Published on 1 Apr 2015 Sections , ,

Should Israel and Hamas be investigated for war crimes?

As Palestine joins the International Criminal Court, what next for the region? Both sides stand accused of committing war crimes in last years conflict.

Tahrir Al Shalak flung her arms open wide and gesticulated angrily towards the skies as she told me that her two young daughters, Ula and Malak, had come up to the rooftop of the building where we were staying at during a ceasefire last July.

Recalling the events she threw down her kids’ discarded plastic toys in despair, explaining how an Israeli bomb suddenly struck while a group of children were playing. Chunks of flying shrapnel hit her kids, tearing into their small bodies.

“We went upstairs, and found that their heads had been ripped off, their legs and arms too. Their body parts were scattered all over the swing, like grains of rice,” Tahrir said pointing across the roof as the grief from those painful memories almost overwhelming her.

Seven members of the al Salak family died on the roof of the family home that day and as ambulances came to collect the injured, two more shells struck. A further 21 people were killed in those strikes, with the harrowing moments captured by local TV cameras.

‘Hamas mortar fire’

Yet the Israeli military has just announced that it has closed the case after investigating, claiming they were responding to Hamas mortar fire in a ‘measured and limited’ fashion. But Tahrir and other members of the family insist there was no outgoing fire from in or around the building.

The case is just one of hundreds of alleged war crimes during last year’s Gaza conflict in which more than 2200 Palestinians died, including 530 children. Such cases are already under investigation by Palestinian and international human rights groups, as are the most constant rocket barrages from Hamas run Gaza last year that killed eight Israelis.

No-one has been held to account for the Palestinian civilian casualties in this or other recent Gaza conflicts but today things may have changed. For years the Palestinians, seeking justice, considered joining the International Criminal court.

Today they finally did, potentially paving the way for prosecutions to happen. Israel has not signed up to the court but the ICC could have jurisdiction over its activities.

With the Palestinians joining the ICC, the way is open for Hamas to also face possible war crimes charges. An Amnesty International report released late last month has accused Hamas of indiscriminately targeting Israeli civilians with rocket fire.

Israel insists Hamas fired from populated areas and its military responded in self defence.

During and after Israel’s 2014 Gaza Operation, Protective Edge, the Israelis have insisted it conducted precision strikes against military targets. But the huge number of civilian casualties and the vast scale of destruction has raised many questions which war crimes investigators want answers to.

Central to those investigations is Israel’s policy of evacuating densely populated areas, which suffered heavy bombardment. The Israelis insist warnings were issued via leaflet drops, phone and radio messages but many have questioned the policy and the safeguards to ensure civilians are protected.

After weeks of investigation, Channel 4 News has spoken to an Israeli military source who had intimate knowledge of last year’s operations as they unfolded. The account he’s given fundamentally questions Israel’s contention that it did everything it could to avoid civilian casualties. We’ve gone to great lengths to conceal his identity.

The military source said: “We were told that starting from I don’t know 4 o’clock in the afternoon, we’re in and the civilians are out. They were already told to leave their homes and from that point – 4 o’clock and after – there would be different rules about shooting in that area.

“The problem is (that) according to the rules they would say there are no civilians in this area and therefore we don’t need to care how close the artillery’s shooting to the people that actually might be on the streets.”

‘War crimes’

I asked our source whether the military commanders would then “consider” that place “to be empty of civilians” and therefore was now a “military target”. He replied: “Correct.”

I went on to ask: “Was it taken into account that there might be old people or children or sick people in these buildings, and it would be hard for them to leave?”

The source replied: “No, not at all. Again it was considered to be an area with no citizens at all. No conversations about the possibility that there is one single person there or a whole family that was left behind. And no one was actually having this discussion, whether these people here are civilians or terrorists. The assumption was if they are in this area, they are terrorists.”

International and Israeli human rights groups argue that even if warning precautions are issued in civilian areas, the Israeli military may have committed war crimes by going ahead and targeting those locations.

Michael Sfard, a leading Israeli human rights lawyer, told Channel 4 News: “If you look at the way things were conducted, Israel has targeted civilian neighbourhoods without providing any safe corridor, and any safe haven. It did not taken into account that there might be sick people there, old people there, children there and healthy people who just would not leave their sick members of their families, and children. So the idea that you can just make precautionary measures but then don’t care about who has stayed in the area you are targeting is a war crime.”

When we put these accusations to the Israeli Defence Forces, LT. Col. Peter Lerner, an army spokesman, strongly defended the IDF’s actions over the policy of evacuations and warnings.

He said: “We made radio announcements. We made phone calls. We made text messages. Individual text messages. And we scattered leaflets. Don’t belittle that. Again, that is well beyond the requirements of the law. That is well beyond, the requirements of the law.”

I asked him whether they took into consideration “sick people, children who cannot leave” and even if they cannot move do those civilians then become “legitimate targets.”

He replied: “Of course not. I mean when we made the calls up, when we text messaged. When we dropped the leaflets… so people would evacuate. We went to the best of our capabilities.”

Pressing him on the issue and his reference to “The best of your capabilities” I suggested they did not know that those areas had been evacuated.
Lerner replied: “We did not know that they had not…”

Also under scrutiny is the so called “knock on the roof” policy – the warning given to residents to leave targeted buildings before a major air strike. The Palestinians have said that the short time between strikes meant people could not always get out safely.

Again defending this policy, Lt Col Lerner said: “We carried out extensive efforts in order to vacate civilian premises.” I asked: “So you don’t know that those buildings were cleared.” He replied: “We know what we know.”

When I asked him what that was, Lerner replied: “That within reasonable category in order to confirm … that extensive measures we had carried out were complete.”

But the focus for thousands in Gaza, is on bringing Israeli soldiers and politicians to justice. The Israel military says it’s investigating 19 cases but Palestinian human rights groups say the Israeli military shouldn’t be investigating itself. They also alleges they will not independently probe policy decisions made by top leaders.

International Criminal Court

Israeli and Palestinian human rights organisations have pointed out that the current investigations do not even comply with the recommendations of an internal Israeli commission of inquiry which said existing investigations did not meet international standards.

They also allege that no current investigation will independently probe policy decisions made by top leaders, such as the implementation of the so called Hannibal doctrine or the selection of controversial targets such as electricity and sewage facilities in Gaza.

If the ICC finds Israel unable or unwilling to investigate or to prosecute suspects then it is the contention of human rights groups that it will more likely to start cases and issue arrest warrants.

As they once again try to rebuild their shattered lives the people of Gaza now hold out some hope that Israel might be held to account at the ICC. The wheels of justice grind slowly at the court – but after the agony they’ve endured people here say they’re prepared to wait.