Independent Investigation Remains Essential
February 7, 2010
An independent investigation is crucial to understand why so many civilians died and to bring justice for the victims of unlawful attacks.
Joe Stork, deputy Middle East director for Human Rights Watch

(New York) - Israel has failed to demonstrate that it will conduct thorough and impartial investigations into alleged laws-of-war violations by its forces during last year's Gaza conflict, Human Rights Watch said today.  An independent investigation is needed if perpetrators of abuse, including senior military and political officials who set policies that violated the laws of war, are to be held accountable, Human Rights Watch said.

On February 4, 2010, Human Rights Watch met with military lawyers from the Israel Defense Forces (IDF) to discuss the investigations.  While the military is conducting ongoing investigations, officials did not provide information showing that these will be thorough and impartial or that they will address the broader policy and command decisions that led to unlawful civilian deaths, Human Rights Watch said.

"Israel claims it is conducting credible and impartial investigations, but it has so far failed to make that case," said Joe Stork, deputy Middle East director for Human Rights Watch.  "An independent investigation is crucial to understand why so many civilians died and to bring justice for the victims of unlawful attacks."

In one case, a military investigation apparently missed an important piece of evidence: remains of an aerial bomb found in the al-Badr flour mill outside Jabalya.  Israel denied targeting the mill from the air, as alleged by the United Nations Fact-Finding Mission on the Gaza Conflict.  However, video footage obtained by Human Rights Watch and released today shows the apparent remains of an Israeli MK-82 500-pound aerial bomb in the damaged mill, and UN de-miners say they defused the bomb.

More than 750 Palestinian civilians in Gaza were killed during the conflict, according to the Israeli human rights group  B'Tselem.  The UN has said that nearly 3,500 homes and 280 factories were completely destroyed. 

Human Rights Watch documented 53 civilian deaths in 19 incidents in which Israeli forces appeared to have violated the laws of war.  Six of these incidents involved the unlawful use of white phosphorus munitions; six were attacks by drone-launched missiles that killed civilians; and seven involved soldiers shooting civilians who were in groups holding white flags.

To date, Israeli military courts have convicted only one soldier of wartime abuse during the Gaza conflict, for theft of a credit card.

 The Israeli military lawyers said the military was investigating all cases reported by Human Rights Watch.  Seven of the cases are criminal investigations into the alleged shooting of civilians waving white flags, they said.  The military had originally dismissed Human Rights Watch's report on these cases as based on "unreliable witness reports."

The Israeli military has thus far examined specific incidents but not broader policies that may have caused civilian casualties in violation of the laws of war, Human Rights Watch said. 

An independent investigation should examine the pre-operation decisions that led to civilian casualties, Human Rights Watch said. These include the decision to target Hamas's political infrastructure; the use of heavy artillery and white phosphorus munitions in populated areas; attacks on Gaza police; and the apparently permissive rules of engagement for drone operators and ground forces.

"The Israeli investigations so far have looked mostly at soldiers who disobeyed orders or the rules of engagement, but failed to ask the crucial question about whether those orders and rules of engagement themselves violated the laws of war," Stork said.  "For those decisions and policies, senior military and political decision-makers should be held responsible."

Hamas is not known to have prosecuted anyone for firing hundreds of rockets indiscriminately into Israel.  On January 27 it issued a news statement and report summary, saying that rockets from Palestinian armed groups had only targeted Israeli military objects and that civilian casualties were accidental - a conclusion that Human Rights Watch rejected as "legally and factually wrong."  Hamas released a full report about its conduct during the war on February 3 that Human Rights Watch is still reviewing.

In September 2009, the UN Fact-Finding Mission on the Gaza Conflict, headed by Justice Richard Goldstone, determined that Israel and Hamas had committed war crimes and possible crimes against humanity and called on both parties to conduct impartial investigations within six months.

On November 5, the UN General Assembly endorsed the Goldstone report and asked UN Secretary-General Ban Ki-moon for a progress report about domestic investigations.  Ban gave his report on February 4, passing on documents provided to him by Israel and the West Bank-based Palestinian Authority, and reiterating his call for credible and impartial investigations by all sides.

"Secretary-General Ban merely passed on the parties' claims, but he also reasserted the importance of credible investigations in conformity with international standards," Stork said.  "The pressure is still on Israel and Hamas to show that they will do it right."

According to Israel, the military has conducted roughly 150 "investigations" of incidents in Gaza, but it has not provided a list of the cases.  Nearly 90 of the 150 investigations are what the military calls an "operational debriefing" - tahkir mivza'i in Hebrew.  These are after-action reports, not criminal investigations, in which an officer in the chain of command interviews the soldiers involved, with no testimony from victims or witnesses. Forty-five of these 90 cases have been closed.

The Israeli military says that military police have opened 36 criminal investigations, in which a military police investigator takes statements from soldiers and seeks testimony from outside sources.  One resulted in the conviction for the credit card theft, incurring a seven and a half month prison sentence, and seven were closed due to lack of evidence or because the complainants were unwilling to testify.  The remaining 28 are ongoing.

The military said it has disciplined four soldiers and officers for violating orders during the Gaza conflict.  In one case, two commanders received notes of reprimand for firing high-explosive artillery shells that hit a UN compound where 700 civilians were taking shelter, despite dozens of phone calls from UN officials asking for the shelling to stop. During the same attack, artillery-fired white phosphorus set fire to a UN warehouse and injured three people in the compound. The military told Human Rights Watch that the white phosphorus aspect of the case is still under investigation and was not part of the reason for the reprimand.  The only information the military has released about the other two disciplinary cases is that one resulted from an attack on UN property or personnel, and the other from an incident of property destruction.

The video Human Rights Watch released today of the al-Badr flour mill was filmed by the mill's owners after it was damaged, on January 10, 2009.  The UN fact-finding report said the Israeli military bombed the mill in a deliberate attempt to damage the civilian infrastructure of Gaza. Israel said its investigation found that the mill was a legitimate military target because of Hamas activity in the area and that it only fired a tank shell and did not bomb the mill from the air.

The UN told Human Rights Watch that de-miners visited the mill on February 11, 2009, and found the front half of a 500-pound Mk-82 aircraft bomb on an upper floor of the mill, corroborating the contents of the video.

The military lawyers told Human Rights Watch that, when provided with new evidence, they could reopen an investigation.

Israel has a poor record of military investigations into alleged violations against Palestinians in Gaza and the West Bank, Human Rights Watch said.  The Israeli human rights group Yesh Din has documented the low levels of criminal investigations, prosecutions, and convictions of soldiers despite the large number of allegedly unlawful deaths.