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From the field

23 April '09: B’Tselem’s response to the Israeli Military’s investigations of operation “Cast Lead”

On the 22.4.08, the Israeli Military made public the conclusions of five internal investigations held by teams headed by officers, who “were not a direct part of the chain of command, and who were appointed by the chief of staff to investigate several issues in regards to which questions were raised during the fighting." The military did not publish the investigations themselves .

The chief conclusion of the investigations is that “the “IDF acted in accordance with the principles of international law, while keeping a high professional and moral standard; all of this, against an enemy that was deliberately engaging in terror activities against Israeli civilians." However, “the investigations shed light on a very small number of mistakes and incidents in which intelligence or operational mistakes occurred during the fighting."

However, the IDF spokesperson is quick to qualify the military's responsibility for these cases. Thus, it determines in its statement, “the fighting in Gaza took place in a complex battlefield against an enemy who chose, as a conscious part of its doctrine, to position itself in the midst of the civilian population, booby trapping their houses with explosives, firing from schools attended by their own children and even using their own people as human shields."

These are only some of the issues investigated by the military, and the IDF spokesperson stated that a central operational investigation is still being conducted, and is expected to be finalized in two months. However, even at this stage it is possible to point out several central problems in the way the military investigates the suspicions of violations of international humanitarian law (IHL) during operation “Cast Lead”.

Problems of principle

The military cannot investigate itself

Immediately following the publication of the conclusions, Minister of Defence, Ehud Barak stated that “the IDF is one of the most moral armies in the world”. He made an identical statement soon after the end of the operation. Similar statements, regarding the morality of the Israeli military and regarding the responsibility of Hamas for any harm to civilians, were made by Israeli officials throughout the operation and its aftermath, and it raises the suspicion that the investigations were chiefly aimed at proving these statements rather than ascertaining the truth.

No agency, including the military, can investigate itself under such complex circumstances, and the fact that the investigative teams were headed by officers who “were not a direct part of the chain of command” does not change this fact. Additionally, the military framework raises additional problems, as these officers are part of the military's chain of command and know those responsible for the operation personally. Clearly, only in exceptional circumstances, that appear not to have existed here, could such officers conclude that other officers, at times higher ranking than themselves, acted in violation of the law.

Additionally, the military does not have the ability to collect evidence inside Gaza and interview Palestinian witnesses who were harmed by the military's conduct. Therefore, the investigations were primarily based on military documents and interviews with soldiers. Investigations based on such partial information cannot reach an understanding of the truth.

The standards obligating the military

In his press conference, Deputy Chief of Staff, Maj. Gen Dan Harel, stressed that “We did not find a single instance in which an Israeli soldier intentionally harmed innocent civilians”. This statement raises two main problems. First, B'Tselem, other human rights organizations and the media have received reports of cases in which soldiers fired deliberately at Palestinian civilians who did not endanger the soldiers' lives, including people who held white flags. The material published by the military does not include these cases, and it is not clear whether they were investigated.

Secondly, the question that must be at the centre of the investigations is not whether soldiers deliberately killed Palestinians, but rather did the military take all feasible precautions to avoid their death. Willful killing of civilians is indeed a serious offence, which is considered a war crime, but it is unacceptable to claim that since the most serious offences were not committed, the military followed the obligations set by international humanitarian law.
The military is not only obligated to avoid deliberate targeting of civilians, but rather, must do all it can to prevent harming anyone who is not involved in the hostilities. For that end, the military must take all available safety measures to make sure the harm to civilians is reduced to the minimum possible under the circumstances. The attempt to shirk the military's responsibility for the harm inflicted on civilians under the claim that it was not intentional, raises questions about the military's commitment to and understanding of the principles of IHL.

Ignoring issues of policy

The investigations completely disregarded questions about the policy set by the operation's commanders and the political echelon. The questions in the investigations focused on individual cases, examining whether the soldiers breached the orders given, or the rules of armed conflict.

However, much of the harm to the civilian population and its property during the operation was the result of policy set by high-ranking officers, and not the misdeeds of individual soldiers. For instance, the question of which persons would be considered a “legitimate target”, and which targets would be viewed as legitimate, was not determined by soldiers in the field, but by military jurists and high-ranking commanders who made these determinations before the operation. However, the definitions set do not adhere to the provisions of IHL. For example, during the operation the military targetted every structure that was in any way connected to Hamas, even if only civilian activity took place in it.

In a similar vein, the investigation that dealt with the harm to medical personnel determined that “of the seven casualties reported during the incidents in question, five were Hamas operatives.” Similarly, regarding the bombing of the truck carrying oxygen tanks, it was determined that out of the eight people killed, four were “Hamas operatives.” These statements raise the suspicion that anyone considered by the military to be linked in any way to Hamas, became a legitimate target for attack even if they did not have any connection to the hostilities. This policy too is contrary to provisions of IHL, and in spite of that, it was not examined as part of the investigations.

Other important questions concern the open-fire regulations, the choice of ammunition, the policy of demolishing homes and agricultural areas, and others. None of these issues were considered. One possible reason for this is that the investigations were carried out by officers at the rank of Colonel, while policy was determined by much higher echelons, that they would find difficult to investigate. This is an additional reason that the investigations should not be conducted by the military.

Problems in the investigations

The investigation into the harming of civilians

The military chose to publish only the conclusions of the investigations, which only make general statements regarding mistakes that occurred in several cases, neglecting to provide any details regarding the nature of the mistakes, or regarding the lessons learned or the measures taken against those responsible. This is especially serious regarding the investigation into the harm to uninvolved civilians that determined that there were incidents in which the military harmed civilians, but those were “the regrettable result of circumstances beyond the control of forces or unexpected operational mistakes”.

For example, the military explains the bombing of the a-Daiyah family home, which killed 22 people (13 of them children), by stating that the warning was mistakenly given to the residents of a different house and not those in the house that was bombed. The investigators acknowledge that “this is a highly unfortunate event” but are swift to qualify and determine that “it was ultimately caused by a professional mistake of the type that can take place during intensive fighting in a crowded environment against an enemy that uses civilians as cover for its operations.”

The military cannot exempt itself so easily from the responsibility for the deaths of these civilians. Even though “unavoidable errors” may indeed take place during fighting, it is doubtful that this is the case here. The investigation does not detail how the error took place, what lessons were learned to prevent similar mistakes and what were the measures taken against those responsible for an error that resulted in so many people killed. The rapid denial of all responsibility for this incident, while determining that responsibility for their deaths rests in fact on Hamas, indicates that the military does not really see itself as responsible for the incident and raises the grave concern that similar incidents occurred in the past - during this operation and before it, and are liable to occur in the future as well.

The investigation regarding harm to medical teams and hospitals

This investigation determined that "the IDF operated a medical situation room in the Gaza District Coordination and Liaison, which coordinated the evacuation of bodies, the wounded and trapped civilians from the combat zone. During the operation, the medical situation room coordinated 150 different requests." This presentation of the facts is inaccurate. The medical situation room was established during the operation, after many complaints regarding the difficulty in evacuating dead bodies and regarding wounded people trapped in their houses who could not reach hospitals. The situation room operated only partially and as a result, wounded people bled to death and many bodies could not be removed from homes until after the operation ended. B'Tselem and other organizations tried during the operation to help facilitate evacuation of the wounded. However, the military's medical situation room refused to receive these referrals, despite the state's promise to its High Court that it would respond to referrals from human rights organizations.

The investigation regarding white phosphorus

The investigation emphasizes repeatedly that the military acted in accordance with International Humanitarian Law and that the use of white phosphorus "of the kind in use by the IDF is legal and used by militaries around the world." The investigation's authors prefer to focus on the theoretical questions regarding WP use, ignoring the horrific consequences on the ground during the operation. At least 14 civilians were killed due to the use of white phosphorus, seven of them children. Fires caused by WP in homes, UN installations and warehouses of humanitarian agencies have been documented. White phosphorus injuries are particularly severe as it burns everything with which it comes into contact: it causes severe burns when it strikes people and is liable to set buildings and fields on fire.

The investigation regarding destruction of houses and harm to infrastructure

The conclusion is that "In all of the areas in which the IDF operated, the level of damage to the infrastructure was proportional, and did not deviate from that which was required to fulfill the operational requirements." However, with the exception of general statements that the military only destroyed buildings whose destruction was necessary "for decisive military needs," the investigation does not detail the purpose of the massive destruction carried out by the military during the operation, including destruction of entire neighborhoods and extensive agricultural areas. The investigation gives no answer to the demands of international law, according to which such destruction is illegal when intended as a preventive measure and when there are alternative means to achieve the same purpose. Given the extent of the destruction, and without having proved that the military abided by these conditions and without an explanation of the goal of the destruction, the sweeping determination that the destruction was "proportional" is unpersuasive.