Now Israel Is Free to Declare Its Innocence before the International Court of Justice

(figures from ifamericansknew.org and see this author’s article “Consider the Realities of Gaza,” Counterpunch, Jan. 5, 2009). Back to our sources and let the reader be judge.  

Gaza Operation Investigations: An Update Jan 2010.

1. Israel's investigative system has multiple layers of review to ensure impartiality and independence. These include the Military Advocate General's Corps (MAG), which determines whether to initiate criminal investigations and file charges against IDF soldiers. The Military Advocate General is legally independent from the military chain of command. Israel's Attorney General provides civilian oversight, as any decision of the Military Advocate General on whether or not to investigate or indict may be subject to his review.

2. The Operation in Gaza: Factual and Legal Aspects, which addressed a range of factual and legal issues related to the Gaza Operation. The Operation in Gaza also set out the legal framework governing the use of force and the principles - including the principles of distinction and proportionality - that apply in such a conflict. It also described the IDF's efforts to ensure compliance with these principles during the Gaza Operation and the modus operandi of Hamas, in particular its abuses of civilian protections that created such acute operational dilemmas.

3. Describing the application of these mechanisms to the Gaza Operation, the Paper notes that the IDF to date has launched investigations of 150 separate incidents arising from the Gaza Operation. A number of these were opened at the IDF's own initiative. Others were opened in response to complaints and reports from Palestinian civilians, local and international non-governmental organisations, and U.N. and media reports. 

Conclusions:

183. The Gaza Operation presented complex challenges to Israel and the IDF. While the need and obligation to respond effectively to the thousands of Hamas rockets and mortars that had terrorized Israeli civilians for years was clear and acute, the strategies adopted by Hamas, and in particular its systematic entrenchment in the heart of civilian areas, created profound operational dilemmas. [A second interruption if I may: consider the reality of the Palestinians’ plight; they can go nowhere, they cannot escape through the Israeli gates, they can not flee by car, rail, air, boat or on foot, and they are caged in a steel enclosed land area blocked on the west by Israeli gunboats. They have no army, no air force, no navy; but they were training police to help provide order inside this cage of chaos, and Israel began its operation by killing 50 of the graduating class on December 27, 2008.]

184. These challenges did not end with the close of operations. A key element of respecting the Law of Armed Conflict is a commitment genuinely to review military operations after the fact, and thoroughly investigate allegations of unlawful activity. Fulfilling this commitment in the context of Gaza is demanding, and requires serious efforts to obtain evidence from battleground situations and to make arrangements to enable residents of Gaza to give their accounts.

Ken O'Keefe in Gaza - Samouni's on Israeli War Crimes

It also requires an awareness that, in complex combat situations, errors of judgment, even with tragic results, do not necessarily mean that violations of the Law of Armed Conflict have occurred. [Note that Israel refused to cooperate with the UNHRC investigation that became the Goldstone Report.]

187. Israel recognizes the importance of engaging in dialogue and sharing best practices on theconduct of investigative proceedings with other democratic states facing similar challenges and committed to upholding the rule of law.

Obviously this article cannot provide a complete rendering of the Israeli investigation and its conclusions regarding proper conduct under international law. However, one of the more telling concerns raised about the IDF was its use of white phosphorus. Here is the comment from the Israeli operation cast lead investigation on that subject. Section IV contains others.

IV. COMPLAINTS ALLEGING VIOLATIONS OF THE LAW

OF ARMED CONFLICT DURING THE GAZA OPERATION

Israeli Defence Forces fire massive weapons of destruction toward the population of Gaza

89. Israel is aware of concerns raised regarding the Gaza Operation. As discussed in detail in The Operation in Gaza, and as outlined above, the deliberate strategy of Hamas to blend in with the civilian population made it difficult for the IDF to achieve the objective of the Gaza Operation – reducing the threat of deliberate attacks against Israeli civilians – while also avoiding harm to Palestinian civilians. To be sure, the IDF undertook strenuous efforts to minimise such harm. It intensively trained its personnel on the requirements of the Law of Armed Conflict. It delayed, diverted, or refrained from attacks to spare civilian life. It provided numerous and varied types of concrete warnings before launching attacks.

88 Nevertheless, Israel’s efforts to comply with the Law of Armed Conflict do not lessen its regret for the loss of innocent lives and damage to civilian property.

93. The unique difficulties involved in the investigation of alleged violations of the Law of Armed Conflict in the battlefield should not be ignored. They include: the inability to secure the scene for forensic and physical evidence, either during a battle or after, when the territory is under enemy control; the possible destruction of evidence during fighting and the possible manipulation of the scene by the enemy; the need to recall reserve soldiers back for questioning; the difficulty of accurately identifying the location of an incident, when it is described in local and unofficial terms and slang; and the need to locate the adversary’s civilians as witnesses and overcome their natural suspicion and fear of reprisals by their authorities.90

(v) The use of weaponry containing phosphorous

117. This investigation dealt with the use of weapons containing phosphorous by IDF forces during the Gaza Operation. The investigation focused on the different types and number of weapons containing phosphorous used during the Operation, the purposes for which they were used, the applicable professional instructions and rules of engagement, and the extent of compliance with those instructions and rules. Some of the findings of the special command investigation are detailed in The Operation in Gaza.107

      118. The Military Advocate General reviewed the entire record of the special command

      investigation. With respect to exploding munitions containing white phosphorous, the

Military Advocate General concluded that the use of this weapon in the operation was consistent with Israel’s obligations under international law.

119. With respect to smoke projectiles, the Military Advocate General found that international law does not prohibit use of smoke projectiles containing phosphorous. Specifically, such projectiles are not “incendiary weapons,” within the meaning of the Protocol on 106 Id. ¶¶ 436-45. Prohibitions or Restrictions on the Use of Incendiary Weapons,108 because they are not primarily designed to set fire or to burn. The Military Advocate General further determined that during the Gaza Operation, the IDF used such smoke projectiles for military purposes only, for instance to camouflage IDF armor forces from Hamas’s antitank units by creating smoke screens.

120. The Military Advocate General found no grounds to take disciplinary or other measures for the IDF’s use of weapons containing phosphorous, which involved no violation of the Law of Armed Conflict. Nevertheless, the Military Advocate General’s opinion did not address a number of specific complaints that were received after the investigation concluded and which are being investigated separately.(vi) 

Based on information from B’Tselem and Euromedrights.org, the determinations by the Israeli investigation resulted in the following charges: “In the over two years since Operation Cast Lead, Israel and the Palestinian side have failed to conduct genuine investigations, and where appropriate, prosecutions. To-date one Israeli soldier has served 7.5 months in jail for the theft of a credit card and two others have received three month suspended sentences for using a Palestinian child as a human shield. These three convictions, and the ongoing trial of a fourth soldier, have been the only concrete judicial outcomes of Israeli Operation Cast Lead investigations. It is noted that neither these indictments nor the sentences handed down for the human shield conviction reflect the gravity of the actual crimes committed. It appears that the majority of other investigative procedures have been closed without charge. All alleged international crimes must be subject to genuine investigation, and, if appropriate, those responsible must be prosecuted in accordance with the requirements of international law. In light of the domestic authorities’ failure to conduct such investigation, the International Criminal Court now constitutes the most appropriate forum, as recommended by the Human Rights Council on 25 March.(Euromedrights.org)

To date, no independent investigation apparatus, empowered also to investigate the responsibility of the political and military decision-makers, has been established. According to the report that the Foreign Ministry provided to the UN in July 2010, the Judge Advocate General’s office ordered 47 Military Police investigations with respect to Operation Cast Lead. B'Tselem is aware of 20 Military Police investigations of incidents in which a suspicion arose that soldiers in the field violated army regulations. Four soldiers have been prosecuted for three incidents that occurred during the operation. In the first case, a soldier was convicted of stealing a credit card and sentenced to seven and a half months' imprisonment, a conditional sentence of seven and a half months, and demotion from sergeant to private. In the second case, indictments were filed against two soldiers alleging they used a nine-year-old child as a human shield, ordering him to open suspected booby-trapped bags. The two soldiers were convicted and sentenced to a three-month suspended jail sentence and demotion in rank from staff sergeant to private. In the third case, an indictment was filed against a soldier for killing an anonymous person and conduct unbecoming a soldier. In three other cases, disciplinary proceedings were instituted against six officers. B'Tselem is aware of at least six cases in which the Attorney General decided not to indict the soldiers. (B’Tselem).

Now let us return to the arguments for a UN investigation that can provide the people of the world with deliberations that place the Israeli Operation Cast Lead before an International Court of Justice.

Phosphorous Bomb Rain Over Northern Gaza

Hiyam Noir, in Palestine Free Voice, January 13, 2009, reporting from Gaza observed

“Blankets of white clouds covered the skies over Gaza, including the refuge camps in Khan Younis, Beit Lahia and Gaza City.  On Saturday Israeli F16 warplanes launched attacks using phosphorus bombs on the Block 2 section inside the densely populated Jabalya Refuge Camp. Many residents of Jabalya escaped the area covering their faces, searching for a safe shelter in the home of relatives and friends in the neighboring Beit Lahia from the Israelis "Cast Lead Operation". Gaza has always been the Israelis “testing ground” – from nerve agents used in Khan Younis in 2003, to Sonic Boom “phantom air raids”, and the use of DIME in the Israelis massacre called " Operation Summer Rain" over Gaza year 2006.”

In that same article, Noir notes, The Human Rights Watch senior analyst Marc Garlasco said in an interview on France Chanel 4 TV that .."Israeli artillery bursted fire of white phosphorous shells over Gaza City."Garlasco said .."I have been standing at the border for the last few days ,watching Israeli artillery firing white phosphorus shells into refugee camps".

Press TV on 4 March 2011 reported that cancer cases in Gaza had increased by 30 per cent, and that there was a link between the occurrence of the disease and residence in areas that had been badly hit by Israeli bombing. Zekra Ajour from the Al-Dameer Association for Human Rights told the channel that Gaza had been a testing ground for illegal weapons.

In a separate article, Richard Lightbown argues that Israel’s use of white phosphorus and other toxic metals, and its suspected use of depleted uranium, in the war against the people of the Gaza Strip has put the whole of the Strip’s population and its environment – air, soil, groundwater and possibly seawater – at risk of serious long-term injury and contamination. He also observes that The goldstone report mentions phosphorus in paragraph 896: Medical staff reported to the mission how even working in the areas where the phosphorus had been used made them feel sick, their lips would swell and they would become extremely thirsty and nauseous.

The toxicity of phosphorus is also recorded in a report by New York medical staff:⁴

‘Oral ingestion of white phosphorus in humans has been demonstrated to result in pathologic changes to the liver and kidneys. The ingestion of a small quantity of white phosphorus can cause gastrointestinal complaints such as nausea, abdominal cramps, and vomiting. Individuals with a history of oral ingestion have been noted to pass phosphorus-laden stool ("smoking stool syndrome"). The accepted lethal dose is 1 mg/kg, although the ingestion of as little as 15 mg has resulted in death.’

Although an Israeli army spokesman told CNN on 7 January 2009, “I can tell you with certainty that white phosphorus is absolutely not being used.” the chemical had been used by Israeli forces since the beginning of the war.¹² The Goldstone Report stated that Israeli sources later claimed their forces had stopped using white phosphorous on 7 January 2009 because of international concerns. This was also untrue as there is evidence that it had been used after that date. Goldstone declared the Israeli armed forces to have been “systematically reckless” in using white phosphorous in built-up areas (paragraphs 884, 886 and 890).