Search for victims amongst the rubble of a house bombed in Khan Yunis. Photo: Ibrahim Abu Mustafa, Reuters, 21 July 2014
- Investigating senior political officials and military commanders: The overall policy guiding the military's actions is laid out by senior political officials, who are also involved in making and authorizing operational decisions. Other decisions are made by senior military commanders whose rank is either equivalent to that of the MAG or higher. In both cases, no mechanism exists for investigating the lawfulness of actions authorized on those levels.
- The MAG's dual role: On one hand, the MAG gives legal counsel to the military before and during combat; on the other hand, he is responsible for deciding whether to open criminal investigations into soldiers' conduct. This dual role creates an inherent conflict of interests in cases where orders and commands given following the MAG's counsel raise suspicion that the law was breached. In these situations, the MAG – who was responsible for legally authorizing measures suspected of being unlawful – is charged with retrospectively deciding whether to initiate a criminal investigation into his own conduct and that of his subordinates.
- Investigating incidents in which soldiers are suspected of having breached military orders: In the vast majority of such cases, investigations focus only on the conduct and responsibility of low-ranking soldiers and commanders in the field. First, an operational inquiry is usually carried out; then, the MAG decides whether to order an investigation by the Military Police Investigations Unit (MPIU) based on the inquiry's findings. In the rare instances in which an investigation is indeed opened, its findings are passed on to the MAG Corps, where the decision is made as to which measures – if any – are to be taken against the persons involved. Carrying out an operational inquiry in the unit prior to an MPIU investigation delays the criminal investigation – sometimes by many months. Furthermore, it compromises the reliability of eyewitness accounts given by soldiers, who provide their versions during the operational inquiry. MPIU investigators often cannot reach the scene of the incident and have difficulty obtaining testimony from Palestinian victims or witnesses. These procedures are so lengthy that, in some cases, the MAG's decision whether or not to take steps against the perpetrators is made several years after the incident. B'Tselem encountered these issues in the last two military offensives Israel conducted in the Gaza Strip – Operation Cast Lead (2009) and Operation Pillar of Defense (2012).
Operation Cast Lead, December 2008 – January 2009
Operation Cast Lead took place in the Gaza Strip between 27 December 2008 and 18 January 2008. The harm to the civilian population during the fighting was massive: 1,391 Palestinians were killed, at least 759 of whom, including 318 minors under the age of 18, did not take part in the hostilities. More than 5,300 Palestinians were injured, 350 of them seriously. Israel caused immense damage to homes, to industrial and agricultural structures, and to electricity, sewage, water and health infrastructure. According to UN figures, Israel destroyed more than 3,500 homes, leaving 20,000 people homeless.
When the fighting ended, eight Israeli human rights organizations, B’Tselem among them, wrote to the attorney general urging him to establish an independent investigation apparatus to examine suspected violations of international humanitarian law during the operation. The organizations outlined several issues that necessitated investigation, including the extensive harm to civilians, hindrances to the evacuation of injured persons, and the widespread destruction of property. The organizations demanded that the investigation address not only particular incidents, but also the directives given to the military and the policy guiding its actions. The letter was addressed to the attorney general rather than to the MAG due to the latter’s part in issuing directives to the forces. For example, during the fighting, B’Tselem wrote to then-MAG Maj. Gen. Avichai Mandelblit arguing that the policy of targeting government structures was unlawful, as those structures were not legitimate military targets. The MAG replied that the military’s attacks were lawful and that “IDF operations are attended by legal counseling designed to present decision-makers within the IDF with legal aspects pertaining to their actions and provide them with the legal tools for achieving the operational purpose they are pursuing”.
Adv. Raz Nizri from the Attorney General’s Office was quick to dismiss the organizations’ demand, asserting, less than a week after the operation ended and before a single investigation was launched, that the military’s conduct had been generally lawful. According to Adv. Nizri: “The attacks carried out by the IDF in the Gaza Strip were directed against terrorists and military targets that were connected to terrorist activity in the Gaza Strip and posed a threat to Israel’s national security. These [attacks] conformed with the principles of the laws of war in international law”. Adv. Nizri added, nonetheless, that the chief of staff had appointed high ranking officers to conduct operational inquiries, in the course of which the issue of harm to civilians would also be addressed. Inasmuch as the organizations had any specific claims regarding a military action during the operation, they were welcome to contact the relevant officials.
The organizations wrote to the attorney general once more, urging him to reconsider the demand to establish an independent investigation apparatus, given the severity of the suspicions and the extent of harm caused to civilians. A group of law professors from Israeli universities issued a similar request. The attorney general’s answer came about six months later. The demand was denied, based on the opinion of Col. Liron Libman, head of the MAG Corps’ International Law Department, according to which Israel had no legal obligation to institute an independent investigation mechanism. According to the opinion, Israel’s only obligation is to investigate suspicions of unlawful conduct “in good faith”, which the MAG Corps does.
Up to this point, we have discussed the absence of investigations at the policy level. B’Tselem and other organizations also contacted the MAG Corps with respect to dozens of specific cases in which breaches of international humanitarian law were suspected. The MAG Corps also initiated investigations in to other cases, some following incidents covered in the Goldstone report. In addition to these, the chief of staff ordered five operational inquiries into various issues, to be conducted by officers holding the rank of colonel. Three of these inquiries addressed specific incidents involving attacks on UN facilities and on medical facilities and crews, and incidents in which many civilians who had not been taking part in hostilities were killed. The other two inquiries addressed general issues: the use of phosphorus shells and the destruction of structures and infrastructure.
The MAG Corps did not publish full figures on the findings of its inquiries. About a year and a half after Operation Cast Lead ended, Israel submitted a summary report regarding its investigations to the UN. According to the UN report based on the Israeli report, the MAG Corps examined more than 400 incidents, which led to the opening of at least 52 MPIU investigations. To the best of B'Tselem's knowledge, in at least one case – in which five family members were killed – the Corps has still not decided whether to even open an investigation.
According to the information provided by the MAG Corps, only three investigations ended with indictments:
- One indictment was served against a soldier for theft of a Palestinian’s credit card. He was sentenced to 15 months in prison, half of the term as a suspended sentence, and demotion.
- A second indictment was served against two soldiers accused of using a nine-year-old Palestinian boy as a human shield and ordering him to open suspected booby-trapped bags. The two were tried and given a suspended three-month sentence and demoted from staff sergeant to sergeant.
- A third indictment was served against a soldier for “killing an unidentified individual” and for misconduct. The soldier was convicted of unlawful use of firearms and misconduct in a plea bargain. He was given a 45-day prison sentence, a six-month suspended prison sentence and demotion.
In three other cases, disciplinary action was taken against six officers.
According to the findings of the inquiry into the use of phosphorus shells published by the MAG Corps, the military had used weapons containing phosphorus lawfully, although a recommendation was issued, beyond legal requirement, to refrain from future use of one of the types of weapons containing phosphorus used in Operation Cast Lead. In conclusion: after massive harm to the civilian population, more than 300 minors killed, tens of thousands of people left homeless – and grave suspicions that these actions were the result of unlawful orders approved by the MAG Corps and the attorney general – the military conducted hundreds of operational inquiries and launched dozens of MPIU investigations, but the harshest sentence given was for credit card theft.
Operation Pillar of Defense, November 2012
Operation Pillar of Defense took place in the Gaza Strip from 14 November 2012 to 21 November 2012. During the operation, 167 Palestinians were killed. At least 87 of them, including 32 minors, had not taken part in the hostilities. Eighty percent of the Palestinian fatalities who had not participated in the fighting were killed in the last four days of the operation. The harm to civilians and the damage to civilian property were much less extensive, compared to Operation Cast Lead. It lasted eight days and was conducted entirely from the air. It appears, however, that the lesser degree of harm to civilians was also a result of changes to the military’s open-fire policy and of using less fire power, in a more focused way. Still, B’Tselem’s investigation uncovered grave suspicions that at least in some cases, the army had violated international humanitarian law. Civilians were often given no warning that would have enabled them to flee before an attack. In other cases, they received insufficient warning that did not leave them enough time to evacuate their homes. In addition, at least in some cases, the military adopted an overly broad interpretation of what is considered a legitimate military target, attacking civilian structures and harming civilians as a result.
In April 2013, the MAG Corps announced that when Operation Pillar of Defense ended, the chief of staff appointed an internal military commission headed by Maj. Gen. Noam Tibon to investigate incidents that took place during the operation. The MAG Corps claimed the investigation “far exceeded what is required under Israeli law, international law, or the MAG Corps’ own investigation policy”.
The commission examined more than 80 incidents “regarding which claims of illegal conduct had been made, or incidents in which it was alleged that civilians who did not participate in the fighting were killed, even where no claims of illegal conduct were made”. According to the MAG Corps, the commission focused solely on specific incidents and did not include any examination of the directives issued to the forces on the ground, or of the policy dictated to the military by political officials.
The commission passed its findings on to the MAG for a decision on criminal investigations. As of April 2013, the MAG had examined some 65 of these cases and “did not find justification for launching a criminal investigation into any of them”. The MAG Corps concluded by stating:
The examination of specific incidents conducted thus far indicates that, overall, the conduct of IDF forces involved in attacks during Operation Pillar of Defense was very professional, using discretion that implemented the laws of war (including the principles of distinction, proportionality and precautions in attack). Significant emphasis was placed on reducing collateral damage to civilians who did not participate in hostilities and to civilian property, to a degree that exceeds the requirements of the laws of war in international law. Certain professional deficiencies were uncovered in a small number of incidents, but these have not raised suspicion that a criminal offense had been committed, and the professional lessons to be gained from these deficiencies are under examination.
In conclusion: compared to Operation Cast Lead, the harm to civilians during Operation Pillar of Defense was significantly less extensive, but there were still grave suspicions that the military acted unlawfully in at least some cases. The military considered the establishment of an internal commission of inquiry to be sufficient. The commission investigated dozens of incidents, in most of which the MAG decided the forces acted lawfully, and the lawfulness of the directives issued to soldiers went uninvestigated yet again.
What will happen this time?
Operation Protective Edge began on 8 July 2014 with massive airstrikes by the Israeli air force in the Gaza Strip, followed by a ground invasion consisting of troops and tanks. According to initial figures collected by B’Tselem, from 8 July through 10 August 2014, at least 1,767 Palestinians were killed in the fighting, including 431 minors under the age of 18 (one of whom is known to have participated in the hostilities), 200 women under age 60, and 85 people over age 60. According to the Palestinian Health Ministry, by 26 August 2014, 2,137 Palestinians had been killed in the Gaza Strip.
In addition, thousands of homes were destroyed and hundreds of thousands of people were uprooted from homes that may no longer exist. The attorney general and the MAG regularly participated in cabinet meetings where decisions about the operation were made and much of the damage was done after legal approval was given. Can an effective, independent investigation really be expected from the Israeli authorities in such a case?
Based on the authorities’ conduct following previous military offensives in the Gaza Strip, and since no substantive change has been made to the military’s investigative apparatus to date, the only answer to this question can be no. Again, the military, and the military alone, is expected to investigate its own conduct during hostilities; again, it will do so without external supervision. All the public will be left with is the MAG Corps’ own declarations that it conducted serious investigations – based on classified material – that showed the military had acted lawfully. Again, the investigations will focus on specific incidents, ignoring the directives issued by senior military officials to forces in the field, the questionable lawfulness of policy that nonetheless received legal approval in advance, and the decisions of senior political officials. According to media reports, the military has chosen the same path followed after Operation Defensive Shield: an internal commission headed yet again by Maj. Gen. Noam Tibon has already been appointed to investigate cases of civilian deaths.
Aside from specific incidents in which soldiers are suspected of having breached regulations, it is already possible to point to a number of directives that raise suspicion of unlawfulness, which the army followed in the last operation. Examples include:
- The instruction to target the homes of operatives in armed groups that attack Israel. This problematic directive is the result of an overly broad definition of what constitutes a “legitimate military target”, which has characterized the military’s conduct in the past. Operation Protective Edge was the first time the military bombed dozens of operatives’ homes, some of which were inhabited at the time of the attack. As opposed to similar attacks in the past, no claim was made that the homes were used for any military purpose. If the attacks were based only on the identity of the owners, the homes were not a legitimate military target and attacking them was unlawful.
- Lack of effective warning prior to attacks: In some cases, the military warned inhabitants prior to an attack by firing a warning missile at the targeted home, making telephone calls, sending text messages or distributing flyers over vast areas. However, the military did not notify the residents where they could take refuge or how they might get there. When the military warns residents, but makes do with giving them ineffective warning, it cannot be said to live up to its legal obligations. The question where residents could in fact find shelter in Gaza during Operation Protective Edge is critical, given the experience of civilians who heeded the army’s warning and were killed in their safe haven or on route there, given Gaza’s high population density, and given the fact that it is closed off from all directions.
- Lack of proportionality: To the best of B’Tselem’s knowledge, in at least 70 incidents, homes were bombed or shelled with occupants inside, killing more than three members of the same family. The total number of fatalities in these incidents is 542, mostly minors and women: 242 minors, 126 women under age 60 and 25 people over age 60. These figures raise grave suspicion that even if, as the military claims, the attack was directed at a military target, which is doubtful in many cases, the military ignored the legal requirement to consider the harm likely to be caused to civilians in the attack, in addition to its expected military gains. The large number of such cases raises grave suspicion that they are not the result of individual decisions by soldiers on the ground, but rather of a policy that preauthorized disproportionate harm to the civilian population.
Media reports and past experience indicate that almost all the decisions made during Operation Protective Edge were made after legal counsel was provided by the MAG and the attorney general. It is therefore clear that in this case, too, the lawfulness of these decisions and of the policy that guided the military’s actions cannot be examined by the existing law enforcement system.
A final point concerns the Turkel Commission report on the existing Israeli mechanisms for investigating alleged breaches of international humanitarian law, and the Chechanover Commission, which is currently discussing how to implement the Turkel Commission recommendations. As the Turkel report does not offer solutions to the most of questions raised in this document, we do not find it necessary to wait for the Chechanover Commission recommendations. The Turkel Commission recommended several measures that the MAG Corps should take to improve investigations of alleged illegal conduct; implementing them would, indeed, expedite and improve the processing of complaints. However, the commission failed to provide systemic solutions to enable the investigation of senior political and military officials. With respect to the former, the committee simply recommended appointing a national commission of inquiry when necessary. Given that the government itself is charged with the decision to appoint such a commission, and as past experience shows that these commissions are a political rather than legal issue, mostly appointed due to public pressure (which does not seem forthcoming with respect to the fighting in Gaza), this option does not offer a real solution.
The commission also offered largely technical solutions for the dual role played by the MAG, failing to resolve the conflict of interests that arises when the MAG is charged with both the military prosecution and the formulation of directives during combat. Moreover, even if the Chechanover Commission recommends full, literal, implementation of the Turkel recommendations, all investigations would still be conducted exclusively and internally by the military, which finds it difficult to view soldiers’ conduct as a criminal matter (with the exception of cases of violence, looting etc.). The recommendation to establish a special unit inside the Ministry of Justice is too vague to rely on as an independent supervisory mechanism.
The content of this document is correct at the time of writing. We will, of course, be glad to be proven wrong. Should the government decide to establish an independent investigation apparatus to seriously and objectively examine suspected violations of international humanitarian law by Israel during Operation Protective Edge, or should the Chechanover Commission decide to introduce a procedure that would automatically establish such a mechanism following every major military offensive in the Gaza Strip, we will be the first in line to welcome such a decision. A sufficient mechanism would be professional, viewed by the public as credible, and independent – both of the military system and of the political establishment. Involving independent international observers in the investigation may greatly enhance its credibility. However, as long as establishing such a mechanism has not been suggested, let alone implemented, we can only go by past experience and explicitly state that Israel's law enforcement system, in its present form, cannot investigate alleged violations of international law by Israel in its recent operation in Gaza.