Israel/Gaza: Wartime Inquiries Fall Short

Israeli military investigations into the Gaza war have brought some
results over the past 18 months but fall far short of addressing the
widespread and serious allegations of unlawful conduct during the
fighting, while Hamas has announced no serious investigations
whatsoever, Human Rights Watch said today.

Human Rights Watch called on governments and the United Nations
to increase their pressure on Israel and Hamas to conduct credible,
independent investigations.

"International pressure for investigations has pushed Israel, if
not Hamas, to take some steps, but there can be no let-up," said Sarah
Leah Whitson, Middle East director at Human Rights Watch. "The victims
on all sides deserve justice."

In July 2010, Israel gave UN Secretary-General Ban Ki-moon an
update of its Gaza investigations, claiming "significant results." The
Palestinian authorities in the West Bank also submitted a report to the
secretary-general, which is not yet public. Hamas has reportedly
prepared a report on its investigations but has also not released it
publicly. Ban is expected to pass the reports from Israel and the West
Bank authorities to the General Assembly in the coming weeks.

"Secretary-General Ban should candidly assess the investigations
by both sides and not just passively transmit the reports to the General
Assembly," Whitson said.

In February, the General Assembly called
on Israel and Hamas for the second time to conduct thorough and
impartial investigations into the serious violations of international
human rights and humanitarian law documented by the UN
Fact Finding Mission on the Gaza Conflict, headed by Justice
Richard Goldstone. That report found that both Israel and Hamas had
committed war crimes and possible crimes against humanity.

Hamas authorities in Gaza have neither investigated nor
disciplined anyone for ordering or carrying out hundreds of deliberate
or indiscriminate rocket
attacks into Israeli cities and towns during the fighting in
December 2008 and January 2009, which are war crimes. Hamas officials,
at a May 14 meeting in Gaza City, told Human Rights Watch that they were
investigating allegations of wartime abuses but provided no details.

At that meeting, Human Rights Watch reiterated its concerns about
Hamas's failure
to investigate laws-of-war and human rights violations, including
rocket attacks against Israeli population centers, the continued
incommunicado detention of the captured Israeli soldier Gilad
Shalit, and ill-treatment
of Gaza residents in custody. Hamas allowed Human Rights Watch to
visit Palestinian detainees at Gaza's central prison but denied a
request to visit Shalit and a detention facility where torture allegedly
occurs.

On July 21, the Israeli government made public the report
it gave to the UN secretary-general on its Gaza investigations. All of
these were conducted by the Israel Defense Forces (IDF). The government
has rejected calls for independent investigations.

The military has failed to investigate many serious allegations of
abuses or the policies that apparently led to civilian deaths, Human
Rights Watch said.

To date, Israeli military courts have convicted only one soldier for a
wartime abuse - the theft of a credit card. Two other soldiers are on
trial for forcing a child to open a bag they suspected of being rigged
with explosives. A third soldier was recently indicted for shooting and
killing a civilian who was walking in a group holding white flags.

Israel says the military has opened more than 150 investigations, but
more than 100 of these were limited to "operational debriefings" (in
Hebrew, tahkir mivza'i). Rather than criminal investigations,
these are after-action reports in which an officer in the chain of
command interviews the soldiers involved, with no testimony from
Palestinian victims or witnesses.

The operational debriefings may serve a useful military purpose, but
they are inadequate substitutes for impartial and thorough
investigations into possible criminal wrongdoing, Human Rights Watch
said.

The IDF military advocate general has also opened 47 criminal
investigations in which military investigators summoned witnesses and
more broadly examined evidence. Of these, at least seven cases have been
closed without charges.

Human Rights Watch investigated
at least two of these closed cases and found that the evidence strongly
suggests violations of the laws of war. In one case, on January 7, an
Israeli soldier apparently opened fire on two women and three children
from the 'Abd Rabbo family in eastern Jabalya who were holding white
flags, killing two girls and wounding the grandmother and third
girl. The military said it closed the case because "the evidence was
insufficient to initiate criminal proceedings."

The second case involved the killing of Rawhiya al-Najjar, 47, as she
carried a white flag in Khuza'a on January 13. The military determined
that she had been hit accidentally by a ricochet bullet. But five
witnesses interviewed by Human Rights Watch said that Israeli soldiers
continued to fire after al-Najjar was struck in the head, preventing a
group of women from retrieving her body and wounding Jasmin al-Najjar,
23. Another civilian carrying a white flag, Mahmoud al-Najjar, 57, was
shot and killed later that day trying to reach the body.

Other Israeli military investigations have resulted in
unspecified disciplinary action, reserved for less serious offenses,
against five unidentified commanders and soldiers. A brigadier general
and a colonel were disciplined for ordering the use of explosive shells
in an urban area, in violation of operational orders. A lieutenant
colonel was disciplined because soldiers under his command used a
civilian to perform a military task.

An officer of unspecified rank was reprimanded and two others
sanctioned for using poor judgment in a January 3 strike just outside
the Ibrahim al-Maqadema mosque in Jabalya refugee camp that reportedly
killed 10 civilians inside the mosque and two members of Hamas's armed
wing standing outside. A previous Israeli update on the military's
internal investigations, released in July 2009, stated that a soldier
had been disciplined by the commander in the field for destroying
property, which military investigators told Human Rights Watch involved
uprooting vegetation.

Israel said it is making operational changes to reduce civilian
casualties and damage to civilian property during future military
operations. According to the July report, the military has added a
humanitarian affairs officer to each combat unit at the battalion level
and above. In October 2009 it introduced a new "Standing Order on
Destruction of Private Property for Military Purposes," which clarifies
when and under what circumstances the military may destroy civilian
structures and agricultural infrastructure.
The report also said that the Israeli military is establishing
new orders on the use of munitions containing white phosphorus, which
can cause severe burns and ignite civilian structures, and is
"establishing permanent restrictions on the use of munitions containing
white phosphorus in urban areas."
"Israel's recognition of the need to change its policies,
especially on property destruction and the use of white phosphorus, is a
positive step, but the military should make the new policies public to
ensure they are consistent with international law," Whitson said.

Israel initially denied that it had used white phosphorus during the
fighting in Gaza but, after the evidence became undeniable, it conceded
that it had and investigated its use. A Human Rights Watch report showed
how Israeli forces repeatedly exploded
white phosphorus munitions in the air over populated areas, killing
and injuring civilians, and damaging civilian structures, including a
school, a market, a humanitarian aid warehouse, and a hospital.

Another Human Rights Watch report showed that Israeli forces
deliberately destroyed 189
civilian structures without a lawful military justification, which
could amount to the war crime of wanton destruction. That report
investigated roughly 5 percent of the destruction of civilian property
in Gaza.
Various bodies of the United Nations are monitoring the post-war
investigations by Israel and Hamas. The General Assembly is expected to
take up the secretary-general's report. At the Human Rights Council, a Committee
of Experts is assessing whether Israel and Hamas are conducting
investigations that meet international standards. Its report is expected
in September.
"A growing number of states are demanding accountability from
both sides, and their pressure is bearing fruit," Whitson said. "Now all
European governments, as well as the US and Canada, should insist on
the same rules for Israel and Hamas as they demand elsewhere: that those
responsible for war crimes be held accountable, and the victims receive
justice and compensation."