UN commission, created to address violations in Israel-Hamas conflict, is imperfect but necessary

Drew Christiansen

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Ra'fat Al-Dajani

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The last weekend of the recent Gaza conflict, the Israel Defense Force completely demolished five apartment buildings. Even the survivors understood the message.

"In the past," one said, "when the Israelis wanted to take out Hamas leaders, they could strike an apartment or two, not a whole building."

Five apartment blocks leveled is no accident. Smarter, more discriminate weapons were available. Blunt weapons were used to send a message: Gaza's civilians would pay an even more inflated price for Hamas' continued attacks on Israel.

The repeat attacks seemed to show deep contempt for the civilian immunity required by the laws of armed conflict. The moral permissibility of other military acts might be argued. But there was little ambiguity in the case of the razed apartment blocks with which to build a moral or legal defense. Perhaps a justification may yet appear. But all things being equal, the apartment blasts seemed a flagrant demonstration of Israel's disregard for civilian immunity in wartime.

Unfortunately, a straightforward, undisputed analysis of offenses in the conflict, whether by Hamas or Israel, will probably be hard to come by. The commission of inquiry appointed by the United Nations Human Rights Council last month to investigate alleged violations of war crimes starts out with several marks against it.

First, the council itself has been repeatedly at odds with Israel. It has issued 50 condemnations of Israel, nearly half of all the resolutions it has passed against individual countries, while egregious rights offenders like Sudan and Syria have escaped its criticism. The U.S. has criticized the council for its "biased and disproportionate focus on Israel."

In another controversy, Richard Falk, the council's Special Rapporteur on the Palestinian territories from 2008 to May 2014 and a distinguished professor emeritus of international law at Princeton University, has been faulted for anti-Israel prejudice. Even the Palestinian Authority questioned his judgment for favoring Hamas.

Finally, the 2009 Goldstone Report, named for South African jurist Richard Goldstone, on that year's Gaza war came under especially harsh criticism for referring both sides, but especially Israel, to the U.N. Security Council for prosecution by the International Criminal Court. But both Israel and the Palestinian Authority undertook their own investigations of the alleged crimes in timely fashion and avoided prosecution. Hamas did not.

Against this background, the council named William Schabas, a Canadian international lawyer and anti-death-penalty activist, to head a three-person commission to assess violations in the most recent conflict.

Regrettably, Schabas comes with heavy baggage of his own. Schabas has said he would like to see Israeli Prime Minister Benjamin Netanyahu "in the dock of an international court." Of former Israeli President Shimon Peres, he asked, "Why are we going after the president of Sudan for Darfur and not the president of Israel for Gaza?" Schabas may well have had grounds for his opinions, but it is hard to portray him as an impartial judge in the case of Gaza.

Any report from a commission led by Schabas is likely to be the center of controversy from the outset. There may have been less controversial choices to head the investigation. But even so, neither of the alleged perpetrators, Hamas and Israel, has a record of acknowledging crimes against civilians.

So international accountability over the 2014 Gaza war through the commission of inquiry is a case of a highly flawed remedy for a terrible problem. Even the findings of a more impartial commission would be met with denial and controversy. But an inquiry, even a short one, as this will be because of its charge, is better than no accounting at all.

The appointment of the Schabas Commission, even if flawed, upholds the principle of international accountability for illegal acts of war and especially for violations of civilian rights. It can also open the path for other bodies to examine the findings and prosecute offenders.

Knowing the commission's report will be controversial, the commissioners ought to take steps to strengthen the credibility of their findings. They would do well to focus on establishing accountability for the most egregious offenses and those with outside corroboration, like attacks on U.N. refugee sites. Their recommendations can be suitably strong, but a tone that is restrained and judicious would assist in the reception of the report. The council itself would gain credibility by undertaking serious investigations of countries like Syria, Sudan and Saudi Arabia.

[Jesuit Fr. Drew Christiansen is former editor of America magazine and a professor of ethics at Georgetown University. Ra'fat Aldajani is a Palestinian-American writer and commentator.]

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