Violations and Response by Israel

Laws-of-War Violations by Israel

Israel’s 22-day “Operation Cast Lead” in Gaza involved various laws-of-war violations that led to civilian deaths. In addition to specific incidents, some of Israel’s policy decisions on weapons and targeting choices apparently also increased civilian deaths.

Human Rights Watch’s reports on Israeli conduct of the armed conflict focused on three issues: the IDF’s use of white phosphorus munitions in populated areas, the killing of civilians with drone-launched missiles, and the killing of civilians waving white flags. Additional areas of concern are the use of heavy artillery in populated areas, the destruction of civilian property without military necessity, and the use of Palestinians as human shields.

In total, Human Rights Watch documented 53 civilian deaths in 19 incidents in which Israeli forces appeared to have violated the laws of war. Six of those 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.

Regarding white phosphorus, Human Rights Watch documented how the IDF repeatedly exploded white phosphorus munitions in the air over populated areas, killing and injuring civilians and damaging civilian structures, including a school, a market, a UN humanitarian aid warehouse, and a hospital. White phosphorus munitions were not responsible for large numbers of civilian deaths – many more people died from missiles, bombs, artillery and tank shells, and small arms fire – but their use in densely populated neighborhoods, including downtown Gaza City, violated the laws of war, which requires taking all feasible precautions to avoid civilian harm and prohibits indiscriminate attacks. In the white phosphorous cases documented by Human Rights Watch in the report Rain of Fire, shells discharging burning white phosphorus wedges or the resulting fires killed 12 civilians, including three women and seven children, one of them a fifteen-month-old baby. Dozens more were injured by burns or smoke inhalation.[38]

Regarding drone-launched missiles, Human Rights Watch documented the IDF’s killing of 29 civilians, including eight children, with one of the most precise weapons in its arsenal. The total number of Gazan civilians killed by drone-launched missiles remains unclear. Israeli and Palestinian human rights organizations -- B'Tselem, the Palestinian Centre for Human Rights, and the Al-Mezan Center for Human Rights -- together reported 42 drone attacks that killed 87 civilians.[39]

The Human Rights Watch report Precisely Wrong focused on six Israeli drone strikes. Based on interviews with victims and witnesses, investigations of the attack sites, IDF and media reports on the fighting, and in one case IDF video footage of the attack, Human Rights Watch determined that the Israeli military directed its strikes at individuals who were civilians. In none of the cases did Human Rights Watch find evidence that Palestinian fighters were present in the immediate area of the attack at the time. None of the targets was moving quickly or leaving the area, so the drone operators had the time and optical ability to determine whether they were observing civilians or combatants, and to hold fire if they were not able to tell the difference.[40]

In the incidents investigated by Human Rights Watch, Israeli forces either failed to take all feasible precautions to verify that the targets were combatants, apparently setting an unacceptably low threshold for conducting attacks, or they failed to distinguish between combatants and civilians and to target only the former.  These attacks violated the laws of war.

Regarding the shooting of civilians waving white flags, Human Rights Watch documented seven incidents where Israeli soldiers fired on civilians with small arms, killing 11 civilians—including five women and four children—and wounding at least another eight. These casualties comprise a small fraction of the Palestinian civilians killed and wounded during Operation Cast Lead, but they stand out because of the circumstances of the attacks. In each case, the victims were standing, walking, or in a slowly moving vehicle with other unarmed civilians who were trying to convey their non-combatant status by waving a white flag. All available evidence indicates that Israeli forces had control of the areas in question, no fighting was taking place there at the time, and Palestinian fighters were not hiding among the civilians who were shot. Even if they had not been waving a white flag, these people were civilians not taking an active part in hostilities, and therefore under the laws of war were not subject to attack.

To date, the Israeli government and IDF have denied wrongdoing for civilian deaths during the Gaza fighting, saying the military did everything possible to minimize civilian casualties. One element of this argument is that Hamas placed non-combatants in danger by hiding and engaging Israeli forces from amidst civilians, making it impossible for Israeli forces to attack without causing “collateral damage.” As noted, in the 19 IDF attacks Human Rights Watch documented, selected to highlight policies that led to unlawful deaths, we found no evidence that Hamas or other Palestinian fighters were present at the time of the attack.

Another element of the Israeli argument is that the IDF warned Gazan civilians of impending military action by dropping leaflets, making telephone calls, and broadcasting announcements on local radio and television stations. [41]

International humanitarian law obliges armed forces to provide advance warnings of an attack when circumstances permit, but the warnings must be “effective.” In Gaza, the IDF’s warnings were too vague, often addressed generally to the “inhabitants of the area.” The IDF typically dropped the leaflets from high altitudes, scattering them over wide areas; many Gaza residents told Human Rights Watch that they disregarded the leaflets because they were so numerous, widely dispersed, and imprecise. In addition, the warnings did not instruct civilians where to find safety after fleeing their homes. With the beginning of the ground offensive on January 3, the IDF warned residents to “move to city centers,” but then attacked some city centers, including UN schools in urban areas where civilians had sought shelter. Ultimately, Palestinian civilians had no safe place to flee, given the strict closure of Gaza’s borders, enforced by Israel, as well as by Egypt in the south.

Finally, even after warnings are issued, the laws of war require attacking forces to take all feasible precautions to avoid loss of civilian life and property. An attacking force cannot disregard its obligation to minimize civilian harm just because it has issued a warning; attacking forces may not assume that all persons remaining in an area after a warning has been issued are legitimate military targets.[42]

Other human rights organizations documented numerous laws-of-war violations during the Israeli operation. Amnesty International’s main report on the conflict documented attacks on civilians and civilian objects, indiscriminate attacks, attacks unlawfully using flechette shells, attacks on and obstruction of medical workers, and unjustified destruction of civilian infrastructure. “Much of the destruction,” Amnesty International concluded, “resulted from direct attacks on civilian objects as well as indiscriminate attacks that failed to distinguish between legitimate military targets and civilian objects.”[43]

Israeli and Palestinian human rights organizations documented similar laws-of-war violations. The Jerusalem-based B’Tselem has filed 20 complaints with the IDF’s Military Advocate General, involving the deaths of 95 Palestinian civilians.[44] The Israeli non-governmental organization Breaking the Silence, composed of Israeli military veterans, published the testimonies of 26 unnamed reserve and regular combat soldiers who had participated in the operation.[45] 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 munitions into populated areas, and the killings of civilians with small arms. The Public Committee Against Torture in Israel, a Jerusalem-based group, filed five complaints with Israeli authorities on incidents of human shielding and unlawful detention of Palestinians.[46]

The Gaza-based al-Mezan Center for Human Rights and Palestinian Centre for Human Rights (PCHR) each published a series of reports that looked at specific incidents as well as the broader military campaign. Al-Mezan documented what it considered willful killing of civilians, the shooting of civilians holding white flags, indiscriminate and disproportionate attacks, the use of civilians as human shields, and the targeting of medical personnel.[47] PCHR documented alleged violations that included willful killings, the destruction of civilian property, the targeting of civilians and civilian objects, the use of human shields, and indiscriminate attacks.[48]The organization has presented the MAG with documentation on 450 incidents affecting 941 Palestinians.

The UN Fact-Finding Mission’s report (the Goldstone report) found that Israel had committed serious violations of international human rights and humanitarian law, some of them amounting to war crimes and possibly crimes against humanity.[49]

The Goldstone report documents 36 incidents in Gaza – a selection of incidents that included i ndi scriminate attacks, willful killings of civilians, f ailure to take all feasible precautions to minimize harm to civilians, deliberate targeting of civilian objects, wanton destruction of civilian property, and c ollective punishment from Israeli closures of Gaza’s borders.

 

The Goldstone report attributed Israeli laws-of-war violations to decisions by high-level decision makers:

 

Taking into account the ability to plan, the means to execute plans with the most developed technology available, and statements by the Israeli military that almost no errors occurred, the Mission finds that the incidents and patterns of events considered in the report are the result of deliberate planning and policy decisions. [50]

The IDF maintains that it did everything possible to minimize civilian casualties, and that it is investigating every credible allegation of unlawful conduct. To date, the IDF has not demonstrated that those investigations are thorough or impartial.

 

Response by Israel

As of April 7, 2010, Israel has not investigated in a thorough and impartial manner the conduct of its forces during the hostilities or decisions by commanders that may have contributed to violations. The government has resisted domestic and international calls to create an independent commission of inquiry; all investigations have been conducted internally by the IDF.

On the whole, the military and government claim, Israel did everything possible to minimize the impact of its military operations on civilians. They portray Hamas as fully responsible for all civilian casualties because Palestinian forces operated from residential areas and allegedly used civilians as “human shields.”[51]

During and just after Israel’s military operations, human rights organizations and the media began reporting on allegedly unlawful civilian deaths. Nevertheless, senior IDF officials dismissed calls for an investigation into alleged abuses. “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 the operation. “It’s impossible not to make mistakes in such a crowded environment, under pressure.” Charges of laws-of-war violations against Israeli soldiers and officers, he added, amount to “legal terrorism.”[52]

Senior government officials expressed a similar view. According to Ehud Olmert, Israeli prime minister during the fighting, “[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.”[53]

Since the cessation of major hostilities, Israeli human rights groups have been calling on the government to conduct credible investigations into both specific incidents and the policy decisions that led to civilian deaths. On January 20, 2009, eight organizations wrote a joint letter to Attorney General Meni Mazuz requesting independent and effective investigations into the allegations of unlawful conduct by the IDF. “In light of previous experience in which the obligation to conduct an investigation was not realized,” the letter said, “we are submitting our request to you at an early stage so that you can establish a mechanism for investigating suspected cases of humanitarian law violations by IDF officers and soldiers.” The organizations said that the investigations “must also address the legality of the actual orders and directives given to forces in the field, both during their training and during the action itself.”[54]

The organizations said they were submitting their request to the attorney general and not the IDF’s Military Advocate General, which they called the Judge Advocate General (JAG), because “the involvement of JAG personnel and the JAG himself during stages of decision-making does not allow for the JAG’s appointment as an investigating figure.”

The attorney general’s office responded on February 24, 2009, defending the IDF’s actions in Gaza as “in line with the principles of the rules of war under international law” and rejecting the request for investigations into alleged wrongdoing. The IDF had started “operational briefings,” the letter said, including some by senior officers appointed by the chief of staff.[55]

On February 4, 2009, the government released findings of the first known investigation: a probe into the deaths of three daughters and niece of a Palestinian doctor, Izzeldin Abu El-Eish. The case generated intense interest in Israel because Dr. Abu El-Eish had been providing frequent eyewitness accounts of the fighting for Israeli television programs, and he was on the phone live with a television journalist on January 16 when an IDF tank fired two shells at his Jabalya apartment, killing the four girls.[56]

The IDF said the commanders of the forces in the area, as well as the division commander, had conducted an investigation, which was approved by the head of the IDF Operations Branch and the IDF’s Southern Command, commanded during the war by Maj. Gen. Yoav Galant. The investigation concluded that a unit from the Golani Infantry Brigade had acted properly by opening defensive fire after coming under sniper and mortar fire from near the doctor’s home. “During this defensive fire, suspicious figures were identified in the upper level of Dr. Abu El-Eish’s house and were thought to be spotters who directed the Hamas sniper and mortar fire,” the IDF said. “Upon assessing the situation in the field while under heavy fire, the commander of the force gave the order to open fire on the suspicious figures. It is from this fire, that the three daughters of Dr. Izzeldin Abu El-Eish were killed.”[57]The IDF said it was “saddened by the harm caused to the Abu El-Eish family,” but it maintained that “considering the constraints of the battle scene, the threats that endangered the forces in the area, and the intensity of fighting in the area, that the forces’ action and the decision to fire towards the building were reasonable.”

The IDF Military Advocate General reviewed the investigation and found no grounds to open a criminal investigation. [58] Dr. Abu El-Eish maintained that no Palestinian fighters were in or on his house. [59] He told Human Rights Watch that the IDF had full control of the area around his house at the time of the attack and that he had not seen or heard any Palestinian fighters in the area at the time.  The IDF did not contact him or any members of his family as part of its investigation. [60]

The Israeli government’s reluctance to conduct independent investigations continued even after Israeli soldiers who had fought in Operation Cast Lead made allegations of unlawful IDF conduct. At a meeting of graduates of a military preparatory course in northern Israel on February 13, 2009, dozens of combat pilots and infantry soldiers who had fought in Gaza discussed their experiences, and the Israeli media published some of their statements that suggested permissive rules of engagement and incidents of unlawful attacks.[61]

In response to the soldiers’ statements, Military Advocate General Brig. Gen. Avichai Mandelblit instructed the Criminal Investigation Division of the Military Police to investigate the claims.[62] 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.[63]

One week later, the IDF announced that it had closed the investigation because the soldiers’ statements were “based on hearsay and not supported by specific personal knowledge.”[64] Without explaining how it conducted its investigation, and 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.”

Israeli Defense Minister Ehud Barak said the investigation showed that Israel possesses “the most moral army in the world.” He denounced the “extensive rumors that have considerably damaged the IDF’s image both at home and abroad.”[65] Military Advocate General Mandelblit 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.[66]

In early November 2009, however, the Israeli government contradicted the IDF’s conclusions by announcing that the military police had opened a criminal investigation “following published reports relating to the seminar at the Yitzhak Rabin Preparatory Academy.”[67] The government did not specify which incident or incidents from the seminar were under investigation. According to Israel, criminal investigations take place when there is “reasonable suspicion of criminal activity.”[68]

In February 2010, IDF lawyers told Human Rights Watch that military police had closed the investigation into incidents mentioned at the seminar because the soldiers’ accounts were based on hearsay. It remains unclear why a criminal investigation was opened, and into which specific incidents, after the IDF had so adamantly rejected the allegations as false.

On April 22, 2009, the IDF announced the results of its “investigation into central claims and issues in Operation Cast Lead.” Five command investigations headed by colonels who were not “a direct part of the chain of command of the operation” looked at five distinct 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. The command investigations into attacks on UN facilities, medical facilities, and civilians not involved in hostilities involved military examinations of specific incidents. The command investigations into white phosphorus and the destruction of civilian structures involved a military examination “from a general perspective” and did not look at specific incidents.[69] The IDF concluded for all five issues 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.[70]

The results of the investigations ran counter to the findings of Human Rights Watch, other human rights investigations and the UN fact-finding mission. The IDF’s conclusion, for example, that “no phosphorus munitions were used on built-up areas” was contradicted by the numerous white phosphorous artillery shells, canister liners, and burnt felt wedges containing white phosphorus that Human Rights Watch, Amnesty International and international journalists found on city streets and apartment roofs, in residential courtyards, and at a United Nations school after the fighting stopped. Spent artillery shells that delivered white phosphorus and burn marks from large fires indicate that the al-Quds Hospital and headquarters of the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA) in Gaza City were both struck with the incendiary munitions.[71] Human Rights Watch also documented seven incidents where Israeli soldiers fired on civilians with small arms, killing 11 civilians—including five women and four children—and wounding at least another eight. In each of these incidents, the evidence strongly indicates that Israeli soldiers failed to take all feasible precautions to distinguish between civilians and combatants before carrying out the attack, and in some cases they might have deliberately fired on civilians.[72]

Although the officers who led the investigations were said to be outside the direct chain of command during the operation, the thoroughness and impartiality of the investigations remained in doubt. Without access to Gaza, the military investigators did not interview Palestinian victims and witnesses to the alleged violations. The officers who headed the investigations, all colonels appointed by IDF Chief of Staff Ashkenazi, were of insufficient rank to address policies set by senior commanders that potentially contravened international humanitarian law, such as the broad set of targeting choices and the decisions to use white phosphorus munitions and heavy artillery in densely populated areas.[73]

The IDF contended that the investigating officers acted independently. All summoned military personnel were required to cooperate with the investigations, the IDF said, and soldiers interviewed did not have the right to remain silent, as opposed to the practice in criminal investigations. It said the military advocate general would review the investigations results and determine whether “additional checks need to be done or if there is the basis for opening another type of investigation.”[74]

On May 4, 2009, the findings of a UN Board of Inquiry looking into attacks on UN facilities and personnel became public. UN Secretary-General Ban Ki-moon had formed the board in February to investigate nine incidents in Gaza that affected UN personnel, property or operations. Israel allowed the board entry into Israel and provided some information on the condition of confidentiality. The board submitted its report to the secretary-general on April 21 and he passed a 23-page summary prepared by his office to the Security Council on May 4, along with the report’s verbatim recommendations. The full 184-page report has not been made public, as with all UN Boards of Inquiry.

               

The board found that in seven of the nine incidents it investigated, the death, injuries and damage involved were caused by military actions of the IDF. One incident was caused by a Palestinian armed group, most likely Hamas. In one incident the board was unable to reach a determination.

In the seven incidents caused by the IDF, damages to UNRWA totaled more than US$10.4 million and damages to the UN Special Coordinator Office for the Middle East (UNSC) more than $750,000. The attack by Palestinian fighters caused some $29,000 in damage. The board concluded that: “IDF actions involved varying degrees of negligence or recklessness with regard to United Nations premises and to the safety of United Nations staff and other civilians within those premises, with consequent deaths, injuries, and extensive physical damage and loss of property.”[75]

In January 2010, Israel paid the United Nations US$10.5 million for the losses that the organization had sustained in the incidents investigated by the Board of Inquiry.[76] An Israeli diplomat at the UN said Israel made an ex gratia payment, meaning voluntarily and without recognition of liability.[77] Hamas is not known to have paid the US$29,000 that the board said it caused in damage.

A key recommendation of the UN board was for a wider investigation into alleged incidents of violations of international law. “Where civilians have been killed and there are allegations of violations of international humanitarian law,” the report said, “there should be thorough investigations, full explanations, and, where required, accountability.” The report recommended that these incidents be “investigated as part of an impartial inquiry mandated, and adequately resourced, to investigate allegations of violations of international humanitarian law in Gaza and southern Israel by the IDF and by Hamas and other Palestinian militants.” Secretary-General Ban rejected this recommendation, saying, “It is not my intention to establish any further Inquiry.”[78]

 

In July 2009 another group of IDF soldiers spoke out about the abuses they had seen during Operation Cast Lead. The Israeli organization Breaking the Silence, composed of Israeli military veterans who served in Gaza and the West Bank, published the testimonies of 26 unnamed reserve and regular combat soldiers who had participated in the Operation Cast Lead.[79] 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 munitions into populated areas, and 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.”[80] However, it never specified which testimonies fit this description. The foreign ministry approached at least one of Breaking the Silence’s funders, the Dutch government, to request that it cease its support for the group.[81]

On July 29, the Israeli Ministry of Foreign Affairs released its first major findings on the fighting – a 163-page report released only in English, which focused largely on the context of the operation and Israel’s legal justifications for carrying it out.[82] The report addressed the allegations of soldier misconduct during the hostilities, saying the IDF had opened investigations into roughly 100 complaints, resulting in 13 criminal investigations by the military police. The report did not list the cases.

Approximately 80 of the cases characterized as investigations were actually IDF “operational debriefings” – tahkir mivza'i in Hebrew. These are low-level internal military reviews conducted by officers in the chain of command of the unit in question.[83] Introduced in September 2000 as the default first-level of military examination after alleged IDF misconduct, operational debriefings are an inappropriate mechanism to investigate alleged violations of international humanitarian law.[84] They rely primarily on accounts of the soldiers involved in an incident without statements or evidence from victims and non-military witnesses. The Military Advocate General reviews the findings of operational debriefings, and he or she may order the opening of a criminal investigation, but the debriefing findings cannot be disclosed or used as evidence in a trial. 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.[85]

On September 17, 2009, the Ministry of Foreign Affairs released a “status report” on Israeli investigations into Operation Cast Lead that updated the figures.[86] The ministry said the Military Advocate General was examining the five “command investigations” ordered by Chief of Staff Gen. Ashkenazi to determine whether criminal investigations were required. Within these five thematic investigations, the IDF said it had “examined” 20 specific incidents, four of which were to appear in the Goldstone report, which was released on September 15. In addition, the ministry said, 80 other incidents have been “investigated,” including another four contained in the Goldstone report. From the more than 100 investigations, the ministry said, the Military Advocate General had promptly opened 15 criminal investigations. They opened eight more later, including alleged shootings at civilians carrying white flags and firing flechette munitions towards civilians or civilian objects. In total, it said, military police had opened 23 criminal investigations, seven of which the Goldstone report also addressed.

When the Goldstone report was released on September 15, Israel criticized the report as “a political assault directed against Israel and against every State forced to confront terrorist threats.”[87] Some top officials took an even harder line, with Finance Minister Yuval Steinitz calling Goldstone, who is Jewish with longstanding ties to Israel, an “anti-Semite.”[88] Israeli President Shimon Peres in November called Goldstone “a small man, devoid of any sense of justice, a technocrat with no real understanding of jurisprudence.”[89]

Israel’s Ministerial Committee on National Security discussed the Goldstone report on October 20, and tasked Minister of Justice Yaakov Neeman with establishing a unit to deal with legal proceedings against Israel or its citizens overseas. Prime Minister Netanyahu also instructed the relevant government ministries to explore ways of changing the laws of war “in keeping with the spread of terrorism around the world.”[90] Regarding the Goldstone report, Netanyahu said:

Our challenge is to delegitimize the continuous attempt to delegitimize the State of Israel. The most important arena where we need to act in this context is in the arena of public opinion, which is crucial in the democratic world. We must continue to debunk this lie that is spreading with the help of the Goldstone report.[91]

A public debate ensued in Israel over how to respond to the Goldstone report. Some government officials and prominent individuals called for an independent Israeli investigation. Attorney General Meni Mazuz reportedly proposed a commission of inquiry, as did Deputy Prime Minister Dan Meridor and at least six members of the Knesset. According to media reports, Minister of Defense Ehud Barak and IDF Chief of Staff Ashkenazi have strongly opposed an outside review.[92] “There is no need for a committee of inquiry,” Minister Barak reportedly said. “The Israeli military knows to examine itself better than anyone else.”[93]

On November 1, the Ministry of Foreign Affairs provided another update on the various military investigations. The military police investigations unit was investigating 27 incidents, the ministry said, and the IDF was still examining 27 others on the operational level. The IDF had completed 45 operational debriefings and determined that “further measures were not necessary.”[94]

The ministry gave some details on disciplinary measures taken against soldiers. In one case, a soldier was “prosecuted in a disciplinary hearing” for the unlawful use of a weapon because of unauthorized firing at a UN convoy. In another case, a colonel and lieutenant colonel were “prosecuted in a disciplinary hearing” for firing artillery in violation of military orders (no casualties resulted from the attack). The IDF later reported that this case involved the artillery shelling of the UNRWA headquarters in the Tel al-Hawa neighborhood of Gaza City on January 15.[95]

In addition, the ministry said, based on complaints from human rights organizations and others, the IDF was looking at about 100 other incidents, about three-quarters of them at the operational level (operational debriefings). Fourteen of the cases went straight to the military police, including “allegations of looting, use of civilians as human shields, violent treatment of detainees, maltreatment of detainees, and an investigation that was opened following published reports relating to the seminar at the Yitzhak Rabin Preparatory Academy.” Three of these investigations produced no findings because the complainants refused to give testimony. One case was closed. One case, the credit card theft, led to the conviction and imprisonment of a sergeant for seven-and-a-half months and demotion to private for looting—the only conviction thus far from Operation Cast Lead.[96]

Four days later, on November 5, the UN General Assembly passed Resolution 64/10, which endorsed the Goldstone report.[97] Most importantly, the resolution called on Israel and “the Palestinian side” to undertake, within three months, “independent, credible investigations” that are “in conformity with international standards” into the allegations of laws-of-war violations. The resolution also requested the UN secretary-general to report back to the General Assembly within three months on implementation of the resolution, with a view to considering further action by relevant UN organs and bodies.

Human Rights Watch called on Secretary-General Ban Ki-moon to present a report that went beyond a recitation of the parties’ claims and independently evaluates whether they have in fact undertaken independent, impartial and credible investigations. “A report that merely transmits information from the parties would not advance discussions on this crucial issue and would fail to satisfy the General Assembly's request,” Human Rights Watch said.[98]

That same day, the Israeli Ministry of Foreign Affairs released further information about IDF military investigations. It said that the IDF had examined or was examining 128 incidents. Twenty-five of these were part of the five thematic command investigations announced on April 22. The results of these investigations were with the Military Advocate General, who was to present his findings to the Attorney General.

Of the remaining 103 cases, the IDF closed 48 of them because “there was no basis for suspecting any violation of the law.” The rest of the cases were either still being examined (operational debriefings) or had been forwarded to the military police for criminal investigations. Twenty-eight cases were still being examined and 27 were under criminal investigation, with the one conviction thus far.[99]

On November 11, B’Tselem said it had confirmed 14 investigations by the military police, even though the military police and MAG had not provided the full list.[100] According to B’Tselem, six incidents involved soldiers allegedly firing at Palestinians holding white flags, killing nine civilians; two incidents involved soldiers allegedly firing flechette shells at civilians, killing nine; and one incident involved soldiers allegedly firing a white phosphorous shell at a home, killing six persons, including two minors, and two additional family members who were subsequently killed by small-arms fire. B’Tselem also said it knew of four investigations into the IDF’s alleged use of civilians as human shields.[101]

On November 30, a coalition of Israeli human rights groups confirmed that at least 21 cases submitted to the Israeli authorities by human rights organizations were under investigation. Complaints on individual cases had been submitted by B’Tselem, Physicians for Human Rights-Israel, and the Al Mezan Center for Human Rights.[102] The IDF had also taken up some of the cases reported by Human Rights Watch. On October 7, military police investigators requested Human Rights Watch’s assistance in establishing contact with witnesses in three apparently unlawful killings, all of which were among those documented in the Human Rights Watch report White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead.[103]After consulting with the persons in question, Human Rights Watch facilitated the contact and six of these witnesses gave statements to military police investigators at Israel’s Erez crossing with Gaza. The IDF did not allow witnesses to bring an attorney or have other representation while giving their statements.

A source with direct knowledge of the military police investigations who wished to remain unnamed, told Human Rights Watch that the military police criminal investigations unit had established a special team under the Military Police Southern Unit in early October to address allegations of Israeli laws-of-war violations in Gaza.[104] Based in Be’er Sheva, the team comprised more than a dozen investigators, including at least six officers. They were broken into four teams, three of which talked with IDF soldiers and commanders while the other talked with Palestinians who were summoned to Erez. The team was investigating 25 cases, the source said, and would conclude its work by mid-December.

As the three-month deadline set by the UN General Assembly resolution for impartial investigations approached, Israeli human rights organizations reiterated their concern that the government would not conduct a serious investigation. On January 26, nine of the major groups issued a common statement that called on the government to create an independent and impartial investigation mechanism. In a letter to Prime Minister Netanyahu and members of his cabinet, the organizations said that the military’s internal examination “does not satisfy Israel’s obligations to investigate.”[105] The examinations and investigations look at “deviations from orders,” the letter said. However, most of the harm to civilians “was a result of policies determined at the senior government and army levels, with the approval of the Military Advocate-General.”

Three days later, on January 29, 2010, Israel released its most detailed information to date about investigations—a 46-page report entitled “Gaza Operation Investigations: An Update.”[106] Half of the report presents an overview of Israel’s military justice system and how it compares to systems in the United Kingdom, United States, Australia, and Canada. Most of the rest addresses the various military debriefings and investigations conducted into allegedly unlawful conduct in Operation Cast Lead.

The report provides updates on the five thematic command investigations announced on April 22, the results of which were reviewed by the Military Advocate General. In total, the five investigations looked at 30 specific incidents. For 27 of these incidents, the MAG found no basis to open a criminal investigation.

Regarding the investigation into harm to civilians not involved in hostilities, the IDF examined seven separate incidents. In four of the incidents, the MAG found no grounds to open a criminal investigation.[107] In three of the incidents, investigations are ongoing.[108]

Regarding attacks in which the military fired upon UN facilities, 13 incidents were examined and reviewed by the MAG, which found no basis to open criminal investigations. In two of the incidents, the MAG affirmed the decisions to pursue disciplinary proceedings against IDF personnel. One of those incidents involved damage to the UNRWA Headquarters in the Tel al-Hawa neighborhood of Gaza City on January 15, when two officers “fired several artillery shells in violation of the rules of engagement prohibiting the use of such artillery near populated areas.”[109] A brigadier general and a colonel, identified in the media as Eyal Eisenberg and former Givati Brigade commander Ilan Malka, respectively, were reprimanded for “exceeding their authority in a manner that jeopardized the lives of others.”[110]

Regarding attacks on medical crews and facilities, the IDF examined 10 incidents, and the MAG found no basis to open any criminal investigations.

Regarding the destruction of private property and infrastructure, the IDF examined the overall allegation and not specific incidents. The MAG determined that “the findings of the special investigation are consistent with Israel’s obligations under the Laws of Armed Conflict.”[111] It noted however, that the investigation was “limited in scope and dealt with overall issues” so that “specific incidents reported after the conclusion of the special command investigation have been referred to individual command investigations.”

Regarding the use of white phosphorus munitions, the IDF looked at the use of white phosphorus as a whole rather than specific incidents, and the MAG found “no grounds to take disciplinary or other measures for the IDF’s use of weapons containing white phosphorus, which involved no violation of the Law of Armed Conflict.” However, the report notes that the MAG’s opinion “did not address a number of specific complaints that were received after the investigation concluded and which are being investigated separately.”[112]

It remains unclear why the command investigation did not examine any of the six incidents documented in Human Rights Watch’s report on white phosphorus, Rain of Fire, which was published on March 25, 2009, nearly one month before the command investigation’s results became public. Human Rights Watch first informed the IDF of the six cases on February 1, 2009, including dates and GPS coordinates, when it asked the IDF for more information about the incidents.[113]

Based on recommendations from the five command investigations, Chief of Staff Ashkenazi reportedly “ordered the IDF to implement lessons learned on a broad range of matters, directing that certain standing orders be highlighted or clarified, establishing further guidelines on the use of various munitions, and instructing that steps be taken to improve coordination with humanitarian organizations and entities.”[114] The report provided no details on concrete changes to IDF policy.

According to the report, the MAG also recommended that the IDF Chief of Staff establish a sixth command investigation to assess certain incidents raised in the Goldstone report. Lt. Gen. Ashkenazi did this on November 10, 2009, and appointed an unnamed colonel who the IDF said was not directly involved with the incidents in question. Three cases are under review: the attack on the home of the al-Samouni family in the Zeitoun neighborhood of Gaza City on January 5, in which more than 20 civilians were reportedly killed and Israeli forces allegedly blocked access for medical crews;[115] the alleged mistreatment of Palestinian detainees;[116] and the attack on the Al-Maquadme Mosque.[117] The attack on the al-Samouni family home was known since January 7, 2009, when the International Committee of the Red Cross publicly criticized the IDF’s denial of medical access to the wounded and dead.[118]

In addition, the report said the IDF had opened command investigations (operational debriefings) into approximately 90 other incidents, generally involving allegations of civilian injuries or deaths and the destruction of civilian property.[119] The IDF had already completed 45 of these command investigations, the report said. The MAG referred seven incidents for criminal investigations. In the other 38 incidents, the MAG found “no reasonable suspicion of a violation of the Law of Armed Conflict.”[120] IDF inquiries into the remaining 45 incidents are ongoing. The report did not list the cases or explain why a precise number was unavailable.

According to the report, the IDF had opened 36 criminal investigations. In these cases, the MAG determined that “the nature of the alleged incidents and/or the evidentiary record raised a reasonable suspicion that allegedly criminal behavior occurred.”[121] The report did not list the cases.[122]

From the 36 criminal investigations opened thus far, 19 incidents involved “alleged shootings towards civilians.” The Military Advocate General referred 12 of these incidents directly for criminal investigation, while seven of them were referred after the MAG reviewed the findings from the operational debriefing and concluded that there was a reasonable suspicion of criminal activity. The remaining 17 incidents involved allegations of using civilians as human shields, mistreatment of detainees and civilians, and pillage and theft. To date, the report said, IDF investigators had taken testimony from almost 100 Palestinian complainants and witnesses, along with roughly 500 Israeli “soldiers and commanders.”

From the 36 criminal investigations, one had led to the conviction of a soldier—the credit card theft case. The MAG had also closed seven of the investigations without charges because “the complainants refused to give testimony and/or there was insufficient evidence of a criminal violation.”[123] The remaining 28 criminal investigations were ongoing.

On March 11, the IDF military prosecutor announced that criminal investigations had led to indictments against two staff sergeants for ordering a nine-year-old Palestinian boy to open bags that the soldiers suspected were booby-trapped with explosives.[124] The trial against the two reservists from the Givati Brigade began on March 24 at a military court of the IDF southern command.[125] The soldiers are reportedly charged with conduct unbecoming (a disciplinary charge) and exceeding authority in a way to endanger life or health (which carries a maximum penalty of three years in prison).

The report also addresses the 36 incidents of alleged unlawful conduct by the IDF raised in the Goldstone report. The IDF was already investigating 22 of these incidents when the Goldstone report came out, the report says.[126] The MAG referred the additional 12 cases for operational debriefings when the report became available.

Eleven incidents from the Goldstone report were the subject of ongoing criminal investigations, the report said. Two had already been concluded with no suspicion of criminal behavior. Seven incidents were examined as part of the five command investigations, and the rest were subject to operational debriefings.

The report highlights four cases in the Goldstone report to claim that these incidents presented no basis for criminal investigations.[127] Human Rights Watch has not published findings on these four incidents but in one of the cases the military’s investigation apparently missed an important piece of evidence – remains of an aerial bomb found in the al-Badr flour mill outside Jabalya. These remnants contradict Israel’s claim that the IDF only targeted the mill with tank shells and not from the air.

According to the Goldstone report, the IDF bombed the mill from the air in a deliberate attempt to damage civilian infrastructure. Israel said its investigation concluded that the mill constituted a legitimate military target because of Hamas activity in the area. It found that the flour mill “was struck by tank shells during combat” but was not “attacked from the air using precise munitions.” The report asserted that photographs taken after the incident “do not show structural damage consistent with an air attack.”[128]

However, video footage taken by the mill owners after the attack and obtained by Human Rights Watch shows the apparent remains of an Israeli MK-82 500-pound aerial bomb in the damaged mill.[129] Furthermore, UN de-miners told Human Rights Watch that they had visited the mill on February 11, 2009, and found the front half of a 500-pound Mk-82 aircraft bomb on an upper floor.[130]

The Israeli report did not address the remaining 30 cases documented in the Goldstone report.

On February 4, 2010, the day before the deadline set by the UN General Assembly, the IDF Military Advocate General’s office met Human Rights Watch. The IDF lawyers reiterated the material in the government’s most recent report, declining to provide details on cases, but they did provide some new information.

According to the IDF, the 36 criminal investigations would take several more months to complete. The lawyers would not provide details about the seven criminal investigations closed so far, but two were closed because the alleged victim was not willing to come to the Israeli-controlled Erez crossing with Gaza to testify.[131] One of these cases involved the alleged use of a civilian in Jabalya as a human shield and the other involved unspecified misconduct towards a civilian. One of the seven closed cases involved the incidents raised by IDF soldiers at the Yitzhak Rabin Preparatory College seminar in February 2009.

All of the incidents documented in Human Rights Watch’s reports on Gaza had been the subject of an operational debriefing or a criminal investigation, the lawyers said. Regarding the use of white phosphorus munitions documented in the report Rain of Fire, the IDF opened one criminal investigation and five command investigations. The criminal investigation also involves a white flag case, the lawyers said, which means it is the January 4 attack on the Abu Halima family house in Siyafa, in which six members of the family died and four were wounded, and two more were shot and killed as they tried to leave the area, after getting permission from the IDF.[132]

Asked why the IDF used white phosphorus munitions for the first time in Gaza, the military lawyers said it was an operational decision stemming from the nature of the combat and a general approach to “reduce risks.” The same reason was given for resuming the use of heavy artillery in Gaza after a two-year de facto moratorium.

In addition, the IDF lawyers said, all seven incidents documented in Human Rights Watch’s report White Flag Deaths, about civilians shot while in groups waving white flags, are under criminal investigations. In these seven incidents, 11 civilians died, including five women and four children.

All six incidents in Human Rights Watch’s report on drone-launched missiles, Precisely Wrong, had been the subject of an operational debriefing, the lawyers said. One of these incidents—the December 29 airstrike on an open-back truck that the IDF believed was carrying Grad rockets—was already closed. Nine civilians died in that attack, three of them children. Human Rights Watch’s investigation found that Israeli forces failed to take all feasible precautions in determining whether the truck was a valid military target.[133]

Regarding the destruction of civilian property, the IDF lawyers noted several incidents that were still under review: the Abu Jubbah cement factory; the Wadiyya Food Factory; Khuza’a neighborhood near Khan Yunis; the al-Samouni neighborhood of Zeitoun and the ‘Abd Rabbo of Jabalya. Regarding the video and photographic evidence that the IDF had dropped an aerial bomb on the al-Badr Flour Mill, the lawyers said that they could reopen an investigation when presented with new evidence.

On February 26, 2010, the UN General Assembly met again to discuss the Goldstone report, and in particular the undertaking by Israel and Hamas of thorough and impartial investigations, as called for in the November 2009 GA resolution. On February 4, Secretary-General Ban Ki-moon had informed the General Assembly that, because the Israeli and Palestinian investigations were ongoing, “no determination can be made on the implementation of the resolution by the parties concerned.”[134]

The General Assembly voted to repeat its call for credible domestic investigations, this time giving the parties another five months to respond.[135] Significantly, 16 of 27 European Union member states voted in favor, including two permanent members of the Security Council, the United Kingdom and France.[136] The EU states’ support of the resolution grew significantly since the November vote, when only five members voted for the resolution. In February, the United States and Canada were among seven states that voted against the resolution.

On March 10, 2010, the European Parliament supported the General Assembly’s call, passing a resolution that urged both parties “to conduct investigations within five months that meet international standards of independence, impartiality, transparency, promptness and effectiveness.”[137]

On March 22, 2010, the UN Human Rights Council passed another resolution on the follow-up to the Goldstone report. It created a committee of independent experts to monitor and report on domestic investigations by both sides, including “the independence, effectiveness, genuineness of these investigations and their conformity with international standards.”[138] Appointed by the High Commissioner for Human Rights, the committee will report back to the HRC at its fifteenth session in September 2010.

As of April 7, 2010, at least nine Israeli and Palestinian human rights organizations had filed complaints with the IDF on behalf of victims in Gaza.[139] One of those complaints had led to an indictment and trial – the two soldiers who allegedly forced a Palestinian boy to open bags they suspected of being rigged with explosives.[140] At least twenty-seven other incidents are the subject of criminal investigations.

The Palestinian Centre for Human Rights (PCHR) filed the most criminal complaints, presenting the MAG with documentation on 450 incidents affecting 941 Palestinians. According to PCHR, 15 of these incidents are the subject of a criminal investigation.[141] B’Tselem filed 20 complaints, involving the deaths of 95 Palestinian civilians and the wounding of 21 others.[142] According to B’Tselem, eight of these cases are the subject of a criminal investigation (two of which overlap with PCHR). The Haifa-based organization Adalah filed 10 cases with the MAG, involving the deaths of 20 Palestinians; six of these cases became the subject of a criminal investigation, one of which has already been closed.[143]

The Palestinian Centre for Human Rights has also submitted 1,028 compensation claims to the Israeli Ministry of Defense. According to PCHR, as of February 11, 2010, the ministry had indicated to PCHR its receipt of only seven of these claims.[144]