June 26, 2015
Number 06/15 #05
This Update brings readers two of the many critical responses to the report of the independent commission created by the UN Human Rights Council to examine last year’s Gaza conflict. It also calls attention to a bipartisan statement by 18 senior Washington policymakers and experts implicitly critical of where the US Administration is currently heading in the nuclear negotiations with Iran.
We first bring you a New York Times piece on the UNHRC report by Col. Richard Kemp – the former British commander in Afghanistan who garnered headlines in Australia last year when his Sydney University talk was disrupted by protesters. Kemp says the new report will provoke further violence and loss of life, and identifies a lack of knowledge of warfare as being behind many of the report’s endemic errors and biases. For Kemp’s discussion of both the flaws, and the profound negative consequences, of the report, CLICK HERE. More on the lack of military expertise on the commission and the consequences comes from Mitch Ginsburg of the Times of Israel.
Next up is a shorter summary of an important but longish analysis of the UNHRC report prepared by legal scholars associated with the highly-regarded non-partisan Brookings Institute in Washington. The summary comes from Yair Rosenberg of Tablet magazine, and he brings together some key representative quotes from the analysis by Benjamin Wittes and Yishai Schwartz of Brookings, who find that the whole inquiry was badly flawed from the start but was made worse by a tendency through the UNHRC report to make “assumptions about Israeli conduct with insufficient evidence” yet give “the benefit of the doubt to Hamas claims” it was not targeting civilians. For more on this important deconstruction, CLICK HERE. The full Brookings analysis can be accessed here.
Finally, this Update features an important statement by a bipartisan group of leading policymakers and experts apparently questioning where the US Administration is taking the nuclear negotiations with Iran. As the New York Times noted, what makes this statement particularly noteworthy is that six of the 18 signatories are actually former senior Obama Administration figures with significant roles in shaping policy on Iran – including former CIA head David Petraeus; Robert Einhorn, “State Department proliferation expert who helped devise and enforce the sanctions against Iran”; Gary Samore, “Mr. Obamas former chief adviser on nuclear policy” and Dennis Ross, “longtime Middle East negotiator who oversaw Iran policy at the White House during the first Obama term.” To read their carefully crafted consensus statement, which is getting considerable attention in Washington, CLICK HERE.
Readers may also be interested in:
- Detailed analysis of the UNHCR report from NGO monitor and top American law of war expert Prof. Geoffrey Corn.
- Other good comment on the UNHCR report from David Horovitz of the Times of Israel and the Wall Street Journal. Plus some analysis of the the report’s significance from top Israeli international law expert and recent visitor to Australia Pnina Shavit Baruch.
- Iranian Supreme Leader Ayatollah Ali Khamenei earlier this week gave a speech in which he drew seven red lines for a nuclear deal, some of which contradict what the Iranians had ostensibly previously agreed, and would appear to effectively gut the inspection regime under the agreement, as well as the idea of gradually lifting sanctions. Analysis of the significance of this comes from Nicholas Gallagher and Jonathan Toben – while the Ayatollah’s comments led to editorials in both the Washington Post and New York Times.
- Plus, evidence that the supposedly more moderate Iranian President Hassan Rouhani is backing up Khamenei’s hardline nuclear deal stances in his public statements.
- A report that US forces and Iranian-backed Shi’ite militias in Iraq are now sharing a base there. Comment on the significance of this comes from Max Boot.
- Isi Leibler writes about former Israeli Ambassador to the US Michael Oren’s revelations about the Obama Administration’s attitude toward Israel in his new book, and how American Jews should react.
By RICHARD KEMP
New York Times, June 25, 2015
LONDON As a British officer who had more than his share of fighting in Afghanistan, Iraq and the Balkans, it pains me greatly to see words and actions from the United Nations that can only provoke further violence and loss of life. The United Nations Human Rights Council report on last summers conflict in Gaza, prepared by Judge Mary McGowan Davis, and published on Monday, will do just that.
The report starts by attributing responsibility for the conflict to Israels protracted occupation of the West Bank and the Gaza Strip, as well as the blockade of Gaza. Israel withdrew from Gaza 10 years ago. In 2007 it imposed a selective blockade only in response to attacks by Hamas and the import of munitions and military matériel from Iran. The conflict last summer, which began with a dramatic escalation in rocket attacks targeting Israeli civilians, was a continuation of Hamass war of aggression.
In an unusual concession, the report suggests that Hamas may have been guilty of war crimes, but it still legitimizes Hamass rocket and tunnel attacks and even sympathizes with the geographical challenges in launching rockets at Israeli civilians: Gazas small size and its population density make it particularly difficult for armed groups always to comply with the requirement not to launch attacks from civilian areas.
There is no such sympathy for Israel. Judge Davis accuses the Israel Defense Forces of serious violations of international humanitarian law and international human rights law. Yet no evidence is put forward to substantiate these accusations. It is as though the drafters of the report believe that any civilian death in war must be illegal.
Referring to cases in which Israeli attacks killed civilians in residential areas, Judge Davis says that in the absence of contrary information available to her commission, there are strong indications that the attacks were disproportionate, and therefore war crimes. But all we get is speculation and the presumption of guilt.
The report is characterized by a lack of understanding of warfare. That is hardly surprising. Judge Davis admitted, when I testified before her in February, that the commission, though investigating a war, had no military expertise. Perhaps that is why no attempt has been made to judge Israeli military operations against the practices of other armies. Without such international benchmarks, the reports findings are meaningless.
The commission could have listened to Gen. Martin E. Dempsey, chairman of the United States Joint Chiefs of Staff, who said last November that the I.D.F. had taken extraordinary measures to try to limit civilian casualties. Or to a group of 11 senior military officers from seven nations, including the United States, Germany, Spain and Australia, who also investigated the Gaza conflict recently. I was a member of that group, and our report, made available to Judge Davis, said: None of us is aware of any army that takes such extensive measures as did the I.D.F. last summer to protect the lives of the civilian population.
The report acknowledges that Israel took steps to warn of imminent attacks but suggests more should have been done to minimize civilian casualties. Yet it offers no opinion about what additional measures Israel could have taken. It even criticizes Israel for using harmless explosive devices the knock on the roof as a final warning to evacuate targeted buildings, suggesting that it created confusion. No other country uses roof-knocks, a munition developed by Israel as part of a series of I.D.F. warning procedures, including text messages, phone calls and leaflet drops, that are known to have saved many Palestinian lives.
Judge Davis suggests that the I.D.F.s use of air, tank and artillery fire in populated areas may constitute a war crime and recommends further international legal restrictions on their use. Yet these same systems were used extensively by American and British forces in similar circumstances in Iraq and Afghanistan. They are often vital in saving the lives of our own soldiers, and their curtailment would jeopardize military effectiveness while handing an advantage to our enemies.
The I.D.F. is not perfect. In the heat of battle and under stress its commanders and soldiers undoubtedly made mistakes. Weapons malfunctioned, intelligence was sometimes wrong and, as with all armies, it has some bad soldiers. Unnecessary deaths resulted, and these should be investigated and the individuals brought to trial if criminal culpability is suspected.
The reason so many civilians died in Gaza last summer was not Israeli tactics or policy. It was Hamass strategy. Hamas deliberately positioned its fighters and munitions in civilian areas, knowing that Israel would have no choice but to attack them and that civilian casualties would result. Unable to inflict existential harm on Israel by military means, Hamas sought to cause large numbers of casualties among its own people in order to bring international condemnation and unbearable diplomatic pressure against Israel.
Judge Daviss report is rife with contradictions. She acknowledges that Israeli military precautions saved lives, yet without foundation accuses decision makers at the highest levels of the government of Israel of a policy of deliberately killing civilians. Incredibly, she regrets that her commission was unable to verify the use of civilian buildings by Palestinian armed groups, yet elsewhere acknowledges Hamass widespread use of protected locations, including United Nations schools.
Most worrying, Judge Davis claims to be fully aware of the need for Israel to address its security concerns while demanding that it lift, immediately and unconditionally, the blockade on Gaza. Along with the reports endorsement of Hamass anti-Israel narrative, this dangerous recommendation would undoubtedly lead to further bloodshed in both Israel and Gaza.
Richard Kemp, a retired British Army colonel, is former Commander of British Forces in Afghanistan.
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The commission all but admits that it lacked the information to draw the conclusions it drew
Earlier this week, a United Nations Human Rights Council commission released a report on last summers Gaza war, which suggested that both Israel and Hamas had committed war crimes during the hostilities. Given that the report is 184 pages long, initial media write-ups of it understandably focused on general takeaways, and quoted much from the briefs executive summary rather than its actual, specific contents. But as experts have gotten the chance to read through the entire report, more in-depth analyses are beginning to emerge, with the most detailed and damning coming today from The Lawfare Blog, a partner project of the Brookings Institution.
The authors of Lawfares analysis, Brookings senior fellow Benjamin Wittes and Lawfare associate editor Yishai Schwartz, do not mince words: The UN Human Rights Councils Independent Commission of Inquiry report on the 2014 Gaza war, released Monday, is a bad piece of workbad in almost entirely predictable and boring ways, but no less bad for being bad and predictable, they write.
To begin with, they argue, the entire investigation was fatally flawed from the outset, when both Israel and Hamas refused to cooperate with it:
The commissions job here was impossible. It is impossible rigorously to analyze whether a given strike or set of strikes complies with [international humanitarian law] without a detailed investigation of what the operators and commanders in the moment knew and why they decided to act as they did. It is always tempting to look at large numbers of dead civilians and assume that the fact of the bodies implicates a targeting decision. But thats rarely right. Without knowing whom the target was, what calculations as to civilian deaths commanders made, and what the expected military advantage of the strike was, a rigorous investigation simply cant be done
The instinct of both Hamas and the Israelis to decline the privilege of addressing the commissions concerns is understandable, though for different reasons. Hamas, having an entire strategy built around violation of IHL, cannot answer questions about its conduct without implicating itself. Israel, meanwhile, has a deep and well-founded suspicion of UN activity, particularly activity of the Human Rights Council. And there was reason to expect this commission to be worse than earlier ones, not better. The result was that the commission was left making judgments based on a combination of the public record and interviews with victims about matters the merits of which centrally depend on the viewpoints of commanders and operators. Theres no way to do this well.
There are a lot ways, however, to do it badly.
The analysts proceed to comb through the report in careful detail, outlining how it repeatedly makes assumptions about Israeli conduct with insufficient evidence, and gives the benefit of the doubt to Hamass claims that they were not targeting civilianscontrary to the terrorist groups own statements during the war.
Crucially, the authors note that the UN report largely ignores the implications of Hamas situating itself within Gazas population centers. This factwhich is not denied, only pushed aside, by the reportis essential for understanding why Israel targeted various structures in Gaza, and whether or not those strikes were justified. But the report is largely uninterested in such questions:
There are 667 paragraphs in the commissions report, yet only 18 of them deal with the use of civilian infrastructure by Hamas for military purposesstarting with paragraph 466 (on page 123). Thats not because the commission concludes that Hamas did not, in fact, launch attacks from houses, schools, mosques, and the like. To the contrary, while it finds that it was unable to verify the extensive Israeli allegations of such behavior because of both Israels denying the commission access to Gaza and Palestinian witnesses fear of reprisal by armed groups and the local authorities if they provided information, the commission did verify certain patterns of behavior. These included firing rockets from downtown Gaza, placing command and control centers and tunnel entrances in civilian buildings, and firing from close proximity to hospitals, shelters, religious sites, and school. As the commission notes, the obligation to avoid to the maximum extent possible locating military objectives within densely populated areas was not always complied with.
This sentence appears on page 127, and that actually says a lot. The conduct of Hamas does not in any way shape the reports evaluation of Israeli targeting or alter the way the authors look at Israeli conduct. When the commission describes a residence as prima facie not a valid military target, which it does repeatedly in assuming that attacks on houses that kill civilians are presumptively failures of discrimination, that is hard to justify in the context of a conflict in whichas the commission finally admitsHamas often used civilian protected objects for military purposes and it does not appear that this behavior was simply a consequence of the normal course of military operations.
In a more rigorous report, Hamass tactics would be the fundamental lens through which Israeli conduct got analyzed. When one side systematically violates the rules designed to protect civilians, after all, and a lot of civilians then get killed, those systematic violations have to be central to the inquiry into the reasons for those civilian deaths. In this report, those systematic violations are an afterthought. And somewhat shockinglyand very tellinglythey are also entirely absent from the reports conclusions and recommendations.
You can read the entire analysis at Lawfare here.
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Public Statement on U.S. Policy Toward the Iran Nuclear Negotiations Endorsed by a Bipartisan Group of American Diplomats, Legislators, Policymakers, and Experts
June 24, 2015
Over the last three years, members of this bipartisan group have convened regularly under the auspices of The Washington Institute for Near East Policy to discuss the status of the Iran nuclear issue, frequently benefitting from the input of current Administration officials. Last week, at its most recent meeting, the group determined that it could usefully contribute to the public debate on the ongoing negotiations by presenting its consensus view of critical issues.This statement reflects that broad consensus.
The Iran nuclear deal is not done. Negotiations continue. The target deadline is June 30. We know much about the emerging agreement. Most of us would have preferred a stronger agreement.
The agreement will not prevent Iran from having a nuclear weapons capability. It will not require the dismantling of Irans nuclear enrichment infrastructure. It will however reduce that infrastructure for the next 10 to 15 years. And it will impose a transparency, inspection, and consequences regime with the goal of deterring and dissuading Iran from actually building a nuclear weapon.
The agreement does not purport to be a comprehensive strategy towards Iran. It does not address Irans support for terrorist organizations (like Hezbollah and Hamas), its interventions in Iraq, Syria, Lebanon, and Yemen (its regional hegemony), its ballistic missile arsenal, or its oppression of its own people. The U.S. administration has prioritized negotiations to deal with the nuclear threat, and hopes that an agreement will positively influence Iranian policy in these other areas.
Even granting this policy approach, we fear that the current negotiations, unless concluded along the lines outlined in this paper and buttressed by a resolute regional strategy, may fall short of meeting the administrations own standard of a good agreement.
We are united in our view that to maximize its potential for deterring and dissuading Iran from building a nuclear weapon, the emerging nuclear agreement must in addition to its existing provisions provide the following:
- Monitoring and Verification: The inspectors of the International Atomic Energy Agency (the IAEA) charged with monitoring compliance with the agreement must have timely and effective access to any sites in Iran they need to visit in order to verify Irans compliance with the agreement. This must include military (including IRGC) and other sensitive facilities. Iran must not be able to deny or delay timely access to any site anywhere in the country that the inspectors need to visit in order to carry out their responsibilities.
- Possible Military Dimensions: The IAEA inspectors must be able, in a timely and effective manner, to take samples, to interview scientists and government officials, to inspect sites, and to review and copy documents as required for their investigation of Irans past and any ongoing nuclear weaponization activities (Possible Military Dimensions or PMD). This work needs to be accomplished before any significant sanctions relief.
- Advanced Centrifuges: The agreement must establish strict limits on advanced centrifuge R&D, testing, and deployment in the first ten years, and preclude the rapid technical upgrade and expansion of Iran’s enrichment capacity after the initial ten-year period. The goal is to push back Irans deployment of advanced centrifuges as long as possible, and ensure that any such deployment occurs at a measured, incremental pace consonant with a peaceful nuclear program.
- Sanctions Relief: Relief must be based on Irans performance of its obligations. Suspension or lifting of the most significant sanctions must not occur until the IAEA confirms that Iran has taken the key steps required to come into compliance with the agreement. Non-nuclear sanctions (such as for terrorism) must remain in effect and be vigorously enforced.
- Consequences of Violations: The agreement must include a timely and effective mechanism to re-impose sanctions automatically if Iran is found to be in violation of the agreement, including by denying or delaying IAEA access. In addition, the United States must itself articulate the serious consequences Iran will face in that event.
Most importantly, it is vital for the United States to affirm that it is U.S. policy to prevent Iran from producing sufficient fissile material for a nuclear weapon or otherwise acquiring or building one both during the agreement and after it expires. Precisely because Iran will be left as a nuclear threshold state (and has clearly preserved the option of becoming a nuclear weapon state), the United States must go on record now that it is committed to using all means necessary, including military force, to prevent this. The President should declare this to be U.S. policy and Congress should formally endorse it. In addition, Congressional review of any agreement should precede any formal action on the agreement in the United Nations.
Without these features, many of us will find it difficult to support a nuclear agreement with Iran.
We urge the U.S. administration not to treat June 30 as an inviolable deadline. Stay at the negotiating table until a good agreement that includes these features is reached. Extend the existing Joint Plan of Action while negotiations continue. This will freeze Irans nuclear activity and international sanctions at current levels. While the United States should extend the Iran Sanctions Act so it does not expire, it should not increase sanctions while negotiations continue. U.S. alternatives to an agreement are unappealing, but Irans are worse. It has every incentive to reach an agreement and obtain relief from sanctions and international isolation well in advance of its elections next February. If anyone is to walk out of the negotiations, let it be Iran.
Some argue that any nuclear agreement now simply further empowers bad Iranian behavior. And there is a lot to this argument. This is why we believe that the United States must bolster any agreement by doing more in the region to check Iran and support our traditional friends and allies.
This does not mean major U.S. ground combat operations in the Middle East. But it does mean taking initiatives like the following:
- In Iraq: Expand training and arming not only of Iraqi Security Forces but also Kurdish Peshmerga in the north and vetted Sunni forces in the West. Allow U.S. Special Forces to leave their bases and help coordinate air strikes and stiffen Iraqi units. Sideline Iranian-backed militia and separate them from Shiite units (popular mobilization units) that are not under Iranian control.
- In Syria: Expand and accelerate the U.S. train and equip programs. Work with Turkey to create a safe haven in northern Syria where refugees can obtain humanitarian aid and vetted non-extremist opposition fighters can be trained and equipped. Capitalize on Bashar al-Assads increasing weakness to split off regime elements and seek to join them with U.S. trained opposition elements. Interdict the transshipment of Iranian weapons into Syria in coordination with the Kurds and Turkey, and consider designating as terrorist organizations Iranian-backed Shiite militias responsible for egregious atrocities.
- In Yemen: Expand support for Saudi Arabia and the UAE in pressuring the warring parties to the negotiating table while seeking to split the Houthi elements away from Iran.
- Regionally: Interdict Iranian arms bound for extremist groups and continue to counter its efforts to harass commercial shipping and our naval forces. Reaffirm U.S. policy to oppose Irans efforts to subvert local governments and project its power at the expense of our friends and allies.
Collectively, these steps also strengthen U.S. capability against Daesh (the misnamed Islamic State). Acting against both Iranian hegemony and Daeshs caliphate will help reassure friends and allies of Americas continued commitment. And it will help address Israel’s legitimate concerns that a nuclear agreement will validate Iran’s nuclear program, further facilitate its destabilizing behavior, and encourage further proliferation at a time when Israel faces the possible erosion of its “qualitative military edge. We urge the U.S. administration to create a discreet, high-level mechanism with the Israeli government to identify and implement responses to each of these concerns.
Taking the actions we propose while the nuclear negotiations continue will reinforce the message that Iran must comply with any agreement and will not be allowed to pursue a nuclear weapon. This will increase, not decrease, the chance that Iran will comply with the agreement and may ultimately adopt a more constructive role in the region. For the U.S. administrations hopes in this respect have little chance so long as Irans current policy seems to be succeeding in expanding its influence.
Graham Allison, director of the Belfer Center for Science and International Affairs, Harvard University
Howard Berman, U.S. House of Representatives (D-CA), 1983-2013
Robert Blackwill, deputy assistant to the president and deputy national security advisor for strategic planning under President George W. Bush, 2003-2004
General James Cartwright, vice chairman of the Joint Chiefs of Staff, 2007-2011
Patrick Clawson, Morningstar Senior Fellow, director of research, The Washington Institute
Paula J. Dobriansky, undersecretary of state for global affairs, 2001-2009
Robert Einhorn, special advisor to the Secretary of State for nonproliferation and arms control, 2009-2013
Norman Eisen, U.S. ambassador to the Czech Republic, 2011-2014
Michael Eisenstadt, Kahn Fellow, director of the Military and Security Studies Program, The Washington Institute
Stephen Hadley, national security advisor to President George W. Bush, 2005-2009
Olli Heinonen, deputy director general of the International Atomic Energy Agency, 2005-2010
James Jeffrey, U.S. ambassador to Iraq, 2010-2012, deputy national security advisor to President George W Bush, 2007-2008. Philip Solondz Distinguished Fellow, The Washington Institute
Joseph Lieberman, U.S. Senate (I-CT), 1989-2013
David Makovsky, senior policy advisor to the U.S. special envoy for Israeli-Palestinian negotiations (2013-2014). Ziegler Distinguished Fellow and director of the Project on the Middle East Peace Process, The Washington Institute
David Petraeus, director of the Central Intelligence Agency, 2011-2012
Dennis Ross, special assistant to President Obama and National Security Council senior director for the central region, 2009-2011. Counselor and William Davidson Distinguished Fellow, The Washington Institute
Gary Samore, coordinator for arms control and weapons of mass destruction under President Obama, 2009-2013
Robert Satloff, Howard P. Berkowitz Chair in U.S. Middle East Policy and executive director, The Washington Institute
This statement reflects the broad consensus of the group; not every member of the group endorses every judgment or recommendation. Members of the group endorse this statement in their personal capacities; institutional affiliations are for identification purposes only. This statement has not been endorsed by the Washington Institute for Near East Policy, its Board of Trustees or its Board of Advisors, and it should not be construed as representing their views.