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Last update - 02:18 28/01/2009 An obligation to investigate By Eyal Benvenisti Tags: IDF, gaza, hamas, israel news In response to questions of international law raised during the fighting in Gaza, Israel Defense Forces and Israeli government officials have steadfastly argued that the country's military actions were in full accordance with the law. For that precise reason, these officials should now be meeting an additional obligation of the law: clarifying the issues that have been raised. The duty to investigate wartime military actions that result in significant harm to a civilian population and raise fears of violations of the law is a precept of international law. High Court of Justice rulings regarding assassinations call for a "fundamental examination" even after the killing of someone who has played a direct role in the fighting. This is even more so true when noncombatants are harmed. "Fundamental examination" does not mean a government commission of inquiry or a criminal investigation. The object of the examination is to scrutinize the actions that were carried out, not to seek guilty parties (unless evidence requiring this is revealed in the course of the investigation). There is a wide gap between violations of the law, if any, and war crimes, which would require proof of intent to commit said crimes. Advertisement Israeli and international law set clear lines for the conduct of such investigations, which require an effective examination that clarifies most of the facts and reaches conclusions. Such probes need to be independent, for the investigators cannot investigate themselves. The examination should also be carried out as quickly as possible, and the investigators should aspire to the utmost transparency, enabling all interested parties to state their claims and present evidence. The examination must be carried out in such a way that it upholds not only justice, but also the appearance that justice is being done - a requirement that extends beyond the minimal legal obligation. The examination also has an essential practical outcome, since a country that upholds this legal obligation by investigating its actions thereby protects its soldiers against the possibility of standing trial abroad. This protection has three elements. First, the fact that an investigation is being conducted reduces the need for a tribunal in a foreign country. Thus, when an indictment was filed in Belgium against Ariel Sharon in the matter of the Sabra and Chatila massacre, his attorneys argued that the Israeli commission of inquiry had conducted an exhaustive legal hearing in the case. Second, the findings and conclusions of the investigation can be used to refute evidence and/or disprove allegations that might be raised in a legal proceeding abroad, if such takes place. And third, the limits of what is permissible and what is prohibited during warfare are not always clear. (For instance, what constitutes "excessive" incidental harm to a civilian population?) In their rulings, courts are inclined to consider what happened at the time. (Were alternatives weighed? Was there adequate advance preparation prior to the attack? Did the planners know there would be an investigation?) A fundamental investigation can serve as a basis for finding people innocent of the charges. Moreover, merely by conducting an investigation, Israel would convey the message that it takes a serious stand on upholding the laws of warfare. The fighting in Gaza once again proved that there are both military and diplomatic ramifications of observing the law. Under the conditions of warfare conducted under the media spotlight, an army that has the reputation of upholding the law will be granted more breathing room. That is why the Israel Defense Forces heavily relies in real time on its legal advisers. Nevertheless, real-time advice must not come at the expense of an ex post facto investigation that reviews all the facts. The government has set up a variety of investigation teams. Will these teams enable a fundamental investigation? Will they be independent? Will they be able to provide the appearance that justice is being done? If not, not only is their work superfluous, but their mere existence is liable to be seen as indicating an intent to conceal facts and evade responsibility. The writer is a professor at the Tel Aviv University Faculty of Law. Bookmark to del.icio.us   Detaining rights Rights groups: IDF subjected Gaza detainees to deplorable conditions. Putin vs. Barak Did Barak quote Putin or did Putin quote Barak with the "on the toilet" statement?   1.   Why bother? All investigations end the same 07:05  |  John 28/01/09   2.   Nonsense 09:00  |  Baruch Gold 28/01/09   3.   Look at both sides impartially 09:03  |  Sherlock Holmes 28/01/09   4.   Israelis don`t get to choose how their actions will be perceived 09:44  |  David 28/01/09   5.   An investigation is held to discover the facts 09:47  |  Natallie Durson 28/01/09   6.   Who should investigate? 09:49  |  Rod 28/01/09   7.   as if Israel would get a fair judgement 10:09  |  LA 28/01/09   8.   # 3 Sherlock Holmes demanding "impartiality"...... 10:57  |  Swiss (Dino) 28/01/09   9.   Reply to #6 Who should investigate? 10:59  |  JHU 28/01/09   10.   David, what happened... 13:32  |  nina 28/01/09   11.   IDF investigation is sufficient 13:46  |  Jusin Bello 28/01/09   12.   Forget investigating `war crimes` 13:51  |  Mark Lincoln 28/01/09   13.   Sounds like someone wants to extend 14:23  |  bobby 28/01/09   14.   Justice 14:26  |  The Oracle from nort 28/01/09   15.   Investigating alleged war crimes in Gaza 16:31  |  Jonathan 28/01/09   16.   how to hunt witches 16:43  |  fred 28/01/09   17.   Investigate Arab terror in Israel and abroad from 1948-2009 ! 17:15  |  Romy 28/01/09   18.   When Americans investigate Iraq, Aphganistan, Germany, Japan 18:18  |  AA 28/01/09   19.   To nina 19:01  |  David 28/01/09   20.   Investigations Will be Meaningless 23:40  |  Eli 28/01/09   21.   An obligation to investigate 01:17  |  n_erber 29/01/09   22.   Two Thoughts 02:31  |  Zach 29/01/09   23.   # 22 04:30  |  Erik 29/01/09   24.   AA, not very up with reality eh? 05:33  |  BBSNews 29/01/09   25.   Eyal, you missed something 08:38  |  Woody 29/01/09

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