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BICOM

Britain Israel Communications and Research Centre

Analysis

BICOM Briefing: Israel’s response to Goldstone

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To read the Israeli document Gaza Operation Investigations: Update click here.

Key Points

  • On 5 February, UN Secretary General Ban Ki Moon is due to report to the General Assembly on progress made by Israel and Hamas on investigating allegations with regard to conduct during Operation Cast Lead.
  • Israel has released a document setting out its investigation process and updating on the status of its investigations.
  • 25 of 36 criminal investigations opened by the IDF’s Military Advocate General are ongoing. A complete report by the IDF detailing all its inquiries is still being produced. The Israeli government is also still considering whether to launch an independent inquiry to review the investigations conducted by the military.

Background

  • On 29 January 2010, Israel’s Ministry of Foreign Affairs released a 46-page paper, Gaza Operation Investigations: Update. This document updates an earlier report, The Operation in Gaza: Factual and Legal Aspects, from July 2009. This new document forms part of the Israeli response to accusations made against its conduct in Operation Cast lead, including in the Goldstone Report. The IDF’s internal investigations are still ongoing and the complete results are yet to be published. The Israeli government is also still considering whether to launch an independent inquiry to review the investigations conducted by the military.
  • The Goldstone Report, commissioned by the UN Human Rights Committee, brought allegations of war crimes against both Israel and Hamas during Operation Cast Lead. The report was criticised by the Israeli government as biased and lacking credibility. It was also seen as failing to sufficiently highlight Hamas’s rocket fire on Israeli civilians, which led to the launching of Operation Cast Lead.
  • The report was endorsed by the General Assembly on 5 November, adopting a resolution giving Israel and the Palestinians three months to undertake ‘independent, credible investigations’ into serious violations of international humanitarian and human rights law.
  • The UK, in common with a number of other states, has described the Goldstone report as flawed, and did not support the General Assembly resolution. The UK has, however, pushed Israel to conduct an independent inquiry into the allegations brought by Goldstone.

What happens next?

  • On 5 February 2010, UN Secretary General Ban Ki-Moon will report back to the General Assembly on progress made by either side in investigating the allegations. While a number of states within the UN General Assembly have recommended that Israel should be investigated by the International Criminal Court (ICC) if it fails to produce what is considered an adequate response, the likelihood of this occurring is slight. Only the Security Council can order a war crimes investigation, and the majority of its permanent members are likely to oppose such a move. The US also fears that an ICC investigation could derail chances for reinvigorating the peace process.

Key points in Israel’s response

  • The paper published by Israel details the country’s process for investigating alleged violations of the Law of Armed Conflict. Israel’s investigative system is compared to systems adopted by other democratic states including the UK, the US, Australia and Canada. The paper details the multiple layers of review within the Israeli system, including by the civilian Attorney General and Supreme Court which are designed to ensure impartiality and independence. Judicial review of decisions by the Military Advocate General can be initiated by petition of any interested party, including NGO’s, Palestinians, and others. (For more details on Israel’s system of inquiry click here.)
  • The report summarises the number of inquiries conducted in accordance with Israel’s commitment to full compliance with the Law of Armed Conflict, and to investigating every allegation. The IDF has investigated 150 separate incidents, of which 36 have so far been referred for criminal investigation. On these, one has resulted in a conviction for looting, 7 have been closed for lack of evidence, and 25 are ongoing.
  • Prior to the publication of the Goldstone Report, Israel had been investigating 22 of the 34 incidents the report raises. The remaining 12 incidents – none of which had previously been raised with the Israeli authorities – were referred for investigation upon the Report’s publication. Criminal investigators have taken statements from almost 100 Palestinian complainants and witnesses, as well as approximately 500 IDF soldiers and commanders. Local NGOs assisted the IDF in locating Palestinian witnesses and making arrangements for them to give evidence.
  • The Israeli document also provides updated information regarding five command investigations initiated by the IDF Chief of General Staff into the most serious allegations of wrongdoing prior to Goldstone. (For a summary of the results of these investigations click here.) This includes the previously unpublished detail that two senior officers were disciplined for their use of explosive shells in the Tel el Hawa area.
  • The Israeli document also provides details from a sixth special investigation that was opened specifically to respond to accusations raised by the Goldstone report. This includes a new investigation, still underway, into the alleged attack on the Al-Maqadme Mosque.

Specific issues and incidents addressed

  • The use of white phosphorous: The Military Advocate General concluded that the use of exploding munitions containing white phosphorus during Operation Cast Lead was consistent with Israel’s obligations under international law. However, his opinion did not address a number of specific complaints that were received after the conclusion of the IDF investigation, which are being investigated separately.
  • Firing of shells in Tel el Hawa: A Brigadier General and a Colonel have been disciplined for ‘exceeding their authority in a manner that jeopardised the lives of others’. They were disciplined not for the use of white phosphorous, but for the firing of explosive shells in violation of the rules of engagement prohibiting use of such artillery near populated areas.
  • Namar wells group: The Goldstone report alleged that wells were deliberately targeted to deprive Gaza of water. The Military Advocate General found that the wells in question were located within a Hamas compound and that the IDF had no knowledge of them beforehand. IDF standing orders strictly forbade damage to water installations.
  • The Gaza Sewage Treatment Plant in Sheikh Ejlin: The Goldstone Report alleged that the wastewater treatment part was deliberately attacked by IDF forces. Whilst the investigation left open the possibility that IDF fire had accidentally caused the damage, it found no evidence of deliberate fire on the site.
  • The El-Bader flour mill: The Goldstone Report alleged that Israel bombed the mill to deprive the civilian population of food. According to the Israeli response, the mill was not a target for airstrike to avoid damage to civilian infrastructure. IDF troops came under fire from Hamas positions in the area during a ground operation and fired back, hitting the upper floor with tank shells. The IDF later coordinated the arrival of fire engines. The Military Advocate General rejected the allegation that Israel sought to deprive the civilian population of food, noting the extensive amount of food and flour that entered Gaza from Israel during the operation. This week it has been
    reported that according to UN sources, fragments of an aerial bomb were found in the mill. The IDF has yet to respond to this.
  • The house of the Abu-Askar family: The Military Advocate General concluded that the house was used for storing rockets and adequate precautions were taken to minimise civilian loss of life before the house was targeted, including a telephone warning.

Further reading