(Jerusalem) - An Israeli military court's sentence on November 21, 2010, for two soldiers found guilty of using a Palestinian boy as a "human shield" during the 2008-09 offensive in Gaza appears inadequate considering the gravity of the offense, Human Rights Watch said today.
"The slap on the wrist for these soldiers is another slap in the face for the victims of violations during Operation Cast Lead," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "Not only do these sentences seem unjustifiably lenient, but two years later, they are the only sentences Israel has handed down for serious human rights violations among the many alleged during the Gaza offensive."
The court ruling, which demoted two staff sergeants to the rank of sergeant and gave them suspended three-month sentences, sends a dangerous signal that the Israeli military justice system will not seriously sanction soldiers convicted for offenses that are war crimes under international law, Human Rights Watch said.
The military court ruling took into consideration the sergeants' records of good military service and "the difficult conditions in which [they] had to operate." Israeli media reports said that both soldiers, whose identities have not been made public, had completed their mandatory military service but will still be able to serve as commanders when called for reserve duty.
The Israeli southern command military court indicted the two staff sergeants in March for separating nine-year-old Majed R. from his mother and ordering him at gunpoint to open bags suspected of containing booby-trapped bombs in the Tel al-Hawa neighborhood, south of Gaza City, on January 15, 2009. No explosives were found. The court convicted the soldiers in October of "exceeding authority to the point of endangering life or health," which carries a maximum sentence of three years in prison, and the disciplinary offense of "conduct unbecoming" a commander.
The laws of war applicable during the Gaza offensive prohibit as a war crime the deliberate use of civilians to shield against enemy attack. Shielding is prohibited under Article 28 of the Fourth Geneva Convention, which applies to Gaza as an occupied territory. The First Additional Protocol to the Geneva Conventions, which reflects customary international law generally and in this instance, says that, "Individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations."
The fact that explosives were not found in the 2009 incident does not alter the laws-of-war violation or the criminal intent behind the soldiers' actions, Human Rights Watch said. The soldiers appeared to have deliberately or recklessly sought to place the boy between them and a potential attack, which could have led to the boy's injury or death. The Fourth Geneva Convention and customary international law also prohibit the compulsory use of civilians for labor during military operations.
The soldiers from the Givati Brigade were two of only four whom Israeli military authorities have indicted for criminal offenses during Operation Cast Lead, despite numerous well-documented instances of apparent deliberate or indiscriminate attacks on civilians and other actions in violation of the laws of war by other soldiers. Israel opened roughly 48 criminal investigations after Operation Cast Lead, but to date only one soldier has been sentenced to prison: he served a seven-and-a-half-month sentence for stealing a credit card.
"It is disturbing that soldiers who risked a child's life in a patently illegal way received a milder punishment than a soldier who stole a credit card," Whitson said.
The Israeli military reprimanded six other soldiers for actions during the Gaza offensive, including a battalion commander who was "warned" as a result of authorizing the use of a Palestinian man as a human shield in the Izbt Abd Rabbo neighborhood on January 6, 2009. In another case, the Gaza Division commander, Brig. Gen. Eyal Eisenberg, and Givati Brigade commander, Col. Ilan Malka, were disciplined for shelling the UN Relief and Works Agency compound in Gaza City on January 15, 2009. In an ongoing criminal investigation, Israeli military police questioned Colonel Malka in October for allegedly authorizing an attack on January 5, 2009, that killed 21 members of the al-Samouni family, despite receiving warnings that there could be civilians in the area, Israeli media reported.
While the Israeli military has convicted and disciplined several soldiers, Hamas authorities in Gaza have not taken any credible steps whatsoever to investigate its own troops or members of other Palestinian armed groups for alleged war crimes and serious human rights abuses during the conflict, including deliberately launching hundreds of rockets at Israeli population centers and extrajudicially executing alleged Palestinian collaborators.
During Operation Cast Lead, Hamas at times unlawfully placed civilians in unnecessary danger by fighting from densely populated areas. International media and reports by nongovernmental organizations described at least two cases in which Palestinian armed groups appeared to have deliberately fired rockets from populated areas to avoid Israeli counterattacks, which would amount to the war crime of human shielding.
Israeli and Palestinian human rights organizations and the Goldstone report commissioned by the United Nations Human Rights Council documented at least 21 allegations of cases in which Israeli soldiers used human shields during the offensive. Israeli human rights groups documented dozens of cases in which Israeli soldiers used human shields in the years before the Gaza conflict.
In May 2002 the Israel Defense Forces (IDF) issued an "unequivocal order" prohibiting soldiers from using human shields. In October 2005 the Israeli High Court of Justice ruled that it was illegal for the IDF to use Palestinian civilians during military actions, in response to a petition filed by Israeli human rights organizations in 2002.
"The Israeli military justice system has failed to address many claims of human shielding by Israeli soldiers before and during Operation Cast Lead," Whitson said. "If soldiers aren't going to be punished seriously for this criminal conduct, we can expect that it will continue."
The Palestine section of Defense for Children International (DCI), a West Bank and Gaza-based human rights organization, filed a complaint with Israeli military authorities on behalf of Majed R. in April 2009. Israeli military authorities first responded to the complaint in June 2009, and later asked the boy to testify for a criminal investigation. In November 2009 the boy and his mother agreed to provide information to Israeli military police investigators at the Erez crossing point, which Israel operates on Gaza's perimeter. DCI told Human Rights Watch that Israeli military authorities had refused their request to have a lawyer present during the boy's questioning.
In a July 2010 report, Israel said it would criminally investigate all allegations of human shielding, but published information about only 5 of at least 21 cases of which nongovernmental organizations and the Goldstone report notified the authorities, making it difficult to assess the adequacy of any other investigations or to know whether and why they were closed.
An expert committee appointed by the UN Human Rights Council reported in September that Israel's investigations of violations during "Operation Cast Lead" were incomplete, as the authorities had failed to investigate some cases of alleged wrongdoing and to examine the alleged responsibility of "officials at the highest levels." The committee found a conflict of interest in the role of the military advocate general, who approved plans for the offensive but was also responsible for prosecuting alleged violations by Israeli soldiers.
Human Rights Watch urged the international community to call on Israel as well as Hamas to bring to justice perpetrators of serious violations of the laws of war and international human rights law. A failure by Israel and the Hamas authorities in Gaza to punish those responsible for laws-of-war violations would necessitate international prosecutions, Human Rights Watch said.