Opinion: Goldstone Notwithstanding, IDF Obligated to Investigate Conduct

This op-ed by IDI Prof. Yuval Shany argues that despite the Goldstone Report’s shortcomings and despite claims to the contrary, the report strengthens the demand to investigate claims raised against the IDF through an extra-military entity. Prof. Shany argues that the obligation to conduct an independent, effective, and credible investigation cannot be seen as a misapplication of human rights laws in times of war. As he sees it, the main question to address is whether the army's internal investigation of "Operation Cast Lead" meets the requirements of international law.

The lively public debate in recent weeks surrounding the question of whether (and how) to investigate the IDF's conduct during "Operation Cast Lead" tends to draw a connection between the flaws in the Goldstone Report and the decision to open an investigation of IDF conduct during the military operation in Gaza. This link, however, is unnecessary: well before the report was released many Israelis felt that Israel should carry out an independent, comprehensive, and credible investigation of claims regarding the illegality of certain actions in Gaza. This call should not have lost its validity once the report was published. Even if we accept the assumption that there is a correlation between the report and the obligation to conduct an investigation, a careful examination of the Goldstone Report indicates that its defects have no bearing on the obligation to investigate. The truth of the matter is that the report, despite its flaws, strengthens the conclusion that investigative proceedings conducted in Israel fall short of the requisite international standards. The report also creates a political and legal situation in which an outside investigation of "Operation Cast Lead" is the only way to defend Israelis from being tried in foreign countries on criminal charges.

International law, the main body of laws regulating combat operations such as "Operation Cast Lead," places two demands for investigations on countries involved in warfare: one, a requirement to investigate suspicions that war crimes were committed (individual responsibility), and two, a requirement to investigate violations of human rights laws and laws of war (national responsibility). Nobody disputes the fact that the claims raised against a number of actions taken by the IDF during the operation require examination; the debate currently taking place both inside and outside the government focuses on the question of whether the army's internal investigations (with a certain degree of oversight from the Justice Ministry) are consistent with international standards. The Goldstone Report replies to this question with a resounding "No." However, partly on the basis of the report's flaws, Israel rejects the commission's stance and refutes its conclusions. To evaluate the validity of the report's stance, its main defects must be assessed, and the validity of its conclusions regarding the inadequacy of Israel's investigative proceedings should be considered in light of this assessment.

There appears to be no solid factual basis for the claim that the Goldstone Report was biased against Israel for political reasons, and as such its findings should be rejected outright. Certainly Justice Goldstone's personal integrity is beyond reproach, nor can any doubt be cast on his longstanding support for Israel; and if any type of bias made its way into the commission's work, it is professional bias that views international law as a normative apparatus, whose main objective is to defend the weak against the strong, and not as a tool for creating policy aimed primarily at regulating the balance of power among nations. I too am of the opinion that the Goldstone Commission's work contains flaws that detract from the unanimity of its conclusions, but as I explain below, I do not find that they stem from conclusions related to the investigative proceedings in Israel.

1. Inadequate Factual Infrastructure: The wisdom of the policy of non-cooperation pursued by Israel is debatable (a policy that I consider to misguided and detrimental), but it is hard to argue with the damage it caused to the credibility of the commission's factual findings. Lacking an orderly presentation of the considerations that formed the basis of the army's operational decisions (and of the information on which these decisions were based), the commission was compelled to speculatively reconstruct Israel's stance and to rely on evidential assumptions that transfer the burden of proof to the side that did not present its own evidence. As a result of this limitation, the report reiterates claims raised by human rights organizations, journalists' sources, and Palestinian residents, without adding important information to clarify some of the events that they reviewed. Moreover, the members of the commission did not always maintain the restraint necessitated by the fact that Israel had no legal obligation to cooperate with the fact-finding mission and that ulterior motives had been attributed to the commission by Israel. In other words, because Israel did not present a factual account of certain events under investigation, the commission concluded that Israel's conduct must have been improper.
2. Faulty Legal Infrastructure: A striking weakness of the Goldstone Report is the analysis of the legal status of the Gaza Strip before "Operation Cast Lead" as a state of occupation. This conclusion is mistaken in my opinion, and is not properly explicated in the report (this may also have stemmed from Israel's refusal to present a legal position to the commission). In my view, the report's conclusion regarding the status of the territory can be attributed to the commission members' professional bias, as mentioned above. The overwhelming majority of the commission members are experts and activists in promoting international protection of human rights, and choosing a legal framework of occupation provides a more convenient infrastructure for implementing principles of international law that defend human rights than other legal frameworks (e.g., blockade laws). The legal framework chosen—the context—dictated to a large extent the results of the legal analysis. Indeed, the existence of a state of occupation substantially restricts Israel's freedom of action in combating terrorism that originates in Gaza, and places many legal obligations on Israel vis-à-vis the local population, which may very well not apply to this situation.
3. Incorrect Application of Human Rights Laws during Combat: The Goldstone Report pays lip service to the concept that in time of war, the overriding laws are the laws of war, and that human rights laws apply only residually. The commission turned the issue on its head by applying human rights laws in a normative framework—a decision that consigned Israel to assume the heavy burden of justifying its actions and laying a factual infrastructure that would be compelling enough to justify human casualties and civilian property damage. In this respect, the commission operated much like other international courts (e.g. the International Criminal Court in The Hague and the European Court of Human Rights), which have yet to develop the means to balance human rights laws with laws of warfare in a manner capable of meeting the operational needs of armies taking part in combat operations against terrorism and guerilla organizations.

IDF Investigation Does Not Suffice

A reassessment of the obligation to investigate IDF actions in light of the views above leads to the conclusion that despite its shortcomings, the Goldstone Report does not weaken, but in fact strengthens, the demand to investigate the claims raised against the IDF through an extra-military entity. Though the report's findings should not be accepted at face value for the reasons stated above, the serious accusations still remain. Therefore, the obligation to investigate, which applied before the report's publication, still remains. Moreover, regarding a few of the alleged incidents described in the report (particularly the sections on the use of human shields, damage to civilian infrastructures, treatment of arrested Palestinians, and firing at civilians waving white flags), the report heightens those suspicions. Furthermore, the issue of investigations—as it applies to suspicions that war crimes were perpetrated—relates only loosely to the legal framework established in the report: many of the violations that the report attributes to IDF soldiers fall under the rubric of war crimes according to any possible legal framework, therefore the obligation to conduct an independent, effective, and credible investigation cannot be seen as a misapplication of human rights laws in times of war. In fact, this area serves as an example of the successful combining of human rights laws and laws of war that does not exchange the specific law for the general law. Therefore, even if the State of Israel succeeds in convincing other countries and international organizations that the Goldstone Report is factually and legally misguided for the abovementioned reasons, it still remains highly doubtful whether it would succeed in convincing them that the commission's conclusions on the issue of the adequacy of the investigative proceedings in Israel are misguided as well.

The main question to address is whether the army's internal investigation of "Operation Cast Lead" meets the requirements of international law, particularly the demand for independence, credibility, and effectiveness. From this standpoint, the publication of the Goldstone Report weakens Israel's official position that the IDF investigation sufficed. First, the report presents serious allegations regarding violations of the laws of war during the operation, claiming they stemmed from official military and government policy. An internal IDF body under the command of army and government leaders cannot convincingly investigate these claims, which according to international law require investigation. In fact, even if the army can investigate certain issues (e.g. failures by field soldiers to carry out instructions), an internal IDF investigation of the decisions of high-ranking government and military figures (e.g. setting target selection criteria) cannot be considered independent investigation. Second, the fact that the IDF's internal investigation of a few of the serious incidents described in the report is not yet complete even nine months after the end of the operation, and did not lead to any real indictments or arrests (nor to an announcement that there is no basis for indictments or arrests), is more consistent with the position that the internal investigation is neither reliable nor effective than the alternative thesis.

In any case, whether the legal thesis presented here on the extent of Israel's obligation to conduct an investigation based on international law is accepted or not, the Goldstone Report significantly increases the chances in practice that foreign courts will attempt to claim jurisdiction over Israeli figures, based on the report's conclusions regarding both crimes allegedly perpetrated in Gaza and the inadequacy of the proceedings conducted in Israel. The head-in-the-sand policy that the Israeli government is currently adhering to is unsuited to the very real legal danger created by the report. Therefore, purely utilitarian arguments support initiating a stronger legal investigation (e.g. setting up an investigative committee), which would enable Israel to extend broader legal protection to Israeli figures that would prevent them from being prosecuted abroad, or would at least considerably reduce the chances of that occurrence. International law places the obligation to investigate not only on the State, but also on ranking officers in the military chain of command. Furthermore, according to the principle of "the commanders' responsibility" in international law, ranking commanders and government officials who were aware of a criminal action—or should have been aware of it—and failed to prevent it or take punitive measures can be held criminally liable. The State's current policy of resigning itself to the fact that the existing investigative proceedings do not meet, or are perceived as not meeting, international demands, leaves ranking IDF and government officials vulnerable to being tried abroad for their actions and failures. As such this policy is illegal and unwise.

Prof. Yuval Shany is a Senior Fellow at IDI and Dean of the Faculty of Law at the Hebrew University of Jerusalem.