Rights groups question credibility of IDF Gaza inquiry
Human Rights Watch calls on both Israel, Hamas to cooperate with UN investigation into war crime allegations. Meanwhile jurists remain divided over army's report as detractors slam reluctance to delve into morally gray questions, supporters insist any probe must be internal-Israeli
"The Israeli military's findings about the conduct of its forces in Gaza, announced on April 22, lack credibility and confirm the need for an impartial international inquiry into alleged violations by both Israel and Hamas," Human Rights Watch said in a statement issued Thursday.
"The conclusions are an apparent attempt to mask violations of the laws of war by Israeli forces in Gaza. Only an impartial inquiry will provide a measure of redress for the civilians who were killed unlawfully," said
Joe Stork, deputy Middle East and North Africa director at HRW.
The IDF's inquiry into the deaths of Palestinian civilians during Operation Cast Lead found no major fault in the army's conduct, ascribing the incidents in question to "operation errors."
While the report asserted that the use of weaponry such as white phosphorus shells was legal, it confirmed that the army stopped using the controversial arms due to widespread criticism.
"Thus far we have not found a single incident in which an Israeli soldier intentionally aimed and shot at a Palestinian civilian," said Deputy Chief of Staff, Maj. Gen. Dan Harel, who presented the findings of the inquiry.
The investigation furthermore denounced the tactics employed by Hamas during the fighting, accusing the Islamist organization of choosing to launch its attacks from within the midst of crowded civilian population centers.
HRW called on both Israel and Hamas to cooperate with the expected United Nations probe into the war crime allegations, and urged the sides to work with South African Justice Richard Goldstone, who was appointed by the UN Human Rights Council to lead the inquiry.
Credible investigations need to be thorough, transparent, and run by a senior officer," said Stork. "These investigations are none of the above."
Human rights groups B'Tselem, Physicians for Human Rights, the Association for Civil Rights in Israel, Yesh Din and the Public Committee Against Torture issued a joint statement following the release of the report, saying that the death of Palestinian civilians was a direct result of the army's policies.
Shades of gray
Meanwhile international law jurists are divided over the IDF investigation. Some believe that the inquiries failed to sufficiently deal with legally gray topics, and that the army merely sought to establish that it was in the right by not having explicitly murdered civilians. Others say that Israel certainly did enough to avoid civilian casualties, and that Hamas is the side that should be prosecuted for war crimes.
Tel Aviv University's Professor Aeyal Gross, an expert on international law, takes issue with the inquiry's black and white view. "The probe tries to set a bottom line – its either murder or a total acquittal, there are no gray areas," he said.
"No Israeli thinks that the IDF deliberately fired with the intent to murder, but the question here is whether enough was done to protect human life and whether the IDF discriminated between civilians and combatants. If there is a danger of civilians being harmed when firing on a legitimate military target then you must not (fire), you are obligated to maintain the principle of proportionality."
Gross cites the case of Dr. Ezzeldeen Abu al-Aish, whose three daughters were killed in what the army later confirmed was an erroneous strike on suspicious figures. "The IDF claims in the probe that there
Michael Sfard, attorney for the 'Yesh Din' human rights group. "The purpose of an inquiry is to determine whether the force's conduct was appropriate, not to lay blame," he said.
"According to international law you cannot use phosphorous shells in a populated area, and Israel was fighting the most densely populated areas in the world."
Both Sfard and Gross are adamant that the IDF should have done more to warn the civilian Palestinian population beyond the telephone calls to individual residents and the distribution of leaflets from the air. The two said that this is due to the fact that civilians were not given a genuine opportunity to escape the combat zones.
"People shuttled from one bombarded area to another bombarded area. In these situations the country fighting has to create refuge zones. What could the Gazan civilian do? Nothing," said Sfard.
As for the calls to cooperate with an external international inquiry, Sfard said: "This is not only the just thing to do but also the patriotic thing to do. Because if we do not seriously investigate this it will be like with Salah Shahade (the Hamas official killed by the IDF in 2004) – it will go to the courts in Britain and Spain."
'Don't try to please international community'
Attorney Yitzhak Bam however, from the Israel Policy Center, says that the army's investigation provides satisfactory evidence that the IDF employed all means possible to prevent the harming of those not involved in combat."Hamas' use of civilians and civilian infrastructure is itself a war crime on Hamas' part. I believe that the proportionality yardstick that should be adopted is the one used for NATO action in Yugoslavia. The UN commission established in the wake of that war determined that incidents such as targeting errors, even if they lead to the loss of civilian life, are not war crimes," said Bam.
According to Dr. Robbie Sabel, a lecturer on international law at the Hebrew University in Jerusalem and a former legal counsel for the Ministry of Foreign Affairs, the IDF's probe was carried out in accordance with the procedures implemented by every army in the world following an offensive operation.
Sabel says of what the IDF called 'operational errors' that it was up to the military to decide whether to take legal action against individual soldiers, but that if the conclusion is that there was no deliberate action, and it was not a violation of international law but rather that guidelines must be changed – then this is an internal IDF matter and should not be the subject of criminal investigation.
"There is no reason to strive towards pleasing the entire international community, only those countries that are amicable to Israel. If we were to add a non-military jurist it may have lent something to the credibility of the report, and I would not rule would such a recommendation, but there is no reason for there to be an investigator from outside of Israel. However will this be enough to convince a Spanish judge not to investigate this after the matter, I doubt it."
Tal Rabinovsky contributed to this report
