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The Follow up to the Goldstone Report and Its Legal Impact in Israel and Beyond

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Abstract

The United Nations Fact-Finding Mission on the Gaza Conflict (FFM) raised serious allegations of war crimes and crimes against humanity committed by Israel in Gaza in December 2008–January 2009, and in order to ensure accountability it is required by international law that these grave allegations be submitted to further investigation, and where appropriate, prosecution.

PhD Candidate in International Law at Geneva University and lecturer in IHL. Hebrew researcher for the UN Fact Finding Mission on the Gaza conflict.

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Notes

  1. 1.

    For more details on the establishment of the Fact-Finding Mission, please see the contribution of Richard Falk, supra in this Volume, Chap. 3, and of Jennifer Barnette, infra in this Volume, Chap. 5.

  2. 2.

    On the Committee of Expert, which was mandated to examine the effectiveness of the domestic investigations, please see more in detail the paper of Daragh Murray, infra in this Volume, Chap. 6.

  3. 3.

    The State of Israel issued five reports: (1) “Conclusion of investigations into Central Claims and Issues in Operation Cast Lead”, April (2009a) (2) “The Operation in Gaza: Factual and Legal Aspects”, July (2009b) (3) “Initial Response to the Fact‐Finding Mission on Gaza pursuant to Resolution S‐9/1 of the Human Rights Council”, September (2009c) (4) “Gaza Operation Investigations: An Update”, January (2010a) (5) State of Israel, “Gaza Operation Investigations: Second Update”, July (2010b). In addition, in December 2010 the Military Advocate General (MAG) submitted to the Turkel Commission a 100 pages report (in Hebrew) on military investigations and the compliance with the requirements of international law. To this report was annexed a 20 pages analysis in which the findings of the first report of the UN Commission of Experts were specifically addressed.

  4. 4.

    State of Israel report 2010b, p. 35.

  5. 5.

    The FFM report, para 1963.

  6. 6.

    For more details, please see the contribution of Michael Kearney, in Part III, Chap. 8, of this Volume.

  7. 7.

    See Schmitt 2011, pp. 31–84.

  8. 8.

    ICC jurisdiction may be exercised when the domestic judiciary system is unwilling or unable to investigate and prosecute. In the case of Israel the ICC may have competence if (quite hypothetically) the case were to be referred to the international court by the Security Council or if the ICC prosecutor recognizes the competence of the Palestinian Authority to recognize ad hoc the jurisdiction. As for the exercise of universal jurisdiction, although treaty law does not require this exhaustion of local remedies, in practice most states apply the subsidiary/comity principle, which gives primary jurisdiction to the forum State.

  9. 9.

    The Turkel Committee (officially The Public Commission to Examine the Maritime Incident of 31 May 2010) is an independent public commission set up by Israeli government in June 2011 in the aftermath of the Flotilla raid. The committee was mandated to examine: (1) “the legality of the naval blockade imposed on the Gaza Strip and the legality of the actions carried out by the IDF in order to enforce the naval blockade”; (2) “whether the investigation and inquiry mechanism that is practiced in Israel in general, and as applied with regard to the current incident, is consistent with the duties of the State of Israel pursuant to the rules of international law”. (Summary Report of the Public Commission to Examine the Maritime Incident of 31 May 2010—Part One, pp. 1–2). A 245-page report dealing with the first issue was released on January 23, 2011. The second report is scheduled to be released later in 2011. Although the commission was not originally tasked with examining the FFM allegations, its second mandate is of major importance for the FMM follow up, as it evaluates the domestic military system of investigation and prosecution.

  10. 10.

    See the Israeli Ministry of Foreign Affairs’ official statement 2010.

  11. 11.

    See General Assembly Resolution A/64/10 of 5 November 2009 entitled “Follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict” (see infra Document 5 in Part II); General Assembly Resolution 64/254 of 26 February 2010, entitled “Second follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict” (see infra Document 7 in Part II).

  12. 12.

    “Second follow-up to the report of the United Nations Fact-Finding Mission on the Gaza Conflict”, 11 August 2010, A/64/890.

  13. 13.

    “Follow-up to the report of the United Nations Independent International Fact-Finding Mission on the Gaza Conflict”, 14 April 2010, A/HRC/RES/13/9 (see infra Document 8 in Part II).

  14. 14.

    “Report of the Committee of Independent Experts in International Humanitarian and Human Rights Laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly Resolution 64/254, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards”, 23 September 2010, A/HRC/15/50 (hereinafter: ‘UN Experts first report’), para 91 (see infra Document 9 in Part II); “Report of the Committee of Independent Experts in International Humanitarian and Human Rights Law established pursuant to Council resolution 13/9”, A/HRC/16/24, 5 May 2011 (hereinafter: UN Experts second report), para 41 (see infra Document 10 in Part II).

  15. 15.

    UN Experts first report, paras 92–93; Second report at pp. 12–93.

  16. 16.

    UN Experts first report, para 95, Second report at p. 14, see again the contribution of Daragh Murray to this Volume on this point, infra Chap. 6.

  17. 17.

    See above, n. 9.

  18. 18.

    Government Resolution of 14.6.2010.

  19. 19.

    The Israeli members of the commission are former Israeli Supreme Court Justice Jacob Turkel; Maj. Gen (Res.) Amos Horev, the President of the academic institution ‘Technion’; Miguel Deutch, Professor of contract law at Tel Aviv University; and Reuven Merhav, former Foreign Ministry director-general. The two international observers are David Trimble (UK)—Nobel Peace Prize winner and former First Minister of Northern Ireland, and Ken Watkin (Canadian)—former head of the Canadian military's judiciary, Judge Advocate General.

  20. 20.

    The testimonies on the domestic system of investigation given by state authorities, NGOs and international law professors are online (in Hebrew) at http://www.turkel-committee.com/content-153-b.html.

  21. 21.

    Shany et al. 2011, p. 4.

  22. 22.

    Second UN Experts report, para 41; see also the first UN Experts report, para 91.

  23. 23.

    Benvenisti 2011.

  24. 24.

    Testimony of the Military Advocate General to the Turkel Commission, Session Number Four, 26 August 2010, cited in the Second UN Experts report, para 41.

  25. 25.

    Israeli International Law Experts report, p. 39.

  26. 26.

    Benvenisti 2011, p. 25. He refers essentially to the State Advocate General, which is the civil body that is supposed to give legal counselling to the State.

  27. 27.

    See also the submission of the Association for Civil Rights in Israel, para 64.

  28. 28.

    Benvenisti 2011, p. 24.

  29. 29.

    Benvenisti 2011, p. 27.

  30. 30.

    Israel's military judiciary is regulated by the Military Justice Law 5715–1955. For a detailed presentation see State of Israel report 2010a at paras 41–70.

  31. 31.

    The Israeli NGO Yesh-Din reveals that only 6% of criminal investigations yielded indictments against soldiers. From the beginning of the second Intifada in 2000 until the end of 2009 only 13 investigations into events in which Palestinian civilians were killed led to indictments. In only four cases involving the death of Palestinian civilians were any soldiers convicted. See, Yesh-Din 2008, 2010.

  32. 32.

    The Military Justice Law (1955) defines a command investigation as “a procedure held by the army, according to the army orders and regulations, with respect to an incident that has taken place during a training or a military operation or with connection to them.” They have the following characteristics: (1) All testimonies heard and their conclusions remain confidential and are inadmissible before a court; (2) If the Military Advocate General finds that there is a basis to open a criminal investigation, he can do so only after consulting a Major General. As the materials of the inquiry remain confidential, if the MAG decides to open a criminal investigation, it will start from the beginning.

  33. 33.

    Israeli International Law Experts report, para 38.

  34. 34.

    Id., paras 42 and 47. “The combination that exists today, in which there is overly generous use of the operational inquiry tool by the MAG and a high threshold has been set for opening criminal investigations, leads to a situation in which, despite its obvious disadvantages, the operational inquiry is used for the initial filtering of criminal cases—a role that contradicts the original purpose of the inquiry and that is in a state of tension with its principal characteristics. As a result, the duty to investigate violations of international law during times of combat is not appropriately fulfilled. In sum, in our opinion, when the MAG is presented with a credible allegation or a reasonable suspicion that a serious incident has occurred that is unjustified or unexpected, the MAG must open a criminal investigation. … the MAG must avoid using the operational inquiry as a criminal investigative tool”, paras 46–47.

  35. 35.

    B'Tselem Press release 2011.

  36. 36.

    PCHR 2011, paras 7–13.

  37. 37.

    The UN Expert Committee in its second report was able to report that “nineteen investigations into the serious violations of international humanitarian law and international human rights law reported by the FFM have been completed by the Israeli authorities with findings that no violations were committed. Two inquiries were discontinued for different reasons. Three investigations led to disciplinary action. Six investigations reportedly remain open, including one in which criminal charges have been brought against an Israeli soldier. The status of possible investigations into six additional incidents remains unclear.”, p. 21. Israel has since closed another criminal investigation into the death of Mohammed Hajji and the shooting of Shahd Hajji and Ola Masood Arafat http://www.haaretz.co.il/hasite/spages/1224636.html (Hebrew).

  38. 38.

    See, for example Israel’s response to the allegations raised on the legality of the rules of engagement and use of weapons: “While the IDF’s rules of engagement were fully consistent with international law, the IDF demonstrated its commitment to protecting civilians by issuing new instructions and orders in the course of the operation designed to further enhance and clarify these protections”; “The IDF uses only weapons and munitions defined as legal under international law and authorized as such by the relevant IDF authorities, including MAG officers,” State of Israel report 2009b, paras 222 and 405.

  39. 39.

    See, for example: “The IDF is examining how the unfortunate operational error occurred, in order to reinforce safeguards and to prevent its recurrence. Israel deeply regrets the tragic outcome. This is the kind of mistake that can occur during intensive fighting in a crowded environment,” State of Israel report 2009b, para 387; “Tragic results, including civilian death and damage to property do not necessarily mean that violations of international law have occurred.”; “The special investigations revealed some instances of intelligence and operational errors … The special command investigations also uncovered some instances where IDF soldiers and officers violated the rules of engagement”, State of Israel report 2010a para 4 and paras 99–100.

  40. 40.

    State of Israel report 2010b, para 18. These include: safe havens for civilians to take refuge; evacuation routes for civilians to safely escape combat areas; medical treatment for civilians; methods for effectively communicating with and instructing the population; and provisions for humanitarian access during curfews, closures and limitations on movement (paras 150–153). Equally, the New Order Regulating the Destruction of Private Property for Military Purposes was issued.

  41. 41.

    For a detailed research on the policy and its outcomes see B’Tselem 2010. On 27 October 2003, the Association for Civil Rights in Israel and B’Tselem filed a petition before the Israeli High Court of Justice challenging this policy. HCJ 9594/03, B’Tselem et al. v. The Military Judge Advocate General et al.

  42. 42.

    “New investigation policy regarding Palestinian casualties from IDF fire”, Israeli Army Blog 2011b.

  43. 43.

    Military Prosecutor vs. Sergeant A.K., S/153/09 12 (11 August 2009) cited in footnote 112, State of Israel report 2010a. It is noted that “the soldier served seven and a half months in prison”. Yet, since he was sentenced in August 2009, this information cannot be accurate.

  44. 44.

    Israeli Army Blog 2011c; Shany et al 2011.

  45. 45.

    Israeli Army Blog 2011a.

  46. 46.

    HCJ 3799/02, Adalah et al. Yitzhak Eitan, Commander of the Israeli Army in the West Bank et al. (6 October 2005). Yet, according to B’Tselem, despite the High Court's decision and army orders preceding and following it, security forces continue to use Palestinians as human shields. http://www.btselem.org/english/human_shields/timeline_of_events.asp See also Adalah 2009.

  47. 47.

    Israeli Army Blog 2011a. The IDF operational orders during Cast Lead “explicitly prohibited the use of civilians as human shields, as well as the compulsion of civilians to take part in military operations, in accordance with the Law of Armed Conflict and a Supreme Court ruling on the matter.” State of Israel report 2010b.

  48. 48.

    State of Israel report 2010b, footnote 13.

  49. 49.

    According to the army website “The use of civilians as human shields is a direct violation of the laws of war, violating the basic principle of distinction between combatants and non-combatants” Israeli Army Blog 2011a. Article 51 of the 1977 First Additional Protocol to the 1949 Geneva Conventions, for instance, specifically prohibits the use of human shields. In addition, according to Article 8(2)(xxiii) of the Rome Statute of the International Criminal Court, "[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations" constitutes a war crime.

  50. 50.

    Israeli Army Blog 2011d.

  51. 51.

    http://www.haaretz.com/news/diplomacy-defense/idf-to-charge-soldier-with-killing-two-palestinian-women-during-gaza-war-1.296500

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  1. University of Geneva, Swiss

    Sharon Weill

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  1. Sharon Weill
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  1. , Law Faculty, University of Milan, Via Festa del Perdono 7, Milan, 20122, Italy

    Chantal Meloni

  2. , International Section, Lelio Basso Foundation, Via Della Dogana Vecchia 5, Roma, 00186, Italy

    Gianni Tognoni

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© 2011 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors

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Weill, S. (2011). The Follow up to the Goldstone Report and Its Legal Impact in Israel and Beyond. In: Meloni, C., Tognoni, G. (eds) Is There a Court for Gaza?. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-820-0_4

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