The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

Report of the CoI on the 2014 Gaza Conflict: The challenging job of IHL fact-finding

I will not pretend to have read the full report of the Independent Commission of Inquiry on the 2014 Gaza Conflict published today, let alone to have conducted a thorough comparison with the findings of the UN Board of Inquiry or with Israel’s own analysis of its conduct during the conflict (but note that these would be interesting exercises!).

But skimming through the report quickly (for other purposes I admit) something strikes me, as a preliminary reaction, through the limited lenses of this Blog: the extent to which, notably with regard to IDF’s conduct, the lack of certain types of factual information hampered the Commission’s ability to make clear legal findings on IHL violations, or even more so to qualify certain acts as war crimes. This is of course not the Commission’s fault but more related, as I said in previous posts, to the way IHL norms on the conduct of hostilities are designed and drafted. That Israel refused to cooperate with the Commission obviously only complicated the task of the Commission.

This is not to say that this is a “pattern” in the report, but it shows how difficult it is to conduct fact-finding work and related legal assessments on targeting and proportionality under IHL norms. As a result the Commission also carefully drafted its conclusions to reflect this particular challenge.

There are plenty of other very interesting factual and legal questions to be discussed but I leave it to that for now…

Leave a Reply