IV. Failure to Investigate

Israel has an obligation under international law to investigate credible allegations of laws-of-war violations by it forces, including those reported during and after Operation Cast Lead by domestic and international human rights organizations, the media, the United Nations, and Israeli soldiers who participated in the operation.[70] To date Israel has shown little willingness to meet this obligation by investigating the actions of its soldiers in a thorough and objective manner.  On the contrary, Israel’s military and political leaders have repeated that the IDF did everything possible to protect civilians.  Hamas is responsible for civilian casualties, they say, because it operated from residential areas and used civilians as human shields.[71]

Soon after the operation ended, senior IDF officials began dismissing calls for an investigation.  “Commanders during the fighting shouldn’t be losing sleep because of the investigations,” said Col. Liron Liebman, who became head of the IDF’s international law department after Operation Cast Lead ended.  “It’s impossible not to make mistakes in such a crowded environment, under pressure.”  Charges against Israeli soldiers and officers, he added, amount to “legal terrorism.”[72]

Senior government officials expressed the same view.  As calls for an international investigation increased, the Israeli prime minister during the fighting, Ehud Olmert, remarked that “[T]he soldiers and commanders who were sent on missions in Gaza must know that they are safe from various tribunals and that the State of Israel will assist them on this issue and defend them just as they bodily defended us during Operation Cast Lead.”[73]

The Israeli government’s reluctance to conduct serious investigations continued even after Israeli soldiers who had fought in Operation Cast Lead made allegations of IDF attacks on civilians.  At a meeting of graduates of a military preparatory course in northern Israel on February 13, combat pilots and infantry soldiers who had fought in Gaza discussed their experiences, and the Israeli media subsequently published some of their statements.[74]

A soldier from the 84th Infantry Brigade, known as the Givati Brigade, under the command of Col. Ilan Malka, described how an IDF sharpshooter shot and killed a Palestinian mother and her two children who had walked in the wrong direction, entering a no-go zone. According to the transcript published in Haaretz, the soldier identified as “Ram” explained:

There was a sharpshooters’ position on the roof. The platoon commander let the family go and told them to go to the right. One mother and her two children didn’t understand and went to the left, but they forgot to tell the sharpshooter on the roof they had let them go, and it was okay and he should hold his fire and he ... he did what he was supposed to, like he was following his orders.[75]

Even if the intent of the shooting was not criminal, the act of shooting unarmed civilians violates the laws of war and requires an investigation.

A squad leader from the Givati Brigade identified as “Aviv,” said that a company commander had ordered his soldiers to shoot an elderly Palestinian woman in Gaza City.  According to his statement published in Haaretz:

One of our officers, a company commander, saw someone coming on some road, a woman, an old woman. She was walking along pretty far away, but close enough so you could take out someone you saw there. If she were suspicious, not suspicious - I don't know. In the end, he sent people up to the roof, to take her out with their weapons. From the description of this story, I simply felt it was murder in cold blood.[76]

Following a public outcry in Israel about the soldiers’ statements, IDF Military Advocate General Brig. Gen. Avichai Mendelblit instructed the Criminal Investigation Division of the Military Police to investigate the claims.[77]  About the investigation, IDF Chief of the General Staff Lt. Gen. Gabi Ashkenazi remarked:

I don't believe that soldiers serving in the IDF hurt civilians in cold blood, but we shall wait for the results of the investigation. The IDF is the most humane army in the world and operates according to the Spirit of the IDF and high moral standards of fighting. Isolated cases, if found to have taken place, will be dealt with individually.[78]

One week later, the IDF announced that it had closed the investigation because the soldiers’ statements were found to be “based on hearsay and not supported by specific personal knowledge.”[79]  Without explaining how it conducted its investigation, and apparently not interviewing witnesses from Gaza, the IDF concluded that “the stories were purposely exaggerated and made extreme, in order to make a point with the participants of the conference.”  Regarding the specific allegations by “Ram” and “Aviv,” neither soldier, the investigation concluded, had witnessed the incidents in question.

A legal assistant to Mendelblit, Maj. Yehoshua Gutler, provided some details to the media.  In response to the allegations from “Ram” about a sharpshooter killing a mother and two children who had mistakenly walked into a “no-go” zone, Gutler said the soldier had not witnessed the incident.  In the case of the sniper allegedly shooting an elderly woman, as reported by “Aviv,” the soldier “was only repeating a rumor he had heard.”[80] The woman was wearing bulky clothing, Gutler said, and the soldiers had received intelligence reports that Hamas was going to use an elderly woman as a suicide bomber. Soldiers shot the woman because she continued to advance despite repeated calls to stop and the firing of warning shots, leaving the soldiers with what Gutler called “no choice.”  A report on the Gaza operation by the Israeli Ministry of Foreign Affairs 0n July 29 elaborated on Gutler’s claims.[81]  The mother and two children reported by “Ram” were not shot at, wounded or killed, the report said.

Israeli Defense Minister Ehud Barak said the investigation showed that Israel possesses “the most moral army in the world.”[82]  He denounced the “extensive rumors that have considerably damaged the IDF’s image both at home and abroad.”[83]  Military Advocate General Mendelblit summed up the investigation’s findings by criticizing the soldiers who had spoken out:

It is unfortunate that none of the speakers at the conference was careful to be accurate in the depiction of his claims, and even more so that they chose to present various incidents of a severe nature, despite not personally witnessing and knowing much about them. It seems that it will be difficult to evaluate the damage done to the image and morals of the IDF and its soldiers, who had participated in Operation Cast Lead, in Israel and the world.[84]

Three weeks later, on April 22, the IDF announced the results of its broader internal investigation into Operation Cast Lead.  The IDF concluded that:

[T]hroughout the fighting in Gaza, the IDF operated in accordance with international law. The IDF maintained a high professional and moral level while facing an enemy that aimed to terrorize Israeli civilians whilst taking cover amidst uninvolved civilians in the Gaza strip and using them as human shields. Notwithstanding this, the investigations revealed a very small number of incidents in which intelligence or operational errors took place during the fighting. These unfortunate incidents were unavoidable and occur in all combat situations, in particular of the type which Hamas forced on the IDF, by choosing to fight from within the civilian population.[85]

The IDF field investigations looked at five issues: attacks in which the military fired upon United Nations facilities; attacks on medical facilities and crews; claims of harm to civilians not involved in hostilities; the use of white phosphorous munitions; and the destruction of civilian structures.[86]

The investigation into “incidents in which many uninvolved civilians were harmed,” headed by Col. Tamir Yidai, looked into seven cases.  It did not include any of the cases documented in this report, even though Human Rights Watch had informed the IDF of these cases on February 10, 2009 (see Appendix).

“The investigation reached the conclusion that in all of the incidents which were examined, IDF forces did not intentionally attack civilians who were not involved in the fighting,” the investigation report stated. “In circumstances where there existed the risk of unintentionally harming uninvolved civilians, the IDF took many measures to minimize this risk, including the use of precise intelligence and providing warnings prior to the attack.”[87]

Col. Yidai’s investigation concluded that, during the incidents in question, “IDF operations did cause harm to uninvolved civilians.” However, “this was not intentional, but the result of circumstances beyond the control of the forces or due to unexpected operational mistakes.” The report asserted that a significant proportion of the incidents were due to Hamas.  “Hamas took cover amongst the civilian population and used civilians facilities and structures as part of its terrorist operation against Israel,” the report said.

In the civilian deaths documented in this report, Human Rights Watch found no evidence that the victims were used by Palestinian fighters as human shields or were shot in the crossfire between opposing forces.

In July another group of IDF soldiers spoke out about the abuses they had seen during Operation Cast Lead.  The Israeli organization Breaking the Silence, comp0sed of veteran Israeli soldiers, published the testimonies of 26 unnamed reserve and regular combat soldiers who had participated in the operation.[88]  The soldiers spoke about the destruction of private property without military necessity, the use of Palestinian civilians as human shields, the firing of white phosphorus into populated areas, and, relevant to this report, the killings of civilians with small arms.  Two soldiers from the Givati brigade who served in the Zeitoun neighborhood of Gaza City, for example, explained how soldiers shot and killed an elderly Palestinian man who had approached an IDF position in a house at night.  The company commander refused to give orders for deterrent fire when the man was first sighted walking on an empty street with a flashlight between 150 and 200 meters from the house, they said, so soldiers in accordance with their rules of engagement shot and killed the man when he reached within 25 meters.

The IDF disputed the report, saying that many of the testimonies are “based on hearsay and word of mouth.”[89]  Defense Minister Ehud Barak remarked: “Any criticism of the IDF from this or that organization is misplaced and misdirected.”[90]  The foreign ministry approached one of Breaking the Silence’s funders, the Dutch government, to request that it cease its support for the group.[91]

On July 29, the Israeli Ministry of Foreign Affairs released a 163-page report on Operation Cast Lead which, among other things, addressed the allegations of soldier misconduct during the hostilities.[92]  For the first time Israel announced that IDF investigations into roughly 100 complaints were ongoing, and 13 criminal investigations had been opened.  Among the investigations are five incidents where Israeli soldiers allegedly killed civilians holding white flags:

• The alleged killing from tank shellfire of two civilians carrying white flags in Juhr al-Dik on January 4.
• The alleged shooting of women carrying white flags, killing one, on January 4 (location unknown).
• The alleged shooting of civilians carrying white flags, killing one, in Beit Lahiya on January 5.
• The alleged shooting of civilians holding white flags, killing two, in the ‘Abd Rabbo neighborhood of Jabalya on January 7.
• The alleged shooting of civilians holding white flags, killing four, in Khuza’a on January 13.

The killing of two civilians in the ‘Abd Rabbo neighborhood of Jabalya on January 7 appears to be the case of Amal ‘Abd Rabbo and Su’ad ‘Abd Rabbo, documented in this report.  The killing of civilians in Khuza’a on January 13 appears to be the case of Rawhiya al-Najjar and Mahmoud al-Najjar; the two other reported victims remain unclear.  The killing of two civilians in Juhr al-Dik on January 4 may be the case of Majida and Rayya Abu Hajjaj, although the ministry report concluded that they were killed by tank shells instead of small arms fire.  The killing of one woman on January 4 may be the case of Ibtisam al-Qanu`, but the report does not provide the location.

All of the above IDF probes are “field investigations.”  The findings are reviewed by the Military Advocate General, who may order the opening of a criminal investigation.  The decisions of the Military Advocate General are subject to review by the Attorney General and the Israeli Supreme Court.

Previous military investigations into soldiers’ conduct during Operation Cast Lead cast serious doubt on the IDF’s willingness to investigate itself objectively and independently.  Field investigations rely primarily on soldiers’ accounts to determine whether a criminal investigation is warranted.  Without access to Gaza, investigators cannot properly interview witnesses or visit alleged crime scenes. The five field investigations announced in April were all headed by colonels, who were of insufficient rank to address abuses that may have resulted from policies set by more senior commanders.

The failure of the IDF and Israeli government to investigate serious allegations of wrongdoing by its soldiers precedes Operation Cast Lead.  Since 2000 Human Rights Watch has documented the consistent lack of adequate investigations into civilian deaths and injuries that resulted from the use of lethal force in policing and law enforcement contexts, as well as combat situations in both Gaza and the West Bank, when there is prima facie evidence or credible allegations that soldiers deliberately harmed civilians or failed to take all feasible precautions to protect them from harm.[93]