The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

From Gaza to Donetsk: The law matters as much as the facts in the fog of human suffering and claims of tragic errors

It has been more than 8 months since my last post… One could blame the laziness following the excitement of the first posts. To be honest, it was more due to some juggling between too many assignments at the same time! Now, the reason behind this need for a new post is far more tragic than what made me be silent for a while. Of course there has been plenty of fact-finding news over the past months: from the creation of new commissions of inquiry on the Central African Republic and Eritrea to the publication of the Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea and the release of the International Protocol
 on the Documentation 
and Investigation of Sexual Violence in Conflict. But the new round of hostilities in the Gaza Strip and the reported shooting down of the Malaysia Airlines Flight 17 above pro-Russian insurgents controlled territory in Ukraine raise very peculiar questions in more than one dramatic way. This post does not intend to be covering extensively or definitely the factual and legal issues around those two developments. The primary focus on the Israeli conduct does not entail any bias either. It is only dictated by the objective need to highlight very specific fact-finding challenges.

Since the beginning of the Operation ‘Protective Edge’ aimed at stopping Hamas from firing rockets at Israeli cities in the Gaza Strip on 8 July 2014 the majority of casualties is believed to be civilians. Like in the past rounds of hostilities in 2008-2009 and in 2012, it is expected some facts will be disputed in the current context, such as about the exact figure of civilian victims or whether some Hamas fighters were present at the time of a given attack on a civilian building. On-going and future fact-finding work will serve to clarify those factual questions. However, beside the dreadful price civilians are paying as we speak, the Gaza Strip seems to have become yet again another type of battlefield, where the contention is as much about the facts as it is about conflicting interpretations of the law based on those facts. These would surely seem superfluous in the face of the plight of civilians in Gaza. But this issue is essential if one wants to accurately establish IHL violations committed during the current hostilities and hold perpetrators to account.

Indeed two categories of facts are undisputed to date: firstly the Gaza Strip is one of the most densely populated areas in the world and civilians have nowhere to go as all border crossings are closed. Of course such facts have a particular bearing when applying the law. Secondly, the Israeli Defence Force (IDF) has communicated extensively on the goals of that operation and the following ground offensive launched last Thursday, the nature of the objectives being targeted, including Hamas ammunition depots and infrastructure, the number of strikes conducted and the methods used. In that context, two particular practices stand out: the official statements by IDF about targeting Hamas activists’ homes and the type of advance warnings given to civilians prior to bombing a civilian house. As a result the debate moved from those specific practices to the legal claims made to justify or challenge their lawfulness under IHL.

The IHL rules on targeting require Parties to a conflict to distinguish between military objectives and civilian objects and to only direct attacks at legitimate military objectives. The first debate revolves around whether the Hamas operatives’ homes are lawful targets under IHL. As a striking example of what is at stake here, the organisation B’Tselem, quoting IDF statements reported that “Over the course of the current operation, the IDF Spokesperson changed the wording of statements concerning these bombings, apparently in an attempt to retroactively match his reports of reality to the requirements of the law”. This change of wording focused on houses “which functioned as command and control infrastructure for the organization” rather than making a general reference to houses of operatives involved in terrorist activities. Beyond the issue that even this more limited category of homes may not fall within the strict definition of a military objecting under IHL, another question arises as to whether broader types of homes have been targeted since the beginning of the conflict.

Provided that attacks are directed at legitimate military objectives, the obligation of the attacker to take precautions to minimize the harm caused to civilians is also a central aspect of the current legal debate. Among those, the issue of the prior warning given to civilians to evacuate attracted much attention (for example here and here). The IDF itself communicated about the different types of measures being taken, including the so-called ‘roof knock’ strike at the roof of a building with a low or non-explosive missile before destroying it, combined at times with prior phones calls and the practice of dropping leaflets. This is being done in an attempt to show the due consideration for the protection of civilians in its conduct of warfare. However, critics arose on whether such measures by themselves and in the specific context of the Gaza Strip, described as an ‘open-air prison’, meet the requirement of IHL to give an effective advance warning, for example due to the very short time given to civilians to evacuate before the actual attack. During the Operation “Cast Lead” in 2008-2009, the UN Fact-Finding Mission on the Gaza Conflict, while acknowledging the significant efforts made by Israel to issue warnings, had already stressed the factors that significantly undermined the effectiveness of the warnings issued. For example, it noted the lack of specificity and credibility of many messages and instructions, such as instructions to move to city centers for safety when the city centers themselves had been the subject of attacks (See Report of the United Nations Fact-Finding Mission on the Gaza Conflict, para. 37). Unsurprisingly, such concerns expressed some five years ago in the Goldstone report may still be relevant today. Accusations of the use by IDF of flechette shells also surfaced yesterday, a weapon not specifically prohibited by IHL. However the 2009 UN report described and documented the features of this area weapon “incapable of discriminating between objectives after detonation” as well as the fact that flechettes are known to bend, break or “tumble” on impact with human flesh (paras 903 and 905).

The case of the four Palestinian boys killed on a beach of Gaza last week by shelling from the Israeli Navy is by far the most tragic example of this war of legal interpretations of facts at play in the current conflict. Notably because it raises the difficult question of where the line between a genuine error and an attack that violates IHL should be drawn. The IDF reportedly claimed it first targeted an identified Hamas building but then in the following strike misidentified children as fleeing fighters. While mistakes may happen in times of war, including friendly fire, IHL obligations on targeting and on the protection of civilians are designed to avoid errors as much as possible. They go beyond the fundamental prohibition of deliberately targeting civilians. As noted by Bill Van Esveld, the Human Rights Watch Israel and Palestine Researcher, “the issue in the case of the four dead boys isn’t just whether the IDF targeted civilians.  It is whether the IDF did its best to avoid killing and wounding civilians.” Illustrating the challenge in investigating that type of incidents, he further asks:

“Perhaps it was the case that the Israeli forces at that range couldn’t distinguish a fisherman and his young sons from a group of Islamist fighters. Or they just assumed that anyone running away from an attack on an alleged “Hamas structure” must be “fighters” (as if anyone would continue to stand next to a structure being attacked). But in that case, the attack was not just tragic, but unlawful. An attacker may not just assume it’s shooting at a valid military target: the laws of war require that the attacker do everything feasible to first verify that the target is a legitimate military objective.  People must be presumed to be civilians, not combatants. These rules exist to minimize “tragic mistakes” – but when such mistakes are repeated, it raises the concern of whether the rules are being disregarded.”

As the fighting on the ground between Hamas and IDF moved for the first time to densely populated area of Shujai’iya yesterday, the civilian death toll increased even more dramatically with over 60 civilians killed in that suburb. In response to the high number of civilian casualties, the IDF argued that this area was being used to store and launch rockets, that it had warned civilians to evacuate for several days and that Hamas ordered them to stay. The claim of civilians being used as human shields if confirmed in this case, and more generally the IHL violations committed by Hamas when putting civilians at risk, do not relieve Israel of its obligations under IHL to minimize the harm caused to civilians, especially if those civilians are forced to stay following a warning.

Some 2000 kilometers away from Gaza, an error might be the cause of the crash of the Malaysia Airlines Flight 17 last week leaving all passengers and crew dead. Communication intercepts by Ukrainian intelligence services purportedly show pro-Russian insurgents mistakenly identified the MH17 flight as a military plane. Unlike Gaza, the claim of an error is far from being made yet, and the facts are highlight disputed. Preliminary findings by US intelligence agencies indicated that based on satellite imagery, which registered the trajectory of the missile, the plane was shot down by a surface-to-air missile fired from an insurgents controlled area in Ukraine. While it is still too soon to draw definitive conclusions, the fact-finding missions dispatched in Ukraine have not been allowed to the crash site. It will then take unique forensic, missile and aviation expertise as well as fact-finding type of work in a conflict affected territory to determine the exact circumstances of this terrible incident, including assigning responsibility, with potentially far-reaching consequences.

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