The report by a Commission of Inquiry (COI) appointed by the United Nations Human Rights Council (UNHRC) to investigate Israel’s handling of the violent Hamas-orchestrated riots, beginning March 30 of last year, is marked by “flight from consistency and common sense,” two legal scholars argued in a paper published  Monday at the Lawfare blog.
Geoffrey S. Corn, a Professor of Law at South Texas College of Law, and Peter Margulies, a professor at Roger Williams University School of Law, argue that the COI “failed to acknowledge the complexity of conducting military security operations within the context of a mix of law-enforcement and belligerent-type threats.”
Rather the COI, they wrote, concluded “that almost all uses of force were unjustified.” Such a determination could be defended had “the IDF been confronting ‘peaceful’ civilians with no interest in engaging in violence.” But that was not the case.
“An abundance of evidence indicates that these events were anything but a peaceful civilian protest,” Corn and Margulies wrote, “most notably Hamas’s own acknowledgment of the objectives it sought to achieve by exploiting the civilians involved in the confrontations.”
The authors note the COI only took information from the Palestinian side, and failed to consider any contrary evidence, whether from public sources or from the IDF’s own investigation. Furthermore, they argue that there are two standards for the use of force. There is a more restrictive law-enforcement paradigm and a more permissive conduct-of-hostilities paradigm. In general, they asserted that the IDF operated with the more restrictive standard.
Corn and Margulies also observed that by defining the confrontations between Israel and the Hamas-led rioters as being civilian in nature, “the COI set the conditions for summarily dismissing legitimate operational and security concerns confronted by IDF commanders tasked with protecting Israeli territory.”
While they acknowledged that the use of lethal force is subject to limitations, they found that the COI “forfeited the opportunity to engage in a more credible assessment of this issue,” because it had adopted “an arbitrary position that only an actual breach could justify the use of lethal force.”
In their conclusion, Corn and Margulies warn that the COI’s “arbitrary” report “will only affirm ill-founded assumptions about the security operations conducted by the IDF last spring, and possibly spur fresh resort to dangerous confrontations by illicit actors such as Hamas.”
Earlier this week, Corn spoke  at a session in Geneva about the COI.
“By omitting from the UNHRC inquiry reports of the use of human shields by Hamas, the report incentivizes these terror tactics in the future, and the risk posed to the civilian population of Gaza is exacerbated,” Corn said, echoing the conclusion of the report at Lawfare. “If we are really concerned about mitigating harm done to civilians, we should be condemning Hamas’ actions and this report.”
[Photo: Israel Defense Forces / Flickr ]