Israel admission on white phosphorus doesn't settle larger debate

In its response to the Goldstone report, Israel revealed that two senior military officers have been reprimanded for using white phosphorus in Gaza. But that doesn't settle the larger debate over launching an independent commission.

By , Staff writer

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    A piece of alleged white phosphorus burned at a UN Relief and Works Agency primary school in Beit Lahia in the northern Gaza Strip on Jan. 24, 2009. The use of the chemical, which causes severe burns, is not banned under international law, but international human rights groups argued that its use in populated areas should be considered criminal.
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The revelation by Israel that two senior military officers have been reprimanded for using white phosphorus in last year’s Gaza war has been met with both criticism and measured applause; Haaretz columnist Amos Harel welcomed it under the headline, “At Last, A Real Response.”

But Israel’s 46-page response to one of the most controversial allegations in the UN-sponsored Goldstone report did not settle a more fundamental debate: whether Israel should launch an independent commission of inquiry to investigate the numerous allegations of war crimes in the controversial United Nations report spearheaded by South African jurist Richard Goldstone.

With Israeli officials facing widespread international criticism, and even some arrest warrants in Britain in recent months, the country has faced strong global pressure to defend its conduct in the three-week Gaza offensive waged to stop Hamas rocket attacks.

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Israel’s report, prepared by the Foreign Ministry, supported the case Israeli officials have been making for the better part of a year: that it does not need an independent commission of inquiry to investigate, because the proper legal bodies for doing so already exist.

“Israel’s system for investigating allegations of violations of the Law of Armed Conflict is comparable to the systems adopted by other democratic nations, including Australia, Canada, the United Kingdom and the United States. Its commitment and ability to investigate and prosecute violations of international law has been confirmed by outside observers and foreign legal systems,” the foreign ministry stated.

“Israel’s investigative system, like that of many states, includes a range of checks and balances and multiple layers of review to ensure impartiality and independence.”

Among these, the statement said, are the Military Advocate General Corps, not subject to the military chain of command; the civilian Attorney General, who can review the decisions of the Military Advocate General as to whether to investigate or indict specific individuals; and the Israeli Supreme Court, which can be prompted to review those decisions by any interested party, including nongovernmental organizations and Palestinians.

The ministry, whose report drew on statements taken from almost 100 Palestinian complainants and witnesses and approximately 500 Israeli soldiers and commanders, also said that the Israeli Defense Forces (IDF) had launched investigations into 150 separate incidents arising from the war in Gaza; of these, 36 have been referred for criminal investigation thus far.

However, the issue of whether Israel ought to form such a commission – that is, one that would be run by impartial investigators or judges not affiliated with the military – is still hotly debated.

Netanyahu said to be considering independent commission

Foreign Minister Avigdor Lieberman has come out in favor of holding a commission of inquiry, as has Israel’s justice minister and its deputy prime minister, Dan Meridor. And in recent days Prime Minister Benjamin Netanyahu has been quoted in various media as considering the formation of such a commission because without it, Israel may not be able to clear its name in the eyes of the international community.

“My deliberation pertains to setting up an external and independent investigative body, but I don’t want officers and soldiers to get into a situation where they have to retain an attorney,” Mr. Netanyahu said Sunday at a meeting of Likud party ministers, according to the Maariv newspaper.

"We have about a week to make a decision,” Netanyahu was quoted as saying. “We have three options: an investigative team, an investigative committee determined by the government, or a commission of inquiry determined by the Supreme Court.”

An observer who was in the meeting confirmed to the Monitor that Netanyahu was deliberating over the issue and had sought others’ opinions on the matter.

Doubt that commission would improve Israel's image

Many other voices in Israel, however, reject the concept of calling for an independent commission. They argue that when Israel went that route before it didn’t necessarily lift the pressure from the international community.

“The Sabra and Shatilla commission was very public and that didn’t stop Belgian litigants from trying to try Ariel Sharon,” says Avi Bell, a professor of law at Bar-Ilan University near Tel Aviv, referring to the Kahan Commission, in which Israel investigated the killings of hundreds of Palestinians at refugee camps during the Lebanon war in 1982.

“I think appointing a commission is pointless, especially where other bodies, which are already in place to do investigations, exist, and that’s the reason the army opposes it. Once you appoint these commissions, there’s a political dynamic that forces them to find someone guilty. Otherwise, it looks like a whitewash.”

Gidi Grinstein, the head of the Reut Institute, a Tel Aviv-based policy group, says he supports the formation of some kind of commission. But it's logical, he adds, that the army doesn’t. Its way of operating until now has encouraged soldiers and officers to be honest in investigations without fear of repercussion, he says.

“It sounds like a paradox, but in the long term, if officers and soldiers will be interrogated by external bodies in a nonsupportive environment, there will be a much stronger tendency to conceal evidence,” he says. “This could break the culture of debriefing, which is a real strength of the Israeli army. And the moment this is broken, interviewees will have very powerful incentive to protect themselves.”

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