Crossing the Rubicon? Israel closes its National Investigation into the War in Gaza

A number of developments have taken place since the end of the war in the Gaza Strip between the Israeli army and the Hamas armed brigades. The Gaza Strip, it should be recalled, remains occupied under international humanitarian law, this being also the official legal position of the UN and that which complies with the rules of the international law of occupation (See the discussion in a previous post).

Various investigations have been initiated concerning the misconduct of both parties to the war. The policies and military strategies adhered to by the Israeli army have been of particular concern taking account of the fact that they claimed numerously to transcend those that were undertaken in the context of the war in Lebanon in 2006 – the Dahiyah military doctrine, characterised by indiscriminate killings and disproportionate use of force. HRW amongst other groups have released solid evidential findings that have managed to base war crimes claims through the use of air-burst artillery shells documented in a 71-page report by HRW, the killing of 16 medical workers and bombing of 15 of Gaza hospitals (see this report which uncovers that the IDF were ordered to shoot at medical rescue teams as part of their rules of engagement), and the use of civilians as military shields. The American National Lawyers Guild, inter alia, has also delegated a group of legal experts to the Strip following the war, who have recently released their findings in a detailed report.

As Professor Bisharat of the University of California has noted on a few occasions, international law is at grave risk of being distorted and changed in ways that can harm all of us. Israel’s campaign to rewrite international law is deliberate and knowing and although in this light much of the world has refused to ratify Israel’s violations, it should be recalled that almost no substantial action has been taken by any government or group of governments as a result of the hostilities to ensure that the consequences of these actions are felt by those responsible. This of course is also part of  legal obligations of each state party to the Geneva Convention (as opposed to a mere moral responsibility or optional act of charity).

On 30 March 2009 Military Advocate General Brig. Gen. Avichai Mendelblit instructed the Israeli Military Police Investigation unit to close the inquiry into soldiers’ accounts of alleged misconduct and serious violations of the army’s rules of engagement during “Operation Cast Lead” in the Gaza Strip. This is after a collection of testimonies coming from soldiers who had taken part in the hostilities became available to the public after being discussed in private at a military academy session. This, as various local NGOs have noted, raises further suspicions as to the legality of the military’s conduct, and particularly as to the legitimacy of the Israeli government’s investigation into its own conduct.

Right after the end of the hostilities, the major question at hand was which body is, from the law’s perspective, most qualified to initiate an investigation into the allegations of misconduct that took place during the war (the same questions arose out of the national investigatory body set up in the form of the Winograd Commission after the Lebanon war in 2006; see also previous post here)? Concurrently, it was also considered whether a national investigation would fulfill the obligation to investigate applicable to post conflict situations under IHL? After all, the allegations made against Israel can no longer in the present climate be looked upon as being groundless; they have now not only been supported by extensive evidential material but are also collated by Israel’s own reluctance to accredit the international bodies and governments that have drawn its attention to the gravity of the prima facie violations observed (See the report by The Guardian).

It is undeniable that Israeli political and military personnel who planned, ordered or executed these possible offenses should face criminal prosecution (See Opinion written by Prof. Bisharat in the NYT; and his note on the changing of the rules of war, here). What continues still at this stage to remain unclear is who is going to undertake the investigation when so many different bodies are involved in the collection of evidence. With the Israeli government voluntarily taking itself out of the picture by terminating its self-initiated investigation midway with little to no concern at all for the significance of such a jesture, the international community is back to the forefront, in the sense that  arguably it has a heightened obligation, as a consequence of such a development, to penalise the Israeli government’s heedlessness towards international law. It is hoped that with the national investigation being closed down it is now manifest to a greater number of governments and international bodies that the only prospective channel for reconciliation for the atrocities that took place during the war in Gaza is on the international arena.