Gaza Inquiry

The Duty to Investigate and Prosecute War Crimes

The Gaza conflict of December 2008 led to allegations of violations of the law of war against both Israel and the Palestinian Authority. The official UN report into the conflict (the “Goldstone Report”) criticized both sides for failing to conduct adequate investigations into these allegations. The Israeli Defence Forces (IDF) rejected these criticisms, arguing that their system of unit-led investigations is the same as that used in other democracies. The UN Human Rights Council has appointed a follow-up Committee of Experts to monitor the independence, effectiveness, and genuineness of the investigations and their conformity with international standards.

Facts

In September 2009, the Goldstone Report of the Fact-Finding Mission on the Gaza Conflict made a number of conclusions concerning the independence and impartiality of the military investigations that were undertaken or underway by the Military Advocate General’s Corps of the Israeli Defence Forces. The report found that the use of “operational debriefings” to investigate allegations of war crimes, whereby the unit involved in the incident undertakes a preliminary investigation into whether or not a crime has been committed, did not satisfy the duty to investigate violations of international humanitarian law and human rights law.

The Goldstone Report concluded that this system resulted in delays of up to six months to transfer cases to an independent criminal investigation, and suggested that the narrow definition of per se criminal conduct meant that very few cases had been transferred.

In January 2010, the IDF issued a report in response, which argued that other military justice systems operated in the same way, specifically citing the US, UK, Canada, and Australia, and claiming that Israel's system did not violate international standards. The IDF Report maintains that it is necessary to conduct an immediate independent criminal investigation only where there is an allegation of per se criminal behavior, which includes the ill-treatment of detainees, the use of civilians as human shields, looting, and the intentional killing of a civilian. In cases of negligent or reckless killings, or of any other type of conduct that may amount to either a violation of law of armed conflict or a serious violation of human rights law, it is for the unit concerned in the incident to conduct its own “Command Investigation,” at the conclusion of which the unit must submit a report to the commanding officers and to the Military Advocate General who will then consider whether an independent criminal investigation is required. The IDF report states that any initial complaint will also be screened by the Military Advocate General who also has the power to refer an investigation to the Military Police Criminal Investigation Division (MPCID) prior to the conclusion of a command investigation.

In February 2010, the UN General Assembly requested a report on the steps that had been taken to investigate allegations of violations of international humanitarian law by both Israel and the Palestinian Authority. In March 2010, the UN Human Rights Council established a committee of experts, to be chosen by the High Commissioner for Human Rights, “...to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side...”

On June 14, 2010, the UN High Commissioner for Human Rights announced the appointment of three independent experts to the committee: Christian Tomuschat of Germany (Chair), Mary McGowan Davis of the U.S., and Param Cumaraswamy of Malaysia.

Open Society Justice Initiative Involvement

The Justice Initiative was asked by the organization Adalah to prepare a memorandum for the UN Human Rights Council’s follow-up Fact-Finding Committee. The Justice Initiative’s memo analyzes the IDF’s investigation into the 2008–2009 Gaza conflict and provides a comparative review of the legal standards in the US, UK, Canada, and Australia pertaining to the investigation and prosecution of alleged violations of the law of war.

Arguments

The memorandum outlined the following legal points with regard to the duty to investigate and prosecute allegations of violations of the law of armed conflict:

Applicable law. The duty to investigate and prosecute violations of the law of armed conflict arises from international humanitarian law, human rights law and customary international law, and applies during an armed conflict.

Applicable standards. Any investigation must be independent and impartial, prompt and expeditious, effective and thorough, must involve an autopsy or other medical evidence, and must be capable of leading to the identification and punishment of the perpetrators.

With regard to the conduct of investigations in the four comparative systems, the memorandum drew the following conclusions:

Reportable Incidents. The IDF distinguishes between a narrow class of per se criminal incidents which are subject to immediate reporting and other violations of the law of armed conflict which are only considered for criminal investigation at the conclusion of a command investigation. In the other four countries compared, virtually any incident that results in death or injury of civilians must be immediately reported and considered for an independent investigation.

Prompt. Under the system operated by the IDF it can take six months or even a year for a command investigation to be completed and a criminal investigation to be commenced. By contrast, in other systems such investigations are commenced immediately, or within a matter of days.

Effective. The IDF utilizes command investigations to gather evidence, tainting it for any subsequent inquiry. In the countries compared, independent investigative units have special powers for such investigations.

Independent. The IDF is heavily reliant upon the unit involved in the incident to conduct investigations. In the four countries compared, the investigation is promptly removed to a hierarchically independent unit.