Reflections on the UN Commission of Inquiry Gaza Report, Part III: The Clash Between Human Rights and Law of War Specialists

In Part I of this series, I looked at the historical narrative the UN Commission on Inquiry chose to adopt with respect to the 2014 Gaza War. In Part II, I turned to the clever way in which the COI targeted its message to prosecutors from the international criminal court. In this final post, I wish to address an issue that is actually unrelated to the Israeli-Palestinian context, but is more wide-reaching: the clash between human rights lawyers and law-of-war specialists. Readers who don’t care a fig about the Israeli-Palestinian conflict but care about, say, the ability of the US military to operate overseas or to conduct drone strikes, have a big stake in the dispute I will address in this final post.

For those of you not aware of this global conflict (the word is not too strong), up until approximately two decades ago, issues related to the legality of combat operations were the sole purview of law of armed conflict (LOAC) specialists, usually lawyers with military backgrounds and experience. For the purpose of full disclosure, I am a member of this tribe, by virtue of my 19 years of service in the international law department of the IDF. In spite of the global range of ongoing conflicts at any given moment, this group of law of war experts has always been relatively small, and most of us know one another quite well, sharing legal and operational experience through a network of relationships and conferences. Notwithstanding international conflicts between countries, we speak a similar language.

Over the last two decades, another, much larger, group of international lawyers has arisen: human rights specialists. Driven and motivated by the (very positive) advent of human rights instruments, treaties and national legislation, this ever-growing group has become a prominent feature of modern international law, the importance of which cannot be overstated.

Initially, the two groups co-existed peaceably. Human rights lawyers were primarily interested in the promotion of human rights within states during peace-time, while LOAC lawyers were focused on the intricate (and difficult to regulate) balancing act between security and civilian rights and protections unique to war-time. However, sometime around the mid-1990s, the interest of the human rights groups expanded to include war, based on the (then new) presumption that human rights law was applicable at all times, including during both peace and war.

As part of this expansionist trend, a new name was invented for the field formerly known as LOAC: "International Humanitarian law" (IHL). The similarity in the names between IHL and Human Rights law was almost certainly not an accident, but rather most probably part of the abovementioned attempt to ensure that human rights law achieved prominence and dominance over LOAC. Unsurprisingly, the new name caught on and today IHL is the almost universal term used to describe the laws applicable to warfare. Only some dinosaurs such as myself still prefer the previous "laws of war" or LOAC terminology, which I feel is a more accurate depiction of what the field actually tries to regulate.

The question of the relationship between HR law and LOAC was, more or less, resolved in two ICJ advisory opinions: the first, the Nuclear Weapons case from 1996, and the second, the "Wall" case from 2004 which I discussed in my first post. In both these opinions the ICJ professed its view that human rights law applies at all times, and as such is a lex generalis, while LOAC is the lex specialis which implements the principles of HR law during wartime. In effect, the laws of war became a subset of HR law, but remained as the binding source of law for wartime related legal dilemmas.

Why is any of this important? After all, I assume everyone is (or should be) pro-human rights, and therefore, giving primacy to human rights principles should be a good thing, right? My answer is a qualified yes.

The qualification stems from the fact that this positive result has come with two quite problematic side-effects. First, as a direct consequence of the fact that human rights law is now almost universally agreed to apply also during wartime, some human rights lawyers now feel themselves qualified to opine on law of war issues. The problem with this development is that, notwithstanding the similarity in names, human rights law and International Humanitarian Law actually have dramatically different perspectives on how to balance between security and civil rights and liberties during wartime. In other words, applying human rights rules and principles to warfare would lead to totally different results than applying LOAC rules to the same situation. That is why the ICJ saw the necessity of stressing that LOAC would still remain the binding lex specialis in wartime cases.

The problem is that many of the human rights lawyers now active in this field are not LOAC proficient (in other words, they do not have subject matter expertise in the specific rules applicable to warfare) and, as a result, they do not know that the human-rights-based conclusions they reach are actually different from those which are mandated by LOAC. Or, even worse, some of them know all too well that their results are different, but they actually mean to change the rules by imposing human rights principles on warfare, effectively bypassing and annulling long standing LOAC principles.

This reminds me, by way of a rather exaggerated analogy, of the difference between hematologists and cardiac surgeons. The former are a group of expert physicians who specialize in the study, diagnosis, treatment and prevention of diseases related to the blood. While just one of the myriad of fields which make up modern medicine, no one can dispute the importance of this discipline, which relates to the life-giving liquid without which none of us would be here. The latter, conversely, are physicians who specialize in performing surgery on the heart. As the primary purpose of the heart is to pump blood throughout the body, it is quite possible to view hematologists, who understand blood better than all others, as the lex generalis of heart medicine. However, no one will dispute that, in the event that a heart malfunctions, or a blood vessel is blocked, you would prefer that an expert cardiac surgeon carry out the operation, as he would be the obvious lex specialis expert in such an emergency.

Taking this analogy to its conclusion, human rights lawyers are without doubt the people with the overall multi-field perspective and understanding of human rights-related maladies and potential remedies. They are the ones who will push all of us to better promote and observe human rights in all human endeavors, an incredibly important task. LOAC experts, on the other hand, are the lawyers who will "get their hands dirty" and will take responsibility for making the incredibly tough decisions required during combat operations, when the risk of law and humanity breaking down is the highest. Each group has its very important role and place. However, just as I would be hesitant to heed advice from a LOAC expert on the application of human rights during peacetime, I would similarly caution HR experts against attempting to advise on the application of the laws of armed conflict during wartime. Unfortunately, many human rights experts appear eager to cross this line, with potentially disastrous results for warfare-related cardiac arrest victims.

The second, no less worrying, negative phenomenon, is that the UN appears to have adopted a totally pro-human rights focused position in the human rights-LOAC debate, at least in the context of the Israeli-Palestinian conflict.

To the best of my knowledge, I am the only former senior Israeli official to have been involved with (or appear before) three separate UN fact-finding committees established with respect to Israeli-Palestinian incidents.

The first was in April 2002, during the IDF operation Defensive Shield in the West bank, which was initiated after a long chain of highly vicious Palestinian suicide bomber attacks in Israel. While the operation was still ongoing, Palestinian sources claimed that Israeli soldiers had committed a massacre in the Jenin refugee camp, allegedly killing some 500 Palestinian civilians. The UN was incredibly quick to set up a Commission of Inquiry into the "massacre," to be headed by former Finnish President (and subsequent Nobel Prize Laureate) Martti Ahtisaari. I was then the head of the IDF’s International Law Department, so I was one of a four-member senior Israeli government team dispatched to the UN to discuss potential collaboration with this newly established COI.

One of our concerns was that none of the members of the team had either military experience nor LOAC expertise (all the other members were leading human rights experts and practitioners). As a result, we feared that the commission would be biased towards the human rights narrative and would therefore not be inclined towards (or capable of) understanding and accepting Israel's security and LOAC-based arguments.

To my immense surprise, when we raised this point in the meeting at UN Headquarters in New York, our UN counterparts responded that our concerns were totally unfounded, as they pointed out that former President Ahtisaari had also previously served as the Chief of staff of the Finnish Armed Forces. Obviously, this made us look rather foolish. I immediately rang up the senior Israeli official whose team had provided us with all the background information on the COI members, berating him for missing such an important fact. He called me back a few hours later, explaining that, under the Finnish constitutional system, the President is also the honorary and formal Chief of the Finnish Armed Forces, but that Mr. Ahtisaari was not, by any means, a military specialist. (I believe he served as a junior officer in the Finnish Armed forces in his youth.) When I returned to UN headquarters the following day with this updated information, the UN officials claimed to be surprised, adding that they had understood that Mr. Ahtisaari had extensive military experience.

As a result of this (and numerous other) differences of opinion, Israel eventually decided not to cooperate with this UN COI. Interestingly, a few months later, the UN itself would eventually independently come to the conclusion that the Palestinian allegations were totally fabricated and false and would clear Israel of all "massacre" related accusations.

My second experience with UN-chartered commissions was in 2009, when I became the only former senior Israeli official to appear before the International Fact Finding Mission headed by Justice Goldstone. From initial appearances, the Human Rights Council had made an effort to create a balanced team this time. Two of the four members had relevant experience: professor Christine Chinkin is a respected international law professor; and retired Irish Colonel Desmond Travers brought with him over 40 years of military experience. However, on closer inspection, it quickly became apparent that Professor Chimkin's focus, expertise and inclination were totally human-rights oriented and that Colonel Traver's international military experience focused primarily on peace-keeping forces. Again, no member of the mission would (or could) represent the LOAC perspective, so crucial for ensuring that its efforts would be fair and balanced. I can only assume that this is one of the many reasons why, today, the 2009 Goldstone Report is more infamous than famous.

My third (and, to date, last) experience with UN missions of this nature was my recent appearance before the recent 2015 Commission of Inquiry, then headed by professor William (Bill) Schabas. This COI included two undisputed veteran legal experts: Professor Schabas himself and former New York State Supreme Court Justice Mary McGowan Davis. Without even commenting on the fact that Professor Schabas's anti-Israeli predisposition was entirely public long before his appointment, suffice it to say that, in a fashion similar to the previous examples, neither of these two legal experts has any background in LOAC issues, and no member of the three-person commission has any military experience to speak of. Once again, the UN made sure to populate the committee with members who would have no capability (or interest) to listen to military or LOAC-based arguments. I actually made this comment to the COI members when I appeared before them, as I was explaining some fundamental Law of War principles. To their credit, none of them denied their lack of expertise in this field.

Now, I am a firm believer in the old maxim: “once is happenstance; twice is coincidence; three times is enemy attack.” I do not believe it a coincidence or accident that, in all three commissions set up by the UN to investigate allegations of Israeli wrongdoing over the last 13 years, they have not seen fit to appoint even one member with LOAC expertise or experience. And while the potential pool of international experts is admittedly relatively limited, I am quite confident that, had they wanted to, they could have found an appropriate LOAC specialist who would have readily agreed to join the Commission.

On the contrary, I am confident that this recurring appointment methodology reflects an intentional decision on behalf of certain UN bodies not to appoint members who may not see eye to eye with the pro human rights law agenda, and to shift the legal "balance of power" from LOAC (which is widely viewed in such circles as providing governments with too wide-ranging powers in times of war) to human rights (which focuses much more on victim's rights). Now, don't get me wrong, I believe human rights are of extreme importance. I am just unable to accept that national security is no longer a legitimate consideration of policy and law.

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To sum up my three posts, the COI drafters went to great lengths to generate the perception of even-handedness and balance, with the specific intention that its readers would, when comparing this report to the Goldstone Report of 2009, come to the conclusion that the newer document is much more reasonable.

On closer inspection, however, and when reviewed from a big picture perspective, I find that the 2015 COI Report is a very cleverly written document, specially structured and crafted to promote three separate agendas: the delegitmization of Israel; the advancement of an ICC investigation against Israel; and the support of the supremacy of human rights law over the laws of war. Needless to say, I am not a supporter of any of these three goals.