4.11.09: B'Tselem: Military's investigations into Operation Cast Lead focus on individual soldiers, not unlawful policies

According to the Israeli Judge Advocate General’s Office, since Operation Cast Lead in the Gaza, the Military Police Investigation Unit (MPIU) has opened 23 investigations into incidents that took place during the operation.

To the best of B'Tselem’s knowledge, MPIU Southern District is currently investigating 21 cases of harm allegedly caused to Palestinians during the operation. Of these, 13 follow complaints made by human rights organizations B'Tselem, al-Mezan, and Human Rights Watch. MPIU and the Judge Advocate General’s Office refused to provide B'Tselem with a complete list of the cases being investigated. However, since MPIU has turned to human rights organizations for assistance in coordinating the witnesses’ arrival at meetings with the investigators, B'Tselem has been able to compile the following list of cases into which investigations were opened.

Investigations of suspicions in complaints by B'Tselem:

1. The killing of ‘Atta ‘Azzam, 46, and his two sons, Mahmud, 13, and Hassan, 2, by a Flechette shell fired into the yard of their house in the Mughraqa area, on 6 January ‘09.
2. The killing of Ria Abu Hajaj, 64, and her daughter Majda Abu Hajaj, 37, by fire from a tank while they held white flags, in Juhar a-Dik, on 4 January ’09 (HRW also submitted a complaint about this incident)
3. The killing of eight members of the Abu Halima family, one of them Shahd, 2, in Beit Lahiya, by a phosphorous bomb, and firing at family members as they sought to flee the area, on 4 January ‘09.
4. The killing of six members of the ‘Abd a-Dayem family and the wounding of ten others by a Flechette shell fired at a mourning tent in Beit Hanun, on 5 January ‘09.
5. The killing of Rawhiya a-Najar, 48, by a soldier’s gunfire while she was waving a white flag, and the wounding of the ambulance driver who had come to evacuate her, in Khan Yunis, on 13 January ‘09.
6. The use of Sami Muhammad and Ra’d Abu Seif, from the ‘Abd Rabo neighborhood in the Jabalya refugee camp, as human shields, on 5 January ’09.

Investigations of suspicions in complaints by Human Rights Watch:

Three cases involving the suspected shooting of persons waving white flags:

1. The killing of Ibtisam al-Qnu’, 40, in the al-‘Atatrah neighborhood of Beit Lahiya, on 4 January ’09.
2. The killing of Nada al-Mardi, 5, in the al-‘Atatrah neighborhood of Beit Lahiya, on 5 January ’09.
3. The killing of Ibrahim Mu’in Juha, 14, the in a-Zeitun neighborhood of Gaza City, on 5 January ’09.

Investigations of suspicions in complaints by al-Mezan:

1. The suspected killing of the sisters Su’ad and Amal ‘Abd Rabo, 7 and 2 respectively, the wounding of their sister and grandmother, and the destruction of the family’s home, in the Izbet ‘Abd Rabo neighborhood of the Jablaya refugee camp, while they were holding white flags. Also, the killing of Adham Khamis Nasir, 37, as he tried to aid in evacuating Su’ad ‘Abed Rabo – it is unclear whether the latter incident is also being investigated (HRW also submitted a complaint about this incident).
2. The use of the child ‘Alaa al-‘Attar and others from his family as human shields in the al-‘Atatrah neighborhood of Beit Lahiya.
3. The use of Majdi ‘Abd Rabo as a human shield in the Izbet ‘Abd Rabo neighborhood of the Jabalya refugee camp.
4. The use of ‘Abbas Halawah as a human shield in southwest Jabalya.

In some of the cases, several eye-witnesses have given testimony to MPIU investigators who met them at Erez Checkpoint.
To the best of B'Tselem’s knowledge, only one soldier has been prosecuted as yet for actions during Operation Cast Lead. He was from the Givati Brigade and was convicted of stealing a credit card from a Palestinian. He was sentenced to seven months’ imprisonment. The media have also reported that a number of soldiers have been brought before disciplinary hearings following the operation, but the IDF Spokesperson has refused to provide B'Tselem with information about these cases.

B'Tselem is doing everything in its power to assist the investigations: its fieldworkers in the Gaza Strip have coordinated the arrival of eye-witnesses at Erez Checkpoint and have accompanied them. The organization has also provided the investigators with all the information it had on the relevant incidents.
However, the investigations now taking place are problematic and cannot be deemed sufficient. First, they only relate to isolated incidents in which a suspicion exists that soldiers breached military orders. To date, not one investigation has been opened regarding Israel’s policy during the operation, on matters such as the selection of targets, the open-fire orders given to soldiers, the legality of the weapons used, the balance between injury to civilians and military advantage, and so forth. Declarations recently made by Israeli officials indicate that there is no intention to investigate such matters.

MPIU, which is the only body currently investigating Operation Cast Lead, has no authority to investigate the responsibility of decision-makers outside the military who were involved in policy setting. Therefore, even if these investigations result in the filing of indictments against soldiers, they will be directed against the lower echelon, and the persons responsible for the policy will not be held accountable for their acts.

Second, these investigations are being carried out by a body that is an integral part of the military and cannot, therefore, be considered independent. In the past, MPIU investigations have proven to be an inefficient tool for enforcing the law on security forces, at least as regards infringement of Palestinians’ rights. The investigations regarding harm to Palestinians are usually carried out negligently: most are dragged out, superficial, and lack a real effort to locate the persons involved. In many cases, Palestinian eye-witnesses are not questioned and evidence is not collected in the field, even where possible. The fact that MPIU has been appointed to investigate the current suspicions indicates that this mode of operation has not changed.

Third, officials in the Judge Advocate General’s Office, who will ultimately decide the fate of the investigations, were personally involved in setting military policy during the operation and also approved certain actions. Such involvement will make it hard for them to make an impartial determination, based on the facts, as to the claims.

On these points, eight human rights organizations, among them B'Tselem, wrote to the Attorney General during the course of the operation, demanding that he establish an independent apparatus for investigating the operation, and not settle for MPIU investigations of isolated incidents. The reason is that the suspicions of breach of international humanitarian law do not relate merely to the acts of individual soldiers in the field, but also to wider issues of policy and the responsibility of senior officers and of the political echelon. The Attorney General rejected this demand, but added that concrete claims against the military could be directed to the Judge Advocate General’s Office.

B'Tselem has conducted field investigations of cases in which it is suspected that the military breached international humanitarian law, and even breached its own orders. For example, B'Tselem investigated cases in which soldiers killed civilians who were not taking part in the hostilities, cases in which soldiers used civilians as human shields, and cases in which soldiers used their weapons unlawfully given the circumstances existing in Gaza. In these investigations, the organization took testimonies from eye-witnesses and collected evidence from the scene of the incident. The results were forwarded to the Attorney General and the Judge Advocate General’s Office. Due to its limited resources, B'Tselem managed to document only a small amount of the incidents, and forwarded to the authorities 20 cases in which some 90 Palestinians were killed, about half of them minors.
B'Tselem reiterates its demand that Israel conduct an independent and effective investigation into the military’s conduct during Operation Cast Lead.