Israel's Campaign to Avoid Accountability for War Crimes Must be Rejected

April 6, 2011

Justice Richard Goldstone’s opinion piece (April 1, 2011) in the Washington Post ‘Reconsidering the Goldstone Report on Israel and War Crimes’ does not ‘vindicate’ the State of Israel as the government of Israel would have us believe, nor was the Op-Ed piece a ‘retraction’ of the report in its entirety as the New York Times and Wall Street Journal would have had us believe.

Goldstone’s opinion piece simply stated that in light of evidence presented by Israel through military investigations, he does not believe Israeli forces intentionally targeted civilians “as a matter of policy” during Operation ‘Cast Lead,’ Dec. 27, 2008 – Jan. 18, 2009.  The original report initially asserted that in certain cases, Israeli forces carried out “direct intentional strikes against civilians.”

Assessing whether specific Israeli attacks on civilians during the conflict were deliberate is extremely difficult because the Israeli military has not released the evidence that would allow independent parties to evaluate its conclusions.  Amnesty has not argued that the Israeli Defense Forces (IDF) targeted Palestinian civilians “as a matter of policy”, but that IDF rules of engagement and actions during the conflict failed to take sufficient precautions to minimize civilian casualties.  Justice Goldstone’s recent comments do not dispute this assessment.

Over 1400 Palestinians, including some 300 children were killed by Israeli forces during the conflict.  Whether a policy existed intentionally targeting civilians or not does not change the fact that each allegation of war crimes and possible crimes against humanity documented by the FFM team and other independent NGO’s, including Amnesty, should be investigated so victims – both Palestinian and Israeli – can receive justice.   Amnesty is arguing that since both the Israeli and Hamas authorities have failed to conduct independent investigations, we need an international justice solution.

Postcard created by AI-UK during their campaign against new, restrictive measures being considered that would limit the international justice option of Universal Jurisdiction in the United Kingdom.

When the UN fact-finding mission (FFM) – appointed by the Human Rights Council (HRC) – went to the Gaza Strip (and sought to go to southern Israel) in 2009, Israel refused to cooperate citing  HRC bias against it.  No one would deny that politics play a large role in actions various UN bodies take, but Goldstone himself worked to ensure that the final mandate of the FFM he led was balanced.  The team was sanctioned to examine alleged violations of international humanitarian and human rights law committed by all parties to the conflict, including Israel, the Palestinian Authority and the Hamas de facto administration in the Gaza Strip.

Amnesty believes recent calls by the Israeli government for the United Nations “to retract the 2009 report” are a cynical attempt to avoid accountability for war crimes and deny both Palestinian and Israeli victims of the 2008-2009 Gaza conflict the justice and reparations they deserve.

Many of those leading the charge to have the entire report rescinded are Israeli political leaders, some of whom were members of the Israeli war cabinet which made the policy decisions during the Gaza operation.

And even though the Israeli military has conducted investigations, it would be a mistake to see these as independent.  More than two years on, serious incidents still have not been investigated, while many other cases have been closed after finding the IDF was justified – but without releasing the evidence in question.  In general, the military investigations have failed to meet international standards of independence and transparency.  The report by the Committee of Independent Experts, headed by Justice Mary McGowen Davis and appointed to assess the domestic investigations undertaken by Hamas and Israel, concurs with Amnesty’s assessment on many points.

All of this makes it hard to accept the conclusions of the Israeli investigations in “good faith”.   All the investigations are overseen by Israel’s Military Advocate General, which also provided legal advice during Operation ‘Cast Lead’ and could have a vested interest in their outcome.  Even in cases where unlawful actions are identified, we cannot assume Israel will hold those responsible accountable and deliver an appropriate sentence.  History simply does not bear this out.

An environment of impunity has long  been enjoyed by the IDF and Israeli settlers in the occupied West Bank, Gaza Strip and East Jerusalem as well as by members of armed Palestinian groups and the security forces of both Hamas in Gaza and the Palestinian Authority in the West Bank.  This has been well documented over the years by Amnesty as well as B’Tselem , Human Rights Watch and other NGO’s.   In light of this record, the failures of the Israeli and Hamas investigations are not unexpected and this adds weight to the growing calls for international justice.

Although the Israeli military claims to have adopted  procedures to better protect civilians during urban warfare, these changes have not been made public so there is no guarantee that they meet Israel’s obligations under international law. For instance, in July 2010 Israel reported that the IDF is “establishing permanent restrictions” on the use of white phosphorous (WP) in urban areas.  The use of WP is legal – when used properly (ex: as a smoke screen or marker in open, non-populated areas) – but, it should NEVER be used directly against enemy combatants, let alone air-burst over densely civilian areas as Israel repeatedly did during the Gaza operation.

Cases where Israel’s military investigations have found no wrong doing include incidents where civilians were killed by indiscriminate (ex: mortars, white phosphorous, flechettes) or precision weapons (ex: drone missiles with fiber-optics, tank shells, rockets from attack helicopters and F16 bombs dropped that require chain of command clearance), and cases of so-called ‘white flag killings’ and civilians used as ‘human shields’ by Israeli troops.  All these cases demand justice and accountability.

More than 1/3 of the incidents highlighted by Goldstone’s FFM are still “unresolved or unclear”. To date, only four Israeli soldiers have been indicted on criminal charges relating to the Gaza action two years ago and only one has served prison time (for credit card theft).  Israel has failed to investigate those higher up in the chain of command – those who designed, planned, ordered and oversaw the engagement policies.

Amnesty International Justice poster used during recent 'Demand Justice' campaign. Top photo shows white phosphorous in air-burst pattern over densely populated city fired by Israeli forces while photo on bottom shows rocket fired from within population center by Hamas towards southern Israel.

Amnesty re-affirmed its commitment to the international justice process and the recommendations of the Goldstone Report which call for accountability, justice and reparations.  No – the Goldstone Report should not be rescinded, nor have its findings and recommendations recanted.  The international justice process must be left to continue, taking into consideration any new evidence provided.

The international community must firmly reject any attempts by vested parties to escape accountability and act decisively for international justice, as it has done on Libya, Sudan and other situations where war crimes and possible crimes against humanity have been committed.