Ref: 56/2009
Date: 27 April 2009
Time: 09: 25 GMT
PCHR Condemn Israeli Attempts to Legitimise Crimes in Gaza and Shield Perpetrators from Justice
On 22 April 2009, Israeli Military Authorities announced the conclusion of five internal investigations examining the conduct of Israeli Occupation Forces (IOF) during the recent military offensive in the Gaza Strip. The investigations, supervised by IOF Chief of Staff Gabi Ashkenazi, claimed that investigations found a very small number of incidents involving intelligence or operational errors, but that “throughout the fighting in the Gaza Strip” IOF “operated in accordance with international law”.
Deputy IOF chief of staff, Major General Dan Harel, claimed that 1,166 Palestinians were killed in the offensive of which 295 were civilians, and 709 were combatants. 162 victims have not been classified.
The Palestinian Centre for Human Rights (PCHR) strongly contest these figures and the results of the investigations, which constitute an attempt to legitimise crimes committed in the Gaza Strip, and to shield perpetrators from justice. PCHR’s investigations indicate that 1,417 Palestinians were killed in the offensive, of which 1,181 (83%) were non-combatants. Civilian property in the Gaza Strip was also extensively targeted and destroyed: PCHR have found that, inter alia, approximately 20,000 homes and 1,500 factories and workshops were completely destroyed or damaged, and that 6,636 dunums of agricultural land were razed.
PCHR’s investigations have concluded that many of the IOF’s actions in the Gaza Strip amounted to war crimes, and grave breaches of the Geneva Conventions. Such crimes include willful killing, the extensive destruction of property not justified by military necessity, the use of human shields, indiscriminate attacks, and illegitimate means and methods of warfare, including the use of white phosphorous and flechettes in densely populated residential areas. These crimes are crimes of the utmost severity, they are violations of customary international law, and are universally condemned. The excessively disproportionate civilian death toll, and the devastation wrought on the Gaza Strip, demands effective judicial redress. PCHR reiterate that the rule of law must be upheld, civilians must not be denied the protections that are their right.
PCHR wish to highlight certain aspects of the reports released by the Israeli authorities.
IOF investigations concluded that, in all investigated cases, IOF did not intentionally attack civilians not involved in the fighting. However, PCHR investigations reveal that in numerous documented cases, uninvolved civilians were directly targeted by IOF forces.
PCHR stress that these actions constitute the crime of willful killing, a grave breach of the Geneva Conventions.
With respect to the coordination of medical relief, IOF established a situation room in the Gaza District Coordination and Liaison office, which coordinated 150 different medical requests. PCHR stress that 1,417 Palestinians were killed, and 5,303 injured. The approval of 150 requests was clearly an inadequate and inappropriate response. As noted in the IOF report, and confirmed by PCHR investigations, medical units which attempted to evacuate injured and wounded personnel without coordination were directly targeted.
IOF acknowledge that the coordinates of United Nations facilities had been marked on military maps in advance of the operation. Despite this, these institutions came under direct attack, or were attacked in a manner which could be reasonably expected to cause disproportionate harm to the facilities and the civilian population.
IOF have claimed that white phosphorous munitions were used predominantly for obscurant purposes, without acknowledging the clear danger associated with such munitions, and the availability of a less harmful alternative. Although white phosphorous is not an internationally prohibited weapon, its use in civilian areas violates customary international law prohibitions relating to the principle of distinction and the precautions necessary in attack.
IOF investigations into the extensive destruction of civilian property concluded that no uninvolved civilians were harmed during the demolition of infrastructure and buildings carried out by ground forces. PCHR strongly refute this claim. In at least three cases, houses in Iazbat Abu Drabo, Netsarim, and Al Attatra were demolished while civilians remained inside, resulting in the death of the civilians.
These latest investigations are the last in a long series of ineffective investigations, which do not meet international standards of independence or transparency. No investigation supervised by those responsible for the alleged crimes, can be considered impartial. Additionally, the investigations conducted by Colonels, making it difficult, if not impossible, to effectively investigate superiors, including the Chief of Staff. The Israeli Military Attorney General and the Attorney General were heavily involved in the planning and execution of Israeli military operations throughout the course of the offensive, it is unsurprising that in a letter dated 24 February 2009, the Attorney General rejected a demand made by human rights organizations calling for an independent investigation. Most recently, Israeli officials have claimed that they will refuse to cooperate with an independent United Nations mandated investigation, lead by Justice Richard Goldstone, a respected lawyer who served as chief prosecutor for the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda.
PCHR have documented numerous cases whereby Israeli authorities failed to conduct investigations into crimes of the utmost seriousness. These findings have been confirmed by the Spanish Audencia Nacional (National Court), which ruled on 29 January2009, that Israeli authorities were not willing to investigate and bring to trial persons responsible for the Shehadeh assassination in 2002. Since the outbreak of the second Intifada, Israel no longer
opens a mandatory investigation into cases where Israeli forces killed or wounded Palestinian civilians not taking part in hostilities. This lack of accountability, and the culture of impunity which it perpetuates, serves to encourage continued violations of international law. It is civilian populations – the protected persons of international humanitarian law – who continue to bear the consequences.
Within the Israeli legal system there exists a fundamental flaw with respect to the investigation of alleged crimes committed by IOF in the oPt. Currently, a case is presented to the Military Legal Advisor, who then consults with the relevant field commander. If requested, the field commander conducts an investigation; subsequent to this, the Military Advocate General judges the legal issues arising from the facts presented by the field commander. This results in a situation whereby the accused conducts the investigation. The inadequacies of this system have implications for the effectiveness and independence of any investigation; justice for Palestinian victims is not attainable within this system.
These investigations and the crimes which they attempt to legitimise are an affront to the principles of law and justice which they purport to uphold. They are also an affront to the civilians of the Gaza Strip, who have suffered at the hands of a brutal occupation, and the horrors of this most recent offensive.
PCHR remind the State of Israel of its legally-binding obligation to investigate and prosecute all those suspected of committing grave breaches of the Geneva Conventions. Should Israel prove unable or unwilling to do so, then in accordance with the principle of universal jurisdiction, all High Contracting Parties to the Geneva Conventions are obliged to search for and prosecute persons accused of committing grave breaches, irrespective of where theses crimes occurred. There is no valid pretext, legal or otherwise, for not respecting the Conventions in their entirety.
Israel has proved itself unwilling to adequately investigate the crimes it is accused of committing. The international community must intervene to ensure respect for the law. International law is applicable to all States, at all times. There can be no exceptions.
