Palestinians wait for answers on Israeli war in Gaza

Human rights groups demand progress in inquiries over Israel's conduct in Operation Cast Lead, reports Donald Macintyre

After two years, a UN-commissioned report accusing Israel of widespread violations of international law and possible war crimes, and the opening of 52 separate military police investigations, the only soldier jailed so far for his conduct in the 2008-09 Gaza war was convicted of stealing and using a Palestinian's credit card. In this special report, The Independenthas examined progress in the investigations arising from the warin the Hamas-controlled territory, and returned to some of the cases that it reported at the time.

Operation Cast Lead caused widespread destruction, and, according to the Israeli human rights organisation B'Tselem, resulted in 759 deaths of Palestinians "not taking part in hostilities". Only three indictments, against four defendants, have arisen from the operation until now.

Two soldiers were given a suspended prison terms for using a 12-year-old boy as a human shield to open bags in case they contained explosives. Another, after being charged with shooting dead a Palestinian civilian, is awaiting a military court trial in a case in which no specific victim has been named in the charges. A further five officers have been disciplined internally, with measures ranging from official reprimands to being prohibited from holding a similar command in the future in the case of an army captain who authorised an attack on a militant outside a mosque in northern Gaza which killed 13 civilians.

Several military police investigations are still in progress, including in to one of the worst single incidents of the war – the lethal air strike on a house in which 100 members of the same extended family were sheltering – but the Israel Defence Force (IDF) told The Independent last week that "a majority" of the 52 investigations have now been closed, without further action.

Israeli human rights organisations and lawyers representing Palestinian complainants have two principal concerns. In July 2009 the Israeli veterans' and human rights group Breaking the Silence published testimonies from some 30 soldiers who served in the operation, charging that rules of engagement were loosened and that the military used massive firepower in a consistent effort to prioritise the safety of troops over that of Palestinian civilians. One soldier quoted a battalion officer as saying: "Not a hair will fall of a soldier of mine. I am not willing to allow a soldier of mine to risk himself by hesitating. If you are not sure, shoot." During the offensive nine Israeli soldiers were killed inside Gaza, four of them by friendly fire.

Reflecting concerns over the rules of engagement operated during the war, B'Tselem called for a much wider-ranging Israeli inquiry. While also condemning Hamas for not properly investigating its own violations during the war, it complained that the IDF investigations did not "deal with the policy that guided the army during the operation, nor with the legality of the instructions given to soldiers. Instead, the investigations have focused on the actions of the lone soldier in the field."

A second issue is the transparency of the individual investigations. Palestinian witnesses interviewed by military police have told The Independent they were treated with courtesy and professionalism, but in the many cases in which the military's Advocate General, Avichai Mandelblit, has decided, after reading police reports, that no further action should be taken, it has been impossible for lawyers representing bereaved or injured Palestinians to establish the reasoning behind the decision.

Military court decisions are subject to appeal to the civilian High Court, but to bring such an appeal the lawyers need to have some access to the investigative material, which has not been forthcoming. A striking example is the case of Majdi Abed Rabbo whose account of being used as a human shield was independently corroborated in one of the Breaking Silence testimonies from an experienced reservist who served in Gaza with a special forces unit and was briefed by his officers on what was broadly the same story as that of Mr Abed Rabbo. He also spoke of the use of other "johnnies" or human shields in a practice that violates international law, the IDF's own regulations and a decision of the Israeli Supreme Court. But until Mr Abed Rabbo's lawyers can secure the release of the relevant documents – which Adalah, the legal rights organisation, is likely to make a legal attempt to do – they have little chance of an appeal.

With one exception, the handful of cases summarised here are those for which a military police investigation was carried out. They do not include the many cases where such an investigation was not even opened. For example, of 21 suspected violations all involving civilian deaths o r the use of human shields, raised by B'Tselem, only 11 were referred to the military police by the military Advocate General, Avichai Mandelblit, and of these at least two have already been closed without further action.

The sensitivity of the issue in Israel is not in doubt. After two soldiers were given what Army Radio described as a "light" sentence last year for using a boy as a human shield, right-wing vandals daubed graffiti outside Mr Mandelblit's home branding him a "traitor." B'Tselem says the wider issues it wants investigated "must remain on the public agenda" given the "severity of the suspicions" over the army's conduct.

Attacked in shelter

Military police are still investigating one of the most lethal single incidents during Operation Cast Lead, the air strike on a house in the Zeitoun district of Gaza City owned by Wael Samouni in which 21 of the 100 members of his extended family sheltering there were killed early on 5 January. In October, Amos Harel, Haaretz's respected military correspondent, reported that air force officers had testified that they had warned former Givati Brigade commander Colonel Ilan Malka that there were civilians in the area. A reconstruction by Haaretz journalist Amira Hass based partly on accounts from soldiers through Breaking the Silence, found that a surveillance drone had wrongly identified a group of men who had left the building to collect firewood as an armed group. The investigation may have to decide how senior officers did not know of civilians even if Col Malka was not warned in advance, since many in the building had been directed to shelter there by troops the previous day. One of those, Mousa Samouni, 21, said he was asked if he had been aware of "resistance" or armed militants in the vicinity, which he said he had not. After he left the building Mousa was detained, handcuffed and blindfolded, for 48 hours by troops occupying another Samouni house. The Israelis interviewed another man, Imad Samouni, 40, who had not been in the building hit by the air strike, which killed his brother, sister and two nephews. He said: "They asked me to write down what happened when I was held but I thought they were most interested in whether there had been any resistance. I said there was no resistance at all. How could there have been with the Army everywhere?"

Killed under white flags

Military police investigated the case of Khaled Abed Rabbo, who had described how his family was ordered by the Israeli military out of their home on 7 January. After they left, carrying white flags, a soldier climbed out of the tank and fired a machine gun at them, killing his daughters Suad, 9, and Amal, 3, severely wounding the third, Samar, 5, and injuring the girls' grandmother Suad, 54. The Military Advocate General judged there was "insufficient" evidence for criminal proceedings. The legal rights agency Adalah, which handled the case, points out that the claim that the girls were shot by Israeli fire was not refuted and that the authorities had not offered an alternative version of what happened. Mr Abed Rabbo told The Independent on 20 January, 2009: "We are not Hamas. My children were not Hamas... I want the international community and the International Red Cross to ask Israel why it has done this to us."

A disputed death

The story of the Hajaj family, tenant farmers from Juhr al Dik, is that just after 6am on 4 January the house of Yusef Hajaj was shelled. A family group of 15 fled 250 metres to the east and took shelter with their neighbour and landlord, Mohammed al-Safadi and his family. During the morning the Israeli military broke into radio broadcasts to announce that those in border areas should leave their homes, holding white flags. Ahmed al-Safadi, 23, carrying his two-year-old son, and Majda Hajaj, 35, tied makeshift white flags to sticks and led the group of at least 26 out towards the west. As they walked they were fired on, fatally in the case of Majda Abu Hajaj and her mother Raya, 65. The group again sheltered in the al-Safadi house and the next day, 5 January, as shelling continued, it started out east on a circuitous route to the safety of the Bureij refugee camp without mishap. The women's bodies were not recovered until 18 January. The IDF announced last July that military police found "gaps" between the testimonies. Soldiers said it was a man who had been shot, and on 5 January, not the day before, although in the location described by the Palestinian witnesses. A staff sergeant has now been indicted for killing an unknown person walking with a group carrying a white flag. But the IDF added: "Despite the fact that the two events are apparently one and the same ... sufficient connections could not be made between the evidence gathered in the case of the indicted soldier and the event described by Palestinian testimonies." In Juhr al Dik last week, Yusef Hajaj, 38, who was interviewed by military police, and his brother Majed, 47, were bemused by this, arguing that records would show the family had indirect contact on Monday January 4 with the military through the ICRC in the vain hope of having the bodies recovered. Yusef, who unsurprisingly has a clear memory of exactly how the dramatic events unfolded on January 4, the first full day of the IDF's ground invasion, said he had never been asked about the discrepancy in dating. The military said last week it could not comment on the case of the soldier "accused of the wrongful killing of a woman" because it was still being investigated. Lawyers and Israeli human rights groups are doubtful about a military court conviction when no victim has been identified.

An unwilling go-between

Majdi Abed Rabbo says that on January 6 and 7, 2009, in the heat of battle, he was forced to go four times into his next-door neighbour's house to check on three armed Hamas militants holed up inside fighting to the death. Mr Abed Rabbo, who was throughout in military custody and did not know whether his wife and children were alive or dead, told military police investigators he was kicked, beaten and threatened with shooting by Israeli soldiers unless he obeyed their orders. When, on the morning of January 7, the one militant still alive in the house refused to respond to calls to leave, Mr Abed Rabbo watched as the building was flattened by a military bulldozer. After a police investigation a lieutenant colonel, who was not at the scene but in constant contact with his troops, was disciplined for permitting him to enter. But the military advocate general ruled against further action because, he said, Mr Abed Rabbo "asked to enter the structure and to communicate with the men, apparently in an attempt to resolve the situation and avoid potential damage to his own house". Mr Abed Rabbo, who has no love for Hamas and was a Fatah member of the intelligence service, vehemently denied this. "I never asked that at all," he said. "They really made me go four times."

An 'unfortunate incident'

Mohammed Daya returned from the local mosque on 6 January to find his five-storey apartment building destroyed by an air strike. At least 22 members of his family were killed, including his pregnant wife Tezal, his daughters Amani, 7, Qamer, 6 and Areej, 4, and his son Yusef, 3. There was no military police investigation because, as the Israeli foreign ministry explained in a statement in July 2009, the "extremely unfortunate incident" was the result of an "operational error". The IDF had intended to bomb a "weapons storage facility" next door to the residential building and was investigating why the error had occurred. The IDF has not so far explained what that investigation had uncovered.