This week, the NGO Adalah submitted a report as its contribution to the UN Commission of Inquiry into the 2014 Gaza conflict. According to the report, “Israel’s investigations into its 2014 Operation Protective Edge fall far short of international standards, and Israeli courts are effectively closed to Gazans’ civil tort claims.”
Despite all the obstacles placed before it, the UN Commission of Inquiry is gathering facts and evidence on the 51-day War on Gaza, including speaking with victims, in order to seek truth and accountability for severe violations of international humanitarian law (IHL) and international human rights law (IHRL). The media have reported that Professor Bill Schabas, chairman of the UN Commission of Inquiry, resigned from his post due to his having previously served as a consultant for the PLO. In light of this resignation, Adalah expressed its hope that “Prof. Schabas’ resignation will not postpone the Commission’s important work, and that its report will be submitted as planned to the UN Human Rights Council on 23 March 2015.”
Adalah’s report assesses two key aspects of Israeli law and practice relevant to the work of the UN Commission: (1) Israel’s investigatory mechanisms into the conduct of its military during armed conflicts and its progress with investigations into “Operation Protective Edge”, and (2) the availability of civil tort compensation remedies before Israeli courts available to Palestinians, who were harmed by the Israeli military.
In its report, Adalah argued that, to date, Israel’s investigations into its 2014 “Operation Protective Edge” fall far short of the international standards of independence, impartiality, effectiveness, promptness, and transparency. In addition, there is still no war crimes legislation in the domestic Israeli criminal law, and no Israeli penal law imposing direct criminal liability on military commanders and political leaders for IHL and IHRL violations. Israeli government officials such as Defense Minister Moshe Ya’alon have also made statements against the opening of investigations into the war. Israel’s probes are thus likely to lead, as they did in the past, to a lack of criminal investigations, prosecutions, and punishment of perpetrators of serious IHL and IHRL violations against Palestinians in Gaza.
In fact, Israel’s failures to effectively investigate alleged violations of IHL and IHRL follow a persistent pattern. In 2009, the UN Fact-Finding Mission on the Gaza Conflict, known as the Goldstone Mission, raised serious doubts about Israel’s willingness to carry out genuine investigations concerning “Operation Cast Lead” as required by international law. The Mission also found that the Israeli system presents inherently discriminatory features that have proven to make the pursuit of justice for Palestinian victims very difficult. Furthermore, in 2013, Israel’s government-appointed Turkel Commission issued 18 recommendations that illustrated serious shortcomings in the state’s investigatory mechanisms. However, even these recommendations do not fully comply with the international standards of the duty to investigate. Finally, although two years have passed since the release of the Turkel Commission report, Israel has implemented almost none of the recommendations, despite its commitment to do so.
Adalah’s report also demonstrated that Israel’s Supreme Court has consistently refused to intervene in the decisions of the Military Advocate General (MAG) not to open any investigations into IDF military operations. The Court has never issued any order to the MAG to open a criminal investigation or to indict any individual regarding alleged suspicions of the commission of war crimes in Gaza. Nor has the Court ever set forth any guidelines under which a criminal investigation should be opened in cases involving alleged IHL violations.
Adalah’s report also examined the numerous barriers placed by Israel on Palestinian residents of Gaza to prevent them from pursuing civil compensation lawsuits in Israeli courts for injuries that resulted from attacks by the state’s military. These barriers include, among others, entirely banning Palestinians in Gaza from entering Israel and imposing high monetary security payments, insurmountable for most Gazans, on those who do receive permission to enter. In addition, Israel limits the statute of limitations period applicable to such legal proceedings. To contend with any loopholes in previously existing measures, Israel has recently enacted new legislation that imposes bans and restrictions on Palestinians in order to exempt itself from compensating them for injuries that resulted from military attacks. In its December 2014 judgment, Israel’s Supreme Court upheld the onerous regulations set by the State Attorney’s Office that, in the past, prevented Gazans from entering Israel to pursue their legal cases. In the course of this litigation, Adalah learned that the state was using its authority so as to only allow entry to Gazans if they did not harm the state’s position in the compensation cases.
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