Could independent probe find blame for deadly Gaza hospital strike?


The Middle East is at a boiling point as Israelis and Palestinians blame each other for the deadly strike at a Gaza City hospital that killed hundreds and wounded others seeking shelter there from Israel’s war against Hamas. Making it worse, the propaganda battle is raging online and on the airwaves, with both sides claiming to have evidence supporting their accusations.

Is there any kind of independent investigative team that can resolve the matter by cutting through the politics and examining the forensic evidence to find out who is responsible? The short answer is yes, but with some caveats.

“The essential point is that time is of the essence here for an accurate investigation of the site,” said David Scheffer, an international law expert who served as the first U.S. Ambassador-at-Large for War Crimes Issues. “You would need a Dream Team of forensic scientists skilled enough to look at the evidence on the ground and that which has been put forward by all sides, including Israel, the Biden administration and Hamas.”

Also, Scheffer told USA TODAY, given the superheated climate around Israel’s intensifying war with Hamas, “how would you create the team quickly that would be acceptable to both sides, so that it doesn’t ignite political fires given its composition?”

One option: The International Criminal Court, which has jurisdiction over the Palestinian territories, including Gaza, Scheffer said. But Israel would likely contest that, he said, given that it is not a party to the ICC. The United States might oppose that too, as it did in March 2021 when the top ICC prosecutor confirmed the opening of an investigation into potential atrocities committed in the territories.

“The United States firmly opposes and is deeply disappointed by this decision,” Secretary of State Antony Blinken said at the time. “The ICC has no jurisdiction over this matter. Israel is not a party to the ICC and has not consented to the Court’s jurisdiction, and we have serious concerns about the ICC’s attempts to exercise its jurisdiction over Israeli personnel.”

Then there’s a United Nations-affiliated Commission of Inquiry that already has been collecting evidence of war crimes committed by all sides in Israel and the Palestinian Territories since the Hamas attacks on Israel on Oct. 7. “There is already clear evidence that war crimes may have been committed in the latest explosion of violence in Israel and Gaza, and all those who have violated international law and targeted civilians must be held accountable for their crimes,” the UN Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel, said on Oct. 10.

Another option would be the International Commission of Jurists based in Geneva, which describes itself as a team of “60 eminent judges and lawyers from all regions of the world (that) promotes and protects human rights through the Rule of Law, by using its unique legal expertise to develop and strengthen national and international justice systems.”

“These are serious, professional, orderly people who could organize something like that,” said Scheffer, who is now a senior fellow at the Council on Foreign Relations with a focus on international law and international criminal justice.

There’s also the Commission for International Justice and Accountability, a non-profit, non-governmental organization “dedicated to furthering criminal justice efforts through investigations, in order to prevent the loss and destruction of vital evidence for the purpose of supporting prosecutorial efforts to end impunity, whether at the domestic or international level.”

And last but certainly not least, Scheffer said, would be a multinational team of government investigators and prosecutors. A similar team probed the politically-charged shootdown of Malaysia Airlines Flight 17 while flying over eastern Ukraine in 2014. It found Russian forces to be at fault in the deaths of all 298 people aboard. But the investigation wasn’t easy, and it took a long time.

“You would need them to quickly deploy though, because you can’t wait five, six months,” Scheffer said. “They’ve got to be on site, like, tomorrow.”

Here’s a look at what happened in that independent multinational investigation, which Scheffer said might offer a workable framework for the current crisis:

What happened to Flight MH17 and what led to the independent investigation?

Malaysia Airlines Flight 17 was shot down over eastern Ukraine on July 17, 2014. Within days, the Obama administration – and others – blamed Russia, which denied any involvement. Then-Secretary of State John Kerry said the U.S. believed MH17 was “shot down by a surface-to-air missile fired from separatist-controlled territory in eastern Ukraine.”

A Joint Investigation Team (JIT) was formed because at least several countries shared a common goal of finding out what happened and who was at fault, according to the government of the Netherlands, which headed the probe. One reason there was international support for an independent probe was Russia’s suspected involvement as part of its broader war against Ukraine and incursion into Ukrainian territory. Also, the 298 victims came from 11 countries, Kerry said at the time.

How did it work?

The JIT was set up on Aug. 7, 2014 – just three weeks after the crash – for the criminal investigation into the MH17 disaster. The team was comprised of police and judicial authorities from the Netherlands, Australia, Malaysia and Belgium would “work together with Ukraine, where the crash took place,” the Netherlands government said.

Its stated goal was to determine who was responsible for the downing of flight MH17, but also to collect evidence for the criminal prosecution of the perpetrators.

What were the rules for the MH17 probe?

According to the Netherlands government, the results of the criminal investigation would have to meet the standards used in all of the participating countries. The team first agreed on the investigative rules, including how evidence would be collected – on the ground in Ukrainian territory and elsewhere around the world. Dutch and Australian police officers then led the probe in Ukraine together with Ukrainian investigating officers.

In order to find out the cause of the crash, the JIT investigated all human remains, personal belongings and wreckage of the aircraft found in the vicinity of the disaster site, according to the Netherlands. “The traces were secured and investigated and compared by experts. In addition, the JIT sought and heard witnesses and experts, analyzed radar and satellite images, assessed large amounts of telecom data such as intercepted telephone conversations and analyzed big data.”

What did it find?

According to the JIT, flight MH17 was shot down by a Buk TELAR missile that had been transported from Russia to a farm field near Pervomaiskyi in Eastern Ukraine, which at the time was controlled by Russia-backed separatists. After firing, it found, the missile launch installation was transported back to Russia with a missing missile.

The JIT also concluded that the missile used to shoot down MH17 originated from the 53rd Anti-Aircraft Missile Brigade, a unit of the Russian armed forces from Kursk.

In June 2019, five years after the crash, international prosecutors indicted three men with ties to Russian military and intelligence agencies. They also implicated, but did not charge, a senior aide to Russian President Vladimir Putin, media reports from the time said.

Ultimately, three men were sentenced to life imprisonment, and one acquitted. In the meantime, the Dutch-led international team continued to investigate. In February 2023, it concluded that there were “strong indications” that Putin himself decided to supply the antiaircraft missile system that Russia-backed separatists used to shoot down MH17, but that it had no evidence suggesting that he ordered the downing of the plane.

The team also said it was suspending its criminal investigation due to insufficient evidence and immunity privileges that prevented new prosecutions, including that of Putin. “The investigation has now reached its limits,” the Dutch prosecutor, Digna van Boetzelaer, said at a news conference, according to the New York Times. “All leads have been exhausted.”

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