Israeli-Palestinian conflict: How 'lawfare' has become a weapon

Both sides have threatened to hold the other to account for committing what they say are war crimes

Wherever there is war in the modern world, there are allegations of war crimes.

Human rights lawyers will be scanning the battlefields of the Middle East as American-led coalition air forces expand their engagement with the militants of Islamic State.

And in the conflict between Israel and the Palestinians, the trading of accusations and the struggle to win the battle for international public opinion feel like an inevitable second act to the summer's bitter fighting.

Each side sees the advantage of establishing the justice and virtue of its cause over the other - seeking a clear political and diplomatic victory after an inconclusive military outcome.

The Israeli case against Hamas is relatively simple: here is an organisation sworn to the destruction of Israel that fires rockets from the midst of its own civilians and aims them indiscriminately at Israel's - both clear breaches of the laws of war.

The influential Palestinian politician Mustafa Barghouti, who spent time in Gaza during the latest bombardment, gave me a kind of charge sheet for Israel.

"Their war crimes included the collective disproportional use of force, targeting civilians and targeting children and killing them.

"There's also the indiscriminate destruction of very wide areas, as well as using forbidden weapons like depleted uranium and other weapons that include cancerous materials. One very important point here was the unjustified massive destructions of whole neighbourhoods in Gaza, including in some cases the destruction of a whole town like Shejaiya."

The United Nations Human Rights Council has already established an independent commission of enquiry under the Canadian professor of international law, William Schabas - but Israel regards the council as a kind of standing kangaroo court which is biased against it.

'Consequence of war'

The Israeli military, for its part, says it is investigating more than 100 incidents from the campaign itself - although it is hard to imagine the prospect of Israel's military lawyers effectively investigating themselves is going to be viewed as satisfactory elsewhere.

Israel's fear of standing condemned before an international tribunal prompted it to begin those investigations before the fighting had stopped.

Palestinians say Israel used force disproportionately, causing massive damage and deaths

Part of the problem is that most of us bring to images of war an understanding of the concept of "war crime" which is instinctive and colloquial.

We see images of innocent suffering and it seems inconceivable that something wrong has not happened, not just at a human level but at a legal and political one too.

One of the most shocking stories of the Gaza conflict came when four little boys were killed by Israeli missile fire as they played on a beach. Photographs that captured the boys running for their lives across the sand as the attack developed are almost unbearably sad.

When I met Israel's Deputy Military Attorney-General, Colonel Eli Bar-On, I asked him how that incident looked to a lawyer when it was obvious that a layman something terrible had happened.

Col Bar-On said Israel taught its military commanders very strict procedures for the conduct of war and applied clear procedures for approving targets.

He said that in his experience, many officers who saw a risk of high collateral damage would call off an attack even if the attack had been cleared by military lawyers - in other words, they were allowed to apply their own ethical standards alongside or above the military's.

But he also said: "The basic presumption that every death has to be translated into a breach of the laws of war is just wrong because death, even of civilians, is not an unreasonable consequence of war.

"You may sometimes rely on wrong intelligence... and sometimes you just make mistakes. These scenarios happen and they don't necessarily mean there has been an offender."

In other words - just because something terrible has happened does not mean that a war crime has been committed.

Calculated risk

Israel is confident of its case - as he set out for New York and the UN General Assembly last month, Prime Minister Benjamin Netanyahu repeated the frequently-heard claim that Israel's armed forces were the "most moral" in the world.

But Palestinians are confident too.

Israel says Hamas not only fired at civilians but launched rockets from civilian areas

There has been intense speculation for months that if the moribund peace process with Israel finally collapses, the Palestinian leadership might pursue the strategy of taking Israel before the International Criminal Court (ICC).

The recently-enhanced status the Palestinians now enjoy at the UN gives them the right to be heard, but there is a snag.

If you put yourself in a position to make charges at the ICC, you put yourself in a position where you can be charged too. And that could leave the Palestinians collectively facing Israeli charges related to Hamas attacks on civilians. Israel is compiling a war crimes charge sheet of its own.

Mustafa Barghouti said his people should not be deterred.

"If Palestinians have a problem, they are ready to go to the court," he explained. "But the most important thing is to hold Israel responsible in front of the ICC. Israel has enjoyed a status of impunity to international law and to international humanitarian law. This cannot be allowed to continue.

"Israel has to be held responsible for the war crimes it has committed against the Palestinian population. Not only in the last war but in many previous wars on Gaza and in many previous attacks in the West Bank".

So it is possible that the latest round of war crime accusations and counter-accusations will extend beyond the first round of investigations into a much longer inquiry in an international forum that may last for years with no guarantee of a clear result.

Israel and the Palestinians are already engaged in talks designed to consolidate the ceasefire that ended the fighting in summer.

It says a lot about the prospects for a lasting deal that those talks will be conducted in parallel with the bitter dispute over who bears responsibility for war crimes and how they should be punished. The prospects are bleak.