Ref: 62/2010

On the 20 of July, the State of Israel released a report, Gaza Operation Investigations: Second Update,
which details [[Israel’s]] response to allegations of international law violations
committed in the context of the 27 December 2008 – 18 January 2009 offensive on
the [[Gaza Strip]]. The report serves to highlight the inadequacies inherent in
Israel’s investigative system, and proves that Israel has failed to fulfil its
international obligation to conduct genuine investigations and prosecutions
following serious international law violations.

To-date, according to Israel’s report, only 4 criminal
indictments have been issued: 2 for the use of a minor as a human shield, one
in respect of the Abu Hajjaj white flag case (discussed below), and one for the
theft of a credit card. A limited number of other cases, such as the attack on
UNRWA Head Quarters, the use of a human shield, and the attack on the
Al-Maqadma mosque, have resulted in wholly inadequate disciplinary proceedings.
Israel has not analysed the majority of other reported incidents, and has
closed a number of other investigations. In all cases discussed in Israel’s
report there is significant evidence indicating the commission of [[international
crimes]].

The Palestinian Centre for Human Rights (PCHR) asserts that
Israel has wholly failed to fulfil its obligation to conduct genuine investigations;
the State’s efforts to date represent an attempt to shield the perpetrators
from justice. Moreover PCHR has identified a number of inconsistencies in Israel’s
reported findings. The following cases are illustrative of the ineffectiveness
of Israel’s investigative system, and proved further proof that recourse must
be had to mechanisms of international justice. Further details and analysis of
the Israeli investigative and judicial system will be soon released in a
forthcoming PCHR report.

Abu Hajjaj

The case of the Abu Hajjaj family involves the targeting of
a group of civilians carrying white flags on the 4 January 2009, in the Johr
Ad-Dik area of the Gaza Strip. The attack resulted in the killing of two women:
Majeda Abu Hajjaj (35), and Raya Abu Hajjaj (65).

Israeli forces have claimed that their investigation:

“found gaps between the
testimonies given by the soldiers and those given by Palestinians. This fact
made it impossible to make a criminal connection between the described incident
according to Palestinian testimonies and to that described by the soldiers.

The soldiers testified that on January 5th, 2009
it was a man that was shot and killed in the same location described by
Palestinian witnesses.”[1]

As a result, it was reported that an Israeli marksman was
charged with the manslaughter of an unidentified man.[2] Both
the findings and the charge raise serious questions as regards the
effectiveness of the investigation and the intention behind the indictment.

No male was shot during this incident. At no point in the
complaint was it mentioned that a man was injured or killed, and there is
absolutely no evidence to indicate that this occurred. As noted by Salah Abu
Hajjaj, who was among the targeted group: “My mother was shot and injured. The
bullet went through her arm and into her chest. After 15 meters my mother fell
down. Majeda, was also shot. She died immediately.” Salah’s mother and sister
were the only two individuals killed in the incident.

Two specific issues arise from the MAG’s conclusions. First,
is the heavy – in this instance apparently exclusive – reliance on the
accused’s testimony. As stated, there is no evidence to corroborate this
version of events, which it must be presumed were given in an attempt to
mitigate the effects of self-incrimination. Equally, it is apparent that
investigators did not place any reliance on the complainants’ [[sworn affidavits]],
or request further evidence. Second, given that there is no evidence whatsoever
to indicate that a male was killed, one must question the purpose of bringing
forward an indictment on this charge. As regards the charge itself, it must be
noted that the intentional killing of a civilian constitutes the crime of willful
killing, a grave breach of the [[Geneva Conventions]]; manslaughter clearly does
not reflect the gravity of the crime.

Al-Maqadma Mosque

On 3 January 2009, Israeli forces targeted the Al-Maqadma
mosque on the outskirts of Jabalia camp. A single air-to-ground anti-personnel
missile struck near the doorway of the mosque, killing 15 civilians and
injuring a further 40. The missile contained a payload of small cube shaped
fragments designed to enhance the lethality of the weapon.

The inconsistencies in Israel’s original analysis of the
incident have been detailed elsewhere and will not be discussed in detail here.
Suffice to highlight that the original procedure failed to find that the
vicinity of the mosque was hit;[3]
the Report of the UN Fact Finding Mission on the Gaza Conflict noted the
“unsatisfactory and demonstrably false position of the Israeli Government.”[4]

After discovering that the mosque was in fact hit, on 6 July
2010 Israel claimed the “aerial strike targeted a terror operative involved in
the firing of rockets towards Israel who was standing outside the mosque.”[5]
Subsequently, on 19 July, Israel claimed that the missile strike was actually
“directed at two terrorist operatives standing near the entrance of the
mosque.”[6]
Sworn affidavits, and investigations conducted by PCHR, indicate that there
were no hostilities or military activity in the vicinity at the time of the
attack. This was not contested by Israel in its two recent statements. PCHR’s
evidence indicates that all of the dead were civilians, and the name of the
alleged ‘terror operative(s)’ has not been disclosed.

The attack occurred at approximately 17:20 pm, shortly after
sunset prayers; it could reasonably be assumed that the mosque and its
immediate vicinity would be full of civilian worshippers. Israel has claimed
that “[i]njuries caused to
civilians inside were unintentional and caused by shrapnel that penetrated the
mosque.”[7] However, both the timing of
the attack, and the nature of the anti-personnel missile used, contest the
credibility of this claim.

PCHR believes
that this attack constitutes a grave breach of the [[Geneva Conventions]], in
respect of the crimes of wilful killing and wilfully causing great suffering; a
finding shared by the UN Fact Finding Mission.[8] Even if the attack did target a combatant – a claim
contested by PCHR – it remains a grave breach of the Geneva Conventions as it
was clearly indiscriminate, and of such a nature as to amount to the direct
targeting of civilians.[9] 

Apart from
the blatant inadequacies of the investigation, which cannot be considered to be
in conformity with the requirements of international law, it is noted that the
officer who authorised the attack was merely disciplined, and rebuked by the
Chief of the General Staff, despite the fact that Israel has noted that before
the strike the officer in question learned that the building was a mosque, but failed to call off the attack.[10] Such ‘disciplinary’ actions in no way reflect the gravity
of the international crime committed.

Abd Al-Dayem

On 5 January, at approximately 8:20 am, Israeli forces fired
two tank shells containing flechette darts in the direction of a condolence
ceremony. 5 civilians were killed, and a further 17 civilians injured.

Israel has reported that the tank commander “visually
identified a squad of terrorist operatives in open terrain, loading a “Grad”
rocket”.[11] It was further reported
that the “tank crew observed the area surrounding the terrorist squad and did
not identify any civilians in the vicinity.”[12]

As with the case of Abu Hajjaj, this version of events
conflicts all available evidence. First, it must be noted that the condolence
tent was situated on a sidewalk approximately 10 metres wide, along a road
approximately 22m wide in total. This gives a high degree of continuous
visibility, over what is a residential area, as can be seen from the site maps;
although there is a high degree of visibility, it is not “open terrain” as was
claimed.

As is to be expected at an event of this type, a significant
number of individuals were present in the tents and on the street, as proven by
the high number of casualties. It defies belief that the tank commander did not
see this large gathering of civilians. Further, it is emphasized that tank
fired flechette shells are a line-of-sight weapon; the individual firing the
weapon fires directly at a target.

Israel’s claim that the attack targeted a group of
combatants is further contested by the fact that the dead and injured were all
civilians.

This incident was clearly an indiscriminate attack of such a
nature as to amount to the direct targeting of civilians.[13]
As such, it constitutes the grave breach of wilful killing, and wilfully
causing great suffering. It may also constitute the straightforward direct
targeting of civilians.

PCHR stresses that it is imperative that the international
community takes action to ensure that the rule of law be enforced. Over a year
and a half after the Israeli offensive on the Gaza Strip, it is essential that
victims’ legitimate rights to an effective remedy and the equal protection of
the law be fulfilled and all those responsible for serious violations of
international law be investigated and prosecuted in accordance with the clear
demands of international law.

The international community, including the UN [[Security
Council]], must support the recourse to mechanisms of international justice,
including a referral of the situation to the [[International Criminal Court]],
under Chapter VII of the UN Charter, and the exercise of [[universal
jurisdiction]], in accordance with State’s legal obligations.