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Israeli Supreme Court's take on the obligation to investigate military misconduct

The Israeli Supreme Court has recently rejected a petition that was filed by two NGO demanding that a criminal investigation be conducted into the 2004 Israeli military operations in the Gaza Strip, including, amongst other atrocities, the indiscriminate killings that took place in Rafah and the disproportionate damage incurred by the population of the southern parts of the Strip.

It is interesting to note some of the statements made during the hearing conducted by a three-judge panel, at the head of which was Justice Dorit Beinish, President of the Israeli Supreme Court. A popular Israeli newspaper reports that the justices agreed there was a pragmatic difficulty in the case, since investigating every single person involved in the operations was impractical. More so, Beinish held, “I also resent the underlying threat of appealing to an international body. You cannot constantly hint that if this court proves less than compliant, you will take your case to another forum.” (see  article in Ynet).

By way of diversion from the legal questions at hand – whilst avoiding any discussion of the primary guiding principles of international law that impose clear-cut positive obligations on states to give way to an investigation of its alleged misconduct under international humanitarian law – Justice Meltzer indicated that the petition was politically motivated. He then demanded to know details about one of the petitioners, a Gaza-based NGO, the Palestinian Center for Human Rights, “have anything to say about the incarceration of Gilad Schalit?”  (see article in the Jerusalem Post).

Finally, Justice Meltzer also rejected the petitioners’ argument that international law called for criminal investigations when there was a suspicion that war crimes had been committed. He pointed out that international law called for an examination of the matter, not a criminal investigation. This is whilst the petitioners had very thoroughly outlined the international legal framework, both treaty and custom based, that imposes an unequivocal and unconditional obligation to investigate and prosecute those who had committed war crimes during an armed conflict of either an international or internal character (see the petition, in Hebrew). We have also paid regard to the normative discussion on the international obligation to investigate in a previous post on the Winograd Commission, set up by the Israeli government after the war in Lebanon in 2006.

The decision on the case (which will be handed down at a later date) came on a timely occasion when only shortly before the hearing by the Court, the Israeli government made final steps to formally effectuate the termination of all investigatory probes into the misconduct that took place during the 23 day long incursions. The internal investigation, which made the Israeli army look like the world’s most moral armies, concluded that since no civilians were purposefully hurt during the attacks there is, according to the state’s logic, no need to conduct any further probing (see article in Haaretz). The National Lawyers Guild, amongst other international legal expert bodies, have called the Israeli military’s self-exoneration “lacking in credibility” (see the NLG press release).

NB: A recent academic publication that treats the question of the developing norms of reparations and apologies for historical claims, shedding light on the difference between individual and collective claims as well as holding a very thought-provoking discussion on the role of international, regional and national court litigation in the overall context of the “reality” of achieving reparations. The citation is as follows: Sarkin, Jeremy, Colonial Genocide and Reparations Claims in the 21st Century: The Socio-Legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904-1908, Greenwood Publishing, 2008.

One Comment

  1. name name 15 May 2009

    Cynism in Israeli Supreme Court is nothing new. Since day one they played a central role in legitimazing the occupation.

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