No external investigation needed
Since the conclusion of Operation Cast Lead, and especially since the publication of the UN Human Rights Council's Goldstone Commission report, there have been calls for the convening of an "external" commission to investigate allegations that the Israel Defense Forces violated international provisions pertaining to the laws of war. The proponents of this idea explain that through such a commission, Israel could counter the delegitimization campaign being waged against it. They also say that international law requires the convening of an "independent commission." Their contentions represent a disturbing phenomenon: the proponents' blurring of legal norms and representation of the law as they wish it to be, rather than as it is.
The question of the legal obligation to investigate Cast Lead - by a body external to the IDF law enforcement authorities or beyond the army - was examined by the IDF military prosecutor's office immediately following the operation.
Our research determined that the laws of war, which are the standard by which the IDF operated during Cast Lead, do not require the convening of an "independent commission." Nor does the actual conduct of foreign armies and states, which is an important element in identifying what international law requires. The attorney general at the time, Menachem Mazuz, accepted our conclusions.
International law does require investigation into allegations that the laws of war were violated, but the main approach in doing so is through regular law-enforcement mechanisms - meaning the investigative arm of the army and the civilian supervisory authorities and judicial authorities to which the army is subject, and which act in accordance with international standards. The "independent commission" has its origins in human rights law, which is designed to regulate relations between the state and the individual - primarily during peacetime - and not to prescribe what is allowed or prohibited during armed confrontations. The laws of war, which reflect a careful balance, following longstanding experience, of military needs and humanitarian considerations, were designed to deal with these concerns.
The "independent commission" is exceptional, even in human rights law. It had its origins in regional tribunal rulings, notably the European Court for Human Rights, in cases involving forced absence and the use of legal force against civilians. Israel is not subject to the rulings of the European court, the vast majority of which were handed down as a result of situations involving police actions, not combat; still, proponents of the independent commission rely on these rulings nonetheless.
As a result, the problematic blurring of two different standards is laid bare. The demand for an independent commission has been proposed as something that will provide assistance to the state, but its supporters hope that its representation as a legal obligation will strengthen their own position. Knowing that the relevant standards in the international laws of war will not lead to their "desired" results, they turn to an alternative standard, even though it is not appropriate in this situation.
The commission of inquiry into the events of Bloody Sunday in Northern Ireland is cited as precedent for an inquiry into Operation Cast Lead, by experts such as Amichai Cohen and Yuval Shani (February 9, Haaretz Hebrew edition). In 1972, 13 civilians were killed by British army fire in Northern Ireland during a disturbance.
Wha t does an investigation of a police action in the sovereign territory of a country have to do with investigating intense fighting in territory under foreign control (Gaza) involving the army of a country fighting paramilitary terrorist organizations firing hundreds of rockets into civilian population centers in its territory? The biased use of various legal standards was also seen in the Goldstone report, prompting justifiable criticism by experts - including those who support an independent commission.
Israeli commissions of inquiry have been established three times to investigate events connected with hostilities: the Agranat Commission after the Yom Kippur War, the Kahan Commission after the massacre by Lebanese Christian forces in the refugee camps at Sabra and Chatila, and the Winograd Commission after the Second Lebanon War. All three were convened against the backdrop of widespread demands from the Israeli public, generated via the open discourse which characterizes a democratic society. No opinions of international law experts were needed then. Regarding the issue before us now, international law does not require the convening of a commission of inquiry either.
The writer is the head of the international law department in the office of the military prosecutor.