(New York) - Israeli military investigations into the Gaza war have brought some results over the past 18 months but fall far short of addressing the widespread and serious allegations of unlawful conduct during the fighting, while Hamas has announced no serious investigations whatsoever, Human Rights Watch said today.
Human Rights Watch called on governments and the United Nations to increase their pressure on Israel and Hamas to conduct credible, independent investigations.
"International pressure for investigations has pushed Israel, if not Hamas, to take some steps, but there can be no let-up," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "The victims on all sides deserve justice."
In July 2010, Israel gave UN Secretary-General Ban Ki-moon an update of its Gaza investigations, claiming "significant results." The Palestinian authorities in the West Bank also submitted a report to the secretary-general, which is not yet public. Hamas has reportedly prepared a report on its investigations but has also not released it publicly. Ban is expected to pass the reports from Israel and the West Bank authorities to the General Assembly in the coming weeks.
"Secretary-General Ban should candidly assess the investigations by both sides and not just passively transmit the reports to the General Assembly," Whitson said.
In February, the General Assembly called on Israel and Hamas for the second time to conduct thorough and impartial investigations into the serious violations of international human rights and humanitarian law documented by the UN Fact Finding Mission on the Gaza Conflict, headed by Justice Richard Goldstone. That report found that both Israel and Hamas had committed war crimes and possible crimes against humanity.
Hamas authorities in Gaza have neither investigated nor disciplined anyone for ordering or carrying out hundreds of deliberate or indiscriminate rocket attacks into Israeli cities and towns during the fighting in December 2008 and January 2009, which are war crimes. Hamas officials, at a May 14 meeting in Gaza City, told Human Rights Watch that they were investigating allegations of wartime abuses but provided no details.
At that meeting, Human Rights Watch reiterated its concerns about Hamas's failure to investigate laws-of-war and human rights violations, including rocket attacks against Israeli population centers, the continued incommunicado detention of the captured Israeli soldier Gilad Shalit, and ill-treatment of Gaza residents in custody. Hamas allowed Human Rights Watch to visit Palestinian detainees at Gaza's central prison but denied a request to visit Shalit and a detention facility where torture allegedly occurs.
On July 21, the Israeli government made public the report it gave to the UN secretary-general on its Gaza investigations. All of these were conducted by the Israel Defense Forces (IDF). The government has rejected calls for independent investigations.
The military has failed to investigate many serious allegations of abuses or the policies that apparently led to civilian deaths, Human Rights Watch said.
To date, Israeli military courts have convicted only one soldier for a wartime abuse - the theft of a credit card. Two other soldiers are on trial for forcing a child to open a bag they suspected of being rigged with explosives. A third soldier was recently indicted for shooting and killing a civilian who was walking in a group holding white flags.
Israel says the military has opened more than 150 investigations, but more than 100 of these were limited to "operational debriefings" (in Hebrew, tahkir mivza'i). Rather than criminal investigations, these are after-action reports in which an officer in the chain of command interviews the soldiers involved, with no testimony from Palestinian victims or witnesses.
The operational debriefings may serve a useful military purpose, but they are inadequate substitutes for impartial and thorough investigations into possible criminal wrongdoing, Human Rights Watch said.
The IDF military advocate general has also opened 47 criminal investigations in which military investigators summoned witnesses and more broadly examined evidence. Of these, at least seven cases have been closed without charges.
Human Rights Watch investigated at least two of these closed cases and found that the evidence strongly suggests violations of the laws of war. In one case, on January 7, an Israeli soldier apparently opened fire on two women and three children from the ‘Abd Rabbo family in eastern Jabalya who were holding white flags, killing two girls and wounding the grandmother and third girl. The military said it closed the case because "the evidence was insufficient to initiate criminal proceedings."
The second case involved the killing of Rawhiya al-Najjar, 47, as she carried a white flag in Khuza'a on January 13. The military determined that she had been hit accidentally by a ricochet bullet. But five witnesses interviewed by Human Rights Watch said that Israeli soldiers continued to fire after al-Najjar was struck in the head, preventing a group of women from retrieving her body and wounding Jasmin al-Najjar, 23. Another civilian carrying a white flag, Mahmoud al-Najjar, 57, was shot and killed later that day trying to reach the body.
Other Israeli military investigations have resulted in unspecified disciplinary action, reserved for less serious offenses, against five unidentified commanders and soldiers. A brigadier general and a colonel were disciplined for ordering the use of explosive shells in an urban area, in violation of operational orders. A lieutenant colonel was disciplined because soldiers under his command used a civilian to perform a military task.
An officer of unspecified rank was reprimanded and two others sanctioned for using poor judgment in a January 3 strike just outside the Ibrahim al-Maqadema mosque in Jabalya refugee camp that reportedly killed 10 civilians inside the mosque and two members of Hamas's armed wing standing outside. A previous Israeli update on the military's internal investigations, released in July 2009, stated that a soldier had been disciplined by the commander in the field for destroying property, which military investigators told Human Rights Watch involved uprooting vegetation.
Israel said it is making operational changes to reduce civilian casualties and damage to civilian property during future military operations. According to the July report, the military has added a humanitarian affairs officer to each combat unit at the battalion level and above. In October 2009 it introduced a new "Standing Order on Destruction of Private Property for Military Purposes," which clarifies when and under what circumstances the military may destroy civilian structures and agricultural infrastructure.
The report also said that the Israeli military is establishing new orders on the use of munitions containing white phosphorus, which can cause severe burns and ignite civilian structures, and is "establishing permanent restrictions on the use of munitions containing white phosphorus in urban areas."
"Israel's recognition of the need to change its policies, especially on property destruction and the use of white phosphorus, is a positive step, but the military should make the new policies public to ensure they are consistent with international law," Whitson said.
Israel initially denied that it had used white phosphorus during the fighting in Gaza but, after the evidence became undeniable, it conceded that it had and investigated its use. A Human Rights Watch report showed how Israeli forces 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 humanitarian aid warehouse, and a hospital.
Another Human Rights Watch report showed that Israeli forces deliberately destroyed 189 civilian structures without a lawful military justification, which could amount to the war crime of wanton destruction. That report investigated roughly 5 percent of the destruction of civilian property in Gaza.
Various bodies of the United Nations are monitoring the post-war investigations by Israel and Hamas. The General Assembly is expected to take up the secretary-general's report. At the Human Rights Council, a Committee of Experts is assessing whether Israel and Hamas are conducting investigations that meet international standards. Its report is expected in September.
"A growing number of states are demanding accountability from both sides, and their pressure is bearing fruit," Whitson said. "Now all European governments, as well as the US and Canada, should insist on the same rules for Israel and Hamas as they demand elsewhere: that those responsible for war crimes be held accountable, and the victims receive justice and compensation."