A Public Commission, Not an Internal Army Investigation, for Gaza Border Deaths
The latest Gaza border demonstration deaths have rightly caused an uproar and have seen the army opening an internal investigation. Yet, absent any possibility to question the legal framework itself under which the Israeli forces have acted, such an investigation is doomed to failure. The International Criminal Court prosecutor, Fatou Bensouda, has already stated she is closely monitoring the situation.
So far, Israel has legally seriously addressed the arguments raised by the preliminary investigation Bensouda has opened on Gaza. The same stance must be adopted also regarding the Gaza border deaths. An internal army investigation which does not lead to criminal indictments is not enough to abort a future International Criminal Court intervention. Similar to what followed the events in Sabra and Shatila in the 1980s and the killing of civilians back then, what is needed is a commission led by a retired judge which will examine not only the operational blemishes but also the legal issues surrounding the circumstances under which the Israeli forces are called to operate, building a robust Israeli legal narrative to be cited if needed before the court. These legal issues are in principal two.
First, similarly to the urban warfare that the Israeli forces had to confront during their Gaza operations and the arguments that Hamas deliberately shot behind civilians, this time Israel can cry foul play on the fact that by organizing these rallies and pushing civilians to gather at the border fence, Hamas is acting as what is being termed in criminal law “agent provocateur.” Such a provocative agent Hamas role does not obliterate any Israeli responsibilities but must be taken into account in coming to legally assess the Israeli reaction.
Secondly, so far the assumption is that there is an armed conflict between Israel and the Hamas in Gaza, the laws of war apply even in the absence of actual hostilities and civilian casualties are justified as collateral damage to be balanced vis-a-vis the anticipated military advantage. The shooting of the Palestinians along the border puts these premises into doubt. Israeli forces acted in reaction of a Palestinian initiative and not in order to secure a military advantage. More importantly, a laws of war approach is inadequate to the extent that it fails to understand that the problem with the Israeli response lies not on how live fire was used but on the use of live fire in the first place. Any investigation starting from the premises that live fire can be condoned, simply fails by definition to address the issue of the Palestinian deaths and is likely to be deemed insufficient by the International Criminal Court. What requires an answer is not how many Palestinian civilians were killed but why there were Palestinian casualties in the first place. In essence, the question cannot be addressed by the proportionality principle that the laws of war advance but through the notion of human dignity that human rights law promotes. No single death can be tolerated and every such death should be a matter of investigation.
Apart from the fact that such an approach would be truly humanistic and would diminish the opportunity for the international community to claim that any possible crimes have not been investigated and thus the International Criminal Court should step in, it would also absolve Israel from the obligation to prove that most of the casualties were militants, sometimes a difficult task. In the latter events, such need caused the state to attribute militancy status to killed persons just because of their Hamas membership.
It is doubtful whether such broad definition is in line with the Geneva Conventions or the stance adopted by the Supreme Court and thus persuasive. On the contrary, the last time Israel successfully persuaded the international community with its legal arguments was on the issue of the Gaza blockade when the Turkel Commission was established. There is no reason why the success cannot be repeated. But for this to happen, a similar commission has to come into life also for the latest border deaths.
The author is at King’s College London Dickson Poon School of Law and a former member of the Knesset Legal Department.