The Goldstone Report: An Israeli investigation on the cards?

China opposes sending the Goldstone report to the UNSC. It’s not surprising: there’s no reason any country would support war crimes being investigated and punished. Not the US, not Australia or Britain, not Russia and not China.

This is big news: Dan Meridor (Likud, deputy prime minister) supports an Israeli investigation into the Goldstone Report. Of course, I expect a whitewash commission to declare Israel the most moral country in the world. The Kahan Commission, for example, was a joke (see Chomsky’s enormous dissection of it in The Fateful Triangle), but the Winograd Commission was even worse, and see Yesh Din’s study on how Israel applies the law to those who kill Palestinians to see the Israeli justice system in action.

Goldstone: Two sides, one mouth

Okay, so I’ll be honest, I think the Goldstone Report in many ways is quite impressive. I think it should have considered whether Israel’s attack on Gaza should be considered terrorism, and I think it should have considered whether Israel practices apartheid in the occupied territories. Its discussion of Hamas rockets gathers pretty much every conceivable measure of Israeli trauma, collects it uncritically, and concludes that Hamas is probably guilty of crimes against humanity. It clears Hamas of other charges (such as use of human shields), but I think this is still a fair measure of its bias in favour of Israel: if it took the same standard in its treatment of Israeli human rights violations, it would have found far more crimes against humanity committed by Israel. Methodologically, it is absurd: it compares the rockets fired at Sderot for years, to the blockade and the 3 week military incursion. If it was serious, it would compare like with like: either 3 weeks of rockets, or it would have investigated fully all of Israel’s attacks on Gaza in the last eight years. That Hamas fired indiscriminate rockets at Israel is one thing: by Israel’s admission, 20% of missiles/bombs fired by the air by Israel were non-precision weapons. They were considered accurate, because firing indiscriminate weapons was considered desirable by Israel. This would include terrorist weapons like flechettes and probably also white phosphorous and mortars and god knows what else. Why isn’t that considered crimes against humanity by the Mission? So whilst I think the conclusions of the Report by and large should be welcomed, and certainly factually its a very important report, and its far reaching findings should be more widely known, it should still be considered a report biased in favour of Israel.

So, why do I say Goldstone talks out both sides of his mouth? Honestly, I saw him interviewed on youtube, and I thought he was a serious and intelligent person. In many ways, his history is I think impressive. With that said, his op eds on his report have not been impressive. He hasn’t argued for his findings, or even really discussed them much. But I was unimpressed by this op ed in Jerusalem Post. (Why did he even bother with Jerusalem Post? Does he think it most important he reach out to the right wing Zionist diaspora?)

He complains again that Israel refused to cooperate with him. I think the refusal reflected that Israel has no leg to stand on in its massacre. All Israeli propaganda could have done would have added more to the 20 pages lamenting the rockets fired at Sderot.

But then, what made me unimpressed was this:

Israel and its courts have always recognized that they are bound by norms of international law that it has formally ratified or that have become binding as customary international law upon all nations. The fact that the United Nations and too many members of the international community have unfairly singled out Israel for condemnation and failed to investigate horrible human rights violations in other countries cannot make Israel immune from the very standards it has accepted as binding upon it.

Israel has a strong history of investigating allegations made against its own officials reaching to the highest levels of government: the inquiries into the Yom Kippur War, Sabra and Shatila, Bus 300 and the Second Lebanon War.

A strong history? Take just the issue of the Second Lebanon War. Goldstone knows perfectly well Israel committed massive war crimes during it: he talks about the military doctrines (such as the Dahiya doctrine) from the so-called Second Lebanon War which were put into practice in Gaza in the report. He cannot possibly consider Israel’s investigations into its military failures as satisfactory from a human rights point of view. I don’t understand how he can complain about Israel being singled out for criticisms when he thinks so many criticisms of Israel’s war crimes and oppression are valid.

Secondly, he knows perfectly well that Israel has a very poor history of investigating allegations made against its officials. He knows this because he wrote about this in his report. (Update: Admire Israel’s wonderful investigations into abuses by officials here.

Senior deputy to the state prosecutor Nechama Zusman wrote last week on Nitzan’s behalf that “the beating in the case was extremely slight and did not cause any actual damage. Therefore, the deputy state prosecutor did not think it was appropriate to intervene in the decision of the Justice Ministry’s department for the investigation of police officers to transfer the case to the care of the Israel Police disciplinary department, along with a recommendation to discipline the officers in question.”

Yesh Din issued a sharp response on Tuesday. The organization’s legal adviser, Michael Sfard, wrote to Zusman that, “Your position demonstrates unprecedented tolerance of abuse of people in custody by a person of authority, through the use of violence and humiliation.”

“The question of damage suffered is completely irrelevant, as criminal law prohibits assault and without qualifying it by the gravity of the damage caused,” the letter continued. “The argument that beating a prisoner is not a criminal act is even worse than the beating itself, and amounts to a dangerous move by the prosecution.”

These are actual films – like the one at haaretz – of soldiers beating unarmed Palestinian civilians. Notice also how there’s a video of Ezra Nawi protesting against the destruction of a Palestinian home, and he’s completely harmless and was easily arrested, and as punishment, Nawi has now been sentenced to a month in jail, with further harsher penalties if he goes to future protests.)

I’m going to post two relevant extracts from the Goldstone Report, to contrast with his claims of Israel’s strong history of investigating allegations:paras 1405-1418, and 1813-1832 (footnotes removed)

In the face of the recently increase in

violence by the Israeli security forces in the West Bank, B’Tselem stated that condemnations by

Ministers and other officials

remain solely declarative. Security forces, meanwhile, misusing their power, continue to

abuse and beat Palestinians, among them, minors (…). If a message is sent to security

forces, it is that even if the establishment does not accept acts of violence, it will not take

measures against those who commit them. The effect of such a message is that the lives

and dignity of Palestinians are meaningless and that security forces can continue,

pursuant to the function they serve, to abuse, humiliate, and beat Palestinians with whom

they come into contact.748

1406. In the past, every case in which a Palestinian not participating in hostilities was killed was

subject to criminal investigation. This policy changed in 2000. Criminal investigations are now

the exception,749 these cases are now simply discussed in an “operational debriefing” by the

military itself.750 In 2003, the Association for Civil Rights in Israel and B’Tselem filed a petition

to reverse this policy change, demanding that every civilian death be independently investigated.

The petition included demands for investigations into individual deaths as well as the principle

question relating to the overall policy. The former were dismissed, while the principle question is

still pending.751

1407. Yesh Din reports that over 90 per cent of investigations into settler violence are closed

without an “indictment being filed”.752 B’Tselem reported in June 2009 that the charges against

Mr Braude, the Hebron settler who was filmed shooting and injuring three Palestinians in

December 2009, would be dropped, as the court had ordered that “secret evidence” against him

be disclosed, and the potential public harm of this disclosure would outweigh the harm done by a

person, documented as having committed a violent crime, being released back into society.

1408. In July 2009, an Israeli activist who had been shot in the head in 2006 by the Israeli

border police was awarded compensation for his injury in an out of court settlement. To date, the

commander who ordered the shooting has not been subject to criminal investigation.754

1409. On 7 July 2008, Ashraf Abu-Rahma was shot at short range while blindfolded and

handcuffed. The incident was filmed and widely broadcast.755 When the Israeli Military

Advocate General charged the officer who ordered the shooting with “conduct unbecoming”,

Israeli international law Professor Orna Ben-Naftali stated that “the decision (was) indicative of

a policy of tolerance towards violence against non-violent civilian protests against the

construction of the Separation Wall”. She added that “the implication of such a policy is twofold:

first, it might transform ‘conduct unbecoming’ – which as a matter of law is a war crime – into a

crime against humanity; second, it may well be construed as an invitation to the international

community to intervene through the exercise of universal jurisdiction.”756

D. Legal analysis and conclusions

1410. Israel has obligations to Palestinians in the West Bank under both international

humanitarian law and international human rights law. With regard to the former, the obligations

flow from the status of Israel as the occupying power and the consequent obligations concerning

protected persons. With regard to the latter, specific human rights obligations to all individuals in

the West Bank arise from both customary law and the obligations assumed by Israel under the

various human rights conventions that it has ratified. The obligations under both bodies of law

are complementary and mutually reinforcing, and provide a clear framework against which the

facts outlined above may be analysed (see chapter IV above). With regard to the issues discussed

in the present chapter, the most relevant obligations are set out below.

1. Violence by settlers against Palestinians in the West Bank

1411. Israel has an obligation under customary law, as reflected in article 43 of the Hague

Regulations, to ensure public order and safety in the West Bank:

Article 43. The authority of the legitimate power having in fact passed into the hands of

the occupant, the latter shall take all the measures in his power to restore, and ensure, as

far as possible, public order and safety, while respecting, unless absolutely prevented, the

laws in force in the country.

1412. This obligation is supported by the obligation by Israel under article 27 of the Fourth

Geneva Convention (set out in chapter XV above) to ensure that Palestinians, as protected

persons, are protected against all acts or threats of violence.

1413. Israel also has obligations under international human rights law to protect Palestinians

from violence by private individuals, and to investigate and punish acts of violence through the

application of criminal law, without discrimination.

1414. Palestinians thus have “the right to security of the person” under article 9 (1) of the

International Covenant on Civil and Political Rights, which the Human Rights Committee has

read to mean that the State has an obligation to take reasonable and appropriate measures to

protect individuals from threats to the life of persons under their jurisdiction, including threats

from private actors.757 Under article 2 of the Covenant, Israel has an obligation “to adopt such

laws or other measures as may be necessary to give effect to the rights recognized in the present

Covenant” and to “ensure that any person whose rights or freedoms as herein recognized are

violated shall have an effective remedy”. In applying the law, Israel has an obligation under

article 26 of the Covenant to ensure that “all persons are equal before the law and are entitled

without any discrimination to the equal protection of the law”. Finally, insofar as acts of

violence amounting to cruel, inhuman or degrading treatment are perpetrated by private

individuals with the acquiescence of public officials (including security forces), Israel has an

obligation under article 16 of the Convention against Torture to prevent such acts:

Article 16 (1). Each State party shall undertake to prevent in any territory under its

jurisdiction other acts of cruel, inhuman or degrading treatment or punishment …, when

such acts are committed by or at the instigation of or with the consent or acquiescence of a

public official or other person acting in an official capacity.

Conclusions

1415. With regard to violent acts perpetrated by settlers against Palestinians, such as those

relating to the cases of December 2008 in Hebron reported above, the Mission concludes, on the

basis of the reports received and the video footage viewed, that Israel has failed to fulfil its

obligations to protect the Palestinians from violence by private individuals under both

international human rights law and international humanitarian law. In some instances, evidence

of the acquiescence of the security forces in this violence could amount to a violation of the

relevant obligations relating to cruel, inhuman or degrading treatment.

1416. Insofar as this acquiescence only occurs in respect of violence against Palestinians by

settlers, and not vice-versa, there is a strong argument that the behaviour of the security forces is

in breach of the obligations of Israel to not discriminate on the basis of national origin under the

International Covenant on Civil and Political Rights.

1417. The facts also suggest a violation of article 26 of the International Covenant on Civil and

Political Rights guaranteeing equal protection of the law, particularly insofar as there is a failure

to investigate Palestinians’ allegations of assault by settlers.

1418. Finally, the failure by Israel to adequately investigate allegations of the failure of the State

to protect Palestinians, and of the acquiescence of state actors before the violence of private

actors and thus to provide an effective remedy for those suffering human rights violations also

place Israel in violation of article 2 of the International Covenant on Civil and Political Rights.

Extract two:

1813. The Mission notes that Israel does not question its duty to investigate allegations of

serious offences by its armed forces. On the contrary, it has repeatedly stated that the

investigation system that it has put in place is effective.1157

1814. It remains to be considered whether, in carrying out its duty to investigate allegations of

serious violations, Israel has observed the universal principles of independence, effectiveness,

promptness and impartially. These principles have been developed in the jurisprudence of

international courts of human rights and are agreed upon by the States represented within the

relevant United Nations bodies.1158

1815. The Mission finds that the system put in place by Israel, and described above, to deal with

allegations of serious wrongdoing by armed forces personnel does not comply with all those

principles.

1816. The system is not effective in addressing the violations and uncovering the truth. In this

respect the Mission recalls the statements of Col. (res.) Ilan Katz, until March 2003 the Deputy

Military Advocate General, criticizing the use of operational debriefings by commanders in order

to prevent criminal investigations. In a meeting of the Israel Bar Association’s Military and

Security Committee, Col. (res.) Katz was reported to have stated:

From the beginning of the uprising and as of August 2004, about 90 [Military Police

Criminal Investigation Division] investigations were opened into the injuries and deaths

of Palestinians. About 70 investigations were opened in the last year alone. That shows

that they saw that the Operational Debriefing did not lead to uncovering the truth and then

the [Military Advocate General] gave an order to begin [Military Police Criminal

Investigation Division] investigations. I used to be part of the policy that allowed the

Army to use the military debriefing, but the Army did not use the Operational Debriefing

appropriately because of a failure to comply with regulations and orders. That tool did not

prove itself.

1817. Col. (res.) Katz appears to admit that the system does not comply with the requirement of

promptness. Even if a decision is made by the Military Advocate General to order the opening of

criminal investigations, investigation is usually nearly impossible at that point:

The reason is that when the commanders conduct an operational debriefing they

destroy the scene of the crime, and months later it is difficult to find traces of evidence on

the ground. You cannot even check the gun from which the shots were fired because by

the time the [Military Police Criminal Investigation Division] investigation begins many

more shots have been fired by the same gun, or in some cases the gun changes hands and

it is very hard to trace it. The debriefing law has a certain logic because it raises the level

of credibility of the operational debriefings, but the way it is exploited by commanders in

order to prevent [Military Police Criminal Investigation Division] investigations is not

reasonable.1159

1818. The Mission notes that the report in which the above statements appear has not been

contradicted by the Government of Israel. The statements are also consistent with other

assessments. Human Rights Watch studied the cases that were investigated between 2000 and

2004, and concluded that very few had actually gone to full criminal investigations and that even

fewer had ended in indictments. When convictions did follow, the penalties were noticeably

more lenient than those imposed on Palestinian offenders. The organization Yesh Din came to

similar conclusions in its study of cases from 2000 to the end of 2007.1160

1819. Operational debriefing, to review operational performance, is not an appropriate tool to

conduct investigations of allegations of serious violations of human rights and humanitarian law.

It appears to the Mission that established methods of criminal investigations such as visits to the

crime scene, interviews with witnesses and victims, and assessment by reference to established

legal standards have not been adopted. The operational debriefings as well as the five “expert “

investigations carried out by the Israeli armed forces into events during the December–January

military operations in Gaza appear to have relied exclusively on interviews with Israeli officers

and soldiers. As such, these investigations did not comply with required legal standards.

1820. The Israeli armed forces stated that it had conducted more than 100 “military

investigations” into allegations of wrongdoing during the military operations in Gaza. Some 13

criminal investigations have been opened. On the basis of the facts available to it and on the

circumstances, the Mission finds that a delay of six months to start these criminal investigations

constitutes undue delay in the face of the serious allegations that have been made by many

people and organizations.

1821. Amnesty International has said about the public outcomes of Israeli armed forces’

investigations into events during the military operations:

The information made public only refers to a handful of cases and lacks crucial

details. It mostly repeats claims made by the army and the authorities many times since

the early days of Operation “Cast Lead”, but does not provide evidence to back up the

allegations. It does not even attempt to explain the overwhelming majority of civilian

deaths nor the massive destruction caused to civilian buildings in Gaza.1161

1822. In this regard, the Mission recalls the recommendations made to Israel by the Committee

against Torture to “conduct an independent inquiry to ensure a prompt, independent and full

investigation” into the responsibility of the State and non-State actors during the war. This

recommendation was issued after Israel released the results of five “special investigations” in

April 2009.1162

1823. On the basis of the information before it and the above considerations the Mission finds

that the failure of Israel to open prompt, independent and impartial criminal investigations even

after six months have elapsed constitute a violation of its obligation to genuinely investigate

allegations of war crimes and other crimes, and other serious violations of international law.

1824. The obligation on Israel to prevent, investigate and punish violations of human rights

applies also to its actions or omissions in the West Bank. Such obligation includes the duty to

take appropriate measures or to exercise due diligence to prevent, investigate or redress harm

caused by private persons.1163 As stated above, the Mission has not received any information

indicating the initiation of criminal or other investigations into violence against Palestinians in

the West Bank, including East Jerusalem, related to the military operations in the Gaza Strip.

Israel appears to do little to protect Palestinians from settler violence and, if investigations into

such violence are opened, they are reported to be prolonged and usually result in no action. Yesh

Din reports that over 90 per cent of investigations into settler violence are closed without an

indictment being filed.

1825. If settlers are convicted, the sentences are reported to be very light.1164 This practice

should be contrasted with the harsh treatment and punishment meted out to Palestinians who

harm Israelis. This has been described as a discriminatory policy.1165 Similarly, action against

members of security forces who commit acts of violence, including killings, serious injuries and

other abuses, against Palestinians is very rare. Information available to the Mission points to a

systematic lack of accountability of members of the security forces for such acts.1166

1826. The Government of Israel also reports that, in October 2007, the Office of the Military

Advocate for Operational Affairs was established to investigate cases of operational misconduct

by Israeli armed forces soldiers against Palestinian civilians. This special military prosecution

unit allows the automatic opening of criminal investigations in all cases. As a result, the

Government reports, the numbers of criminal investigations launched in 2007 and 2008 in

relation to abuse against Palestinians have more than doubled, from 152 in 2006 to 351 in 2007

and 323 in 2008.1167 However, no figures are provided about how many of those investigations

resulted in indictments and in convictions, and the offence for which the concerned persons were

finally convicted.

1827. The same paper by the Government of Israel states that, in military courts as a whole,

from January 2002 to December 2008 inclusive, there have been 1,467 criminal investigations,

leading to 140 indictments. As of December 2008, 103 defendants had been convicted and 10

cases were still pending. During the first six months of 2009, 123 criminal investigations were

opened, leading to 10 indictments so far.1168 This information is contradicted, in addition to

being incomplete.

1828. Yesh Din points out that the limited number of indictments leads, in practice, to even

fewer convictions. Most of those convictions are for offences that do not reflect the degree of

gravity of the action. For instance, from September 2000 to the end of 2007, only 135 soldiers

were indicted, of whom some 113 had been convicted by mid-2008. Only 22 underwent full

criminal trials in courts martial and 95 were convicted on the basis of their confessions. But as

many as 73 confessed to amended indictments and were therefore convicted of less serious

offences than the original charges. This situation has been attributed partially to the system of

plea-bargaining officially used in Israel and to the willingness of the Military Prosecutor to agree

to lesser offences and penalties having due regard, inter alia, to the difficulties encountered in

gathering sufficient evidence to back up the original charge.1169

1829. Another contributing factor is the unprofessional way in which criminal investigations are

carried out, making it virtually impossible to prove the charges beyond reasonable doubt. Courts

martial have criticized those investigations on several occasions. Military criminal investigators

do not seem interested in interviewing victims or witnesses and the quality of evidence gathered

is low.1170

1830. The change of policy instituted in 2000 determining that full criminal investigations are

possible only after “operational debriefings” have been carried out means that in practice

criminal investigations do not begin before six months after the events in question. By that time

evidence may be corrupted or no longer available.

1831. The Mission holds the view that a tool designed for the review of performance and to

learn lessons can hardly be an effective and impartial investigation mechanism that should be

instituted after every military operation where allegations of serious violations have been made.

It does not comply with internationally recognized principles of independence, impartiality,

effectiveness and promptness in investigations. The fact that proper criminal investigations can

start only after the “operational debriefing” is over is a major flaw in the Israeli system of

investigation.

1832. The Mission concludes that there are serious doubts about the willingness of Israel to

carry out genuine investigations in an impartial, independent, prompt and effective way as

required by international law. The Mission is also of the view that the Israeli system presents

inherently discriminatory features that have proven to make the pursuit of justice for Palestinian

victims very difficult.

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