Take Israel To International Criminal Court
By Sayed Dhansay
22 February, 2010
The Electronic Intifada
After Israel's devastating attack on Gaza last winter, the UN-commissioned Goldstone fact-finding team and subsequent report accused both Israel and Hamas of committing war crimes and possible crimes against humanity. Released in September 2009, the Goldstone report recommended that both parties conduct impartial, independent investigations into these accusations within six months, failing which, the matter would be referred to the International Criminal Court (ICC).
While both parties to the conflict were cited for possible war crimes, the Goldstone report reserved the majority of its condemnation for Israel because of the vast difference in casualties on the two sides -- more than 1,400 Palestinians were killed, and 13 Israelis. Four Israeli civilians were killed by rocket fire from Gaza, while more than 900 unarmed Palestinian civilians, including some 320 children, were massacred in Gaza.
Submitted to the UN on 29 January, the Israeli government's response falls far short of a credible investigation however, and continues Israel's long-standing policy of refusal to investigate and convict those responsible for crimes committed during its military campaigns.
A fundamental flaw of this "investigation" is that Israel has a military justice system for its armed forces. As stated in the report, Israel's Military Advocate General's Corps is "responsible for enforcing the rule of law throughout the IDF [Israeli military]." The three main organs of Israel's military justice system are the Military Advocate General's Corps, the Military Police Criminal Investigation Division (MPCID) and the Military Courts -- all branches of the Israeli military.
While the Israeli government's report goes to great lengths to argue that these bodies are "professionally independent" of the armed forces, the fact remains that they are all part of Israel's overall military establishment, and therefore share a common interest. Furthermore, the fact that Israel's military courts are located in military bases raises great doubt over whether the same rules of evidence and due process apply as would in public civilian criminal proceedings. Indeed, many human rights organizations have documented that Israel's military court system does not come close to respecting international norms of justice.
This situation creates a clear conflict of interest, and practically renders the impartiality of such an investigation impossible -- the Israeli military is certainly not going to incriminate and punish itself and its leaders. The final decision to institute criminal investigations regarding all complaints against the army rests with the Military Advocate General (MAG). The indisputable bias created by this self-regulating system is obvious throughout Israel's report.
For example, the Israeli report claims that seven separate incidents were investigated in which "a large number of civilians not directly participating in hostilities were harmed." According to the report, in four of these incidents, the MAG "found no grounds to open a criminal inquiry." Included in these four incidents are the bombing of senior Hamas leader Nizar Rayyan's home, killing Rayyan and 15 other civilians, and the shelling of the house of Dr. Izzedin Abu al-Aish, which resulted in the deaths of his three daughters and niece. The remaining three incidents are still "undergoing investigation."
The Israeli government attempts to justify these indiscriminate attacks on civilian targets by claiming that it made thousands of phone calls and dropped leaflets on areas in which the army was operating. The Goldstone report found however that due to the deep shock and widespread damage caused by hundreds of air strikes during the first week of Israel's campaign, Gaza residents were faced with "the dilemma of not only where to go, but whether it was safe to leave at all."
The Goldstone report concludes that civilians in Gaza had no objective basis on which to believe that they would be safer elsewhere, because many of the central areas which Israel had instructed civilians to move toward, had suffered "intense aerial bombardment and destruction."
On 15 January 2009, Gaza City's al-Quds Hospital was struck by a number of white phosphorous shells. The ensuing fires caused widespread panic and chaos among the sick and wounded, necessitated two evacuations of the hospital under extremely perilous conditions and caused huge financial losses. As a result of the destruction of the hospital's infrastructure, an eight-year-old girl who had been shot by an Israeli sniper could not receive the requisite care and died. Contrary to claims made by the Israeli government, the Goldstone commission found no evidence that Palestinian resistance fighters used the hospital's premises to launch attacks against Israeli forces.
The Goldstone report also notes the destruction of three ambulances by Israeli tank fire and heavy damage to a nearby ambulance depot in the same attack. It concludes that by using white phosphorous to directly attack a civilian hospital and ambulances, the Israeli military breached the Fourth Geneva Convention, and violated international law.
The Israeli report devotes just one line to these allegations. While it mentions that there were allegations of ten incidents of its forces opening fire on medical facilities and buildings, it simply concludes that "the MAG found no basis to order criminal investigations of the ten incidents under review."
Although the Goldstone report notes that white phosphorous is not proscribed under international law for concealing troop movements, the commission labeled Israel's repeated use of the substance on civilian targets as "reckless." After noting the horrific injuries and number of deaths caused by its use in Gaza, the commission actually called for serious consideration to be given to banning white phosphorous as an obscurant.
The Israeli government initially repeatedly denied that its armed forces were using white phosphorous. Now, the report says rather casually that "The MAG found no grounds to take disciplinary or other measures for the [Israeli military's] use of weapons containing phosphorous, which involved no violation of the Law of Armed Conflict."
One of the main incidents detailed in the Goldstone report regarding indiscriminate attacks by Israeli forces against civilians in Gaza is the shelling of al-Fakhura Street in Jabaliya, where the UN agency for Palestine refugees (UNRWA) had opened a school for fleeing civilians to take refuge. UNRWA confirmed to the Goldstone commission that the Israeli army was "fully aware" that more than 1,300 civilians were taking refuge in the school.
However, on 6 January 2009, four Israeli mortar shells were fired into the street outside the school, killing 35 civilians, including 11 members of the al-Deeb family. Witnesses described scenes of "chaos and carnage" as at least 40 more persons were injured by the blasts, the situation exacerbated by the difficulties in reaching ambulance services at the time. This incident, like several others, is not even mentioned in the Israeli response.
The Goldstone report devotes an entire chapter to Israeli attacks on the foundations of civilian life in Gaza. It finds that Israeli forces were responsible for premeditated and systematic destruction of food production facilities, water and sanitation services and construction industries, thereby violating the civilian population's fundamental human rights to food security, means of subsistence and adequate housing. The Goldstone report notes that 324 factories were either partially or completely destroyed, resulting in the loss of 40,000 jobs, and notes that none of these attacks were necessary for the achievement of military objectives.
Following a typical pattern, the Israeli response glosses over these accusations with limited detail and factual evidence. It states that of the 34 major incidents discussed in the Goldstone report, only nine are the subject of ongoing criminal investigations by the MPCID, without disclosing which incidents these claims refer to. In its rebuttal of the Goldstone report's claims that the Israeli army systematically destroyed Gaza's civilian infrastructure, the report states simply: "Regarding certain incidents ... the MAG has reviewed the entire record and concluded that there was no basis for a criminal investigation."
The report then lists three incidents of damage to civilian infrastructure, which it claims were the subject of investigations. The Namar Wells, which supplied more than 25,000 persons with drinking water, were completely destroyed by several Israeli air strikes. The Goldstone commission reported that no evidence existed to suggest that Hamas used the wells for military purposes. The Israeli report claims it to be a legitimate target because it was a "Hamas military compound" and the incident thus unworthy of a criminal investigation.
Similarly, the Israeli report claims that the area surrounding the al-Bader flour mills, one of Gaza's few remaining food production facilities, was "hit by several tank shells when responding to Hamas fire in the area." This was proven untrue, when several news outlets reported that a UN bomb disposal team had in fact found the remnants of an MK-82 bomb used by the Israeli Air Force in the mill. This incident was also deemed unworthy of a criminal investigation by the Israelis.
The Hamas investigation, also effectively an internal probe, faces the same issue of lack of impartiality. It should be noted however, that while Israel has the deaths of more than 900 civilians to answer for, Hamas is responsible for four Israeli civilian casualties. Furthermore, Hamas strictly abided by the Egyptian-brokered ceasefire for four months preceding Israel's attack, drastically reducing rocket fire into the country's south. This resumed only when the Israeli army broke the ceasefire and assassinated six Hamas members on 5 November 2009, in an attempt to lure the group back into hostilities, thereby justifying its upcoming offensive.
In its conclusion, the Israeli report claims to have launched investigations into 150 separate incidents, including 36 criminal cases. More than one year after the offensive however, there have been no criminal convictions or legal cases of note. Aside from two soldiers who were "disciplined" for exceeding their authority by authorizing the firing of explosive shells in populated areas, the Israeli report makes no other specific mention of guilty verdicts.
Israel's feeble response to the Goldstone report continues the country's long and consistent history of impunity and unaccountability regarding serious allegations of war crimes made against it. In 1983, the Israeli Kahan Commission found Israel "indirectly responsible" for the massacre at the Palestinian Sabra and Shatila refugee camps in Beirut the previous year. Ariel Sharon, the architect of the Israeli invasion of Lebanon and then defense minister, was found to bear "personal responsibility" for ignoring and not preventing the massacre. Although he reluctantly resigned as defense minister, he remained in Israel's Cabinet and would return almost two decades later to become the country's prime minister, never facing any criminal charges.
And after the Israeli army's invasion and destruction of the Jenin refugee camp in 2002 -- which then UN envoy Terje Roed-Larsen described as "horrific beyond belief" -- and allegations of war crimes from a number of human rights organizations, the UN Security Council voted unanimously to send a fact-finding mission to the camp. In another callous move to evade international scrutiny, then Israeli prime minister Sharon arrogantly declared that the composition of the UN team was "unacceptable to Israel." After failing to twist the UN's arm on the composition of the team and its terms of reference, Israel prevented its entry into the country.
More recently, after the 2006 shelling of Beit Hanoun in Gaza, the UN Human Rights Council established a fact-finding mission led by former South African Archbishop and Nobel Peace laureate Desmond Tutu. The mission was denied access to Gaza by the Israeli government on three separate occasions. When it finally reached Beit Hanoun almost two years later, the mission concluded that the Israeli attack possibly constituted a war crime. Tutu sharply criticized not only the incident, but also Israel's "lack of an adequate investigation into the killings."
The Israeli report into its conduct in Gaza last winter appears to be a haphazard excuse of an investigation, using dual tactics of denial and delay, purely to stave off pressure from the international community. Blatant violations of human rights and humanitarian law are shamelessly denied in the report. In other cases, few details are given about the numerous "ongoing investigations." The high number of incidents that were merely discarded by the MAG indicates that international standards required for a proper investigation into violations of international law have not been met. Lending further doubt to Israel's process is the fact that several incidents were not criminally investigated, but probed through internal Israeli army operational debriefings.
The Israeli investigation, conducted without public scrutiny, and entirely within the realm of the army's structures, lacks credibility, consistency and transparency. An army accused of serious violations of law cannot be expected to impartially investigate itself. Throughout its history, Israel has demonstrated time and again its belligerent disregard for Palestinian human rights and contempt of international law. Its outright refusal to cooperate with the Goldstone commission came as no surprise, and continues a consistent pattern of impunity and unaccountability for egregious war crimes. It is imperative that the international community view the Israeli response to the Goldstone report as a blatant attempt to whitewash its crimes in Gaza, and refer the matter to the ICC without further delay. To do otherwise will only continue to encourage Israeli intransigence and its crimes against the Palestinian people.
Sayed Dhansay is a South African human rights activist and independent freelance writer. He volunteered for the International Solidarity Movement (ISM) in the Israeli-occupied West Bank in 2006 and is an organizer of the South African delegation for the Gaza Freedom March. He blogs at http://sayeddhansay.wordpress.com.