June 23, 2015

The report on last summer’s conflict between Israel and Hamas by a committee representing the United Nations Human Rights Council (UNHRC) elicited the usual response from the Israel government – even before its formal release on Monday!  Prime Minister Netanyahu declared that the committee had ascertained that Israel was ““guilty even before the examination began.”  His government released its own report a day earlier maintaining “unequivocally that our military actions during that conflict were in full accordance with international law.”  

One can readily imagine how Netanyahu and his government arrived at this conclusion.  Since its inception in March 2006, the UNHRC has a history of training much of its attention on Israel-Palestine.  As of last year, nearly half of the resolutions it passed were condemnations of Israel.  This is, by any standard, disproportionate and betrays a deep skew that requires correcting.  Both Kofi Annan and Ban Ki-Moon, the previous and current Secretaries-General of the United Nations, have criticized this over-emphasis on Israel.  Annan argued in 2006 that while Israel should hardly be immune to criticism, “the Council should give the same attention to grave violations committed by other states as well.”  Indeed, the world, and even more particularly, the Middle East, are rife with gross violators of human rights, both state and non-state actors.  

And yet, the flaws of the UNHRC must not provide a shield for Israel to hide behind.  This has become a favored tactic.  Last year, it was the genocidal Iranian threat that was intended to give Israel a free pass; more recently, it’s become the BDS movement that precludes any serious critique of the Occupation.  This is not to say that Iran is a benign kitten nor that Boycott, Divestment and Sanctions (BDS) doesn’t include some nefarious elements in its midst.  It is to say that these two causes can and do serve as bogeymen–instruments of deflection for the Israeli government to avoid troubling issues over which it has some measure of control.

Now it is the biased nature of the UNHRC that forestalls self-scrutiny by Israel of its massive asymmetric use of power in Gaza.   But we should take a closer look.  The UNHRC report was not, as the talking points of the Israeli government insist, the Schabas report, named after the Canadian law professor whose seeming bias led him in February to resign his role as committee chair.  Rather, it was written by New York jurist Mary McGowan-Davis, a former federal prosecutor and New York State Supreme Court justice, along with Senegalese diplomat Doudou Diène.  Given the limitations at hand—neither Israel nor Hamas would allow access to the committee—McGowan-Davis put together a credible account of what transpired in the summer of 2014.  It is not a perfect report.  But it does do what Israel supporters have long complained reports of this nature do not do: it focused attention on both sets of combatants.  The report sets the frame by describing the broad backdrop: “The hostilities of 2014 erupted in the context of the protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip, and of the increasing number of rocket attacks on Israel.”  Only if one were to deny that there has been an Israeli occupation of Palestinian territory after 1967 would this framing description appear biased. 

The report then moves on to make the following key points:

• Israel’s blockade of Gaza undermined the fragile economic infrastructure of the Strip, contributing to a sense of extreme desperation;
• Palestinian rocket attacks and tunnel-building undermined Israelis’ sense of security in their own country;
• The brutal murders of three Israeli Jewish teenagers in June 2014 and of a Palestinian teenager the next month created an environment boiling over with rage and calls for revenge;
• In the resulting war in Gaza, “the scale of the devastation was unprecedented;”
• The use of rockets by Palestinian militants against Israeli civilians was a violation of “international humanitarian law, in particular of the fundamental principle of distinction, which may amount to a war crime;”
• In six cases investigated, the committee found no justification for Israeli rocket attacks on apartment buildings in Gaza.  To attack a residence inhabited by civilians “in the absence of a specific military target” violates the principle of distinction and, in this case, may be a war crime;  
• Accountability is sorely lacking.  Israel’s own self-investigations to date have almost always exonerated its own personnel, lending a sense that “impunity prevails across the board for violations of international humanitarian law and international human rights law allegedly committed by Israeli forces;”  
• Meanwhile, accountability on the Palestinian side is “woefully inadequate.” The Palestinian leadership has “consistently failed to ensure that perpetrators of violations of international humanitarian law and international human rights law are brought to justice.”

Contrary to what has been reported—and claimed by the Netanyahu government—this is not a case of the UNHRC picking on Israel unfairly.  Rather, the committee was seeking to capture the underlying casus belli and ensuing scale of destruction set against the vast power differential between the two sides.  It took both sides to task, in proportionate ways, without insisting that the case be remanded immediately to the International Criminal Court.  On the contrary, it called upon “the Government of Israel to conduct a thorough, transparent, objective and credible review of policies governing military operations and of law enforcement activities in the context of the occupation.”  To all those who believe in and/or agitate for Israeli democracy, this seems like a perfectly reasonable and indeed necessary step.

David N. Myers teaches Jewish history at UCLA.