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Investigation Violates the International Relevant Standards of Human
Rights Law and Entrenches Impunity
24/04/2009
Yesterday, on Wednesday April 22nd
Israel announced that an internal investigation launched in response
to accusations of war crimes determined that no such crimes were
committed by Israeli troops during Operation Cast Lead in the Gaza
Strip. The internally-led IOF investigation was closed by Military
Attorney General Achivai Mandelblit on 30 March 2009 just 11 days
after it started, despite soldiers having made allegations of war
crimes and grave breaches of the Geneva Conventions.
Al Mezan center for Human Rights
has been following the development of this investigation with much
concern. Al Mezan remains critical of the investigation, which
failed to acknowledge a single one of the well-documented war crimes
committed including: the indiscriminate use of weapons in densely
populated areas; using civilians as human shields and putting them
in other positions of harm; firing at medical staff and preventing
medical teams and ambulances from reaching the injured and dead;
firing rockets deliberately into civilian areas, targeting civilians
holding white flags; and targeting civilian installations like
police stations, government offices, and other non-legitimate
military targets. Particular incidences like the bombardment of the
UN school, during which at least civilians were killed and injured
demand particular attention.
The investigation was performed by
five investigative teams of Israeli army colonels who were not
involved in the fighting in Cast Lead, supervised by Israeli army's
Chief of Staff Gabi Ashkenazi. They examined reports of attacks on
civilians and civilian infrastructure, medical personnel and
facilities, United Nations facilities, and the use of white
phosphorous. The investigation concluded that any civilian deaths
during the Offensive were attributed to mistaken fire on the part of
IDF troops and that the IOF 'adhered to international law and
maintained a high level of professionalism and morality.'[1][1]
The attack on the Ad-Daya (reported
in Israel as Al-Dahiyeh) family home in the Gaza City neighborhood
of Zeitoun, in which 21 members of the same family were killed, was
found be a result of a malfunction in the targeting system of the
aircraft carrying out a mission targeting a suspected weapons
storehouse dozens of meters away.[2][2]
In the instance of Israeli artillery fire at UNRWA's Jabalia
Elementary School (locally known as Al Fakhora School), in Jabalia
Refugee Camp on 6 January at 3:30pm, where hundreds of Gazans had
sought refuge, the IOF said its troops were responding to fire from
militants near the school and that only 12 people died, five of whom
were 'terror operatives.'[3][3]
Al Mezan's investigations confirmed that the IOF fired four shells,
believed to be GPS-guided artillery shells, in the vicinity of the
school. Three of the shells landed and exploded in an open area
opposite to the southwestern part of the school yard. The other
shell landed approx. 50 meters to the west of the school, hitting
two houses and killing 11 people inside including five children. The
shelling killed a total of 36 civilians and injured around 50
civilians, including 12 children and 6 women.
The army maintained that it took
great care to avoid harming civilians in Gaza, preceding airstrikes
with leaflets or phone calls warning civilians to leave the area. It
stated that Hamas had deployed its fighters in densely populated
civilian areas, set booby traps in houses and mined streets, making
widespread structural damage[4][4]
and civilian deaths unavoidable because Hamas was fighting in
populated areas.[5][5]
With regards to the use of white phosphorus in heavily populated
areas, they denied this claim and further asserted that in the cases
where it was used, the smoke shells contained only small amounts of
white phosphorous and did not pose a fire risk.[6][6]
The military's deputy chief of
staff, Brig-Gen. Dan Harel, said Israel has identified 1,166 dead in
Gaza, including 709 Hamas and Islamic Jihad militants. The
investigation concluded that 295 of the dead were civilians and the
identity of an additional 162 could not be confirmed.[7][7]
These numbers conflict with the 1,405 Palestinian deaths that have
been documented by Al Mezan, 1,201 of which were civilians (including
policemen who were not taking any part in hostilities), of whom 311
children and 111 women.
The number of casualties is not
the only discrepancy; all of the results of the investigation
contradict the initial findings of investigations conducted by Al
Mezan and other national and international NGOs, which confirmed
multiple war crimes committed by the IOF.
The following are a few examples
of the many attacks documented by Al Mezan that targeted civilians:
On 3 January there were multiple
Israeli incursions and firing at the Al Zeitoun neighborhood,
causing the As-Sammouni family to gather together in the house of
Talal As-Sammouni, as other houses in the area were being targeting.
Talal's house was bombarded on 4 January at 4am by a shell that hit
the second floor. At 7 am soldiers knocked at the door of Talal’s
house and ordered them to move to Wa'il As-Sammouni's house in the
same area. At 8 am on 5 January, this house was bombarded with tank
shells, killing and injuring multiple members of the family. Several
of those that were injured walked 2kms from the house, to an area
where ambulances could collect them. The rest were left in the house
for three days until the ICRC came into the area and evacuated 12 of
them; including children who had been left next to the dead bodies
for days. In total 29 people were killed, some immediately, and some
because they had to wait in the house for several days without
medical aid. Of the casualties 12 were children.
On 4 January 2009 an attack on Abu
Halima houses in Beit Lahiya in Northern Gaza took place and white
phosphorus shells were used. The area is heavily populated and the
fact that the death toll was so low, 6 children, is a miracle. The
bodies of those who died were left in the street for 12 days and
were partially consumed by dogs, despite that they were near an
Israeli military post in the area.
There were at least eight cases of
human shields used by the IOF during the Offensive. In one case
Munir Rasheed Mohammed Mohammed (41) and his brother Sameer (45)
were used as human shields. They live in Ezbet Abed-Rabbo, east of
Jabaliya, where there were multiple attacks on neighboring houses.
On Monday 5 January 2009 at around 4.30 in the afternoon around 20
Israeli soldiers entered their house and took him and his brother to
different houses in the area, forcing them to take them into
apartments in the area. During the process Sameer was shot and bled
to death after the IOF fired on a rescue convoy including Red
Crescent ambulances and a UN vehicle. Munir was injured, denied
medical care and lost two fingers as a result.[8][8]
On Wednesday 31 December 2008 at
around 2 am an ICRC team made up of Dr Ihab Omar Al-Madhoun (33),
the director of Az-Zaytoun Clinic in Gaza City; the medic Mohammed
Sa’eed Abu Hasira (30), and the ambulance driver, Hishmat Ajour (30)
travelled to the area of Jabal Al-Rais, located north-east of Gaza
City, having received news of killings and injuries in the area.
Upon arrival, immediately when they got out of the car, they were
hit by an Israeli missile which killed Mohammed, the medic,
immediately. Dr Al-Madhoun died later that morning from his
injuries. The driver was seriously injured and taken to Kamal Udwan
hospital north of the Gaza Strip.
[9][9] In total during
the Offensive 15 hospitals and 41 PHC centers were partially damaged
and 2 PHC centers were destroyed. In addition, 29 ambulances were
partially damaged or destroyed and 16 health staff were killed and
22 were injured while on duty.[10][10]
In response to the results of the
investigation, Defense Minister Ehud Barak said that the army's
willingness to probe itself proves that it is one of the most moral
armies in the world.[11][11]
Now that the investigation is finished the military judge advocate-general
will decide whether to order courts-martials, though this is
unlikely considering Israel's history of not carrying out such
orders. In addition according to a senior Israeli military official,
several soldiers are under separate investigation for using their
weapons against regulations.[12][12]
Despite its contention that no crimes were committed, Israel is
preparing for potential legal action, forbidding the media from
publishing pictures of officers' faces and names. It has also
promised legal and financial support for any officers facing trial.[13][13]
This investigation is criticized
by Al Mezan along with other human rights groups in Israel and the
OPT, as well as several MKs in the Israeli Knesset and international
NGOs including Human Rights Watch. The failure of Israel to properly
investigate its illegal practices in Gaza only further highlights
the importance of the UN investigation that will be launched into
Israeli war crimes committed, being led by former UN chief
prosecutor Richard Goldstone. Israel has not officially announced
whether it would cooperate with the Goldstone Investigation but has
rejected council investigations in the past. However, on 15 April
2009 a government official announced that Israel is 'very unlikely'
to cooperate with a UN agency's probe. The official said that Israel
sent its response to the UN in New York during the first week of
April, however he could not elaborate on the content.[14][14]
The IOF's claim that it did not commit any war crimes, and is moral
in its practices, is called into question by the fact that Israel is
reluctant to allow an open international investigation.
Investigations conducting by
armies into their own actions are usually problematic given that
they are motivated by self-interest. Israel's army is also steeped
in a culture of impunity, further impeding the success of such
investigations. There are very clear guidelines as to what a good
investigation is under international legal standards. As a result of
ratifying the Fourth Geneva Convention Israel is required to
investigate and punish those responsible for serious violations of
the GCs and it also has obligations to investigate alleged
wrongdoing by its soldiers under international human rights law.[15][15]
The investigation must meet international standards, which include
five basic obligations:
-
bring to justice
and discipline and punish those responsible
-
provide an
effective remedy for the victims of human rights violations
-
provide fair and
adequate compensation to the victims and their relatives
-
establish the
truth about what happened.[16][16]
To qualify as an effective remedy
for a serious human rights violation, a prompt, thorough, and
effective investigation capable of determining a wrongdoing and
identifying the culprit is required. An effective remedy also
includes access by the victim or complainant to the investigatory
procedure, and, when appropriate, the payment of compensation.
Remedies must be effective in practice, not just in theory, with a
strong enough element of public scrutiny to ensure true
accountability. A key requirement is that those investigating an
alleged crime must be independent from those implicated in the
events.
Israel's investigation process
generally fails to fulfill the international standards of
thoroughness, timeliness, and impartiality, and this investigation
as been yet another example. Most of the investigations that are
carried out by the Israeli government and/or army are not thorough
or effective, because of the lack of reliance on anything besides
the military accounts of incidences. There is insufficient public
scrutiny to ensure true accountability. The ECHR has also said that
those responsible for or carrying out an investigation into unlawful
killing by state agents must be independent from those involved in
the incident, 'not only a lack of hierarchical or institutional
connection, but also a practical independence.'[17][17]
Israel fails in this regard as well, as the members of the military
are the ones running the investigation and in power to end the
investigation when they see fit.
Many of the principles outlined in
the U.N. 'Principles on the Effective Prevention and Investigation
of Extra-Legal, Arbitrary and Summary Executions' are not respected
by Israel, including the ability for victims or their families to
complain about a mishandled investigation, access by families and
their legal representatives to any hearing and to all relevant
information, and the right to present other evidence, a detailed
written report on the methods and findings of the investigation to
be made public within a reasonable time, government action to bring
to justice persons identified by the investigation as having taken
part in extra-legal, arbitrary and summary executions,
responsibility of superiors, officers or other public officials for
acts committed under their authority if they had a reasonable
opportunity to prevent such acts, and fair and adequate compensation
for the families and dependents of victims of extra-legal, arbitrary
and summary executions within a reasonable period of time. In this
particular investigation the IOF admits to its flaws by openly
announcing that it carried out limited interviews with the victim
population; 'In cases where we could, we interviewed Palestinians
through the coordinating offices, but you cannot, at the end of the
day, reach each and every Palestinian. This is not a normal
situation' a senior Israeli official said. A proper investigation
cannot be conducted without a thorough process of interviewing a
considerable amount of the victims, as well as visiting the
locations of the attacks to establish the type of weapons used,
location of fire, etc.
Al Mezan wants to emphasis that
Israel has a clear obligation under international law to launch a
serious investigation, or if it is unwilling to do so it must
cooperate with the UN investigations. The results of the
investigation prove that Israel is not carrying out an investigation
that meets international standards and Israel must be urged by the
international community to respect international law and its
obligations under the Geneva Conventions and IHL. In addition to the
UN investigation, Al Mezan has been involved in international
efforts to pursue litigation in domestic courts, where the principle
of international jurisdiction applies, regarding war crimes
committed during Operation Cast Lead. Six Norwegian lawyers
representing a group of clients announced plans to bring charges
against Israeli officials to a local court in Oslo. Charges will be
made against former Prime Minister Ehud Olmert, opposition leader
Tzipi Livni, Minister Ehud Barak and seven senior IOF officers
including Gabi Ashkenazi and Ido Nehoshtan to Oslo court.[18][18]
Under the Norwegian penal code, courts may hear cases involving war
crimes and crimes against humanity, even if they had been committed
abroad, and have no relationship to the citizens of the country. Al
Mezan encourages such efforts and will continue to work towards
holding Israel accountable for the many war crimes it committed
during Operation Cast Lead as well as over the last five decades.
Ends
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