IDF to investigate itself for war crimes
This posting has 4 items:
1) UPI: Israel investigates alleged Gaza war crimes, investigation is to pre-empt referral to ICC;
2) Haaretz: Israeli army lags in reforming probes into Palestinian deaths, Gili Cohen says the IDF has yet to carry out the reforms the Terkel Commission advised on investigating Palestinian deaths;
3) HRW: Israel: In-Depth Look at Gaza School Attacks, Human Rights Watch carries out its own investigation;
4) NY Times: Israel, Facing Criticism, to Investigate Possible Military Misconduct in Gaza, the most sympathetic rendering;
Four Palestinian boys shot dead on a Gaza beach in July, witnessed by many journalists. Photo by Tyler Hicks/The New York Times
Israel investigates alleged Gaza war crimes
UPI/ World News Report
September 10, 2014
JERUSALEM–An investigation into incidents of possible misconduct during the 50-day Gaza war has begun by Israel’s Military Advocate General Corps, a senior military official said Wednesday.
Five incidents are under investigation. The inquiry appears to be an Israeli attempt to examine what the global community sees as possible war crimes in Gaza, and a pre-emption of international action.
The most prominent incidents under consideration are an Israeli airstrike on a United Nations school on July 24 in the town of Beit Hanoun in which 16 civilians seeking shelter were killed, and the shelling of a Gaza beach on July 16 in which four children were killed. Both attacks initiated international outrage and condemnation of the Israeli military strategy; the beach incident was witnessed by many foreign journalists staying in a nearby hotel, who noted no sign of military activity in the area.
The other cases involved a Palestinian teenager who claimed he was mistreated while in Israeli detention, a Palestinian woman killed by gunfire and a soldier who allegedly stole money from a Gaza home.
The speed of the start of the self-investigation, only two weeks into a ceasefire, suggests it is intended to pre-empt a United Nations Human Rights Council investigation of possible war crimes, with which Israel, claiming bias, has said it will not co-operate. Palestinian leadership in Gaza has also threatened to take its grievances over alleged war crimes to the International Criminal Court.
Israeli army lags in reforming probes into Palestinian deaths
The IDF has yet to imply key recommendations issued by a commission held a year and a half ago, dedicated to improving the way Israel investigates suspected violations of the laws of war.
By Gili Cohen, Haaretz
September 08, 2014
A year and a half after the Turkel Commission published recommendations for improving the way Israel investigates suspected violations of the laws of war, the army has yet to implement key suggestions.
The Military Police, for example, hasn’t set up a special division to investigate incidents that occur during operations in the West Bank, nor has the Military Advocate General’s Corps set precise deadlines for how long such investigations should take. As a result, the B’Tselem and Yesh Din human rights groups say they have no confidence in military probes into suspected crimes against Palestinians, charging that the system suffers from “serious systemic problems that make it unable to conduct professional investigations.”
B’Tselem even took the unusual step of refusing the MAG Corps’ request for information on potential crimes by Israeli soldiers during the recent war in Gaza. B’Tselem director Hagai El-Ad said that based on experience after previous rounds of fighting in Gaza, his group does not believe that the corps’ investigations will get at the truth or make sure soldiers responsible for violations are punished.
“Since no significant change has been made in Israel’s law enforcement system – of which the MAG Corps is part – it seems the suspicions won’t be investigated this time either, and that there’s no intention of investigating the legality of the orders given the army or the responsible parties in the government or among senior officers,” he wrote in a letter to the corps.
Military prosecutors say they regret the NGO’s unwillingness to co-operate with the army in its effort to investigate various incidents. In most cases, the army added, it initiates investigations into incidents where wrongdoing by soldiers is suspected even before it is contacted by human rights groups. The Turkel Commission was created to investigate the raid on theMavi Marmara, a Turkish-sponsored aid flotilla that tried to break the Gaza blockade in May 2010, and which ended in 10 deaths to activists aboard. But the panel also examined Israel’s method of investigating suspected war crimes.
Its report, published in February 2013, concluded that “in general,” Israel’s investigative system meets the demands of international law. But it also issued 18 recommendations for improving the system.
Israel Defence Forces officials say they have started the process of implementing the Turkel recommendations, and that some have recently been instituted in practice, and indeed, some have. For instance, responsibility for investigating suspects’ complaints of abuse during Shin Bet security service interrogations has been transferred from the agency to the Justice Ministry. Also, the IDF set up a General Staff committee to investigate questionable incidents during operations.
Not implemented
But other recommendations haven’t been implemented. For example, Yesh Din and B’Tselem say legislation hasn’t been passed to bring Israeli criminal law into compliance with international law, nor have senior officers or civilian officials been held criminally responsible when their underlings committed crimes.
One significant change, instituted in April 2011, is that the Military Police now automatically investigates all killings of Palestinians by Israeli forces in the West Bank that don’t occur during “actual combat.”
Yet in May, Haaretz found that of 18 probes into Palestinian deaths opened in the last two years, only three had been completed. According to Yesh Din, the Military Police opened 199 investigations in 2013, mainly for violence against Palestinians, yet these probes produced only six indictments.
According to statistics from the MAG Corps, since November 2012, 20 investigations were opened into deaths in the West Bank, of which six were closed, two generated indictments, and another four are on the verge of a decision. The rest of the investigations are continuing.
The MAG Corps also hasn’t complied with the commission’s suggestion that it publish annual statistics on how long its investigations take.
The IDF said that during the deliberations of the Ciechanover Committee, which is discussing ways to implement the Turkel recommendations, the MAG Corps suggested a maximum length of time for a military investigation. According to an IDF officer, the time set was less than two years, and is a shorter period than required for a civilian criminal investigation. There the attorney general’s guidelines call for an investigation into a crime carrying up to a 10-year sentence to be completed in 18 months, while the probe into crimes with longer sentences must be completed within two years.
Another key recommendation was that the Military Police set up special “operational affairs” units “in the areas where the incidents to be investigated happen” – that is, in the West Bank. This hasn’t been done either.
The IDF said it has begun the staff work to set such a body to be staffed by “operational” investigators who will focus solely on such violations. As part of this plan, another Military Police base will be set up that will have two branches, one in the West Bank and one in the south, which will focus on investigating operational incidents. According to a military source, this issue is awaiting the approval of the deputy chief of general staff.
The Turkel Commission also recommended that the MAG Corps publish an updated and comprehensive document of guidelines governing the IDF investigative mechanisms, but this hasn’t been done.
‘Not just for appearance’s sake’
Yesh Din Executive Director Neta Patrick said she considers the system “broken,” and that “adopting the Turkel recommendations could have been a very good start” toward fixing it. “Investigations must be real and effective, not investigations for appearance’s sake,” she added.
The MAG Corps responded that it is implementing the recommendations of the Turkel Commission to the degree possible, and has told the Ciechanover Committee how it plans to assimilate the recommendations. However, army sources note that this is a lengthy process that partially began even before the commission’s recommendations were made, and the process is expected to continue.
The military noted, however, that one of the Turkel recommendations, that investigations be opened with only a few weeks after the incident in question, is being implemented for Operation Protective Edge that ended last month. During the fighting itself, the MAG Corps began to examine dozens of incidents, using a Turkel-recommended mechanism in which professional committees of military men and a legal adviser examine the events.
Even before the fighting began, military sources noted, Chief of General Staff Lt. Gen. Benny Gantz named a permanent General Staff committee, headed by Maj. Gen. Noam Tibon, that examines claims of wrongful incidents during battle. Six teams are operating in this framework that include jurists and intelligence people. Some of teams have already met with commanders who fought in Gaza, including battalion commanders. The MAG Corps plans to announce within a few days the results of the examinations of several incidents by this General Staff committee.
Yesh Din and B’Tselem are especially critical of the army’s investigations of incidents during previous operations in Gaza. After Operation Cast Lead in 2009, for instance, the IDF examined around 400 suspected violations of the laws of war. Of these, 52 resulted in Military Police investigations, including one in which a colonel was investigated for negligence over an air strike that killed 21 members of the Samouni family.
Few trials after Cast Lead
But these investigations produced only three trials. One soldier was sentenced to seven and a half months for stealing a credit card, two soldiers received a three-month suspended sentence and were demoted for using a 9-year-old boy as a human shield, and one soldier was sentenced to 45 days in jail for killing a Palestinian after being convicted in a plea bargain for illegally using a weapon. The Samouni case was closed.
In addition, six officers faced disciplinary charges over three other incidents: shelling that hit an UNRWA facility; shelling that killed 15 Palestinians in a mosque, including nine civilians; and the use of a Palestinian as a human shield.
In 2012, following Operation Pillar of Defence in Gaza, the IDF examined 82 incidents but opened no criminal investigations at all. Five incidents are still being evaluated by military prosecutors, and in one case the investigating team was replaced during the probe, the army said.
Regarding the low number of investigations and indictments, the MAG Corps says most cases where civilians are harmed or property damaged stem from so-called collateral damage during an attack on a military target, or from simple mistakes that inevitably happen during wars.
“That’s regrettable, but in itself, it certainly doesn’t attest to violations of the laws of war. It stems directly from the operations of the Palestinian terrorist organizations, which chose to commit their criminal activity under cover of a civilian population,” said Col. (res.) Liron Libman, a former chief military prosecutor and former head of the IDF’s international law division.
Noting that there’s no “objective index” for how many indictments must result from a given number of investigations, Libman added: “A prosecutor in a system that aspires to justice cannot be a contractor for convictions or indictments. That violates fundamental concepts of justice. Every criminal incident must be examined on its own merits, and sometimes, even if there’s an initial suspicion, there isn’t always evidence that allows for a trial.”
IDF: ‘Working through Ciechanover team’
The IDF Spokesman said: “The IDF recognizes the importance of the detailed recommendations in the Turkel report. It is working through the team headed by Dr. Ciechanover, which was appointed by the Israeli government, to present parameters for carrying out the recommendations according to the rationale behind them. It should be stressed that the implementation of some of the recommendations began before publication of the report, and continued afterward. The implementation of other recommendations requiring new orders and additional resources has begun, and will soon be completed. The team will soon finish its work.”
A damaged classroom in the Jabalya girls school in Gaza. At least 10 Israeli munitions hit in and around the school on July 30, 2014, while more than 3,200 people were sheltering there. The attack killed 20 people. © 2014 Anne Paq/Human Rights Watch
Israel: In-Depth Look at Gaza School Attacks
Human Rights Watch
September 11, 2014
Jerusalem) – Three Israeli attacks that damaged Gaza schools housing displaced people caused numerous civilian casualties in violation of the laws of war, Human Rights Watch said today. In the first in-depth documentation of the violations, Human Rights Watch investigated the three attacks, which occurred on July 24 and 30, and August 3, 2014, and killed 45 people, including 17 children.
“The Israeli military carried out attacks on or near three well-marked schools where it knew hundreds of people were taking shelter, killing and wounding scores of civilians,” said Fred Abrahams, special adviser at Human Rights Watch. “Israel has offered no convincing explanation for these attacks on schools where people had gone for protection and the resulting carnage.”
Two of the three attacks Human Rights Watch investigated – in Beit Hanoun and Jabalya – did not appear to target a military objective or were otherwise unlawfully indiscriminate. The third attack in Rafah was unlawfully disproportionate if not otherwise indiscriminate. Unlawful attacks carried out willfully – that is, deliberately or recklessly – are war crimes.
The laws of war obligate Israel to investigate possible war crimes credibly and to punish those responsible appropriately.The Israeli military said that it has established a “Fact-Finding Assessments Committee” to “examine exceptional incidents” during the latest fighting, and that it had opened five criminal investigations, including apparently one into the July 24 attack discussed below. Israel has a long record of failing to undertake credible investigations into alleged war crimes, Human Rights Watch said.
In a briefing to media, the Israeli military showed photographs of what it said were rockets hidden in and fired from school compounds. None of the photographs were from the three UN-run schools that Human Rights Watch investigated where many civilians died.
In the first attack, at about 3 p.m. on July 24, apparent Israeli mortar shells struck a coeducational elementary school in Beit Hanoun run by the United Nations, killing 13 people, including six children, and wounding dozens of others.
Witnesses told Human Rights Watch that days of fighting in the area had caused most of the people staying at the school to leave, but several hundred remained. Most were awaiting transport to a safer area when two munitions, probably 81mm or 120mm mortar shells, hit inside the school compound.
Jamal Abu `Owda, 58, said he was sitting outside a classroom when one of the munitions struck. “Most people got killed in the middle of the courtyard,” he said. There were “shredded bodies, a mix of everything, boys, men, girls, women, a mix of different faces and bodies.” Witnesses said a second shell hit the courtyard shortly after the first, followed in quick succession by two more just outside the school compound.
The Israeli military alleged that Hamas fighters had “operated adjacent to” the school. After coming under fire with anti-tank missiles, soldiers responded by “firing several mortars in their direction.” The military said a “single errant mortar” hit the school courtyard, which was “completely empty” – a claim disputed by seven witnesses who separately spoke to Human Rights Watch.
Witnesses described at least four shells striking in and around the compound within a few minutes – a precision that would be extremely unlikely for errant Palestinian munitions. And there were no reports of Israeli troops near the school that might have led the Palestinians to fire mortar rounds there.
On July 30, at least 10 Israeli munitions hit in and around the UN-run girls’ elementary school in Jabalya, then sheltering more than 3,200 people. The shelling killed 20 people, including three children. An inspection of the damage and photographs of munition remnants found at the site suggest that Israel fired 155mm artillery rounds, including smoke, illumination, and standard high explosive shells, the last of which produces extensive blast and fragmentation damage.
Suleiman Hassan Abd el-Dayam, 24, who was staying at the school with his extended family, said three of his family members died and five were wounded in the attack. When he heard the first strike at about 2 a.m, he ran to the classroom where women and children were sleeping, and a second munition hit. “I saw that my wife had a head injury, so I carried her outside,” he said. “Then I looked for my aunt. I found her, and she was saying, ‘I can’t see!’ So I took her outside too. And my other cousin, Ibrahim, had his legs cut off.”
The Israeli military said that Palestinian fighters had fired mortars “from the vicinity” of the school, but provided no information to support that claim. In any event, the use of high-explosive, heavy-artillery shells so near a shelter filled with civilians constitutes an indiscriminate attack.
At about 10:45 a.m. on August 3, an apparent Israeli Spike guided missile hit directly outside a UN-run boys’ school in Rafah, killing 12 people, including 8 children, and wounding at least 25. About 3,000 people were taking shelter in the school at the time.
Witnesses told Human Rights Watch that many civilians, including children, were near the school’s front gate buying sweets when the missile struck directly across the street, about 10 meters away. The Israeli military said it had targeted three Islamic Jihad members on a motorcycle “near” the school, but provided no further information, including why it attacked the men in front of a school sheltering thousands of displaced people rather than before they arrived or after they drove away.
In addition to these three unlawful attacks, Israeli ground forces reportedly occupied at least one school in Gaza, the Beit Hanoun secondary school for boys, leaving behind bullet casings and rations.
National armed forces and armed groups should refrain from using schools for military purposes, Human Rights Watch said. Even if students aren’t there, using schools for military purposes makes them military objectives subject to attack.
In three unrelated cases, the UN reported that Palestinian armed groups had stored weapons in other schools that had closed for the summer and were not being used as shelters by civilians. By storing arms in those schools, the armed groups made those particular schools legitimate targets for Israeli attack and violated the immunity of UN facilities. There have been no allegations that the three schools that Human Rights Watch investigated were being used for military purposes.
All parties to the armed conflict in Gaza must take all necessary measures to minimize harm to the civilian population. The laws of war prohibit attacks that deliberately target civilians or civilian property; that do not target a specific military objective or are otherwise indiscriminate; or that cause civilian harm disproportionate to the anticipated military gain. Schools are presumptively civilian objects that may not be attacked unless they are being used for military purposes, such as a military headquarters or to store weapons.
The Israeli military informed Human Rights Watch that it had created a Fact-Finding Assessments Committee to “examine exceptional incidents” during the seven-week conflict, headed by Maj. Gen. Noam Tibon, commander of the Israel Defense Forces North Formation, and staffed by personnel who were not in the chain of command during the fighting. The military said 44 incidents had been referred to the committee as of September 10.
The Military Advocate General’s office announced on September 10 that it had opened criminal investigations into five incidents, including a July 24 attack on an UNRWA school that killed 15 people. The military said the attack was “in the vicinity of an UNRWA school in Khan Yunis” but Israeli media reported that the incident was the Beit Hanoun school.
Previous inquiries by the Israeli military of alleged war crimes committed by its forces have not met international standards for credible, impartial and independent investigations, Human Rights Watch said.
The Commission of Inquiry recently appointed by the UN Human Rights Council should investigate the attacks striking schools that resulted in civilian deaths and make recommendations for follow-up by the Security Council.
Palestinian president Mahmoud Abbas should also promptly ask the International Criminal Court to extend its jurisdiction to the West Bank and Gaza to allow prosecution of serious international crimes by both sides, Human Rights Watch said.
Israel and Palestinian groups may also be liable for damages caused to buildings used by the UN, including schools and other facilities providing shelter to displaced persons. Such buildings are protected by the 1946 Convention on the Privileges and the Immunities of the United Nations, to which Israel is a party.
After the 2008-09 fighting in Gaza, a UN board of inquiry held Israel, Hamas and other armed groups responsible for damages to UN premises. Israel paid US$10.5 million in damages to the UN.
Out of 2,131 Palestinians who died in the latest fighting, 501 were children, said the United Nations. About 70 percent of the children killed were under 12, according to the UN children’s agency, UNICEF.
“Israel should go beyond sweeping justifications and provide detailed explanations for its attacks in and around these three schools housing hundreds of displaced people,” Abrahams said. “And it should end its practice of impunity by punishing those who violate the laws of war.”
Israel, Facing Criticism, to Investigate Possible Military Misconduct in Gaza
By Isabel Kershner, NY Times
September 10, 2014
TEL AVIV — Israel on Wednesday announced it had begun criminal investigations into five instances of possible military misconduct in the 50-day Gaza war, an implicit acknowledgment of sensitivity to the widespread criticism, even among allies like the United States, that Israeli forces had used excessive firepower in a number of highly publicized assaults in the Palestinian territory.
The announcement, conveyed at a briefing by the Israeli military, came only two weeks after a cease-fire in the conflict, an unusually speedy response. But critics, including human rights advocates in Israel, said it remained to be seen whether the investigations would yield significant criminal indictments and punishments.
Family members of the four boys were distraught on Wednesday after identifying their bodies at the hospital in Gaza City.Boys Drawn to Gaza Beach, and Into Center of Mideast StrifeJULY 16, 2014
Some said the timing of the inquiries appeared to be an attempt by the Israeli government to pre-empt the impact of international investigations into allegations of possible Israeli war crimes committed in Gaza. They also pointed out that the cases, opened by Israel’s Military Advocate General Corps, included obvious episodes that had already drawn condemnation
One prominent Israeli human rights group, B’Tselem, refused to participate in the investigations and said history showed that the Israeli military could not possibly conduct a credible prosecution of itself.
“Based on past experience, we can only regretfully say that Israeli law enforcement authorities are unable and unwilling to investigate allegations of breaches of international humanitarian law committed during fighting in Gaza,” the organization said in a statement. “Should the existing whitewashing mechanism be replaced with an independent investigative body, we would gladly co-operate with it.”
Even so, Israel’s inquiries into possible criminal misconduct by its own soldiers stood in sharp contrast to what has happened in Gaza, where Hamas, the dominant militant force, has no such judicial process and has been widely criticized for summarily executing suspected Palestinian collaborators with Israel.
The most prominent of the five military cases have already been the subject of international censure: an Israeli strike that resulted in the death of 16 civilians sheltering at a United Nations school in Beit Hanoun and the killing of four boys on a Gaza beach.
The three other cases, as conveyed by an Israeli military official giving the briefing, involve a Palestinian teenager, Ahmed Abu Raida, who said he was mistreated while in detention and forced to guide Israeli soldiers, with the decision to investigate largely based on the youth’s allegations as reported in The New York Times; a Palestinian woman who was shot to death after she had informed Israeli forces of her movements and received their consent; and a soldier who is alleged to have stolen money from a private home.
Of 44 cases initially referred to army fact-finding teams for preliminary examination, seven have been closed, including one involving the death of eight members of a family when their home was struck on July 8, the first day of the Israeli air campaign, and others are pending.
A further 55 episodes are to be referred to the fact-finding teams next week, according to a senior Israeli official, who briefed reporters at military headquarters here and spoke on the condition of anonymity under the Israeli military protocol.
The swiftness of the self-investigation by the military and the publicity about it appeared partly intended to get ahead of an investigation commissioned by the United Nations Human Rights Council into allegations of possible war crimes. The Israeli government has said it will not co-operate with the United Nations mission, asserting that its mandate is biased against Israel.
The investigation process may also be intended to counter threats by the Palestinian leadership to join the International Criminal Court for the purpose of holding Israel accountable for its actions as an occupying power. The court generally only investigates cases where the country involved is unwilling or unable to investigate itself.
More than 2,100 Palestinians were killed in the Israeli air and ground operation, up to three-quarters of them civilians, according to the United Nations and other monitoring groups.
The Israeli authorities assert that up to half the casualties were probably combatants. On the Israeli side, 67 soldiers and six civilians were killed.
Israel said its campaign was aimed at halting rocket fire from the Palestinian coastal territory, which is dominated by Hamas, and at destroying a network of tunnels, more than a dozen of them leading into Israeli territory.
Prime Minister Benjamin Netanyahu’s government has rejected criticism of its military’s self-accountability and asserted that justice and due process are built into Israel’s democratic system. He has repeatedly accused Hamas of committing a “double war crime” for indiscriminately firing thousands of rockets against Israeli towns and cities, and for operating from within heavily populated areas of Gaza, using its own civilians, in Mr. Netanyahu’s words, as a “human shield.”
Still, the Israeli Army’s legal counselors have acknowledged the international scrutiny on Israel’s military behavior. They say they have become more involved in recent years in operational activity before and during military attacks on Gaza, as well as in the aftermath. The counselors have trained commanders, reviewed planned targets and deployed to the Gaza border to work with commanders at the division level during the recent conflict.
The recently established military committee of fact-finding teams, independent of the military’s chain of command and made up largely of reservists, began investigating certain “exceptional” cases.
Previous experience appears to have shown, in Israel’s view, the importance of speedy investigations. A Human Rights Council inquiry into the 2008-9 war in Gaza led to the Goldstone Report. Named for Richard Goldstone, the South African jurist who led that inquiry, the report found evidence of potential war crimes committed by both Israel and Hamas. It accused Israel of intentionally targeting civilians in Gaza as a matter of policy.
Mr. Goldstone later sought to retract that accusation, writing in The Washington Post, after Israeli investigators presented contradictory evidence, “If I had known then what I know now, the Goldstone Report would have been a different document.” Other members of the Goldstone panel stood by the report.
An Israeli public commission that examined the mechanisms for dealing with claims of violations of the laws of armed conflict, led by a retired Supreme Court judge, concluded last year that the Israeli military’s system generally complied with international law. But it recommended expediting the process of deciding when to open criminal investigations.
Some circumstances, like the mistreatment of detainees, “requires immediate examination,” the military official told reporters on Wednesday.
Critics have called into question the military’s ability to investigate itself. B’Tselem and another Israeli human rights group, Yesh Din, described the military law enforcement system as “a complete failure” in a statement this week.
After the 2008-9 war in Gaza, in which up to 1,400 Palestinians were killed, more than 50 cases out of 400 that were examined were referred to the military police for criminal investigation. Three investigations ended with indictments, according to the military. B’Tselem noted that the harshest sentence was given to a soldier who had stolen a credit card.
Rick Gladstone contributed reporting from New York.
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