Friday, February 20, 2009

Who's Investigating Who?

International law professor Julian Ku notes that, whereas both Israel and Palestine are accused of committing war crimes in the Gaza campaign, only Israel has any serious domestic mechanisms for investigating the allegations. Whereas Israel has launched an internal investigation on the practices of its military during the Gaza operation (encompassing, among other things, the shelling near a UN school and the usage of white phosphorus), Hamas spokespersons simply refused to investigate any allegations of human rights violations at all, saying they were "completely baseless and nonsense", stemming from the "Israeli propaganda machine of fabrication". This was in response to the allegation of using human shields -- though Hamas' rocket attacks on Israel are a per se war crime, Hamas refuses (I imagine) to concede that rule as legitimate in the first place.

Under international law, the international forums for the investigation and prosecution of war crimes in most cases are not supposed to be utilized unless the state in which the alleged crimes occurred is either unable or unwilling to investigate the allegations themselves through domestic processes. This is, in a large respect, a sop to the sovereignty of modern states, and runs into major problems when the alleged wrongdoer is an agent (or even just a national) of the state. An investigation by the Israeli government will undoubtedly not satisfy the Palestinians, nor will it necessarily be particularly credible given that in large part the judge is the same as the defendant. Still, Ku writes, "if it were subject to ICC jurisdiction, Israel would have a decent case for claiming to have fulfilled its duty to investigate and punish war crimes committed by its nationals or on its territory." By contrast, the blanket Palestinian denial and refusal to investigate would, potentially, be the sort of behavior which could trigger ICC jurisdiction.


ansel said...

That's pretty crappy of Hamas. As for Israel, I've never heard of an IDF investigation holding anyone accountable for abuses of Palestinians... a few examples: 1, 2, 3

David Schraub said...

It happens, but it's pretty rare (and often comes with pretty mild punishment). The irony is that this is less a fault of "bias" and more a fault of "law" as an institution falsely being assumed to be a neutral vessel. A comment in Ku's post illustrates the paradox:

National investigations might be inherently biased in favor of their nationals. As for national tribunals, assuming you get that far, the problem is that an asymmetrical battlefield provides plenty of ambiguity. That ambiguity results in doubt of guilt at trial – and a national tribunal will naturally resolve any doubt in favor of its national (if for no other reason than a lack of self-awareness and self-identification with the accused coupled with a lack thereof with the victim). Even in situations where it may seem obvious that something has gone terribly wrong, there may be a plausible explanation for it that will be accepted when individuals acting in good faith resolve questions of doubt.

My point is that no human rights organization has a burden of proof when reporting possible war crimes, and certainly not one of proof “beyond a reasonable doubt.” This is not to say that bad things don’t happen on the battlefield or that such organizations act in bad faith. It is merely to note that even the most earnest investigator or prosecutor may not always be able to prove a crime, or serious crime, occurred when faced with evidentiary limitations and a burden of proof. The irony is that as many people call that a failure of the rule of law as call it a victory.

Because legal systems are indeterminate, burdens of proof are high, and evidence can be hard to come by, one can simultaneously meet the definitions of "good faith" in making a human rights investigation while virtually never accomplishing anything.

External investigators aren't immune to any of these pressures either -- the point is that the indeterminacy allows legal regimes to resolve complex questions of fault and liability in ways that match their political preferences in all but the most extreme cases. That's less a failure of law than a feature of it.