regard is a truly dangerous and inexplicable oversight.

In addition, though the Commission was mandated to pay particular attention to events inside the Gaza Strip, it was also required to investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory as a whole. However, scant attention was paid by the report to the West Bank, including East Jerusalem, whilst of those Israeli abuses noted as being present in this section of the oPt, no effort was made to consider whether such offences could constitute specific international crimes. Similarly, neither the forcible transfer of Palestinian inhabitants and the implantation of Israeli settlers (upon which the Commission received detailed briefings by multiple organizations) received any meaningful consideration, despite such practices representing some of the most heinous acts which can be committed as part of an international armed conflict.

Another concern is the contrast which exists in the report between the definitive language applied to examinations of the illegality of acts attributed to Palestinian armed groups, and the vagueness of that terminology applied to certain acts by Israel for the same purpose. Similarly, the Commission does a disservice to Palestinian victims by failing to acknowledge that Israeli policies and practices ‘spread terror among the civilian population’ in the Occupied Palestinian Territory, despite clear and overwhelming evidence to the contrary.

In its drafting, the report also demonstrates a complete disregard for the operating background context: that of an Israeli military occupation rapidly approaching its 50th year, and one characterized by the entirely asymmetrical nature of the respective military capabilities of the actors concerned. In the language employed, there appears a desire to portray the adversaries as being on an equal footing, despite this being patently untrue, as revealed in the vast disparity in respective casualties and destruction suffered. That Israel, with far advanced and more precise weaponry than Palestinian armed factions, inflicted such vast civilian casualties does not appear to have been factored into the conclusions of the Commission, and such attempts to portray ‘balance’ where none exists in practice is extremely problematic in the pursuit of accountability for perpetrators of international crimes.

The Commission’s report, then, presents a number of damning and legally-significant conclusions that can do much to promote accountability for perpetrators of international crimes during Israel’s assault on the Gaza Strip in the summer of 2014. Although the report outlines crucial recommendations addressed to both Israel and the Palestinian Authority, it directs other fundamental recommendations at the unrecognized legal entity of the ‘international community’. In this regard, it is crucial that this report be followed by tangible action from the respective UN bodies and agencies, regional bodies, individual states and other actors operating within the international arena so as to punish these individuals to the fullest extent of the law, including full support for the ongoing preliminary examination by the International Criminal Court.

Yet, the report also suffers from a number of inherent, structural weaknesses which undermine its overall potency and wider impact.These weaknesses were entirely avoidable, and it is of great importance that future investigations into alleged international crimes – regardless of their geographic focus – learn the lessons offered by the present report. To fail to do so is to fail those individuals and communities who have suffered huge loss as a result of unlawful conduct during armed conflict, and to promote the commission and perpetuation of those very crimes which such investigations seek to punish.