The messiest alleged war crimes incident of 2014’s Operation Protective Edge just got messier.
A crucial issue discussed in Wednesday’s State Comptroller Report was the Hannibal Protocol or Black Friday incident.
This was the bloodiest incident of the Gaza war in terms of the number of dead Palestinian civilians, and the report contains revelations regarding it.
Between 29 and 70 Palestinian civilians were killed during the battles that broke out on August 1 as Hamas killed and bodysnatched Lt. Hadar Goldin in Rafah and the IDF let loose with a massive barrage of firepower to try to prevent Hamas from getting away with his remains.
How and why did this happen? What went wrong? From the Israeli perspective, the capturing of any Israeli soldier, dead or alive, is a national embarrassment and can lead to pressure for the release of hundreds of Palestinian gunmen to get the soldier or his body back.
The IDF had designed the Hannibal Protocol as an order that could immediately unleash firepower to prevent kidnappers from getting away.
There has been controversy as to whether the order endorsed or prohibited killing the captured soldier and endorsed or prohibited firing with looser restrictions on captors fleeing through civilian areas.
The Attorney-General’s Office issued real-time assurances shortly after the war that the official Hannibal Protocol prohibited killing the captured soldier and prohibited firing with looser restrictions on captors fleeing through civilian areas.
But that had never seemed to fully comport with the massive firepower unleashed by the IDF during the incident and the large number of civilians killed.
In addition, in an interview only weeks after the war by IDF soldiers involved in the Hannibal Protocol incident, the soldiers seemed not to know that the standard legal limits on the use of force to minimize civilian harm applied for trying to prevent soldiers being kidnapped.
Did the Hannibal Protocol order go outside the law or maintain the law? What led to the discrepancy? The report lifts the veil of mystery and reveals: There were three Hannibal Protocol orders that contradicted each other.
The report seems to indicate that the IDF commanders on the ground may have believed that the Hannibal Protocol loosened rules of engagement restrictions on hitting the kidnapped soldier and on hitting civilians “in the way” of hitting the fleeing captors. That is what they may have gotten from their version of the order.
The Jerusalem Post has learned that the IDF’s view would be that this analysis is divorced from the field and merely shows the limitations of the State Comptroller’s Office as a body that looks over documents.
In contrast, the IDF legal division, which the Post has learned may issue its decision regarding the incident by the end of 2018, could be viewed as making a much more comprehensive and outcome-determinative decision regarding the incident.
While the IDF had revised its Hannibal Protocol order in October 2013 to clarify that restrictions remained on killing the captured soldier and on firepower likely to kill civilians, both the division commanders and the commanders at the front were working off orders that were not updated and were confusing on crucial points.
In fact, the orders being used by commanders who gave the orders to attack during the Black Friday incident had been explicitly ruled in 2012 to be “‘problematic,’ and perhaps even ‘very problematic,’” by the Deputy Attorney-General’s Office. In June 2013, the deputy attorney- general wrote: “The fear was that this wording would be interpreted as permitting shooting at the abducted person in almost every situation.”
Furthermore, though the key international law rules of distinction and proportionality are supposed to be inferred from related orders, these cardinal principles were not even mentioned in the Hannibal Protocol being used by the division and front-line commanders.
The comptroller criticizes “gaps in understanding the orders that might be understood as ambiguous regarding the possibility of deliberate harm to the abducted person and might even create a lack of clarity among the forces operating in the field regarding the employment of firepower to prevent abduction.”
Of course, the Hannibal Protocol incident was not really one incident, but probably more than 100 sub-incidents with heavy combat between a variety of IDF and Hamas units.
Figuring out intent for criminal war crimes probes in such an insane environment could prove impossible, especially in light of Hamas’s use of civilian population as human shields.
At the end of the day, the comptroller gets big points for brutal honesty on this specific issue. That honest story is not pretty, but we will need to wait for the IDF legal division decision on whether it was criminal.