· Command responsibility: All four IDF reports of alleged war crimes investigations have assumed that general targeting policy was legal and only individual soldiers could have gone beyond the rules of engagement. The report wants investigations of top military and civilian leaders who set targeting policy. This is a major fault line, but Israel has support from a range of foreign military and top academics for its targeting policy.
· Comptroller got more relevant: The UNHRC probe‘s chairperson Mary McGowan-Davis is following the State Comptroller report on war policy-making to see if it addresses her concerns, not addressed in the IDF reports. That report just got a lot more important.
· Turkel Commission: The report and McGowan-Davis hone in on the lack of implementing ‘Recommendation 2’ of Israel’s quasi-government February 2013 Turkel Report on whether its self-investigating satisfies international law. She totally skipped over its conclusion that Israel’s apparatus meets international law requirements and zoned in on only which of the 18 recommendations made by Turkel to improve investigations have not been implemented. The state has been very slow with addressing some of these and this could be an issue since it was an Israel-sponsored group.
· Gaza blockade: The report repeatedly takes Israel to task for the blockade, though the previous UN Palmer Report said that the blockade did not violate international law. Serious blame for lack of Gaza reconstruction was placed on Israel due to the blockade, seemingly ignoring the blame that many UN officials have placed on donor countries for failing to send most of the funds they promised for reconstruction.
· Accepting ICC jurisdiction: The report demands Israel accede to the Rome Statute and accept International Criminal Court jurisdiction. A non-starter from the Israeli point of view.
· Explosive weapons: Judge McGowan-Davis makes a huge point of attacking Israel for use of explosive weapons in those parts of Gaza which are densely populated. But most of Gaza is densely populated and the IDF has said that Hamas intentionally and systematically abused civilian locations to fire rockets, hide weapons and undertake other attacks. The report does not seem to consider how else the IDF could fight Hamas under these circumstances.
· Defining military objectives – targeting residential buildings: There is a debate about whether the IDF had an overly wide definition of military objective, especially in targeting residential buildings. The report then recognizes that Hamas fought from civilian areas which can convert those areas into military objectives, but perplexingly seemed to say that Hamas’ actions do not modify the legal analysis or obligations for the IDF.
· Warnings: The report unequivocally declares “roof-knocking,” firing a missile without a warhead onto a roof so it will not explode, but will make a loud bang and scare civilians into evacuating before attacking with an armed missile, as ineffective. The Goldstone Report made the same declaration, but whereas there are many international critics of the policy, many foreign military figures and top military law academics have declared the tactic effective, or even cutting-edge and worthy of emulation.
· Israeli investigations of alleged war crimes: McGowan-Davis is highly specific demanding not only investigations, but essentially also indictments, convictions and even sufficiently serious punishments.
· Palestinian investigations of alleged war crimes: McGowan-Davis only demands that there be criminal proceedings with nowhere near the same specificity. This could be a more lenient hand and double-standard, or, in light of her harsh condemnation of Gazan indiscriminate rocket fire, it could be she realizes they have done nothing and nuanced demands only have a chance with Israel.
· IDF release of classified information: The IDF has been complimented by supporters for releasing unprecedented information in its four reports about the military situation on the ground. The report said that too little information has been released and while realizing the IDF may jeopardize its intelligence sources, essentially demands the IDF release far more information. This is a major fault line for judging borderline cases where civilians were killed.
· Proportionality: McGowan-Davis seems to imply that IDF was obligated to completely change targeting policy, including possibly refraining from using missiles and artillery mid-war, after initial casualty reports. This is another major fault line and whereas, she cites one case from an international war crimes tribunal supporting that idea, but there are counter-cases.
· Was Israel’s report of last week referenced: It was unclear whether the report would take into account Israel’s major report released last week. The report did add references to that report, though the reports disagree on a myriad of issues.