Whitewash Protocol: The So-Called Investigation of Operation Protective Edge

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Decision Makers Who Led to Unprecedented Killing in Gaza Were Not Even Questioned

New B'Tselem Report Summarizes Two Years of Whitewashed Investigations into Operation Protective Edge:

The Israeli bodies responsible for investigating the events of Operation Protective Edge are engaged primarily in creating the false impression of a functioning system that ostensibly seeks to discover the truth. In the meantime, those actually responsible for violations are not even questioned, and the investigations have been confined to superficial inspections of a number of isolated incidents, divorced from any context. This is the conclusion reached by the human rights organization B'Tselem in a new report published this morning (Tuesday, 20 September 2016). Entitled The Whitewash Protocol: The So-Called Investigation of Operation Protective Edge, the report summarizes a period of over two years since the end of the fighting in the Gaza Strip.

The scale of Palestinian civilian casualties in the Gaza Strip during Operation Protective Edge was enormous. Almost two-thirds of the total Palestinian casualties – 1,391 people, including 526 minors – were not involved in the fighting. Hundreds of these victims were killed when their homes were bombed from the air. These figures raised grave concerns that Israel had breached international humanitarian law. However, much like investigations into previous rounds of fighting, neither government officials nor senior military commanders, who devised the policy, were responsible for the orders and made operational decisions during the fighting – were ever investigated by any official body nor held to account for their responsibility for the devastating effects of their decisions. Two years after the fact, there has been no investigation of policy issues, including the policy of targeting inhabited homes, which resulted in the Israeli military killing hundreds of people; the policy of indiscriminate artillery fire at inhabited areas; and the policy of destroying farmland and thousands of homes.

While the fighting was still going on, the MAG Corps announced that it had already begun its inquiries into suspected breaches of the law. In late August 2016, it published its fifth update on the matter, stating that, until then, it had received complaints related to about 360 incidents. Of these, some 220 incidents had been referred to the Fact-Finding-Assessments (FFA) Mechanism, which had been set up during the fighting to make preliminary inquiries into complaints. The MAG ordered the closure of some 80 of the inquiries without ordering an investigation by the MPIU (Military Police Investigations Unit). The MAG did order an MPIU investigation in seven cases. In 24 other cases, mostly related to violence and looting, the MAG ordered an immediate MPIU investigation without first going through the FFA Mechanism. Thirteen of these investigations have been concluded, with the MAG ordering the case closed without any further measures. Only one investigation has thus far resulted in indictments: Two soldiers were charged with looting and a third with aiding and abetting in the incident.

Operation Protective Edge investigations were limited, from the outset, to isolated cases, and focused exclusively on the soldiers in the field. As such, they are inherently of limited benefit. A review of the updates issued by the MAG Corps, including the reasons provided by the MAG, indicates that even the investigations that are carried out fail to get at the truth or contribute to accountability.

The reasons cited by the MAG for the closure of cases reveal an unreasonable interpretation of IHL. In 22 cases, The MAG found that soldiers had obeyed the law, based on an examination of the incident as an exceptional, isolated, decontextualized case. International law does require an individual examination of the legality of each attack, but the interpretation given by the MAG to this requirement is far reaching and completely ignores the fact that the incidents examined were but a small a small portion of dozens of almost identical attacks, that took place over the fifty days of hostilities, ending with tragic results. Therefore, it is unacceptable to allow the planners of these attacks to base their assessments of the anticipated harm to civilians on assumptions that were repeatedly proven unfounded, and debunked by their own actions or the actions of their colleagues - at a heavy death toll. The interpretation adopted by the MAG absolves every level of officials involved in the attacks – from the prime minister, through the MAG himself through to the persons who ultimately fired – of the duty to do everything in their power to minimize harm to civilians.

Even while Operation Protective Edge was still underway, and more so after it came to an end, politicians, jurists and senior officers in the military and the MAG Corps, declared that there was no need to investigate the military. They contended that the military had abided by the provisions of IHL and done everything in its power to avoid harm to civilians throughout Operation Protective Edge. Statements made by officials imply that one of the reasons they favor investigations – even if merely ostensibly – of suspected breaches of law during Operation Protective Edge ¬is a desire to prevent the International Criminal Court (ICC) in The Hague from addressing the issue itself. It appears that Israel has failed to meet even this goal. The chief prosecutor of the ICC has not made her decision as to whether the ICC has jurisdiction to investigate what took place during the fighting in Operation Protective Edge. However, should the prosecutor decide such jurisdiction does exist, it is highly doubtful that the investigations conducted by Israel would keep the court from stepping in.

Genuine, effective investigations are needed not just for the sake of achieving justice for the victims and their loved ones. They are needed as a deterrent to forestall future actions of this sort and to avert further harm. When nothing is investigated, when the consensus is that everything done during the fighting was moral and legal – the stage is set for actions such as these, or even worse, to recur. There was no accountability after Operation Cast Lead, only whitewashing. Now, after Operation Protective Edge, there is no accountability either, only whitewashing. This is not a theoretical legal issue: we are talking about human lives – and deaths.