No justice for the victims of Gaza

The failure to properly investigate and punish injustices in the Samouni family case is a crime itself.

Training base of the fledgling Israeli Defence Forces raising Israeli flag
The Israeli Defence Forces have closed the Samouni case without legal action against involved parties [GALLO/GETTY]

Gaza City – On Tuesday May 1, our office in Gaza received an official communication from the Israeli Defence Forces (IDF) notifying us of the decision to close the investigation into the case of the Samouni family, one of the gravest “incidents” of the so-called operation Cast Lead. Since then, I have been asking myself how the Israeli Military Advocate General (MAG), a professional military lawyer, can live with himself. How does one look in the mirror knowing that you systematically legitimise the commission of war crimes and you ensure that unlawful practices become part of the IDF’s standard operating procedure? How do you write off so much human suffering?

I have no answers to these questions. But, in truth, it doesn’t matter how he feels. His responsibility is not only moral, it is also legal: the covering up of crimes is a crime, in and of itself.

What matters are the facts, and their legal repercussions. Within the public domain, the facts have been outlined in a detailed and professional manner by several independent reports, including that of the UN Fact-Finding Mission led by Justice Richard Goldstone. These facts are widely known; they have been discussed in virtually every international assembly, within the Arab League, at the UN and EU level, and in the US congress, just to name a few.

What matters is that not a single effective investigation has been conducted into these incidents. Not a single investigation conducted by Israel can be said to respect even the minimum standards required by international law.

Lawyers at the Palestinian Centre for Human Rights filed 490 criminal complaints, and requests for investigation, to the Israeli authorities. Three and a half years later, the result – apart from a handful of laconic responses – has been an oppressive and overwhelming silence. In many instances, receipt of the complaints has not even been noted.

Then we received the abovementioned communication from the IDF:

“… with regard to the [Samouni] incident … none of the parties that were involved in the incident acted in a negligent way that could give rise to criminal responsibility … We have decided that there is no need to order any legal action against any of the parties involved in the incidents, and accordingly, we have decided to close the military investigation on the case.”

How is this possible?

Grave and horrific

The “incident” was one of the gravest and most horrific single events of operation Cast Lead. On January 4 2009, approximately 100 members of the extended Samouni family were ordered into the home of Wa’el Samouni by the Israeli army, as Israeli forces began to occupy the area. The next day, Colonel Ilan Malka, the commander of the Givati Brigade, gave the order to attack the house. A number of missiles struck the house and its vicinity; it was a massacre of civilians. For the next two days, Israeli forces prevented any ambulances from entering the area. The house was then demolished by the IDF with the bodies inside. Only two weeks later, when the soldiers left, it was possible to collect them.

How can it be reasonably asserted that there was no indication that the people in question were civilians, when it was IDF personnel on the ground that ordered them into the house?

Is it thanks to this massacre that Colonel Ilan Malka has been now promoted to the rank of Brigadier-General.

Justice Goldstone himself, even when shamefully retracting one conclusion of the Fact-Finding Mission, took the Samouni case to be “the most serious attack the Goldstone Report focused on” and declared that “… it appears that an appropriate process is underway, and I am confident that if the officer [that ordered the attack] is found to have been negligent, Israel will respond accordingly”.

No crimes were committed. More than this: No mistakes were committed, and any reasonable commander would have acted in the same manner. This is what the MAG now tells us. This conclusion, which is the inevitable result of a fundamentally flawed investigative process, is unacceptable. It is unacceptable to close an investigation without indictment when scores of innocent civilians – not even remotely engaged in hostilities – are killed in a house where they were ordered to take shelter, and then refused medical treatment.

It is unacceptable not to know how this “investigation” reached its conclusion; the victims and their lawyers have not been given any further details.

Even those details that were leaked to the media seem ludicrous. How can it be reasonably asserted that there was no indication that the people in question were civilians, when it was IDF personnel on the ground that ordered them into the house?

How can it be explained that ambulances were prevented from reaching the place for more than two days? For days injured were left to bleed to death, with children left to lie amongst the torn and broken bodies of their relatives. How can this be justified?

Even excluding the intention to target civilians (which is clearly refutable, given the circumstances of the case), negligent behaviour by the commander must be punished accordingly.

Self-exculpatory arguments

Most importantly, how can we be asked to trust the IDF investigative system when everything it has asserted with regard to operation Cast Lead has been a lie, intended to justify Israel’s actions. In the end, the self-exculpatory argument of the Israeli military authorities appears easy to sum up in few words: “Gaza is a densely populated area, we regret that we could not avoid killing civilians”. In the Samouni case, the one page letter received by the IDF, makes this point: “… we stress that field conditions of Operation Cast Lead in general, which mostly took place in a densely populated environment, and of this incident in specific, affected the way field decisions were taken during this incident.”

I wonder why they take years to always come up with a pre-ordained conclusion, often inconsistent with the facts. For example, the Samouni family lived in a rural area of the Gaza Strip, not in a densely populated refugee camp. A general statement would be more adequate: “The IDF has decided that it bears no responsibility for anything that happens in Gaza, under any circumstances. Full stop.” At least we would avoid this smokescreen of justice that is aimed at misleading the international community and wasting the time of victims and their representatives.

In fact Israel has used the investigative process as proof of its “commitment to the rule of law”, but once international attention has died down, investigations are conclusively closed.

After 36 years of working as a lawyer dealing with the Israeli system, I have come to the conclusion that Palestinians will never get justice in that system.

We need to recall what the Committee of Experts mandated by the UN to monitor internal investigations concluded in September 2010 and again in March 2011 with respect to the Samouni case:

The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern […] the events may relate both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG’s decision to investigate was opposed by the then Head of the IDF Southern Command. Media reports further inform that a senior officer, who was questioned “under caution” and had his promotion put on hold, told investigators that he was not warned that civilians were at the location. However, some of those civilians had been ordered there by IDF soldiers from that same officer’s unit and air force officers reportedly informed him of the possible presence of civilians. Despite allegedly being made aware of this information, the officer apparently approved air strikes that killed 21 people and injured 19 gathered in the al-Samouni house. Media sources also report that the incident has been described as a legitimate interpretation of drone photographs portrayed on a screen and that the special command investigation, initiated ten months after the incidents, did not conclude that there had been anything out of the ordinary in the strike. […] The same officer who assertedly [sic] called in the strike reportedly insisted that ambulances not enter the sector under his control, fearing attempts to kidnap soldiers.

The decision to close the Samouni case with no single person found responsible – not even disciplinary! – for the tragic death of so many innocent civilians is a shame that cannot be accepted. It victimises the victims a second time, and it humiliates the whole people of Gaza. Moreover it highlights the dramatic need for justice and accountability in Israel and the occupied Palestinian territory.

No justice

After 36 years of working as a lawyer dealing with the Israeli system, I have come to the conclusion that Palestinians will never get justice in that system, which is not independent, and is not respectful of any of the standards as required by international law, as PCHR thoroughly documented.

The Israeli government wants to push us to disbelieve in the rule of law. But we as human rights lawyers have no right to give up, and we will not give up our pursuit of justice, we will not bend to rule of jungle. We will seek all legal options, inside and outside Israel, we will keep making recourse to international justice and we will file new complaints in other states according to the universal jurisdiction principle.

The bigger question remains: When will the international community live up to its principles?