On July 19, 2010, Israel released a second update to the July 2009 and January 2010 reports describing Israel's procedures for the investigation of allegations of violations of the laws of armed conflict in the Cast Lead operation. Per the findings and recommendations of the Goldstone Report, both Israel and the Palestinians were to conduct independent investigations of their roles in possible war crimes during the conflict.
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Introduction and Summary
1. This Paper describes the progress and current status of investigations carried out by Israel into allegations of misconduct and violations of the Law of Armed Conflict by Israel Defence Forces ("IDF") during the military Operation in Gaza from 27 December 2008 through 18 January 2009 (the "Gaza Operation," also known as "Operation Cast Lead"). It is intended as an update to the information presented in Israel's reports related to the Gaza Operation previously released in July 2009 and January 2010.
2. Israel's first report, from July 2009, entitled The Operation in Gaza: Factual and Legal Aspects (hereinafter "Operation in Gaza Report"), described the events leading up to the Gaza Operation. These included Hamas's incessant mortar and rocket attacks from Gaza on Israel's civilians (some 12,000 such attacks in the eight years prior to the Operation) and the steadily increasing range and threat of such attacks; the abduction in 2006 of Israeli soldier Corporal Gilad Shalit, who remains in captivity incommunicado to this date; as well as Israel's numerous attempts to address the terrorist threat from Gaza through non-military means, including diplomatic overtures and urgent appeals to the United Nations.
3. The Operation in Gaza Report also described the IDF's efforts to ensure compliance with the Law of Armed Conflict during the Gaza Operation, despite the significant operational challenges posed by the tactics of Hamas - in particular Hamas's intentional use of Palestinian civilians and civilian infrastructure as a cover for launching attacks, shielding combatants, and hiding weapons.
4. The Operation in Gaza Report also set out in detail the legal framework governing the use of force and the rules - including the principles of distinction and proportionality - that apply to an armed conflict under international law . The report also detailed the Israeli system for investigating allegations of violations of the Laws of Armed Conflict, and included preliminary findings (as of July 2009) of a number of the investigations already established following the Gaza Operation.
5. In January 2010 Israel released an update to the Operation in Gaza Report (the "January 2010 Update"). That update provided detailed information on Israel's various mechanisms for reviewing allegations of violations of the Law of Armed Conflict; it also compared the Israeli investigative systems for military activities with the analogous systems of other democracies (the United Kingdom, the United States, Canada, and Australia) and explained how Israel was addressing specific complaints alleging violations of the Law of Armed Conflict during the Gaza Operation.
6. The January 2010 Update described in detail the multiple layers of review in Israel's investigative system that ensure thoroughness, impartiality, and independence. At the heart of the military justice system is the Military Advocate General ("MAG"), who is legally independent from the military chain of command. When allegations of violations of the Law of Armed Conflict are identified by or brought to the attention of the MAG, in situations that suggest per se criminal behavior, the MAG will refer a case immediately for criminal investigation. In other cases, the MAG may first review the findings of a command investigation or in its absence request that one be conducted. The MAG will examine the information gathered in the command investigation, together with the complaint received and all additional publicly available materials, before determining whether to refer the case to criminal investigation.
7. Israel's Attorney General provides for civilian oversight, as decisions of the MAG on whether or not to investigate or indict may be subject to his review. As noted in the January 2010 Update, judicial review is available through Israel's Supreme Court sitting as the High Court of Justice exercising oversight over any decision of the MAG and the civilian Attorney General. Such Supreme Court review can be initiated by a petition of any interested party, including Palestinians who live in Gaza and non-governmental organizations ("NGOs").
8. The January 2010 Update reviewed progress made in the investigations as of January 2010, including updates on five special command investigations detailed in the Operation in Gaza Report. The January 2010 Update also noted that a sixth special command investigation was initiated in November 2009 to review three specific allegations in the Report of the U.N. Human Rights Council Fact-Finding Mission on the Gaza Conflict, chaired by Justice Richard Goldstone (hereinafter "HRCFF Report"). Israel opened numerous other criminal and command investigations to investigate and assess allegations regarding the Gaza Operation.
9. The current Paper provides information regarding the additional steps Israel has taken, and is taking, to conduct investigations into allegations relating to the Gaza Operation. This Paper will not repeat the extensive information previously provided in the two prior reports nor will it attempt to cover all of the investigations that Israel has opened in this regard. Instead, this report provides an overview of the progress of the major investigations over the last six months, including information on investigations relating to specific incidents discussed in the HRCFF Report. In addition, this Paper includes a summary of some of the changes in military operational procedures that Israel has made, or is making, to implement the lessons learned as a result of the Gaza Operation.
10. Israel's numerous investigations have produced significant results, particularly during the last several months. Since the January 2010 Update, Israel's Military Police Criminal Investigative Division ("MPCID") has opened 11 additional criminal investigations, resulting in a total of 47 criminal investigations initiated so far into specific incidents relating to the Gaza Operation. Some of the investigations have resulted in criminal indictments and trials: two IDF soldiers were recently indicted for compelling a Palestinian minor to assist them in a manner that put the minor at risk; the MAG has also filed criminal charges in the case of an IDF soldier who is suspected of killing a Palestinian civilian who was walking with a group of civilians towards an IDF position. These cases are in addition to an earlier indictment and conviction of an IDF soldier for the crime of looting, as reported in the January 2010 Update.
11. Several other investigations have resulted in military disciplinary actions. An IDF Brigadier General and a Colonel have been disciplined for approving the use of explosive shells in violation of the safety distances required in urban areas. An IDF Lieutenant Colonel was disciplined for permitting a Palestinian civilian to enter a structure where terrorist operatives were present. In addition, an IDF officer was severely reprimanded and two other officers were sanctioned for failing to exercise appropriate judgment during an incident that resulted in civilian casualties in the Al-Maqadmah mosque.
12. At the same time, the MAG has concluded his review of a number of other MPCID criminal and command investigations without initiating criminal charges or disciplinary measures, after concluding that the investigations did not establish any violations of the Law of Armed Conflict or IDF procedures. A number of other allegations of military wrongdoing are still under investigation.
13. The IDF has also implemented operational changes in its orders and combat doctrine designed to further minimize civilian casualties and damage to civilian property in the future. In particular, the IDF has adopted important new procedures designed to enhance the protection of civilians in urban warfare, for instance by further emphasizing that the protection of civilians is an integral part of an IDF commander's mission. While the majority of the issues addressed in the new procedures were already embedded in various operational orders and guidelines in existence prior to the Operation, the new procedures demand even more comprehensive protections, such as the integration of a Humanitarian Affairs Officer in each combat unit beginning at the battalion level and above. In addition, the IDF has adopted an order defining new procedures to regulate the destruction of private property in cases of military necessity.
15.While the State of Israel is confident in the thoroughness, impartiality, and independence of its investigatory system of alleged violations of the Law of Armed Conflict, in light of criticism raised in certain reports regarding these mechanisms, the Government of Israel has recently mandated an independent public commission to examine the conformity of Israel's mechanisms for investigating complaints raised in relation to violations of the Law of Armed Conflict with its obligations under international law. The Commission, headed by retired Justice of the Supreme Court Yaakov Turkel, is composed of three distinguished independent experts and two renowned international observers ("Turkel Commission").
16. This paper is structured as follows: