The UNHRC has released the results of its investigation into alleged human rights violations that occurred during the "Great March of Return" on the Gaza/Israel border last year (see my contemporaneous post on use-of-force issues written at the time of the protests). It concludes that there is "reason to believe" that Israeli forces committed human rights violations related to the excessive use of lethal force against protesters. Pro-Israel NGOs, unsurprisingly, rejected the findings.
I read the report. And I have some quibbles with some of its conclusions, which I'll mention at the end. As has become usual in these cases, it was unable to take testimony from the Israeli side (because Israel refused to cooperate with the investigation, arguably with good reason). In general, I take a relatively dim view of the UNHRC, and I think it is fair to appropriately discount any of its findings simply based on the source. The UNHRC, as a body, really is structurally biased against Israel.
Still, at the end of the day? I read the report. And I think it's pretty fair. It does mention Palestinian rights violations (notably, the use of incendiary devices to torch the Israeli countryside, but also violent attacks on Israeli border guards). It expressly considers cases where Israeli soldiers resorted to lethal force in circumstances where there was an ongoing or imminent attack, and declines to find cause for a rights violation in those cases. Where someone is firing a rifle at Israeli soldiers, the Israelis are allowed to fire back.
But the big problem here is that the Rules of Engagement Israel put in force for dealing with the protests really were too loose. I agree with the commission that the March of Return cannot, in toto, be cast as a military operation -- it was primarily a civilian campaign, albeit one that at various times Hamas tried to infiltrate into a military one (this is one of my quibbles -- the report doesn't treat with sufficient seriousness the problem of Hamas' admixture of its military operations into civilian protests -- a decision which bears significant responsibility for putting the protesters at risk).
In such a circumstance, Israel is acting in a law enforcement capacity, and can only resort to lethal force in cases where there is an imminent threat to life or limb. "Imminent" threat, as the Commission correctly notes, is measured as a matter of "moments", not hours.
Yet the Israeli RoE was considerably more expansive -- it effectively authorized the use of deadly force as a riot dispersal technique, including targeting "main inciters", which was recklessly irresponsible and predictably would lead to the use of lethal force in inappropriate circumstances. Even assuming marchers breaching the fence could constitute an "imminent" threat, it does not warrant the use of deadly force against persons who are still a football field's length away.
The problems with the RoE are one of the reasons why I'm less (not un-) concerned that the commission wasn't able to get the Israeli "side" of the story. Yes, that might make a difference in assessing individual cases. But there isn't much serious dispute regarding what the RoE was, and it is reasonable to infer that an RoE which viewed riotous protests at the border as tantamount to an "imminent" threat would at least somewhat predictably lead to uses of lethal force that are indefensible under international law.
The common objection to reports like these is that they act to "second-guess" on-the-ground military decision-making in a hot zone. And in a sense, they do -- though, again, it seems wrong to characterize the entirety of the protests as "hot" in the relevant sense. The widely shared clips of violence occurring by protesters are, if not irrelevant, than certainly incomplete. In cases where protesters were violent, that can warrant the use of deadly force; but the existence of violence among protesters does not create a blanket authorization for firing live ammunition anywhere and anywhere. Again, this is the point of the "imminence" requirement: lethal force is justified in particular moments characterized by a particular threat; the justification of using lethal force in this spot at this moment does not transfer to any use of lethal force at any time during the broader protest. Indeed, the core of the problem is the proposed transitivity, which is what ends up getting you to Avigdor Liberman's "there are no naive people in Gaza" claim and sanctions anyone and everyone as a target.
But more broadly: the reason we have rules regarding laws of war and international humanitarian law is, in a sense, to do that "second-guessing". It is to judge conduct in precisely the sort of situations that occur here. To dismiss such judgments as second-guessing is to moot this entire arena of law. That simply cannot be right.
This broad endorsement of the report is not wholly unqualified. I mentioned one problem already -- the report in my view gives the short-shrift to the manner in which the intentional mixing of military or otherwise violent actors into the civilian protests played a role in creating dangerous conditions for the civilians. Likewise, the report doesn't seem to take much account of the obvious fact that bullets travel and sometimes miss their intended target -- it is too much to assume that any bullet that hits any civilian actor is necessarily aimed at that actor. While some of the incidents described in the report attempt to paint a reasonably full spatial picture of where the victim was in relation to other protesters (most importantly, those who were acting violently or in ways that otherwise could have warranted a lethal response), the authors were inconsistent on this score.
Yet, reading the report holistically and taking theses shortcomings into account, they do not ultimately negate the core conclusion -- that there are reasonable grounds to believe (which is not, it is worth noting, the same as "definitively proven") that Israeli forces -- likely as a result of decisions made regarding the rules of engagement -- violated international law regarding excessive use of lethal force against Gazan protesters.
I remarked in my post from last year that too many people who style themselves "pro-Israel" seem more concerned with calling the IDF "the most moral army in the world" than in it being such. To be a "moral army" requires actually adhering to certain rules and standards, and punishing people when they violate them. It's not simply a matter of assertion; there is no law of the metaphysical universe which makes it conceptually impossible for the Israeli army to commit rights violations. We figure out whether they did or did not by investigating the possibility seriously, and without predisposition to either a "guilty" or "innocent" verdict.
In terms of that project, it is indeed unfortunate that the UNHRC has shot its credibility to hell and back on the matter of Israel; it makes it easy to reflexively dismiss this report based on its provenance. But dismissal and then silence should not be an adequate response -- indeed, it is just as partial and biased as the UNHRC is (fairly) accused of being. If one does not trust the UNHRC investigation, the right call is to launch one whose partiality is less questionable. Either the results will confirm that Israeli forces fired only when there was an imminent risk of death or serious injury -- or they won't. We cannot prejudge that outcome based on what we hope the answer will be.
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