April 11, 2010

Summary

This report documents how Israel and Hamas have addressed credible allegations of laws-of-war violations by their respective forces during the Gaza war in December 2008 and January 2009. More than one year after the conflict, neither side has taken adequate measures to investigate serious violations or to punish the perpetrators of war crimes, leaving civilian victims without redress. Israel’s investigations have fallen far short of international standards for investigations, while Hamas has conducted no credible investigations at all.

In Israel, military authorities say they have investigated roughly 150 incidents in Gaza, but approximately 120 of these were limited to “operational debriefings” that consider testimony from the soldiers involved but not from witnesses or victims. Thirty-six incidents are or have been the subject of a criminal investigation (with seven cases closed), but these neglect many incidents deserving investigation. Critically, Israel has failed to conduct credible investigations into policies authorized by senior levels of the country’s political and military leadership that may have led to violations of the laws of war. These include the targeting of Hamas political institutions and Gaza police, the use of heavy artillery and white phosphorus munitions in populated areas, and the rules of engagement for aerial drone operators and ground forces.

All Israeli debriefings and investigations have been conducted by the military, and the government has rejected calls for an independent review. As of April 7, 2010, military authorities had convicted only one soldier for crimes committed in Gaza – for stealing a credit card from a Palestinian. Two more soldiers were on trial for ordering a Palestinian boy to open bags they suspected of being rigged with explosives.

In Gaza, Hamas has punished no one for ordering or carrying out hundreds of deliberate or indiscriminate rocket attacks into Israeli population centers, which killed three Israeli civilians and wounded dozens more. Despite evidence to the contrary, Hamas claims it launched rockets only at military targets, and that civilian casualties were unintended. Cases of killings and torture by Hamas security forces against suspected collaborators and political rivals in Gaza have also gone unpunished.

The unwillingness of both Israel and Hamas to conduct impartial investigations defies calls for accountability from an ever-growing list of governments, the United Nations Secretary-General, UN General Assembly and European Parliament. In February 2010, the UN General Assembly called on Israel and Hamas for the second time to punish perpetrators, giving them until late July 2010 to launch thorough and impartial investigations. A majority of European Union member states supported the resolution, including permanent Security Council members France and the United Kingdom.

This report recommends that influential governments and international bodies increase their pressure on both parties to conduct domestic investigations that are prompt, thorough and impartial. Regarding Israel, the US and European governments should demand truly impartial investigations, including into policies set by senior officials. US officials in particular have praised Israel’s military justice system, without acknowledging how the system has failed to serve many Palestinian victims of the Gaza war.

Governments with influence on Hamas and bodies such as the Arab League and Organisation of the Islamic Conference should demand credible investigations by the authorities in Gaza. To date, none of Hamas’s supporters have called for accountability or pressed for serious investigations.

UN Secretary-General Ban Ki-moon can also play a more constructive role by monitoring and reporting on domestic investigations by both parties, and determining whether they are independent, credible and in conformity with international standards, as the General Assembly has requested him to do by July 26, 2010.

Continued impunity for serious violations during the Gaza conflict by both sides will harm efforts to achieve a durable peace. Punishing perpetrators and publicly recording violations helps build trust that can advance the peace process and lay the foundation for long-term stability and security. Promoting accountability is not a barrier to peace, as some claim, but rather a prerequisite.

A failure by governments to demand accountability for serious violations during the Gaza war will also reveal a double-standard in international concern for justice. Governments that tolerate impunity in the Israeli-Palestinian conflict weaken their calls for accountability in places such as Sri Lanka, Sudan, and the Democratic Republic of Congo.

Ultimately, if domestic investigations in Israel and Gaza fail, then international prosecutions present the only chance for civilian victims of the armed conflict to obtain justice. In such an event, the UN Security Council should refer the conflict to the International Criminal Court in The Hague.

To prepare this report, Human Rights Watch wrote letters to both the Military Advocate General of the Israel Defense Forces (IDF) and Gaza Prime Minister Ismail Haniya, requesting information about their respective investigations (see appendices).  Haniya’s office did not reply. On February 4, 2010, IDF military lawyers met with Human Rights Watch in Tel Aviv, and the information they provided is included in this report, as are public statements and reports by both Israel and Hamas.

The report does not address investigations by the Fatah-run Palestinian Authority in the West Bank, which the report of the UN Fact Finding Mission on the Gaza Conflict (the Goldstone report) also named as responsible for human rights violations. The arbitrary detentions, torture and due process violations against Palestinians in the West Bank documented in the Goldstone report, and previously by Human Rights Watch, are not directly related to the armed conflict in Gaza and Israel.

Impunity in Israel and Gaza

Between December 27, 2008 and January 18, 2009, Israel’s “Operation Cast Lead” in Gaza killed several hundred Palestinian civilians and wounded many more, some during Israeli attacks that were indiscriminate, disproportionate or at times seemingly deliberate, in violation of the laws of war. Israeli forces also extensively destroyed civilian objects in Gaza, including homes, agricultural land and factories, without a lawful military reason.

In Israel, three civilians were killed and dozens wounded by rocket fire from Hamas and other Palestinian armed groups. The absence of Israeli military forces in the areas struck and statements by Hamas leaders supporting the attacks are evidence of an intent to strike Israeli civilians and civilian objects. Even if military objectives had been present, the rockets launched were invariably indiscriminate when fired into populated areas. In addition, Hamas and other armed groups placed Palestinian civilians unnecessarily at risk from Israeli counter-attack by launching rockets from densely populated areas in Gaza.

In Israel, military authorities have conducted roughly 150 “investigations” of incidents in Gaza, but they have not provided a full list of the cases. Approximately 120 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. The debriefings may lead to disciplinary measures or criminal investigations, but they are not a substitute for impartial and thorough investigations into laws-of-war violations. The Military Advocate General had closed 65 of these 120 cases as of April 7, 2010, because it found no grounds for a criminal investigation. The decisions of the Military Advocate General are subject to review by the Attorney General and the Israeli Supreme Court, but according to Israeli human rights organizations, such reviews rarely take place.

Thirty-six cases reached the level of a more serious military police investigation, in which IDF investigators summoned witnesses from Gaza to give statements and present evidence. As of April 7, only one of these cases had resulted in a conviction (the soldier who stole a credit card) and one had gone to trial (the two soldiers who allegedly forced a nine-year-old Palestinian boy to open bags that they suspected of being booby-trapped). The Military Advocate General had closed seven cases due to lack of evidence or because the complainants were unwilling to testify; the remaining 27 cases are ongoing but the IDF has not released a list.

 

Four soldiers and commanders have faced disciplinary hearings, but the IDF has provided only partial information on the circumstances. In one case, a colonel and brigadier general received notes of reprimand for firing “several” high-explosive artillery shells that hit the United Nations Relief and Works Agency (UNRWA) headquarters in central Gaza City, despite dozens of phone calls from UN officials asking that the shelling stop. The other cases involved the unauthorized shooting on a UN convoy and an unknown incident of property destruction.

The IDF also opened “command investigations” into five types of alleged violations during the Gaza operation: attacks on UN facilities; attacks on medical crews and facilities; harm to civilians not involved in hostilities; the destruction of civilian structures; and the use of white phosphorous munitions. The IDF concluded in April 2009 that its forces had “operated in accordance with international law” throughout the fighting and that “a very small number” of “unavoidable” incidents occurred due to “intelligence or operational errors.” To correct these, the IDF Chief of Staff, Lt. Gen. Gabi Ashkenazi, reportedly ordered improvements in “certain command operations” but the military has provided no details.

The IDF’s conclusions on white phosphorus munitions and harm to civilians not involved in hostilities contradicted the findings of Human Rights Watch, which documented 53 civilian deaths in 19 incidents in which Israeli forces appeared to have violated the laws of war. Some of these deaths appear to have been the result of deliberate policy decisions.

In November 2009, the IDF opened a sixth command investigation into three cases raised in the UN fact-finding report. One of these cases—the alleged killing of more than 20 members of the al-Samouni family in the Zeitoun neighborhood of Gaza City on January 5—was known since January 7, 2009, when the International Committee of the Red Cross publicly criticized the IDF for denying medical access to the wounded and dead. As with the five other command investigations, a colonel not directly involved with the incidents in question will lead the review, but it remains in question whether an officer of that rank would implicate senior commanders who set policy.

The military’s debriefings and investigations notwithstanding, the Israeli government has failed to conduct adequate investigations into important policy decisions by military and political leaders that may have increased civilian deaths. These include:

  • Targeting of Hamas’s political infrastructure;
  • Targeting of Gaza’s police who were not taking direct part in hostilities;
  • Resumption of heavy artillery (155mm) use in Gaza after a two-year de facto moratorium imposed because of civilian casualties;
  • Use of artillery-fired white phosphorus munitions in densely populated areas of Gaza;
  • Use of Palestinian civilians to search homes or as “human shields”;
  • Rules of engagement for aerial drone operators and ground forces.

One underlying problem cited by Israeli human rights organizations is the independence of the office of the IDF Military Advocate General (MAG)­, which plays a central role in military investigations. Prior to Operation Cast Lead in Gaza, the MAG was helping set policy, including targeting and weapons choices, and after the operation it was investigating allegedly unlawful attacks. The IDF says these two functions are distinct and military prosecutions proceed independently from the Chief of Staff.

Military investigations into laws-of-war violations are not incompatible with international standards for prompt, impartial and thorough investigations. But, as Human Rights Watch documented in its 2005 report, “Promoting Impunity,” the IDF has a poor record of holding accountable the soldiers and commanders implicated in violations of international human rights and humanitarian law against Palestinians in Gaza and the West Bank. According to Israeli human rights groups, the numbers of criminal investigations, prosecutions and convictions of Israeli soldiers for violations against Palestinians have all dropped since 2000, despite the large number of allegedly unlawful deaths.

Concerns with the thoroughness and impartiality of IDF investigations have led Israeli human rights groups to call for an independent inquiry into the Gaza operation. So far, the government has refused. Instead, senior officials contend that the IDF did everything possible to minimize civilian casualties and that Hamas is to blame for the high number of civilian deaths because they fought from amidst the civilian population and used civilians as human shields. Hamas at times placed civilians in danger by fighting from densely populated areas but, in the 19 incidents Human Rights Watch investigated, resulting in 53 civilian deaths, Palestinian fighters were not in the area at the time of the Israeli attack.

Instead of implementing Israel’s legal obligation to conduct impartial investigations, Prime Minister Benjamin Netanyahu has called for loosening the laws of war to allow states more latitude when addressing conflicts with armed groups in populated areas.

In Gaza, Hamas has taken no meaningful steps to investigate and punish those who violated the laws of war. After rejecting criticism of its conduct during the war, Hamas established a commission headed by the Gaza Minister of Justice to look at the allegations in the Goldstone report. In January 2010 it released the commission’s findings that Hamas’s armed wing, the Izz al-Din al-Qassam Brigades, and other Palestinian armed groups had fired rockets only at Israeli military targets, and civilian casualties from those attacks were mistakes, due to the weapons’ technological limitations.

The claim ignores the fact that the rockets fired into Israel that did not land in open terrain mostly struck in civilian populated areas, including towns and cities, far from any legitimate military target. Even if Hamas’s claim were true, the locally made Qassam and longer-range Grad rockets fired from Gaza have no guidance systems and are invariably indiscriminate when fired into densely populated areas.

In addition, statements by Hamas leaders prior to and during last year’s fighting strongly suggest that targeting civilians was a goal of the attacks, rather than an accidental result. A spokesman for the Izz al-Din al-Qassam Brigades who identified himself as Abu Obeida, for example, said that “continuing the incursion will only make us increase our rocket range.... We will double the number of Israelis under fire.” According to senior Hamas leader Mahmoud Zahar, Israel “shelled children and hospitals and mosques, and in doing so, they gave us legitimacy to strike them in the same way.”

The balance of power and the politics of a conflict are never justifications for a warring party to target civilians, and violations of the laws of war by one party do not justify violations by the other side.

In addition to laws-of-war violations, Hamas security forces also committed serious human rights abuses during the fighting against other Gazans, especially suspected collaborators with Israel and supporters of Hamas’s chief rival, Fatah, but also those who criticized Hamas. Human Rights Watch and other human rights organizations documented arbitrary arrests, torture, maimings, and killings of Palestinians that have largely gone unpunished over the past year.

Hamas’s failure to investigate all of these violations is not new. Since taking power in Gaza in 2007, it is not known to have punished any of its fighters or commanders for the thousands of rockets fired deliberately or indiscriminately at Israeli population centers. On the contrary, numerous public statements by Hamas political leaders have endorsed these unlawful attacks.

Legal Standards

All parties to the armed conflict in Gaza and Israel are bound by international humanitarian law – the laws of war. Applicable law includes treaty law, namely the Fourth Geneva Convention of 1949 concerning occupied territories, and customary international law, covering the means and methods of warfare. Both states and non-state armed groups may be held responsible for violations of the laws of war.

Individuals who commit serious violations of the laws of war with criminal intent – deliberately or recklessly – are responsible for war crimes. Commanders may be liable for planning or ordering war crimes, or as a matter of command responsibility when they knew or should have known of crimes committed by forces under their control but took no action to stop them.

States responsible for violations of the laws of war are required to make reparations, which includes providing fair and adequate compensation to victims and their relatives, and establishing the truth about what happened.

States also have an obligation to investigate war crimes allegedly committed by their armed forces, and if appropriate, to prosecute those responsible. Although international law does not provide a single standard for the conduct of investigations, basic justice principles necessitate that investigations be prompt, thorough, and impartial and that ensuing prosecutions also be independent.