Yesterday, on Wednesday April 22nd Israel announced that an internal investigation launched in response to accusations of war crimes determined that no such crimes were committed by Israeli troops during Operation Cast Lead in the Gaza Strip.
The internally-led IOF investigation was closed by Military Attorney General Achivai Mandelblit on 30 March 2009 just 11 days after it started, despite soldiers having made allegations of war crimes and grave breaches of the Geneva Conventions.
  Al Mezan center for Human Rights has been following the development of this investigation with much concern.
Al Mezan remains critical of the investigation, which failed to acknowledge a single one of the well-documented war crimes committed including: the indiscriminate use of weapons in densely populated areas; using civilians as human shields and putting them in other positions of harm; firing at medical staff and preventing medical teams and ambulances from reaching the injured and dead; firing rockets deliberately into civilian areas, targeting civilians holding white flags; and targeting civilian installations like police stations, government offices, and other non-legitimate military targets.
Particular incidences like the bombardment of the UN school, during which at least civilians were killed and injured demand particular attention.
  The investigation was performed by five investigative teams of Israeli army colonels who were not involved in the fighting in Cast Lead, supervised by Israeli army's Chief of Staff Gabi Ashkenazi.
They examined reports of attacks on civilians and civilian infrastructure, medical personnel and facilities, United Nations facilities, and the use of white phosphorous.
The investigation concluded that any civilian deaths during the Offensive were attributed to mistaken fire on the part of IDF troops and that the IOF 'adhered to international law and maintained a high level of professionalism and morality.
'[1]   The attack on the Ad-Daya (reported in Israel as Al-Dahiyeh) family home in the Gaza City neighborhood of Zeitoun, in which 21 members of the same family were killed, was found be a result of a malfunction in the targeting system of the aircraft carrying out a mission targeting a suspected weapons storehouse dozens of meters away.
[2] In the instance of Israeli artillery fire at UNRWA's Jabalia Elementary School (locally known as Al Fakhora School), in Jabalia Refugee Camp on 6 January at 3:30pm, where hundreds of Gazans had sought refuge, the IOF said its troops were responding to fire from militants near the school and that only 12 people died, five of whom were 'terror operatives.
'[3] Al Mezan's investigations confirmed that the IOF fired four shells, believed to be GPS-guided artillery shells, in the vicinity of the school.
Three of the shells landed and exploded in an open area opposite to the southwestern part of the school yard.
The other shell landed approx.
50 meters to the west of the school, hitting two houses and killing 11 people inside including five children.
The shelling killed a total of 36 civilians and injured around 50 civilians, including 12 children and 6 women.
  The army maintained that it took great care to avoid harming civilians in Gaza, preceding airstrikes with leaflets or phone calls warning civilians to leave the area.
It stated that Hamas had deployed its fighters in densely populated civilian areas, set booby traps in houses and mined streets, making widespread structural damage[4] and civilian deaths unavoidable because Hamas was fighting in populated areas.
[5] With regards to the use of white phosphorus in heavily populated areas, they denied this claim and further asserted that in the cases where it was used, the smoke shells contained only small amounts of white phosphorous and did not pose a fire risk.
[6]   The military's deputy chief of staff, Brig-Gen.
Dan Harel, said Israel has identified 1,166 dead in Gaza, including 709 Hamas and Islamic Jihad militants.
The investigation concluded that 295 of the dead were civilians and the identity of an additional 162 could not be confirmed.
[7] These numbers conflict with the 1,405 Palestinian deaths that have been documented by Al Mezan, 1,201 of which were civilians (including policemen who were not taking any part in hostilities), of whom 311 children and 111 women.
  The number of casualties is not the only discrepancy; all of the results of the investigation contradict the initial findings of investigations conducted by Al Mezan and other national and international NGOs, which confirmed multiple war crimes committed by the IOF.
The following are a few examples of the many attacks documented by Al Mezan that targeted civilians:   On 3 January there were multiple Israeli incursions and firing at the Al Zeitoun neighborhood, causing the As-Sammouni family to gather together in the house of Talal As-Sammouni, as other houses in the area were being targeting.
Talal's house was bombarded on 4 January at 4am by a shell that hit the second floor.
At 7 am soldiers knocked at the door of Talal’s house and ordered them to move to Wa'il As-Sammouni's house in the same area.
At 8 am on 5 January, this house was bombarded with tank shells, killing and injuring multiple members of the family.
Several of those that were injured walked 2kms from the house, to an area where ambulances could collect them.
The rest were left in the house for three days until the ICRC came into the area and evacuated 12 of them; including children who had been left next to the dead bodies for days.
In total 29 people were killed, some immediately, and some because they had to wait in the house for several days without medical aid.
Of the casualties 12 were children.
  On 4 January 2009 an attack on Abu Halima houses in Beit Lahiya in Northern Gaza took place and white phosphorus shells were used.
The area is heavily populated and the fact that the death toll was so low, 6 children, is a miracle.
The bodies of those who died were left in the street for 12 days and were partially consumed by dogs, despite that they were near an Israeli military post in the area.
  There were at least eight cases of human shields used by the IOF during the Offensive.
In one case Munir Rasheed Mohammed Mohammed (41) and his brother Sameer (45) were used as human shields.
They live in Ezbet Abed-Rabbo, east of Jabaliya, where there were multiple attacks on neighboring houses.
On Monday 5 January 2009 at around 4.
30 in the afternoon around 20 Israeli soldiers entered their house and took him and his brother to different houses in the area, forcing them to take them into apartments in the area.
During the process Sameer was shot and bled to death after the IOF fired on a rescue convoy including Red Crescent ambulances and a UN vehicle.
Munir was injured, denied medical care and lost two fingers as a result.
[8]   On Wednesday 31 December 2008 at around 2 am an ICRC team made up of Dr Ihab Omar Al-Madhoun (33), the director of Az-Zaytoun Clinic in Gaza City; the medic Mohammed Sa’eed Abu Hasira (30), and the ambulance driver, Hishmat Ajour (30) travelled to the area of Jabal Al-Rais, located north-east of Gaza City, having received news of killings and injuries in the area.
Upon arrival, immediately when they got out of the car, they were hit by an Israeli missile which killed Mohammed, the medic, immediately.
Dr Al-Madhoun died later that morning from his injuries.
The driver was seriously injured and taken to Kamal Udwan hospital north of the Gaza Strip.
[9] In total during the Offensive 15 hospitals and 41 PHC centers were partially damaged and 2 PHC centers were destroyed.
In addition, 29 ambulances were partially damaged or destroyed and 16 health staff were killed and 22 were injured while on duty.
[10]   In response to the results of the investigation, Defense Minister Ehud Barak said that the army's willingness to probe itself proves that it is one of the most moral armies in the world.
[11] Now that the investigation is finished the military judge advocate-general will decide whether to order courts-martials, though this is unlikely considering Israel's history of not carrying out such orders.
In addition according to a senior Israeli military official, several soldiers are under separate investigation for using their weapons against regulations.
[12] Despite its contention that no crimes were committed, Israel is preparing for potential legal action, forbidding the media from publishing pictures of officers' faces and names.
It has also promised legal and financial support for any officers facing trial.
[13]   This investigation is criticized by Al Mezan along with other human rights groups in Israel and the OPT, as well as several MKs in the Israeli Knesset and international NGOs including Human Rights Watch.
The failure of Israel to properly investigate its illegal practices in Gaza only further highlights the importance of the UN investigation that will be launched into Israeli war crimes committed, being led by former UN chief prosecutor Richard Goldstone.
Israel has not officially announced whether it would cooperate with the Goldstone Investigation but has rejected council investigations in the past.
However, on 15 April 2009 a government official announced that Israel is 'very unlikely' to cooperate with a UN agency's probe.
The official said that Israel sent its response to the UN in New York during the first week of April, however he could not elaborate on the content.
[14] The IOF's claim that it did not commit any war crimes, and is moral in its practices, is called into question by the fact that Israel is reluctant to allow an open international investigation.
  Investigations conducting by armies into their own actions are usually problematic given that they are motivated by self-interest.
Israel's army is also steeped in a culture of impunity, further impeding the success of such investigations.
There are very clear guidelines as to what a good investigation is under international legal standards.
As a result of ratifying the Fourth Geneva Convention Israel is required to investigate and punish those responsible for serious violations of the GCs and it also has obligations to investigate alleged wrongdoing by its soldiers under international human rights law.
[15] The investigation must meet international standards, which include five basic obligations:   bring to justice and discipline and punish those responsible provide an effective remedy for the victims of human rights violations provide fair and adequate compensation to the victims and their relatives establish the truth about what happened.
[16]
To qualify as an effective remedy for a serious human rights violation, a prompt, thorough, and effective investigation capable of determining a wrongdoing and identifying the culprit is required.
An effective remedy also includes access by the victim or complainant to the investigatory procedure, and, when appropriate, the payment of compensation.
Remedies must be effective in practice, not just in theory, with a strong enough element of public scrutiny to ensure true accountability.
A key requirement is that those investigating an alleged crime must be independent from those implicated in the events.
  Israel's investigation process generally fails to fulfill the international standards of thoroughness, timeliness, and impartiality, and this investigation as been yet another example.
Most of the investigations that are carried out by the Israeli government and/or army are not thorough or effective, because of the lack of reliance on anything besides the military accounts of incidences.
There is insufficient public scrutiny to ensure true accountability.
The ECHR has also said that those responsible for or carrying out an investigation into unlawful killing by state agents must be independent from those involved in the incident, 'not only a lack of hierarchical or institutional connection, but also a practical independence.
'[17] Israel fails in this regard as well, as the members of the military are the ones running the investigation and in power to end the investigation when they see fit.
  Many of the principles outlined in the U.
N.
'Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions'  are not respected by Israel, including the ability for victims or their families to complain about a mishandled investigation, access by families and their legal representatives to any hearing and to all relevant information, and the right to present other evidence, a detailed written report on the methods and findings of the investigation to be made public within a reasonable time, government action to bring to justice persons identified by the investigation as having taken part in extra-legal, arbitrary and summary executions, responsibility of superiors, officers or other public officials for acts committed under their authority if they had a reasonable opportunity to prevent such acts, and fair and adequate compensation for the families and dependents of victims of extra-legal, arbitrary and summary executions within a reasonable period of time.
In this particular investigation the IOF admits to its flaws by openly announcing that it carried out limited interviews with the victim population; 'In cases where we could, we interviewed Palestinians through the coordinating offices, but you cannot, at the end of the day, reach each and every Palestinian.
This is not a normal situation' a senior Israeli official said.
A proper investigation cannot be conducted without a thorough process of interviewing a considerable amount of the victims, as well as visiting the locations of the attacks to establish the type of weapons used, location of fire, etc.
  Al Mezan wants to emphasis that Israel has a clear obligation under international law to launch a serious investigation, or if it is unwilling to do so it must cooperate with the UN investigations.
The results of the investigation prove that Israel is not carrying out an investigation that meets international standards and Israel must be urged by the international community to respect international law and its obligations under the Geneva Conventions and IHL.
In addition to the UN investigation, Al Mezan has been involved in international efforts to pursue litigation in domestic courts, where the principle of international jurisdiction applies, regarding war crimes committed during Operation Cast Lead.
Six Norwegian lawyers representing a group of clients announced plans to bring charges against Israeli officials to a local court in Oslo.
Charges will be made against former Prime Minister Ehud Olmert, opposition leader Tzipi Livni, Minister Ehud Barak and seven senior IOF officers including Gabi Ashkenazi and Ido Nehoshtan to Oslo court.
[18] Under the Norwegian penal code, courts may hear cases involving war crimes and crimes against humanity, even if they had been committed abroad, and have no relationship to the citizens of the country.
Al Mezan encourages such efforts and will continue to work towards holding Israel accountable for the many war crimes it committed during Operation Cast Lead as well as over the last five decades.
  Ends
[1] Anshel Pfeffer, ' Barak: Gaza probe shows IDF among world's most moral armies.
' Haaretz English, 23 April 2009.
< http://www.
haaretz.
com/hasen/spages/1080244.
html> [2] Anshel Pfeffer, ' Barak: Gaza probe shows IDF among world's most moral armies.
' Haaretz English, 23 April 2009.
< http://www.
haaretz.
com/hasen/spages/1080244.
html> [3] BBC, 'Israelis 'followed law in Gaza'.
' BBC International, 22 April 2009.
[4] Dan Williams, 'Israeli army says no serious misconduct in Gaza.
' Reuters International, 22 April 2009.
[5] BBC, 'Israelis 'followed law in Gaza'.
' BBC International, 22 April 2009.
[6] Dan Williams, 'Israeli army says no serious misconduct in Gaza.
' Reuters International, 22 April 2009.
[7]ِ Aron Heller, 'Israel denies violating international law in Gaza.
' 22 April 2009.
[8] For more cases of human shields: Al Mezan, 'Hiding Behind Civilian: Use of Palestinian Civilians as Human Shields by the Israeli Occupation Forces.
' April 2009 Update Report, 9 April 2009.
.
' [9] For more cases of targeting medical teams: Al Mezan, 'The Targeting of Medical Centers, Ambulance Teams and Civil Defense Teams during the Israeli Offensive 'Operation Cast Lead' against the Gaza Strip.
' 27 December 2008 – 18 January 2009 Report, 17 March 2009.
[10] WHO, 'Health situation in Gaza.
' 4 February 2009.
[11] Anshel Pfeffer, ' Barak: Gaza probe shows IDF among world's most moral armies.
' Haaretz English, 23 April 2009.
< http://www.
haaretz.
com/hasen/spages/1080244.
html> [12]  Dan Williams, 'Israeli army says no serious misconduct in Gaza.
' Reuters International, 22 April 2009.
[13] Anshel Pfeffer, ' Barak: Gaza probe shows IDF among world's most moral armies.
' Haaretz English, 23 April 2009.
< http://www.
haaretz.
com/hasen/spages/1080244.
html> [14]  The Associated Press, ' ' 'Israel unlikely to assist UN war crimes probe' .
' Haaretz English, 15 April 2009.
[15] Israel has signed and ratified numerous human rights treaties, but argues that its resulting obligations do not apply to the OPT.
This position has been rejected by the relevant U.
N.
treaty bodies responsible for monitoring Israel's compliance with its treaty commitments.
Most recently, in August 2003, the U.
N.
Human Rights Committee, composed of individual experts who examine the compliance of states with the International Covenant on Civil and Political Rights (ICCPR), stated that 'in the current circumstances, the provisions of the [ICCPR] apply to the benefit of the population of the Occupied Territories, for all conduct by [Israeli] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law.
' ( United Nations Committee on Human Rights, Concluding Observations of the Human Rights Committee: Israel.
21/08/2003, CCPR/CO/78/ISR.
(Concluding Observations/Comments) [16] Federico Andreu-Guzmn, Military Jurisdiction and International Law: Military Courts and Gross Human Rights Violations, International Commission of Jurists/Colombian Commission of Jurists pp.
21-26, available at http://www.
icj.
org/IMG/pdf/Trib.
_mil.
_ENG_-_part_I.
pdf.
[17] European Court of Human Rights, Hugh Jordan v.
The United Kingdom, para.
107 [18]  Haaretz Service, ' Report: Olmert, Livni may face war crimes charges in Norway.
' Haaretz English, 22 April 2009.