UN Gaza war crimes report may bolster Palestinians’ ICC case, experts say

The report also questioned the indiscriminate nature of projectiles fired by Hamas and other armed groups in Gaza into Israel.

George Bisharat, a professor at the University of California, Hastings College of the Law who has an expertise in law and politics in the Middle East, said that it is “sheer nonsense” to equate the crimes allegedly committed on both sides.

Katherine Gallagher, senior staff attorney at the Center for Constitutional Rights agreed, saying, “certainly the commission sought to present a holistic picture but just because it’s holistic doesn’t mean it’s an equal picture.”

“The number of civilians killed in Gaza was simply unprecedented — this is a traumatized society facing its third military assault in five years and living under blockade,” Gallagher said.

The International Criminal Court Office of the Prosecutor said in an emailed statement that its investigation was independent and impartial, and that it is gathering information from “multiple reliable sources, which will assist it in arriving at a fully informed decision at the end of the process.”

The office added that it would review the U.N. report in the context of its preliminary examination into possible war crimes.

The fact that the U.N. report leveled allegations against both sides made it easier for the ICC to accept the findings, and may bolster any case against Israeli war crimes brought by the PA, Bisharat said.

After Israel’s Operation Cast Lead in Gaza in 2008-09, the U.N. Human Rights Council conducted a separate official inquiry, known as the Goldstone Report. It also alleged serious violations by both sides, which Israel and Hamas were urged to investigate. The report was mired in controversy, however, and resulted in a negligible investigation by the Israeli side and none by Hamas. 

Bisharat said the ICC prosecutor's office may be more easily able to publicly accept this new U.N. report because it appears to draw more of an equivalence to the crimes of both sides. But, he added, it was important to keep in mind that “the gravity of Israel’s violations of international law are far greater than those of the Palestinians.”

Israel has dismissed the U.N. report as biased and a waste of time. The report recommended that Israel break with its “recent lamentable track record in holding wrongdoers responsible.”

The fact that Israel did not change its tactics in 51 days of fighting in Gaza in 2014, even after it was reported that most of those killed were civilians, also raises serious questions, Gallagher said.

Many of the crimes were blamed on rogue or low-level soldiers, as opposed to official strategy, which means there may be room and a need for the ICC to carry out its own investigation, Gallagher said.

On June 25, the Palestinian Authority will hand its file on Gaza to ICC Chief Prosecutor Fatou Bensouda and will detail alleged violations of international law, Palestinian Foreign Ministry Official Ammar Hijazi said.

“I hope the victims will get their day in court whether in The Hague or elsewhere,” Gallagher said. “That way we won’t have another report discussed more in political terms than legal terms, and hopefully it can break the cycle of impunity and the cyclical nature of these attacks.”