In January 2010, Israel released an update into its procedures for the investigation of allegations of violations of the laws of armed conflict in Operation Cast Lead. Per the findings and recommendations of the Goldstone Report, both Israel and the Palestinians were to conduct independent investigations of alleged war crimes during the conflict. As of the report release date, the IDF had launched investigations into 150 separate incidents. The Military Advocate General has reviewed the entire record of certain incidents discussed in the Goldstone report and concluded that there was no basis for a criminal investigation.
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1. This Paper describes Israel's process for investigating alleged violations of the Law of Armed Conflict. It focuses in particular on investigations, legal proceedings, and lessons learned in relation to the actions of the Israeli Defence Forces (IDF) in Gaza from 27 December 2008 through 18 January 2009 (the "Gaza Operation," also known as "Operation Cast Lead").
2. The Paper supplements and updates a paper Israel released in July 2009, The Operation in Gaza: Factual and Legal Aspects, which addressed a range of factual and legal issues related to the Gaza Operation. The earlier paper included detailed accounts of Hamas's incessant mortar and rocket attacks on Israel's civilians (some 12,000 such attacks in the 8 years prior to the Operation) and the steadily increasing range of such attacks; Hamas's suicide bomb attacks; and Hamas's smuggling of weaponry and ammunition through tunnels under the Egyptian-Gaza border, as well as Israel's attempts to address these threats through non-military means, including diplomatic overtures and urgent appeals to the United Nations.
3. The Operation in Gaza also set out the legal framework governing the use of force and the principles - including the principles of distinction and proportionality - that apply in such a conflict. It also described the IDF's efforts to ensure compliance with these principles during the Gaza Operation and the modus operandi of Hamas, in particular its abuses of civilian protections that created such acute operational dilemmas.
4. The Operation in Gaza also included preliminary findings of a number of the investigations established following the operation, although such investigations were, and remain, works in progress. For this reason, six months after the publication of the original paper, it is appropriate once again to take stock publicly regarding the progress made and the current findings of the investigative process. While many of these investigations are still underway, this Paper aims to present a clear and up-to-date picture of the current status of Israel's investigations.
5. Israel's system for investigating alleged violations of the Law of Armed Conflict is comparable to the systems adopted by other democratic nations, including the United Kingdom, the United States, Australia, and Canada. The Paper notes that Israel has demonstrated its ability and its commitment to pursue serious criminal charges to uphold the Law of Armed Conflict, a commitment which has been confirmed by outside observers and foreign legal systems.
6. Israel's investigative system has multiple layers of review to ensure impartiality and independence. These include the Military Advocate General's Corps (MAG), which determines whether to initiate criminal investigations and file charges against IDF soldiers. The Military Advocate General is legally independent from the military chain of command. Israel's Attorney General provides civilian oversight, as any decision of the Military Advocate General on whether or not to investigate or indict may be subject to his review. Further review is available through Israel's Supreme Court either as an appeals court, or exercising judicial review over any decision of the Military Advocate General or the civilian Attorney General. Such review can be - and frequently is - initiated by a petition of any interested party, including non-governmental organisations, Palestinians, and other non-citizens.
7. The Paper describes the structure and process of operation of these various elements of Israel's investigative system in some detail, particularly in order to correct misrepresentations and inaccuracies in recent reports describing these mechanisms.*
8. Describing the application of these mechanisms to the Gaza Operation, the Paper notes that the IDF to date has launched investigations of 150 separate incidents arising from the Gaza Operation. A number of these were opened at the IDF's own initiative. Others were opened in response to complaints and reports from Palestinian civilians, local and international non-governmental organisations, and U.N. and media reports.
9. Of the 150 incidents, so far 36 have been referred for criminal investigation. To date, criminal investigators have taken evidence from almost 100 Palestinian complainants and witnesses, along with approximately 500 IDF soldiers and commanders. The Paper describes some of the challenges encountered in the conduct of the investigations, including accessing evidence from battlefield situations and the need to make arrangements, together with non-governmental organisations such as B'Tselem, to locate and interview Palestinian witnesses. To address these challenges, special investigative teams have been appointed and are currently investigating complaints arising from the Gaza Operation.
10. The Paper relates to all investigations initiated following the Gaza Operation and does not limit itself to those incidents in the Human Rights Council's Report of the U.N. FactFinding Mission on the Gaza Conflict, chaired by Justice Richard Goldstone (the "Human Rights Council Fact-Finding Report" or "Report"). As Israel has clarified before, Israel disagrees with the findings and recommendations of the Report, which reflect many misunderstandings and fundamental mistakes with regard to the Gaza Operation, its purposes, and Israel's legal system. This Paper, however, is not intended as a comprehensive response to the Report or a catalogue of the Report's serious inaccuracies and misstatements.
11. With respect to the incidents described in the Human Rights Council Fact Finding Report, the Paper notes that, prior to the publication of the Report, Israel was investigating 22 of the 34 incidents it addresses. The remaining 12 incidents, none of which had previously been brought to the attention of the Israeli authorities, were promptly referred for investigation upon the Report's publication. The Paper details the various stages of investigation of these incidents. It also notes that in some cases, after reviewing all the evidence available, the Military Advocate General has concluded that there was no basis for criminal investigations. The Paper gives detailed accounts of a number of these incidents.
12. The Paper also provides updated information regarding the special command investigations initiated by the IDF Chief of General Staff after the conclusion of hostilities in Gaza. As noted in The Operation in Gaza, shortly after the close of the Operation, the Chief of General Staff appointed five senior field commanders to investigate the most serious allegations of wrongdoing. The Chief of General Staff recently adopted a recommendation by the Military Advocate General and initiated a sixth special investigation, to consider additional allegations and to re-examine a complaint that a command investigator could not substantiate.
13. The Paper provides updates regarding the findings of these investigations, which have, in addition to prompting criminal inquiries, further command investigations, and disciplinary proceedings, also yielded operational lessons resulting in changes already made or underway.
14. The Paper concludes by recognizing the importance of conducting the investigative process in a timely manner. At the same time, it notes the need to ensure that legal processes are conducted thoroughly and with full due process, and in a manner comparable with that of other states guided by a respect for the rule of law.
1. This Paper describes Israel's process for investigating alleged violations of the Law of Armed Conflict.** It focuses in particular on investigations, legal proceedings, and lessons learned in relation to the actions of the Israeli Defence Forces (IDF) in Gaza from 27 December 2008 through 18 January 2009 (the "Gaza Operation," also known as "Operation Cast Lead").
2. The Gaza Operation represented a striking example of the complex and challenging asymmetric conflicts in which states are increasingly finding themselves. In such conflicts, states are forced to confront non-state actors which do not regard themselves as bound by legal or humanitarian obligations. Such actors frequently abuse these principles as a deliberate strategy, placing both their own civilian population and that of the defending state at greater risk.
3. Faced with such challenges, and the acute real-time dilemmas created by militants operating from within and behind civilian areas, the importance of legal guidance and full compliance with legal and humanitarian obligations is paramount. At the international level, this requires close dialogue and consultation between states confronting similar threats in order to share experience and to consider how established principles of law can best be applied in such complex circumstances. At the national level, it requires continuous efforts to ensure that the principles of the Law of Armed Conflict are an integral part of the training of soldiers and commanders, and that these principles guide planning and operational decisions.
4. Beyond these measures, which are generally taken prior to and during operations, extreme importance must also be given to reviewing the operation after the fact. This should include the thorough investigation of all incidents that raise questions regarding the appropriateness or lawfulness of measures used or decisions made. The complexity and scale of such operations means that inevitably there are tragic instances, mistakes, and errors of judgment.*** Tragic results, including civilian death and damage to property do not necessarily mean that violations of international law have occurred. At the same time, in instances in which evidence indicates that violations have taken place, this must be fully investigated and prosecuted.
5. Israel is committed to ensuring that every such incident is fully and fairly investigated, to ensure that lessons can be learned and that, if justified, criminal or disciplinary proceedings initiated. To this end the IDF policy requires that every allegation of wrongdoing be investigated, irrespective of its source. The 150 separate incidents investigated following the Gaza Operation include, as detailed later in this Paper, not only investigations opened as a result of Israel's own concerns about certain incidents but also investigations in response to complaints and reports from Palestinian residents, local and international non-governmental organisations and UN and media reports.
6. Parts II and III of this Paper provide an overview of Israel's mechanisms for investigating alleged violations of the Law of Armed Conflict. These includemechanisms operating within the IDF, but independently of the military chain of command as well as civilian oversight mechanisms including the Attorney General and the Supreme Court sitting as the High Court of Justice, with power of judicial review over every decision to prosecute or not prosecute alleged offenders. Israel's system of investigation and prosecution is comparable to that of many democratic states confronting similar challenges, and in the course of Part III reference is made to the systems other states have developed in this regard.
7. Part IV focuses specifically on the investigation of complaints alleging violations of the Law of Armed Conflict during the Gaza Operation and sets out where the investigations opened currently stand. It also addresses some of the lessons that have already been learned, including changes to operational procedures, as a result of the findings of the investigations conducted so far.
183. The Gaza Operation presented complex challenges to Israel and the IDF. While the need and obligation to respond effectively to the thousands of Hamas rockets and mortars that had terrorized Israeli civilians for years was clear and acute, the strategies adopted by Hamas, and in particular its systematic entrenchment in the heart of civilian areas, created profound operational dilemmas.
184. These challenges did not end with the close of operations. A key element of respecting the Law of Armed Conflict is a commitment genuinely to review military operations after the fact, and thoroughly investigate allegations of unlawful activity. Fulfilling this commitment in the context of Gaza is demanding, and requires serious efforts to obtain evidence from battleground situations and to make arrangements to enable residents of Gaza to give their accounts. It also requires an awareness that, in complex combat situations, errors of judgment, even with tragic results, do not necessarily mean that violations of the Law of Armed Conflict have occurred.
185. A further challenge is presented by the scale of the investigations. Because Israel followed up on every allegation, regardless of whether the source was neutral, hostile, or friendly, it launched investigations into 150 separate incidents, including 36 criminal investigations opened thus far. More broadly, the six special command investigations initiated by the IDF addressed more general concerns that arose in the course of the fighting. Beyond the disciplinary and criminal proceedings that have been initiated, operational lessons from these investigations have been incorporated in IDF practice.
186. In this Paper, Israel has sought to share its investigative procedures, and has described the various mechanisms involved, including those operating independently within the military system as well as the civilian oversight provided by the Attorney General and the Supreme Court.
187. Israel recognizes the importance of engaging in dialogue and sharing best practices on theconduct of investigative proceedings with other democratic states facingsimilar challenges and committed to upholding the rule of law.
* Numerous assertions made by the Human Rights Council's Report of the U.N. Fact-Finding Mission on the Gaza Conflict - for example, that criminal investigations must await the completion of a military command investigation or that all command investigators are within the direct chain of command - are incorrect.
** This Paper uses the term "Law of Armed Conflict" in its ordinary sense - describing the legal obligations of parties to an armed conflict in the course of their military operations. The term "International Humanitarian Law" is used by many commentators and countries as an interchangeable term. Israel, like many other countries, prefers the term Law of Armed Conflict.
*** A harsh reminder for Israel of this reality is the fact that nearly half of its soldiers killed during the Gaza Operation were killed by IDF fire mistakenly directed towards them.
Sources: Israel Ministry of Foreign Affairs