On 30 January 2009, the Israel’s Ministry of Foreign Affairs has released its own report on the ‘Operation in Gaza 27 December 2008 – 18 January 2009: Factual and Legal Aspects‘. There are a number of points that merit mentioning that shall be highlighted in the following.
Interestingly, the report starts off by noting that it presents only “a provisional analysis as the IDF is still conducting comprehensive field and criminal investigations into allegations regarding the conduct of its forces during the Operation. Such investigations will be reviewed by the Military Advocate General and are subject to further review by the Attorney General.” (para. 2 of the executive summary). This is so although, as we have covered in a previous post, on 30 March 2009 Military Advocate General Brig. Gen. Avichai Mendelblit instructed the Israeli Military Police Investigation unit to close the inquiry into soldiers’ accounts of alleged misconduct and serious violations of the army’s rules of engagement during “Operation Cast Lead” in the Gaza Strip. Consequently, what seemed at the time as a clear and unequivocal statement to avoid public scrutiny and accountability by closing the inquiry, now appears to have only been an “provisional” position.
The report claims to substantiate the legal argument that Israel had both “a right and an obligation to take military action against Hamas in Gaza to stop Hamas’ “, which is anything but an easy endeavor, particularly when one considers that a traditional perspective on the right to self-defense in the UN Charter (or potentially even a literal reading thereof) would not go so far as to create a positive obligation to exercise the right to use force. A literal reading of Art 2(4) of the UN Charter presents the circumstances that would give birth to the permission or option in the sense that it gives states a ‘license’ to have recourse to the use of force. Conversely, it is harder to imagine a situation where the exercise of the right to self-defense would be a duty and obligation upon the state to which the right is afforded by international law – this is an unquesitonably intriguing theoretical discourse but with great doubt is it a firm international norm. In fact, the Charter strongly objects to any such action that would clearly endanger international peace and security.
Not apart from this and equally absorbing is the report’s presentation of “the numerous non-military approaches Israel pursued to try to stop the attacks before commencing the Gaza Operation, including urgent appeals to the U.N. Secretary General and successive Presidents of the Security Council to take determined action, and diplomatic overtures, directly and through intermediaries, to stop the violence.” (para. 5) Here, again, the issue is of little contention from a factual perspective and it is commonly agreed amongst international and state actors that Israel did not fulfill its international obligation to exhaust all pacific means of settling disputes.
The report’s summary presents the gist of the rationale and arguably also the objective of the report as follows:
“In a detailed legal analysis, including a survey of the relevant legal principles and State practice, the Paper notes that Israel’s resort to force in the Gaza Operation was both a necessary and a proportionate response to Hamas’ attacks. While the IDF continues to investigate specific incidents during the Operation, the Paper demonstrates that Israeli commanders and soldiers were guided by International Humanitarian Law, including the principles of distinction and proportionality. These principles, enshrined in IDF training, Code of Ethics and rules of engagement, required IDF forces to direct their attacks solely against military objectives and to try to ensure that civilians and civilian objects would not be harmed. Where incidental damage to civilians or civilian property could not be avoided, the IDF made extraordinary efforts to ensure that it would not be excessive in relation to the anticipated military advantage in each instance and as a whole.” (para. 6)
It also merits mentioning the report’s consideration of “Israel’s efforts to coordinate and facilitate humanitarian relief and assistance to the Palestinians in Gaza.” The exacerbation of the humanitarian crisis in the Gaza Strip as a result of the recent conflict cannot be disputed. The incrimental reductions inflicted by Israel on the provisions of electricity and gas to the Gaza Strip had commenced since the Hamas government took over the administration of the Strip in 2006. Since, as we have previously noted, the Israeli Supreme Court itself has upheld, in January 2008, that the supplies to the Strip should not drop below the threshold that would produce a humanitarian crisis. The UN OCHA reports on the worrying reality of the third year of the blockade on the Gaza Strip and the continuing degradation of the humanitarian crisis.
The paper issued by Israel’s government also endeavours to consider the violations of international law committed by Hamas. This could attest to a professed objectivity of the state’s perspective on the situation, or serve rather to strengthen Israel’s argument on the reciprocal nature of the violations, if then again, it actually admits that such existed on the Israeli side, e.g. as it proceeds to do by potentially looking to excuse its military tactics due to the “acute dilemmas faced by Israel in confronting an adversary using its own civilian population as a shield” (para. 9). To use a political counter-part for this logic, we may point to the statement made by former Prime Minister Olmert stated at the close of the conflict, which the report itself references, and which consisted of the following: “On behalf of the Government of Israel, I wish to convey my regret for the harming of uninvolved civilians, for the pain we caused them, for the suffering they and their families suffered as result of the intolerable situation created by Hamas.”
As a final note, one should take account of the following statement, also found in the report’s executive summary, “Israel’s system for investigating alleged violations, including its judicial review process, is internationally recognised as thorough and independent; its procedures and institutions are similar to those in other Western countries” (para.13). In the same breath, although the report upholds the Israeli government’s long-standing position that it acted “in a manner consistent with the rules of international law”, it states that it is “committed to a thorough investigation of all allegations to the contrary and to making the results of these investigations and subsequent reviews public when they are completed” (para. 14).
At first sight, it may appear that the report adopts what can be termed as the “Red Queen” approach (coined by the practice of the infamous Queen from Alice in Wonderland), where the verdict, or result, is upheld before coming up with the sentence or rationale that leads thereto – a certain type of inductive reasoning. Putting aside the doubts that may arise with regards to the supposed impartiality and/or independence of the devised investigatory bodies, the fact that the Israeli government has, in effect, ‘reopened’ and even arguably extended its fields for the investigation of its military conduct during the Gaza conflict is an interesting development in light of the international pressure that has been amidst and one should keep a close watch of how it unravels.