Saturday, January 30, 2010

Israel's Response To Goldstone Report Is Out

It is available online as a PDF document, and is embedded in this post, below.

Here is the summary of the report:


1. This Paper describes Israel’s process for investigating alleged violations of the Law of Armed Conflict. It focuses in particular on investigations, legal proceedings, and lessons learned in relation to the actions of the Israeli Defence Forces (IDF) in Gaza from 27 December 2008 through 18 January 2009 (the “Gaza Operation,” also known as “Operation Cast Lead”).

2. The Paper supplements and updates a paper Israel released in July 2009, The Operation in Gaza: Factual and Legal Aspects, which addressed a range of factual and legal issues related to the Gaza Operation. The earlier paper included detailed accounts of Hamas’s incessant mortar and rocket attacks on Israel’s civilians (some 12,000 such attacks in the 8 years prior to the Operation) and the steadily increasing range of such attacks; Hamas’s suicide bomb attacks; and Hamas’s smuggling of weaponry and ammunition through tunnels under the Egyptian-Gaza border, as well as Israel’s attempts to address these threats through non-military means, including diplomatic overtures and urgent appeals to the United Nations.

3. The Operation in Gaza also set out the legal framework governing the use of force and the principles – including the principles of distinction and proportionality – that apply in such a conflict. It also described the IDF’s efforts to ensure compliance with these principles during the Gaza Operation and the modus operandi of Hamas, in particular its abuses of civilian protections that created such acute operational dilemmas.

4. The Operation in Gaza also included preliminary findings of a number of the investigations established following the operation, although such investigations were, and remain, works in progress. For this reason, six months after the publication of the original paper, it is appropriate once again to take stock publicly regarding the progress made and the current findings of the investigative process. While many of these investigations are still underway, this Paper aims to present a clear and up-to-date picture of the current status of Israel’s investigations.

5. Israel’s system for investigating alleged violations of the Law of Armed Conflict is comparable to the systems adopted by other democratic nations, including the United Kingdom, the United States, Australia, and Canada. The Paper notes that Israel has demonstrated its ability and its commitment to pursue serious criminal charges to uphold the Law of Armed Conflict, a commitment which has been confirmed by outside
observers and foreign legal systems.

6. Israel’s investigative system has multiple layers of review to ensure impartiality and independence. These include the Military Advocate General’s Corps (MAG), which determines whether to initiate criminal investigations and file charges against IDF soldiers. The Military Advocate General is legally independent from the military chain of command. Israel’s Attorney General provides civilian oversight, as any decision of the Military Advocate General on whether or not to investigate or indict may be subject to his review. Further review is available through Israel’s Supreme Court either as an appeals court, or exercising judicial review over any decision of the Military Advocate General or the civilian Attorney General. Such review can be – and frequently is – initiated by a petition of any interested party, including non-governmental organisations, Palestinians, and other non-citizens.

7. The Paper describes the structure and process of operation of these various elements of Israel’s investigative system in some detail, particularly in order to correct misrepresentations and inaccuracies in recent reports describing these mechanisms.

[Numerous assertions made by the Human Rights Council’s Report of the U.N. Fact-Finding Mission on the Gaza Conflict – for example, that criminal investigations must await the completion of a military command investigation or that all command investigators are within the direct chain of command – are incorrect.]

8. Describing the application of these mechanisms to the Gaza Operation, the Paper notes that the IDF to date has launched investigations of 150 separate incidents arising from the Gaza Operation. A number of these were opened at the IDF’s own initiative. Others were opened in response to complaints and reports from Palestinian civilians, local and international non-governmental organisations, and U.N. and media reports.

9. Of the 150 incidents, so far 36 have been referred for criminal investigation. To date, criminal investigators have taken evidence from almost 100 Palestinian complainants and witnesses, along with approximately 500 IDF soldiers and commanders. The Paper describes some of the challenges encountered in the conduct of the investigations, including accessing evidence from battlefield situations and the need to make arrangements, together with non-governmental organisations such as B’Tselem, to locate and interview Palestinian witnesses. To address these challenges, special investigative teams have been appointed and are currently investigating complaints arising from the Gaza Operation.

10. The Paper relates to all investigations initiated following the Gaza Operation and does not limit itself to those incidents in the Human Rights Council’s Report of the U.N. Fact-Finding Mission on the Gaza Conflict, chaired by Justice Richard Goldstone (the “Human Rights Council Fact-Finding Report” or “Report”). As Israel has clarified before, Israel disagrees with the findings and recommendations of the Report, which reflect many misunderstandings and fundamental mistakes with regard to the Gaza Operation, its purposes, and Israel’s legal system. This Paper, however, is not intended as a comprehensive response to the Report or a catalogue of the Report’s serious inaccuracies and misstatements.

11. With respect to the incidents described in the Human Rights Council Fact-Finding Report, the Paper notes that, prior to the publication of the Report, Israel was investigating 22 of the 34 incidents it addresses. The remaining 12 incidents, none of which had previously been brought to the attention of the Israeli authorities, were promptly referred for investigation upon the Report’s publication. The Paper details the various stages of investigation of these incidents. It also notes that in some cases, after reviewing all the evidence available, the Military Advocate General has concluded that there was no basis for criminal investigations. The Paper gives detailed accounts of a number of these incidents.

12. The Paper also provides updated information regarding the special command investigations initiated by the IDF Chief of General Staff after the conclusion of hostilities in Gaza. As noted in The Operation in Gaza, shortly after the close of the Operation, the Chief of General Staff appointed five senior field commanders to investigate the most serious allegations of wrongdoing. The Chief of General Staff recently adopted a recommendation by the Military Advocate General and initiated a sixth special investigation, to consider additional allegations and to re-examine a complaint that a command investigator could not substantiate.

13. The Paper provides updates regarding the findings of these investigations, which have, in addition to prompting criminal inquiries, further command investigations, and disciplinary proceedings, also yielded operational lessons resulting in changes already made or underway.

14. The Paper concludes by recognizing the importance of conducting the investigative process in a timely manner. At the same time, it notes the need to ensure that legal processes are conducted thoroughly and with full due process, and in a manner comparable with that of other states guided by a respect for the rule of law.

Read the whole thing.

The report details 4 specific issues raised by the Goldstone Report which were found to have not transgressed international law.

It also found that of the 36 cases the Goldstone Report claims to have found of war crimes--Israel could only identify 34. Apparently, while the number '36' has been mentioned over and over, no one--least of all the Goldstone Report itself--has actually provided a list of what those 36 cases are.

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