Even war has laws.
Holding soldiers to the standards of jus in bello—appropriate conduct in wartime—is one way to keep mass violence from spiraling into chaos, and to protect civilian populations who are caught in the midst of conflict.
When a warring party is accused of violating these limits, it has an obligation to get to the bottom of things. Investigations into any alleged wrongdoing help restore trust, weed out abusers, and discourage others from overstepping appropriate bounds in future.
Yet as we’ve seen in the Middle East, the investigations themselves can be extraordinarily controversial.
The Gaza conflict of December 2008 led to allegations of violations of the law of war against Israel and the respective Palestinian authorities. The official UN report into the conflict (the “Goldstone Report”) criticized both sides for failing to conduct adequate investigations into these allegations. The Israeli Defense Forces (IDF) rejected these criticisms, arguing that their system of unit-led investigations is the same as that used in other democracies.
In light of the debate, this year the UN Human Rights Council appointed a follow-up committee of experts to monitor the independence, effectiveness, and genuineness of the investigations and their conformity with international standards.
The Open Society Justice Initiative became involved this past August, when it submitted a memorandum to the expert committee. This 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. (The full memorandum is available online, along with a more detailed summary.)
It is clear to us, from this analysis, that the Israeli investigations to date have not complied with international or comparative standards. Compared to the US, UK, Canada, and Australia, Israel limits reporting and criminal investigations to a much narrower range of incidents. It can take six months to a year for a criminal investigation to even begin, whereas in other countries, these inquiries would start immediately. The IDF is also heavily reliant upon the unit involved in the incident to conduct investigations, and uses command investigations to gather evidence, tainting it for any subsequent inquiry. In other countries we compared, the investigation is promptly removed to a hierarchically independent unit, which has special powers to conduct its inquiry effectively.
The Committee of Experts shared its findings with the UN Human Rights Council this week, and its conclusions reinforce the Justice Initiative’s analysis that Israeli investigations to date have not complied with international or comparative standards. The committee also criticized Hamas for failing to conduct proper investigations. These findings have sparked sharp responses from all sides.
The law, however, is clear.
In light of the shortcomings of inquiries to date, the UN and its member states should continue to insist that domestic authorities fulfill their responsibilities to carry out prompt, effective, and thorough investigations of alleged violations, and to prosecute violators as appropriate.