How Israel Should Address the Gaza Report’s Impact on the ICC

There has already been considerable discussion of the UN Human Rights Council’s Independent Commission of Inquiry Report into the 2014 Gaza war. What is not known, however, is whether the International Criminal Court (ICC) will rely on the Report in its own inquiry into the 2014 Gaza war. Will the ICC consider the information contained in the Report when deciding whether to open a formal investigation, or during the investigation itself?

The answer is undoubtedly yes and yes. In fact, the Report will likely help propel the ICC Prosecutor toward taking the next step of opening the investigation, and her Office will certainly use the Report during the investigation itself. But there is a long way between information sufficient to open an investigation and evidence that will support bringing (and sustaining) individual criminal charges. The Report may be largely sufficient for the former, but not for the latter, and therefore considerable additional investigation and analysis will be required before it can be determined if charges are appropriate. All actors, but in particular Israel, will need to decide how to engage with this inquiry. In addressing these questions here, I emphasize that I make no assessment or judgment whatsoever about the merits of any of the allegations; my concern here is only with the process, the types of evidence that will be relevant at each stage of the ICC proceedings, and how different actors should think about the ICC’s investigation.

First a bit of background. On 31 December 2014, pursuant to Article 12(3) of the Rome Statute, Palestine conferred jurisdiction on the ICC for crimes within the jurisdiction of the Court committed on the territory of Palestine after 13 June 2014, a date corresponding roughly with the beginning of the war in Gaza. Following standard practice, the Prosecutor at the ICC opened a preliminary examination to determine if sufficient facts exist to warrant opening a formal investigation. During the preliminary examination, the Prosecutor will determine (1) if the Court has jurisdiction, that is whether there exists a “reasonable basis to believe” that crimes within the jurisdiction of the Court were committed on the territory of Palestine within the relevant timeframe; (2) whether cases that would be likely to arise from an investigation would be “admissible” at the ICC, meaning that they are not already being investigated by state authorities (or if they are being investigated, if the investigation is in bad faith); (3) whether the allegations of crimes are of sufficient “gravity” to warrant an investigation; and (4) whether any “interests of justice” would justify not opening an investigation.

During the preliminary examination, the Prosecutor relies only on publicly-available information and any information provided to her by interested states or organizations but conducts no other investigation of her own. With regard to the standard of proof, the Appeals Chamber of the ICC clarified in the Bashir case that the “reasonable grounds to believe” standard, which is also the threshold for obtaining a warrant of arrest, is satisfied as long the evidence supports a reasonable inference that a crime was committed, even if it is not the only reasonable inference (which is required only to satisfy the “beyond a reasonable doubt” standard). As the Appeals Chamber further indicated, what is required is “facts or information” that would satisfy an “objective observer” that a crime “may have” been committed.

So what does the Report tell us? Regarding Palestinian responsibility, the Report cites evidence showing that an overwhelming number of rockets and mortars fired by Palestinian armed groups were aimed at civilian targets, the rockets fired were indiscriminate in nature, six civilians were killed and 1,600 injured, and some of the armed groups made statements that they were intending to target civilians. This evidence, both circumstantial and direct in nature, is sufficient to justify the opening of an investigation into the potential war crimes of directly targeting civilians or using indiscriminate or disproportionate force. There is prima facie evidence to support all of the elements of these potential crimes.

With regard to responsibility on the Israeli side, the Report notes that 2,251 Palestinians were killed, including 1,462 civilians. As numerous commentators have pointed out, these numbers by themselves do not establish that any crimes were committed. Even if the civilian death toll appears to be high, establishing an international criminal law violation requires a showing that civilians were intentionally targeted or that indiscriminate or disproportionate force was intentionally used.

But intent can be proven by direct or by circumstantial evidence. Even where direct evidence is unavailable, intent can sometimes be inferred from the results of the actions if there is a sufficiently clear pattern. The International Criminal Tribunal for the former Yugoslavia (ICTY) largely relied on such circumstantial evidence when it convicted two Serb Generals, Stanislav Galić and Dragomir Milošević, for war crimes and crimes against humanity during the siege of Sarajevo. In both cases, the court examined numerous individual incidents of sniping and shelling and determined that in a number of cases, the projectile in question came from Serb forces, killed or injured civilians, and that there existed no legitimate military target in the vicinity. (Full disclosure: I led the prosecution case in the Dragomir Milošević case). On the basis of a number of these individual incidents, the ICTY inferred that the Serb forces in question intended to target civilians or to use indiscriminate or disproportionate force. In none of the cases it examined did the court have direct evidence of who specifically fired the shell or bullet or the intent of that person. Rather, the intent was inferred from the results. The responsibility of the two Generals for the campaign of illegal sniping and shelling was in turn inferred, inter alia, from the evidence of an ongoing pattern of these incidents, the effective command of the Generals over the Serb forces, and the contemporaneous notice delivered to the Generals that the crimes were occurring. Obviously there are enormous differences between the Gaza war and the siege of Sarajevo, but the prosecutions in these two cases arising out of the latter are nonetheless instructive as to the kinds of evidence that can be relevant in a conduct of hostilities case.

Returning then to Gaza, the Report examines in detail 15 air strikes on residential buildings in Gaza. In a number of the cases, the available evidence discloses a military objective or is silent as to whether or not there existed a military objective. In other cases, however, there is evidence that a residential building was targeted, civilians were killed and injured, and there existed no military target in the vicinity. For example, the “Al Najjar” home was destroyed in the night on 26 July 2014 and nineteen members of the same family, including 11 children and 5 women, were killed. Witnesses told the Commission that no member of the family was a member of an armed group and that the house was not hosting any armed activity. Similar evidence was provided to the Commission regarding the strikes on the Al Hallaq and Ammar family homes (11 killed and 5 injured), the Balatah home (11 killed and 41 wounded), and the Shuheibar home (3 children killed and 2 injured). Similar evidence is provided in the Report regarding certain civilian casualties during the ground operations in the Shuja’iya, Khuza’a and Rafah neighborhoods. These specific incidents represent just a sampling of incidents that occurred during the war.

This evidence will push the ICC Prosecutor a long way toward opening a formal investigation. Taken on its face, it discloses that the war crimes of intentionally targeting civilians or civilian objects, or using disproportionate or indiscriminate force, may have occurred. Although there is no direct evidence of intent (and in fact specific denials by Israeli officials to commit crimes), it is at least a reasonable inference from the evidence of civilians being killed or injured without any nearby military objective that the attacks on civilians or the use of disproportionate or indiscriminate force was intentional. This assessment has to be made on the available evidence without prejudgment about where the investigation may ultimately end up.

Although an ICC investigation seems inevitable, it will not happen soon, for reasons I have discussed on these pages before. The Prosecutor will want to be thorough in the information she gathers and she will want to give each side an opportunity to investigate and prosecute allegations of crimes themselves. Further, the Prosecutor’s resources are already overstretched and in the Palestine case she must be aware that cooperation going forward may be difficult. But given the evidence that is now available to her, it is difficult to see how she avoids, at the end of the day, opening an investigation.

Once the investigation begins, the Report will continue to be useful as a guide to incidents that the ICC might consider investigating. In addition, the Commission may be able to provide the ICC with witness statements (if the witnesses have consented to their statements being so disclosed) as well as physical and forensic evidence.

The Report will have limited value, however, once the Prosecutor reaches the moment of deciding if any charges should be brought, which she will only do if she is persuaded that she has (or can get) sufficient evidence to prove the crimes beyond a reasonable doubt. It is a closer question with respect to the mortar and rocket attacks by Palestinian armed groups, but certainly with respect to the Israeli attacks, the Report falls well short of establishing crimes beyond a reasonable doubt. While it is a reasonable inference that civilians were intentionally targeted or that disproportionate or indiscriminate force was used, it is certainly not the only reasonable inference. Moreover, a critical difference between the evidence in the Galić and Milošević cases and that contained in the Report is the quality and reliability of the evidence. The evidence contained in the Report establishing that there was no military objective at particular locations that were hit is comprised almost entirely of statements from survivors or neighbors whose credibility could be challenged. A notable feature of the siege of Sarajevo was the presence of internationals (in the form of a UN Protection Force, diplomats and journalists) in Sarajevo who could testify about the indiscriminate nature of the Serb shelling and sniping. In addition, many of the incidents were investigated by the Bosnian Muslim police which, while not completely unbiased, arguably carried more weight than individual victims or survivors. Finally, the siege of Sarajevo lasted for over three years, which made it easier to show a pattern of activity by Serb forces from which intent could be more easily inferred. Therefore, considerable additional investigation will be required into the Gaza war before any decision about charges could be made.

And to be clear, during the investigation, the Prosecutor will always bear the burden of establishing any violations on either side to the requisite standard, ultimately beyond a reasonable doubt if she decides to bring any charges. She would have to establish by sufficient evidence that alleged violations were committed intentionally, and she could not shift the burden at any time or in any way onto the defendant to establish that each attack was in compliance with international humanitarian law. The burden will always be on her to show a violation of law.

In this respect, I agree with Benjamin Wittes who discussed here the issue of burden of proof in the Commission’s Report. International humanitarian law does not, at present, contain an obligation of transparency or cooperation with investigations mechanisms, which is why the creation of institutional structures like the ICC, which do impose obligations to cooperate, are so critical.

In light of the current transparency (or non-transparency) rules, would the smart move be for Israel not to cooperate with the ICC investigation, since it is not obligated by law to cooperate as a non-member of the court? I don’t think so. Although it is not legally obliged to cooperate, there will be clear political and moral costs to not doing so. When there is a suspicion that state action has gone wrong, an investigation should follow in the ordinary course and be welcomed, even when the state actors are persuaded that they have done nothing wrong. And there is no reason to fear that an ICC investigation will be anything but careful and impartial. As the former U.S. War Crimes Ambassador David Scheffer has written in a volume of essays that I helped to edit, the ICC Prosecutor has disproved fears that he or she would be political or irresponsible in assessing cases. The Prosecutor has developed legal guidelines and policies that govern her approach to each case. With regard to Palestine itself, the ICC has proceeded exceedingly cautiously, and the Prosecutor certainly has zero appetite to proceed with a case unless she is certain that it could be proven in court beyond a reasonable doubt.

Even if Israeli officials do not completely trust the ICC, what is the cost of cooperating? They are being provided an opportunity to offer their side of the story and to provide any information that is relevant to the Prosecutor’s assessment of the allegations that she will have to investigate. How could that harm Israel? I suppose that there might be some concern that if they cooperate with the investigation, they will “legitimize” the inquiry and it will be harder to criticize it afterwards if there is any part of the outcome with which they do not agree. But that does not really follow. Cooperation does not mean endorsement, and there are plenty of examples of states or individuals who have cooperated with inquiries and attacked them later. And the costs to Israel of not cooperating—losing the ability to present its version of events to the ICC, and deepening the perception that it sees itself as above international law—clearly outweigh any costs that might accrue from engaging with the Court.

Although it may not happen soon, an ICC investigation into the Gaza war is coming, but whether charges will ever result is another question altogether. All states and relevant actors should welcome the inquiry and support it, and they have a self-interest in doing so. There is no good reason not to cooperate with an ICC investigation.