Legal Affairs: Bound to be biased?

Human rights groups are protesting the IDF's probe on soldier conduct in Gaza.

By DAN IZENBERG
IDF soldier (photo credit: AP [Illustrative photo])
IDF soldier
(photo credit: AP [Illustrative photo])
Israelis often accuse their government of failing miserably in the battle for world public opinion. What most of these critics mean is that the government is unable to get across the fundamental justness of the country's cause. It may therefore come as a surprise to them to find that its latest effort, an army investigation into allegations that its troops violated the laws of war during Operation Cast Lead in Gaza in December 2008 and January 2009, failed to convince the world that - as Chief of General Staff Lt.-Gen. Gabi Ashkenazi puts it - the IDF is the most moral army in the world. Five teams, each led by a colonel, investigated the five fundamental allegations leveled at the army during the fighting: • claims that it fired at and damaged UN and international facilities; • claims that it fired at medical facilities, hospitals, vehicles and medical crews; • disproportionately high civilian casualties; • use of weapons containing phosphorous; and • damage to Palestinian infrastructure and destruction of buildings by ground troops. ACCORDING TO the IDF Spokesman's Office, the decision to conduct the investigations emanated "from the IDF's professional, moral and legal obligations to thoroughly investigate a number of claims which were made in relation to the conduct of the warfare." In its summary of the committees' findings, the office said they "showed that, throughout the fighting in Gaza, the IDF operated in accordance with international law. The IDF maintained a high professional and moral level, while facing an enemy that aimed to terrorize Israeli civilians - one that took cover amid uninvolved civilians in the Gaza Strip, and used them as human shields. "Notwithstanding this, the investigations revealed a very small number of incidents in which intelligence or operational errors took place during the fighting. These unfortunate incidents were unavoidable, and occur in all combat situations, in particular of the type which Hamas forced on the IDF by choosing to fight from within the civilian population." In terms of projecting a positive image (not to mention the benefits to the army of its allegedly objective and detached analysis of the fighting), what critic of Israel's information campaign could have asked for more? The army, of its own free will, investigated itself. Fortunately for it and for the country, it found that it had maintained a "high professional and moral level." Somehow, however, if we are to judge by the initial reactions of international and local human rights organizations, this effort seems to have backfired, "The Israeli military's findings about the conduct of its forces in Gaza lack credibility and confirm the need for an impartial international inquiry into alleged violations by both Israel and Hamas," Human Rights Watch said in a press release issued Thursday. "The investigative results make clear that the Israeli military will not objectively monitor itself. The conclusions are an apparent attempt to mask violations of the law of war by Israeli forces in Gaza." The organization took particular umbrage at the army's conclusions regarding its use of white phosphorus during the fighting. According to the army investigation, in all cases, white phosphorus was used in accordance with international law, and only used in open fields - not in urban centers. But according to HRW, the IDF findings "were blatantly wrong. Immediately after major fighting stopped, Human Rights Watch researchers in Gaza found spent white phosphorous shells, canister liners and dozens of burned felt wedges containing white phosphorous on city streets and apartment roofs, in residential courtyards and at a United Nations school. Artillery shells containing white phosphorous also struck a hospital and headquarters of the United Nations Relief and Works Agency for Palestinian refugees (UNWRA) both in central Gaza City." On March 23, Physicians for Human Rights-Israel issued a 50-page report on IDF conduct during the fighting, and charged that it had "grossly violated medical ethics." In its response to the new IDF report, the organization charged that "the investigation dealt with only a small part of the problematic incidents that occurred during Operation Cast Lead." ONE OF the incidents discussed in the PHR-I report that was not addressed in the IDF investigation involved members of the el-Aidi family. Their home was bombed on January 3, and at least eight family members were wounded. According to PHR-I, each time the occupants tried to leave the house to get medical treatment, they were shot at by soldiers. On January 4, PHR-I contacted the army to arrange the evacuation of the family. The army allegedly refused the appeal for six days and did not allow ambulances carrying white flags to approach. Two occupants managed to leave the house on January 6. The rest were released on January 10. "The Israeli attack on Gaza registered a severe deterioration of morality and values regarding the soldiers' attitude toward the Palestinian population of Gaza, to the point of genuine disregard for their lives," concluded PHR-I. "There is some doubt as to whether the army is the appropriate body to investigate these violations, especially considering the fact that until today, the army's promise to the High Court of Justice to investigate attacks on medical crews and facilities has not been fulfilled, and there is reason to be suspicious of the seriousness and readiness of the army to carry out such an investigation. Because an investigative mechanism has not been established within Israel, it would be best if any investigation of the incidents involved in the Israeli attack on Gaza be performed by an external, neutral and independent body and not the army itself." ACCORDING TO the organization B'Tselem, the army failed in its probe to investigate dozens of incidents of Palestinian fatalities - some of them extremely serious and ostensibly inexplicable - which occurred during the war. One of the most serious involved the a-Samuni family. It is based on the testimony of 19-year-old Maysa' a-Samuni, taken by telephone on January 7. A-Samuni said soldiers ordered the 14 family members gathered in her father-in-law's house to move to the home of Wahil a-Samuni. Altogether 70 family members, originally concentrated in three different households, were gathered in the one building. The following day, a bomb struck the house, killing 20-30 people and wounding about 20, according to Maysa' a-Samuni. B'Tselem spokeswoman Sarit Michaeli told The Jerusalem Post that even more serious than the individual incidents of civilian deaths was the military policy behind it which, she charged, constituted a massive use of firepower to protect soldiers, even at the cost of massive casualties among civilians. One of the repeated criticisms of the human rights groups was that the the army investigators did not interview Palestinians who actually witnessed or were victims of the fighting. For that reason, and the fact that they believe the army is incapable of investigating itself, these groups called for Israel to cooperate with the UN Human Rights Council team, headed by South African Judge Richard Goldstone.