Analysis of the U.N. Report on 2014 Gaza Conflict: The Distorting Effect of Flawed Foundations

By Professor Geoffrey Corn, USA (ret.)
Senior Advisor at JINSA’s Gemunder Center for Defense and Strategy

By Professor Geoffrey Corn, USA (ret.)
Senior Advisor at JINSA’s Gemunder Center for Defense and Strategy

The U.N. Human Rights Commission Report on the 2014 Gaza Conflict (what the Israeli Defense Forces designated as Operation Protective Edge) includes findings that both Hamas and the IDF violated the law of armed conflict (LOAC); that the IDF violated human rights obligations; and that many of these violations appear to qualify as war crimes. Analysis of the Report indicates the findings related to Hamas LOAC violations are unjustifiably qualified, while the findings of IDF LOAC violations are not sufficiently supported by facts, expertise, or law. A summary of key concerns includes:

• A disproportionate focus on IDF alleged LOAC violations in comparison to Hamas violations.

• A failure to consider each belligerent party’s overall commitment, or lack thereof, to LOAC compliance as a factor when assessing the credibility of allegations of individual incidents of violation.

• Numerous condemnations for violating LOAC rules that regulate the conduct of hostilities without comprehensive consideration of the tactical and operational considerations that frame implementation of these rules.

• A failure to acknowledge and consider the consequence of engaging an enemy who routinely and deliberately violates the fundamental LOAC principle of distinction by commingling with the civilian population in order to gain tactical advantage.

• A failure to analyze the weight of the presumption of civilian status in the context of a complex urban battle against an enemy that deliberately refuses to distinguish itself from the civilian population.

• A cryptic reference to “a military expert” who provided support for most of the findings, with no indication of the source of this individual’s expertise or affiliations.

• An overall failure to consider the publicly-available reviews of the conduct of IDF and Hamas operations by highly experienced experts in military operations and LOAC implementation.

• A condemnation of Israel for failure to cooperate with the Commission, with no consideration of the extensive report prepared by the IDF on the operation and made available to the public prior to release of this report.

• Reliance on erroneous interpretations of applicable LOAC rules and principles.

• Conclusions related to compliance with LOAC rules and principles unsupported by operational logic or past practice.

• A false assumption that failure by national authorities to progress from initial investigation to prosecution indicates the invalidity of the national accountability process.

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Prof. Geoffrey Corn, USA (ret.) is a Senior Advisor at JINSA’s Gemunder Center for Defense and Strategy and the Army’s former senior law of war expert in the Office of the Judge Advocate General.