AP Photo/Hatem Moussa, File
Politicians, speechwriters and even some headline-writers had their reactions ready in advance-or so it appeared when the McGowan Davis Report on last summer's war in Gaza was published this week by the U.N. Human Rights Council. Why bother studying it when prejudging is so much easier?
"Flawed and biased" is how Israeli Prime Minister Benjamin Netanyahu quickly labeled the report. A week earlier, Netanyahu said that reading the report would be a waste of time, so one can reasonably doubt that he bothered doing so. Some government spokespeople initially referred to it as the Schabas Report, as if it had been written by the original chair of the investigating panel-Canadian law professor William Schabas-who quit months ago when it emerged that he'd done paid legal work for the PLO. The mass-circulation tabloid Yediot Aharonot's oversized headline called it "The Hypocrisy Report." In Gaza, meanwhile, a Hamas spokesman said the organization "welcomes the report's condemnation of the Zionist occupier for its war crimes"-as if to confirm that the investigators had accepted a Palestinian narrative of last summer's horrors.
Actually, the report is strikingly cautious and even-handed. The Hamas government in Gaza has as much reason as Netanyahu does to hope that it quietly vanishes from the world's agenda. If Palestinian President Mahmud Abbas waves the report to press the case for an internationally imposed two-state agreement, he should also answer the report's charge that the Palestinian Authority has "consistently failed" to prosecute people under its jurisdiction who have committed war crimes.
True, the Human Rights Council's choice of Schabas showed little interest in a fair investigation. But the final report must be judged by what his successor as chair, American jurist Mary McGowan Davis, and her fellow investigator, Doudou Diène, wrote. One immediate impression is that Israel made a mistake when it continued to boycott the panel after Schabas's departure.
Two qualifications: The report is far from flawless. And I haven't yet been through it thrice. Amid the legal discussions and the descriptions of torn bodies, there may be much that I've missed and that will cause me to judge it more harshly. What follows aren't conclusions, but points for a calmer discussion.
Balanced and painful: There was no balance in the mandate that the UNHRC gave the investigating panel-to examine events beginning from June 13, 2014. That was the day after Palestinian terrorists kidnapped three Israeli teens. The report rightly includes the kidnapping as an essential element in the escalation that led to war.
The full, 183-page report carefully examines the rocket and mortar fire from Gaza into Israel by the armed wings of Hamas, the Palestinian Islamic Jihad and smaller groups-the immediate catalyst for Israel's air and ground campaign. It includes testimony from a father whose 4-year-old son was killed by shrapnel in their kibbutz near the Gaza Strip, and from Israelis who left their homes for fear of rockets above and tunnels below.
The commission reports Palestinian claims that rockets and shells were aimed at legitimate military targets. It notes that that determining the intended targets is harder because Israel didn't turn over information on where, precisely, the explosives fell.
Nonetheless, McGowan Davis and Diène reject the claims. For one, there are enough public statements by Palestinian groups about aiming at Israeli towns. For another, the intended target matters little: "The rockets available to armed groups in Gaza are unguided and inaccurate." Using them constitutes "indiscriminate attacks" that "may amount to war crimes."
The section on the rockets isn't an afterthought. The commission places it before the Israeli offensive, as chronology and causality require. These aren't the only possible Palestinian crime listed in the report.
Then come the many more pages on death and devastation in Gaza. There's the man who woke in a hospital to learn that sister, mother, and children had all died when an Israeli bomb struck their home. There's the man who testified to the panel about finding the headless bodies of his daughter and uncle in the remains of his bombed house. These are just two incidents in the nightmare listing of bombardments of civilian targets, of families killed in the places where they thought they'd found safety.
The report notes cases in which the residents got phone calls telling them to leave, or in which warning shots were fired-and the cases where the panel had no evidence of a warning. In some cases, it identifies a possible military target, such as a commander of an armed faction who lived in an apartment. But was the "military advantage" of killing one commander great enough to justify the risk of killing many civilians? That's the standard of "proportionality" set by the laws of war. If civilian suffering is beyond proportion to military gain, you have a war crime.
It's possible that the Israeli military could have provided information on warnings that were ignored and on military goals that change the imprecise math of proportionality. Reading the report, I'm convinced such evidence would have been fairly weighed. By prejudging the investigators, Israel contributed to a harsher judgment of its actions.
The report points at possible war crimes, not proven ones. The possible Israeli crimes derive from lack of proportionality, from indiscriminate fire, from the failure to change tactics as the civilian toll became obvious. The portrayal of Israeli actions is much longer than the description of Palestinian actions. The authors could not include many blank pages to represent the crimes against civilians that Hamas and Islamic Jihad would have committed if they'd had the firepower to do so.
Netanyahu and other Israeli government ministers have good reason not to want to read the report. In the section on accountability, the authors state that it's not enough for Israel to investigate "exceptional incidents," as it has done. Responsibility lies primarily with those who set policy.
A built-up problem: In fighting a war, a military has a duty not to fight from within built-up areas. When, as in Gaza, entire territory is densely populated, the rule can't be strictly applied, the authors acknowledge. Even so, armed forces should avoid drawing fire to civilians-and the report lists evidence that Hamas and its partners fired from between apartment buildings, from next to schools, from inside a church compound packed with people. This, too, is a possible war crime.
I'm less satisfied that the investigators weighed the other side of the dilemma: If a country is attacked from a territory that is densely populated, how is it to fight back? I do not ask this to justify what happens, but to stress:
International law accepts that wars happen, and seeks to reduce the harm. Sometimes setting the rules is tragically difficult.
Another flaw: The authors sometimes reason-badly, in my view-that Israeli commanders had information that could have prevented deaths. For instance, the fact that the Israeli army sometimes called off air strikes because it detected civilians leads the authors to believe that it knew civilians were present in another case. Such logic fits a courtroom, not a battle, where intelligence is incomplete and the time available for decisions is terrifyingly short. Along with their expert on weapons, the authors needed a chaos adviser-a mid-level officer with combat experience and nightmares, to point out how little a commander knows, even less than he thinks, and how easy it is to be wrong.
Out of context: Israeli critics have been quick to say that the report lacks context. It doesn't mention, for instance, that Israel pulled out of Gaza in 2005, only to see the Strip taken over by Hamas.
But how much context should the authors have added? More detail on the Israeli blockade of Gaza? The failure of the Camp David summit in 2000? Why not go back to 1948?
The first choice in writing any account is what to leave out. The mandate of this account was to list possible war crimes during a particular period. It leaves out nearly everything else.
Israelis who demand context often mean: What else could we do? Terrorists ruled Gaza; our cities were under fire. But "this was the only choice" is sometimes an argument from tunnel vision.
The real meaning of context, I suggest, is the opposite. Context includes asking about all the policy choices before last June, on all sides of the conflict, that created a situation where it seemed nothing else could be done. A panel of legal experts wasn't empowered to ask such questions. But Israelis and Palestinians need to look up from the pages of the report and do so.
