On 18 March 2019 the UN Human Rights Council Commission of Inquiry published its report into the Gaza border events. An initial review of the report gives rise to serious concerns about the factual and legal analysis conducted by the Commission, its methodologies and the clear evidence of political bias against Israel. Many of these deficiencies were already clear in the initial report in February 2019. While Israel is still conducting an in depth review of the report, the following refers to some observations which are readily apparent.
The Commission ignores key facts regarding the Gaza border events, most importantly the clear and documented involvement of Hamas in the events from their start; the nature and extent of the violence and armed attacks occurring in these events; and the very real threat to Israel's civilian population and to IDF forces as a result of these events.
The Commission also errs in its legal analysis, failing to properly comprehend and assess Israel's legal positions nor properly contend with the reasoned decision of Israel's Supreme Court following a petition concerning these events. The Commission makes unfounded declarations of the law, relying on non-binding sources and vague assessments of "the evolution" of the law to make these determinations.
The Commission's methodology is also severely lacking, and evidences a clear inability or lack of desire to abide by internationally accepted fact-finding practices. Thus, for example, the Commission seemingly accepts unquestioningly information provided by Hamas and fails to properly conduct its own analysis of different sources and the events themselves. At the same time, the Commission ignores pertinent information published by Israel throughout 2018. Likewise, the Commission fails to properly assess Israel's systems for investigation of allegations of misconduct, and simply parrots unfounded claims made by other entities. The Commission displays utter disrespect to the legal system of the State of Israel.
These deficiencies lead to clear mistakes on both the facts and the law, and many defects in the report have already been noted publicly by independent military and legal experts.
Such deficiencies are clearly a direct result of the lack of relevant experience held by the Commissioners. None of the Commissioners hold expertise in the law of armed conflict, nor do they possess any experience in the relevant subject matter (military and policing issues). Nor do any of the Commissioners have any prior expertise on the conflict between Israel and Palestinian armed groups (one of the Commissioners is a national of a country that maintains no diplomatic relations with Israel). The Commission has not provided any public information regarding the use of a military adviser, the experience or expertise of such an adviser, and to what scope and extent such an adviser assisted the Commission. Indeed, independent military experts that testified before and corresponded with the Commission have stated that they did not once converse with any military or law enforcement expert.
Such deficiencies are also the result of a clear bias against Israel, as evidenced in the mandate provided to the Commission by the Human Rights Council. This mandate, which ordered the Commission to investigate Israel's "military assaults" on the "civilian protests", clearly influenced the Commission's work and directly impacted on its findings. This bias is reflected throughout the Commission's report, in its dismissive treatment of statements and evidence published by Israel and its unquestioning adoption of claims by Hamas and other Palestinian groups in Gaza. This bias is most evident in the absolute failure of the Commission to make recommendations concerning Hamas – not to stop sending women, children and others to sabotage the border and to act as shields for armed attacks, not to stop sending militants to the border disguised as civilians, not to stop sending explosive balloons into Israel, not to place explosives disguised as civilian objects on the border fence, not to supply grenades and other explosives for the purposes of attacking IDF forces. If the Commission seriously wished to provide an objective report that would contribute towards human rights and the safety of individuals, the Commission would have seen fit to demand Hamas take action in the context of these events. Rather, the Commission's report will only serve to encourage Hamas's use of the civilian population as shields and as a tool in its efforts to attack Israel, and increase the danger to civilians on both sides as Hamas and other armed groups in Gaza plan for the year anniversary of these events on 30 March 2019.
As a result of all these deficiencies, this report is of limited value to any entity or person wishing to conduct an objective and professional analysis of these events. Nevertheless, Israel's past conduct has shown that it is willing to study, and act on, any material regarding its conduct, policy and individual incidents, and has been proactive in seeking such information. Here too, Israel is reviewing the report in order to consider relevant and credible information for lessons-learned processes and for the investigation of individual incidents. This is part of the IDF's ongoing efforts to constantly review its conduct and assess any possible lessons-learned, as well as investigate allegations or suspicions of misconduct.
Here it should be noted that the IDF reviews its conduct without waiting for or relying on reports from international entities. As stated repeatedly by the IDF, the process for examining individual incidents was initiated immediately after the events began in early 2018, and has been ongoing long before the Commission began its work in late 2018. This has included providing well over a hundred incidents for examination and investigation, including a number of criminal investigations, all prior to the initial report's release in February. As also noted, IDF policy is constantly reviewed both within the IDF and by other governmental entities, and in this case, was also the subject of a petition to the Supreme Court in April 2018.
The biggest indication of the risk in this report and its detrimental effect on the protection of human rights is the fact that Hamas has publicly and openly welcomed the report. This stands in stark contrast to the substantive criticism already offered by independent military and legal experts on the report, and suggests that the Commission has failed in its mandate to promote human rights.
For more information and visual evidence regarding these events, including Hamas's aims and conduct, the nature of these events, IDF conduct and the manner of investigation of alleged misconduct, click
here.
For a summary of Israel's positions as submitted to the Supreme Court in the context of a petition concerning these events, click
here.