An outside observer could be forgiven for concluding that Israel must have had something to hide in Jenin. Why else did it suddenly refuse to cooperate with a U.N. fact-finding commission to which it had previously consented? And why else would it have demanded that Israelis testifying to the commission be promised immunity from prosecution?
Israel’s explanation — that U.N. Secretary-General Kofi Annan had designed a commission so slanted as to be virtually incapable of returning any finding but guilty — seems too paranoid for belief. And yet, there appears to be sound basis for that fear — even after cancellation of the probe was announced Wednesday.
To start with, even if one could overlook the United Nations’ normal anti-Israel bias, it was hard to believe in the objectivity of a fact-finding commission when the same United Nations that would have sent the commission had already, without waiting for its conclusions, passed a resolution condemning Israel for “mass killings” of Palestinians in Jenin. Yet that was precisely what the U.N. Human Rights Commission did April 22, three days after the Security Council approved the fact-finding mission.
What also promised to be problematic was the presumed presence of Cornelio Sommaruga, former head of the International Red Cross, as one of the three commission members. Reports that he had made anti-Semitic statements in the past, such as comparing the Star of David to a swastika, were obviously troubling.
Yet even discounting those reports, the fact remained that as head of the Red Cross, he approved and publicly defended the organization’s singling out of Israel as the only country in the world whose emergency medical service is denied membership. In any court of law, such evidence of bias would have disqualified Sommaruga from the jury.
Paradoxically, however, the most serious problem of all was that the facts of the case were not actually in dispute. The Palestinian charge of a massacre had already been discredited, and Israel had never denied the other allegations: Buildings were damaged and destroyed, some civilians were accidentally killed and people’s civil rights (such as freedom of movement) were violated. Such actions are inevitable when pitched battles are fought in built-up areas. The debate, however, was not over what happened but over how to construe it: as legitimate military action or a war crime.
What distinguishes the former from the latter is not the objective scope of the destruction: Large-scale battles usually cause great damage but may still be perfectly legitimate. Rather, it is the proportionality of the destruction, as measured by three critical questions:
*Did the operation have a valid military objective, or was its purpose merely to cause pain to the enemy population?
*Was the property damage and curtailment of residents’ rights commensurate with the needs of the operation, or did the army engage in wanton destruction and repression?
*Were reasonable precautions taken to minimize civilian casualties, or were civilians considered fair game?
The answers to all of these questions require fairly specialized military knowledge. The first involves evaluating the extensive intelligence data that led Israel to conclude that the refugee camp was a base for terrorist groups that murdered dozens of Israelis, and therefore a legitimate military target.
The second requires determining whether, given the scope of the Palestinians’ resistance — they killed 23 Israeli oldiers while roughly losing twice that number themselves — the Israel Defense Force could, with reasonable certainty, have achieved its objectives with less collateral damage to the environment, without also exposing its forces to unacceptable risks.
The third requires determining whether, in light of the armed resistance, the IDF’s precautions against civilian casualties were consistent with reasonable military concern for its own soldiers’ safety.
Yet none of the three commission members that were appointed by Annan — the former president of Finland, Martti Ahtisaari; former U.N. high commissioner of refugees, Sadako Ogata; and Sommaruga — had the requisite experience and expertise to even begin to answer any of those questions. (The panel’s one military expert, though upgraded last week from mere adviser status, had not become a full member). Indeed, Ogata and Sommaruga had been conditioned by training against even asking such questions.
For humanitarian relief agencies, whether the damage was commensurate with military necessity is irrelevant; what matters is its objective scope. But since Israel’s defense rested entirely on the claim that the destruction was commensurate with the needs of a legitimate military operation, a commission incapable of, or uninterested in, considering the validity of this claim could only have found it guilty.
Altogether, therefore, there was depressingly strong evidence for the conclusion reached last week by Daniel Bethlehem, an expert in international law from England’s Cambridge University: The commission was coming not to ascertain the facts but to prepare the ground for war crimes indictments the United Nations has already decided upon. And if so, Israel’s refusal to cooperate was eminently proper.