A fruitless Winograd and the obligation to effectively investigate, prosecute, and punish

Yaron Ezrahi, a political scientist at Hebrew University, said he believed that Mr. Olmert’s days were numbered, because Israeli leaders “rise and fall” on their war leadership. “There has never been a case in Israeli history that an authoritative commission said something so blunt about a war that took the lives of soldiers and the lives of civilians, that blamed so bluntly the political decision makers for the failure of the war,” he said (see NYtimes.com). The report harshly criticizes the practices of government and the performance of the military, but pays no more than lip service to a core pillar of the laws of war - the obligation to effectively investigate, prosecute, and punish in the aftermath of a conflict.

The government has the right to establish such commissions that are necessary to investigate matters of public concern, namely those regarding military activities. The problem that the Commission incurred in this process was a result of the mixing between the question of the Report itself (content and form) and the parallel, but ostracized, question of what is to come as a result of these fact-finding exercises, who and how will be prosecuted and punished.

The question that is asked, in the shadow of this post-Winograd anguish, is what are independent investigatory commissions good for? and, to what extent are post-conflict investigatory obligations (namely, Article 132, Geneva Convention III and Article 149, Geneva Convention IV) effective, if at all relevant to the twenty-first century war climate.

The manner in which this particular enquiry was conducted perverses the very foundations of these simple but imperative legal norms. The law outlines as follows: An enquiry shall be carried out as soon as possible by a Commission instituted for each particular case, and comprising three neutral members selected from a list of qualified persons drawn up by the High Contracting Parties in time of peace, each Party nominating four such persons. The plaintiff and defendant States shall each appoint one member of the Commission. The third member shall be designated by the other two, and should they disagree, by the President of the International Court of Justice or, should the latter be a national of a belligerent State, by the President of the International Committee of the Red Cross (ICRC consultations on Art 132). The Parties to the conflict undertake to punish those responsible (para 3, Art 132).

Although it was not vested with the powers of an official state commission of investigation, it had the power to subpoena witnesses and recommend the prosecution of officials it found to have been responsible for wilful or negligent criminal conduct. Essentially, the whole procedure adopted an approach to which we have become slightly too accustomed - it brushed aside available evidence of serious violations of international law, claiming that interpretations of international humanitarian law are controversial, that it did not have the capacity to deal with the volume of data. Finally, it did not propose any concrete measures for the prosecution of the responsible state organs (Amnesty International reports).

Excerpts from a press release summarizing the highlights of the 617 page report convey the following helpless reverberations:

"Let us emphasize: when we imposed responsibility on a system, an echelon or a unit, we did not imply that the responsibility was only or mainly of those who headed it at the time of the war. Often, such responsibility stemmed from a variety of factors outside the control of those at the head. In addition, a significant part of the responsibility for the failures and flaws we have found lies with those who had been in charge of preparedness and readiness in the years before the war."

"Overall, we regard the 2nd Lebanon war as a serious missed opportunity. Israel initiated a long war, which ended without its clear military victory. A semi-military organization of a few thousand men resisted, for a few weeks, the strongest army in the Middle East, which enjoyed full air superiority and size and technology advantages. The barrage of rockets aimed at Israel's civilian population lasted throughout the war, and the IDF did not provide an effective response to it...This offensive did not result in military gains and was not completed."

"All in all, the IDF failed, especially because of the conduct of the high command and the ground forces, to provide an effective military response to the challenge posed to it by the war in Lebanon, and thus failed to provide the political echelon with a military achievement that could have served as the basis for political and diplomatic action...[Seeking peace or managing the conflict must come from a position of social, political and military strength, and through the ability and willingness to fight for the state, its values and the security of its population even in the absence of peace.”

Most damningly:

"Our recommendations contain suggestions for systemic and deep changes in the modalities of thinking and acting of the political and military echelons and their interface, in both routine and emergency, including war. These are deep and critical processes. Their significance should not be obscured by current affairs, local successes or initial repairs. A persistent and prolonged effort, on many levels, will be needed in order to bring about the essential improvements in the ways of thinking and acting of the political-military systems."

Is this it - done and dusted?