Margulies, Peter

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Roger Williams UniversityDOCS@RWULaw Faculty Scholarship Law Faculty Scholarship7-28-2016Lessons from Gaza: The Rhetoric and Reality ofIndependence in War Crimes InvestigationsPeter MarguliesRoger Williams University School of LawFollow this and additional works at: https://docs.rwu.edu/law_fac_fsPart of the Military, War, and Peace CommonsThis Article is brought to you for free and open access by the Law Faculty Scholarship at DOCS@RWU. It has been accepted for inclusion in LawFaculty Scholarship by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationPeter Margulies, Lessons from Gaza: The Rhetoric and Reality of Independence in War Crimes Investigations, Lawfare ( July 28, 2016,3:40 PM), https://www.lawfareblog.com/lessons-gaza-rhetoric-and-reality-independence-war-crimes-investigationsOMPHALOSLessons from Gaza: The Rhetoric and Reality of Independence in War CrimesInvestigationsBy Peter Margulies  Thursday, July 28, 2016, 3:40 PMCritics of state investigations of alleged violations of the law of armed con¾ict (LOAC) often accuse those inquiries of being insuf½cientlyindependent from the chain of command. Medicins Sans (MSF, also known as Doctors Without Borders) raised this argument about therecently completed—and exhaustive—U.S. investigation into the October 2015 bombing of a MSF facility in Kunduz, Afghanistan. (See myaccount here and Geoff Corn and Rachel Vanlandingham’s analysis here). And earlier in July, Amnesty International leveled a similar chargeagainst Israel’s efforts to investigate LOAC violations during 2014’s Operation Protective Edge in Gaza. But a careful review of LOACsuggests that the situation is more complex than Amnesty’s rhetoric reveals.Israel has taken substantial structural steps toward independence in LOAC investigations. Independence in investigations is not an end itself—its primary purpose under LOAC is the promotion of effective, timely, and accurate investigation of war crimes allegations. Earlier thismonth, I visited Israel with a diverse group of U.S. international law scholars and was struck by the robust exchange of views on the topic.(Disclosure: that trip was sponsored by the American Association of Jewish Lawyers and Jurists, Scholars for Peace in the Middle East, andthe Israeli Ministry of Foreign Affairs).To assess the independence of an investigation, it is necessary to de½ne independence. Mike Schmitt has suggested that, under LOAC,independence is narrowly de½ned as standing outside a particular operation’s chain of command. The principle of independence underLOAC does not disqualify a state from reviewing allegations about the misconduct of that state’s forces. In the Kunduz case, MSF argued thatthe U.S. should have relinquished control to a little-known, never used transnational mechanism, the International Humanitarian Fact-Finding Commission. However, international law assumes that states are competent to investigate alleged abuses involving their own forces.The principle of complementarity holds that states, which after all make international law, should have the authority to address their ownLOAC violations unless such states default in their duties. That authority is an incident of state sovereignty. Moreover, a contrary view wouldlet states off the hook, inhibiting the development of robust state investigatory capabilities. The world has turned to ad hoc tribunals likethe Nuremberg Tribunals and the International Criminal Tribunal for the Former Yugoslavia (ICTY) when the volume and scale of widelyacknowledged atrocities and the absence of a state response called out for such a forum. And the International Criminal Court (ICC) can stepin today to prosecute matters when a state brought within the ambit of the ICC’s governing Rome Statute has failed to ful½ll its ownresponsibilities. However, state investigations are the default setting for LOAC violations.As Schmitt observes, the LOAC principle of independence also does not require civilian investigations of alleged military abuses. Civilianconduct of investigations may hinder their ef½ciency and accuracy, since civilians lack a ½rm background in tactics, munitions, personnel,and the exigencies of combat. Rather, LOAC merely requires that an investigative team is free from the operational chain of command forthe action at issue. This is common sense; LOAC does not permit commanders to handcuff investigations to insulate his or her owndecisions from accountability. However, beyond that basic principle, states have a measure of discretion in structuring their investigativeapparatus. When courts such as the European Court of Human Rights (ECHR) have gone further, that broadened reading of independencehas relied on binding domestic law, such as the European Convention, not on LOAC itself.Contrary to the recent Amnesty International report, Israel reinforces independence far more concretely than most other states. Israel hasrepeatedly welcomed outside scrutiny, including the Turkel Commission, a group of prominent Israeli jurists and scholars including a formerSupreme Court justice, aided by international experts such as Australia’s Tim McCormack and Canada’s Ken Watkin. Israel invited this groupto study its investigative process after the ill-fated Gaza ¾otilla raid of 2010. The Turkel Commission found that in most material respects,Israel’s process met the independence criterion. For example, as Israel’s 2014 report indicated, the investigative decisions made by the IDF’sMilitary Advocate General (MAG) are reviewable by the Attorney General (AG), a cabinet of½cial outside the chain of command. Moreover,the AG’s decisions are in turn reviewable by the Israeli Supreme Court, a vigorous body that has forthrightly stated that “the combatoperations of the IDF do not take place in a normative vacuum.” (Physicians for Human Rights v. Prime Minister, Para. 11 (2009)). Israel’sSupreme Court has followed up on this observation with concrete interventions that would be unthinkable under the U.S. Supreme Court’sfar more deferential regime. For example, Israel’s Supreme Court has imposed constraints on the IDF’s criteria for targeting suspectedterrorists (see Schmitt and John Merriam on IDF extensive targeting protocols). The prospect of the Israeli Supreme Court’s robust review,facilitated by the Court’s broad grants of standing to residents of the West Bank or Gaza as well as Israel proper, acts as an additional ex antecheck on military discretion.Omphalos: Middle East Con»ict in PerspectiveFollowing publication of the Turkel Report, an Israeli interagency team, headed by Dr. Joseph Ciechanover (who had served as GeneralCounsel to the Ministry of Defense and Director General of the Ministry of Foreign Affairs) and comprised of representatives from the IDFand Ministry of Justice, recommended further safeguards. All of the Ciechanover team’s recommendations were approved by Israel’s cabinetearlier in July. A central change was provision for a Fact-Finding Assessment (FFA) of “exceptional incidents” involving alleged loss ofcivilian life. (See the interagency report here.) The IDF started using the FFA Mechanism during the 2014 Gaza campaign, before issuance ofthe Ciechanover report. Teams of active duty and reserve military personnel from a variety of disciplines, including law, conduct the FFA.Each FFA works outside the chain of command for the operation under review.Turkel also urged steps toward further independence in the selection of the MAG. (p. 389) As the Turkel process unfolded, the Israelinteragency report added a civilian element here, requiring that the AG consent to each MAG’s appointment. This feature is not required byLOAC, as state practice shows; the U.S., for example, has no comparable provision. Turkel made another suggestion: a “Public-ProfessionalCommittee” to select the MAG. After much deliberation, the Israeli government wisely decided against implementing this idea.The public-professional committee would have frayed the fabric of accountability that independence is designed to protect. The committeewould have been composed largely if not exclusively of civilians, whose only military experience might have been the mandatory servicerequired of all Israelis. Such a group would have lacked the nuanced understanding of combat necessary to gauge whether a particularcandidate for the MAG can do the job. Moreover, the military investigation process depends as much on the trust accorded it by militarypersonnel as it does on respect for the MAG’s authority. That trust aids the MAG in addressing the challenges of LOAC investigations,including gathering evidentiary leads and testimony, much of which must come from IDF personnel. Further civilian involvement could haveundermined this trust, diminishing the MAG’s investigative ef½cacy.While a civilian-driven appointment procedure has precedent in other common law states, it would be a marked departure from the U.S.experience. The U.S. does not replicate many of the IDF’s safeguards on independence, such as appealability to the AG and the SupremeCourt. However, in spite of these limits, the U.S. has long had a robust system of military justice, capable of generating unsparing reports likethe recent comprehensive analysis of the Kunduz attack. (See Jens David Ohlin here and Kevin Jon Heller here on the U.S. Kunduz report.) Tobe sure, the U.S. has had gaps in LOAC compliance, most infamously the “torture memos” issued by the Justice Department after 9/11.However, those discredited opinions were the product of civilian agendas. In contrast, in Israel, the Supreme Court checks both civilianleaders and the IDF.Critics of military LOAC investigations seriously underestimate the dif½culties inherent in investigating alleged war crimes. Preservingevidence under battle½eld conditions is an arduous task, while witnesses in locations such as Gaza may be subject to intimidation by Hamasand other terrorist groups. Outside observers have a troubled track record when it comes to Israel’s Gaza campaigns. For example, thenotoriously ¾awed Goldstone Commission investigation has drawn much critical commentary. All too often, these outside reports, such asthe McGowan Davis report for the U.N. Human Rights Council, have failed to adequately acknowledge the challenges that Israel faces in½ghting terrorist entities such as Hamas.The history of international tribunals reviewing tactical decisions in armed con¾icts is also troubled. In the Gotovina case, the ICTY AppealsChamber vacated a conviction of a Croatian general who had captured a town held by Serbian forces. The prosecution had sought toretrospectively micro-manage the general’s tactics, asserting that any artillery shells that landed more than 220 yards from a speci½cmilitary target were evidence of a plot to harm civilians. The Appeals Chamber criticized the reduction of military tactics in an armedcon¾ict to a mechanical distribution chart. That reductive approach would subject all commanders to the smug tyranny of hindsight,undermining LOAC’s careful balance between humanity and military necessity. (See this article by Geoff and Gary Corn.)The perils of second-guessing tactical decisions should not obscure legitimate questions about particular episodes. (See my analysis here ofone such incident that the MAG is continuing to investigate: the shelling of a U.N. school in Beit Hanoun that resulted in the deaths ofcivilians who had taken refuge there.) Accurate and timely investigations of these incidents are vital for preserving the accountability atLOAC’s heart. When the MAG has declined to prosecute such incidents, it has furnished lucid explanations for its decisions. That lucidityequips Israel well in its interactions with international institutions such as the ICC.Israel’s critics are right on one point. Given the sheer number of military decisions in the 2014 Gaza campaign, common sense stronglysuggests that the IDF’s performance was not perfect. As human beings, IDF personnel are not immune from the pull of anger, fear, andhaste.However, neither imperfections nor grievous mistakes such as the U.S. Kunduz attack necessarily translate into war crimes. For commissionof a war crime, a culpable state of mind is an essential element. Article 8 of the ICC’s Rome Statute requires a showing of either intent toharm civilians or recklessness: ordering an attack with the knowledge that the resulting harm to civilians would be “clearly excessive inrelation to the … military advantage anticipated.” The high threshold for proof of a culpable state of mind is no accident. Rather, it is arecognition that a less demanding test would not adequately acknowledge the risk of harm that inevitably ¾ows from the fog of war. Because of the exigencies of armed con¾ict, assessing the adequacy of a state’s efforts to investigate alleged LOAC violations cannot bereduced to a mere statistical compilation of indictments. A responsible, professional military organization such as the IDF has a range ofremedies available for its soldiers’ mistakes, including the promulgation of “lessons learned” from wartime tragedies. A case in point: theMAG’s acknowledgment of the need to improve technological and intelligence capabilities to avoid a repetition of the deaths of four boys onthe beach during the 2014 Gaza campaign. One hopes that the U.S. will similarly re½ne its own systems to avoid a recurrence of thecatastrophic Kunduz attack. Any balanced assessment of Israel’s compliance with its international obligations should also take into accountits readiness to prosecute IDF personnel serving in the West Bank (for example in this manslaughter prosecution based on killing of awounded Palestinian). That willingness and reforms such as the FFA process that safeguard the MAG’s independence furnish strong evidenceof Israel’s adherence to LOAC norms. Topics: OmphalosTags: Israel, Palestinian AuthorityPeter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, NationalSecurity Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the BushAdministration (New York: NYU Press, 2010).

Lessons from Gaza: The Rhetoric and Reality of Independence in War Crimes Investigations

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Lessons from Gaza: The Rhetoric and Reality of Independence in War Crimes Investigations

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