Statement by H.E. Aharon Leshno Yaar
Permanent Representative of Israel
To the United Nations, Geneva

Statement on Item 7
Follow-up to Special Sessions (S-12/1 and S-9/1)
Human Rights Council
 
Mr. President,

Given that much of the follow up to the Gaza Operation has focused on the question of investigations, the following is an overview of Israel's process for investigating alleged violations of the Law of Armed Conflict. I will focus in particular on investigations, legal proceedings, and lessons learned in relation to the actions of the Israeli Defence Forces in Gaza from 27 December 2008 through 18 January 2009.

Israel has published to date two papers on the topic. The first, from July 2009, The Operation in Gaza: Factual and Legal Aspects, addressed a range of factual and legal issues related to the Gaza Operation. It included detailed accounts of Hamas's incessant mortar and rocket attacks on Israel's civilians - some 12,000 such attacks in the eight years prior to the Operation - and the steadily increasing range of such attacks. It also described Hamas's suicide bomb attacks and Hamas's smuggling of weaponry and ammunition through tunnels under the Egyptian-Gaza border. Over many years, Israel also made many attempts to address these threats through non-military means, including diplomatic overtures and urgent appeals to the United Nations.

Israel explained the legal framework governing the use of force and the principles - including the principles of distinction and proportionality - that apply in such conflicts. It has 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.

Israel also presented preliminary findings of a number of investigations established following the operation, although such investigations were, and remain, works in progress. A second paper, Gaza Operation Investigations: An Update, presented in late January 2010 a clear and up-to-date picture of the current status of Israel’s investigations. Israel plans to continue, in the future, to publicly offer updates regarding its investigations and their results.

Mr. President,

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. 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.

Israel's investigative system has multiple layers of review to ensure impartiality and independence. These include the Military Advocate General’s Corps, 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 as Israel's High Court of Justice. Such review can be - and frequently is - initiated by a petition of any interested party, including non-governmental organisations, Palestinians, and other non-citizens.

Israel detailed in some length the structure and process of operation of its investigative system, in order to correct misrepresentations and inaccuracies in recent reports that have discussed these mechanisms.

To date, the IDF 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 organizations, and United Nations and media reports.

Of the 150 incidents, so far, 36 have been referred for criminal investigation. Through the end of January 2010, investigators have taken evidence from almost 100 Palestinian complainants and witnesses, along with approximately 500 IDF soldiers and commanders. In fact, just two weeks ago, criminal indictments were filed against two soldiers accused of ordering a child to open bags that were suspected of being booby-trapped while searching a building in Gaza City. The investigation was opened based on information in a report compiled by the Special Representative of the Secretary General for Children and Armed Conflict, and following a specific complaint filed by the Israeli branch of Defense for Children International.

There are a variety of challenges in conducting some of the investigations, including accessing evidence from battlefield situations and the need to make arrangements, together with non-governmental organisations such as B'Tselem, locating and interviewing Palestinian witnesses. To address these challenges, special investigative teams were appointed and they continue to investigate complaints arising from the Gaza Operation.

Mr. President, 

The 150 investigations initiated following the Gaza Operation were not limited to 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 indictment of the two soldiers described earlier is an example of an investigation of an incident not mentioned in that Report. As has been clarified in the past, 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.

With respect to the incidents described in the Human Rights Council Fact-Finding Report, even prior to the publication of that Report in September 2009, Israel was already 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. Israel shared the various stages of investigation into those incidents. In some cases, after reviewing all the evidence available, the Military Advocate General concluded that there was no basis for criminal investigations.

In one case, following the publication of Gaza Operation Investigations: An Update, and media reports about some of the findings in that Paper, Israel approached a UN agency to learn further details. Israeli officials have already received additional information from that agency and plan to meet with UN experts in the coming weeks to share findings regarding that incident.

Israel has also published information regarding special command investigations initiated by the IDF Chief of General Staff. 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 later 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.

Israel has publicly provided updates regarding the findings of these investigations, which have, in addition to prompting criminal inquiries, further command investigations, indictments and disciplinary proceedings, also yielded operational lessons resulting in changes already made or underway.

Israel recognizes 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.

Thank you very much.