IDF MAG MANDELBLIT ON IDF INVESTIGATIONS INTO

S E C R E T SECTION 01 OF 03 TEL AVIV 000417

SIPDIS

E.O. 12958: DECL: 02/23/2020
TAGS: PREL PGOV KWBG PTER IS
SUBJECT: IDF MAG MANDELBLIT ON IDF INVESTIGATIONS INTO
OPERATION CAST LEAD

REF: A. 09 TEL AVIV 02342

B. 09 TEL AVIV 2283

C. TEL AVIV 182

D. TEL AVIV 183

E. TEL AVIV 184

Classified By: Ambassador James B. Cunningham for reasons 1.4 (b),(d).


1. (S) Summary: IDF Military Advocate General Mandelblit
updated the Ambassador on February 17 on the progress of
investigations into allegations of misconduct during
Operation Cast Lead, including providing a preview of
additional findings to be published before the March 24 Human
Rights Council meeting. Mandelblit noted concern with the
Palestinian Authority's effort to undermine Israel through
the International Criminal Court and hoped the U.S. would
weigh in with both the PA and the ICC, and publicly state our
view of the ICC's lack of jurisdiction. He warned that PA
pursuit of Israel through the ICC would be viewed as war by
the GOI. No decision had been made regarding an independent
commission to review the IDF investigations. Mandelblit noted
what he viewed as the lack of political and popular will to
initiate such an inquiry at this time, and suggested that
given differences of opinion within the government, the
question would be held in abeyance as his investigation
progressed. End Summary.


2. (SBU) Military Advocate General Avichai Mandelblit met
with the Ambassador on February 17 to update him on the
progress of IDF investigations into allegations surrounding
Operation Cast Lead. IDF Head of the International Law
Department Col. Liron Libman, along with Gil Limon from the
same department, and Maj. Noa Meir from the IDF J-5's North
America Desk also attended the meeting, as did DATT and
PolOff.


3. (C) Mandelblit said several delegations at the UN had
responded favorably to Israel's presentation of its report
"Gaza Operation Investigations: An Update," including the
British, French, and Russian delegations. He noted that the
French, who hold the UNSC presidency this month, suggested
that the Goldstone Report would eventually go away as Israel
released such reports on its investigations. Libman also
noted positive meetings with delegations from the Netherlands
and Italy, and with the UN Secretariat. Mandelblit assessed
that Israel fully met the UN resolution criteria of carrying
out independent and credible investigations that conformed to
international standards, and said he did not think it would
go to the UNSC or even towards an assessment by the UNSYG. He
also noted that the Palestinian Authority's report only dealt
with the West Bank, rather than Gaza, and that any UN report
would highlight the contrast between Israel's and the PA's
thoroughness of responses.

Help with PA and the ICC?
--------------


4. (S) Mandelblit asked for U.S. assistance with regard to
the International Criminal Court following PA Justice
Minister Ali Kashan's visit to ICC Prosecutor Luis
Moreno-Ocampo, during which he asked the prosecutor to take
jurisdiction for investigating alleged Israeli war crimes in
the occupied territories since 2002. Mandelblit said several
legal opinions had been delivered to Ocampo noting that the
ICC had no legal jurisdiction due to the PA's lack of
statehood, its lack of control over Gaza, and the fact that
the Oslo Agreement did not grant the PA authority over Israel
even in Area A. He also noted that the sufficiency of Israeli
investigations clearly met the ICC's complementarity standard
even if it somehow decided it had jurisdiction. Mandelblit
noted that next month the PA would deliver a paper to Ocampo
on ICC jurisdiction. He commented that Israel's relations
with the PA had been on a positive track, but described the
PA,s actions as "war to take us to the ICC" and hoped the
U.S. would help the PA understand the gravity of its actions.
The Ambassador affirmed that the U.S. had consistently
pressed the PA to cease such actions and had received
assurances before Goldstone that the PA would freeze such
attempts.


5. (S) Mandelblit said the GOI was troubled that the ICC
issue was not yet off the table and that it appeared to be a
political decision for Ocampo, with much pressure coming from
the Arab League for the ICC to deal with Western countries
rather than "just Africa." Mandelblit also noted the upcoming
June ICC Review Conference in Kampala and expressed concern
that the U.S. might consider joining the ICC at some point.
Libman noted that the ICC was the most dangerous issue for
Israel and wondered whether the U.S. could simply state

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publicly its position that the ICC has no jurisdiction over
Israel regarding the Gaza operation.

Independent Commission of Inquiry?
--------------


6. (C) In response to the Ambassador,s direct question,
Mandelblit said the GOI had not made a decision regarding a
commission of inquiry to review IDF investigations. However,
he explained that he had been against the setting of February
5th as the date for such a decision to be taken, and said the
decision was still in the air. He explained that the GOI
intends to issue periodical updates similar to the one just
published, with the next one coming out in a month. The GOI
hopes that eventually Goldstone would "vanish." The
Ambassador responded that would depend on how well Israel
makes its case. Mandelblit specifically said the issue had
"not been decided yet," but he added that, in his opinion,
"nobody thinks we should do it" -- not just in government
circles, but the Israeli public as well. He also affirmed
that the Goldstone Report's allegation that policy directives
broke international law would become clearly unsupportable as
the investigations clarified the nature of the incidents
cited to indicate such a policy.

Contents of the Next Update:
--------------


7. (C) Mandelblit said he would have the next update prepared
within one month, in time for the Human Rights Council
meeting on March 24 in Geneva. That update would contain five
to ten more finalized accounts of incidents, bringing the
total of publicly released cases to 50-70% of all cases.
Specifically, the next update would include:

- Attacks on Hamas police: the GOI would publish legal
analysis, some intelligence, and its findings from six
incidents that involved attacks on Hamas police, showing that
the police were part of Hamas' military force.

- Saraya prison: the GOI would demonstrate that the military
command center located in the large complex near the prison
was a clear military target and that the prison was
specifically not allowed to be targeted.

- the al-Bader flour mill: more details would be released
following upcoming meetings with the UN Mine Action Team that
disposed of one-third of a precision bomb two weeks after
hostilities ended. Mandelblit's team would also analyze the
Human Rights Watch video from the mill's owner released only
on February 7 for the first time, following Israel's
submission to the UNSYG. Mandelblit said it was certain that
a 500-pound bomb should make some blast pressure marks on the
building and that it was definitely not delivered by air as
it would have created some type of hole in the roof, which
was not there. He confirmed that the mill was not a military
target, was 350 meters away from the closest military target,
and that no bombs had strayed into it from the air.
Mandelblit believed it was most likely that someone had
planted a bomb there within the two weeks before UNMAT
disposed of it.

- The report would also contain findings on the Jaba factory,
the Hajjaj house, and the Al-Wadiya food factory.

Updates on Five Cases
--------------


8. (C) Regarding the five cases A/S Posner raised, Mandelblit
said the investigations of most were not finalized, but he
wanted to provide updates:

- Abed Rabbo House - Mandelblit said the investigation into
the human shielding case was not finished, but the suspicion
was that IDF actions were "out of line" and legal steps would
be taken in the next few days, though he was unsure if they
would result in a court martial or disciplinary action.
Mandelblit noted that he transferred that investigation from
a Command investigation, the results of which cannot be taken
to a military court, to a Military Police criminal
investigation before the Goldstone Report and that only one
of the seven MP cases came from the Goldstone Report. He also
noted there were two stages in the incident, one involving a
low-ranking officer and the second involving the knowledge of
a battalion commander.

- Adayan condolence tent - Mandelblit said this investigation
was finished and would be referred to IDF Chief of General
Staff Ashkenazi for a possible doctrinal change on the use of

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flechettes in urban areas, but that it was not criminal.
After gathering almost 20 testimonies, Mandelblit said he
understood the exact situation, which involved preparations
to launch a rocket from a relatively open area almost a
kilometer away from the soldiers. The soldiers did not see
the condolence tent for the Adayan family. The choice of
weapons was limited as machine guns would not be efficient at
that distance and tank shells could have gone through houses
if they missed the group involved in the rocket launch. The
choice of tank-fired flechettes appeared to be the only
appropriate choice, but Mandelblit was referring it to
Ashkenazi along with another case on flechette use (the Azam
case, which was not in the Goldstone Report) to determine
whether flechettes were indeed the only option and whether
they were appropriate for future urban warfare given that the
only uses of flechettes in the three weeks of fighting
produced these two problematic cases with civilian
casualties. (Note: Israeli flechettes are modified versions
of the U.S.-made M494 APERS-T rounds, provided to Israel in
the 1970s, that disperse 5,000 small flechette darts over a
300m long and 94m wide area at a set distance, according to
Janes. End note.)

- Sawafeary Chicken Farm - Mandelblit said this investigation
was finished and he was writing it up for the next public
report. He said Hamas fighters had taken cover in some
greenhouses and the chicken farm and that soldiers demolished
the farm on January 10, after first making two holes that
enabled the chickens to run out. He showed the Ambassador
aerial photography of the site before and after destruction,
noting the locations where the soldiers had taken as outposts
and the necessity of destroying the site to protect
themselves from the fighters inside. He noted there was a
tunnel in the farm as well, but that it was not a factor in
the case since the soldiers were unaware of the tunnel.
Mandelblit noted that it was the combat commander's decision
to destroy a facility during combat, but that perhaps there
should be a distinction made when securing an outpost and
involve a higher ranking officer in that decision.

- Qadma Mosque - Mandelblit said the facts were known: A UAV
shot at two Hamas fighters in front of the mosque and 16
casualties resulted inside the mosque due to an open door
through which shrapnel entered during a time of prayer. He
said only one person had been seen entering the door in 40
minutes prior to the attack and it was a new mosque that did
not look like a mosque. He also noted it was not on all maps
and the UAV controller did not know it was a time of prayer.
Mandelblit said he referred the case to the Chief of General
Staff for a decision. He added that at least five of the
casualties were Hamas militants, but that he considered them
all unintended casualties.

- Sumuni Family - Mandelblit said this case was also finished
and given to Ashkenazi for a decision. This incident involved
an RPG attack from one house with return fire on the
neighboring house. A colonel was involved who was certain he
was attacking the house that shot the RPGs. Ashkenzi would
decide if the colonel's actions were reasonable.
Cunningham