Following Israel’s ‘Operation Cast Lead’, the UN called upon the Israeli and Palestinian authorities to conduct investigations and prosecutions of international crimes in accordance with international standards. The measures that the Israeli authorities undertook, when carefully examined, fall short of international standards. When examined under the lens of the admissibility criteria of the complementarity principle under Article 17 of the ICC Statute, this deficient practice emerges as part of a broader policy intended to shield perpetrators and maintain a climate of impunity for those committing international crimes. The need to find alternative avenues to provide victims with access to justice calls for an interrogation of the role of international criminal justice mechanisms, such as the ICC, in the Palestinian-Israeli conflict. This article examines recent developments concerning Israel’s investigations under the criteria set out by the complementarity principle.
Anshel Pfeffer‘IDF soldiers demoted after convicted of Gaza war misconduct’Haaretz21 November 2010 <http://www.haaretz.com/news/diplomacy-defense/idf-soldiers-demoted-after-convicted-of-gaza-war-misconduct-1.325850>.
Stigensupra note 27 p. 260. Ambos supra note 17 p. 67.
Ambossupra note 19 p. 71.
Cassesesupra note 26 para. 46.
Ambossupra note 19 p. 72.
Benvenistisupra note 44 p.25.
Shany et al.supra note 47 paras. 64.
ICC Office of the Prosecutorsupra note 19 paras. 62-63.
El-Zeidysupra note 17 pp. 187–188 194.
On 24 January2008the MAG’s office informed Btselem that the military police was instructed to take testimonies from the witnesses in the case which indicates the opening of an investigation. On 28 February 2008 a military police officer requested Btselem’s assistance in contacting the Palestinian witnesses. Such measures are usually the only indicators for the opening of an investigation since no formal response is usually sent to inform that an investigation has been opened (on file with authors).
On 4 January2009soldiers gathered about 100 members of the extended a-Samuni family in the house of Wael a-Samuni in the Zeitun neighborhood of Gaza City. The next morning at 6:30 A.M. when a few members of the family tried to leave the house the military fired a missile or shell at them killing one person and wounding two other persons. A few seconds later the military fired two more shells or missiles that hit the house directly. The house collapsed on its occupants killing 21 persons including 9 children and many women and injuring dozens of other family members. Despite repeated requests by the Red Cross Btselem and other human rights organization the army prevented removal of the injured people for three days until 7 January. After the wounded persons were evacuated the army demolished the house with the dead bodies inside. Btselem ‘Army closes investigation into the killing of 21 members of the Al-Samuni family in Gaza’ 1 May 2012 <http://www.btselem.org/press_releases/20120501_samuni_investigation_closed> 6 June 2012. Letter from the MAG to Btselem and PCHR ‘Update on Closure of Investigation File – Al-Samuni Family’ on 1 May 2012 <www.btselem.org/download/20120501_mag_corps_response_on_samuni_investigation.pdf> 6 June 2012.
Raji Sourani‘No justice for the victims of Gaza’Al-Jazeera11 May 2012 <www.aljazeera.com/indepth/opinion/2012/05/201258124312370705.html> 6 June 2012.
The Military Justice Law (1955) defines a command investigation as “a procedure held by the army according to the army orders and regulations with respect to an incident that has taken place during a training or a military operation or with connection to them.” They have the following characteristics: (1) All testimonies heard and their conclusions remain confidential and are inadmissible before a court; (2) If the Military Advocate General finds that there is a basis to open a criminal investigation he can do so only after consulting a Major General. As the materials of the inquiry remain confidential if the Military Advocate General decides to open a criminal investigation it will start from the beginning.
Shany et al.supra note 47 paras. 44 45-47.
Shany et al.supra note 47 pp. 38-39.
HCJ 5100/94supra note 123 para. 38.
In March2011the UN Committee of Experts reported that “the trial was opened on 1 August 2010 but the reading of the indictment was immediately postponed at the request of the defence which demanded that the trial be suspended while the Military Police pursue allegations that an IDF officer had attempted to block the investigation by not submitting the results of a probe into the incident to his superior officers and to the military advocate general. The trial is currently in recess while the authorities investigate further”. ÚN Committee follow-up report supra note 3 para. 26. See also Amos Harel ‘IDF to charge soldier with killing two Palestinian women during Gaza war’ Haaretz 16 June 2010 <www.haaretz.com/news/diplomacy-defense/idf-to-charge-soldier-with-killing-two-palestinian-women-during-gaza-war-1.296500>. Human Rights Watch (HRW) reported 11 Palestinians holding white flags who were killed by the Israeli army; HRW ‘White Flag Deaths: Killings of Palestinian Civilians during Operation Cast Lead’ August 2009 <www.hrw.org/sites/default/files/reports/ioptwf0809webwcover_1.pdf> 6 June 2012.
Israel State Reportsupra note 74 para. 387. Israel State Report supra note 112 paras. 4 pp. 99-100.
Barak Ravid‘Turkel Committee to call for stronger civilian review of IDF probes’Haaretz6 May 2012 <http://www.haaretz.com/news/diplomacy-defense/turkel-committee-to-call-for-stronger-civilian-review-of-idf-probes-1.428427> 6 June 2012.