In the most important legal report to date on the war crimes allegations from the 2014 Gaza war, the state comptroller has ruled that the IDF’s targeting and its probes of its attacks followed international law.
In the same breath, Joseph Shapira’s Wednesday report let loose with criticism on a variety of aspects of the IDF’s targeting and its investigations of war crimes claims.
Supporters of Israel will look to the report’s main headline of compliance with international law, while the UN Human Rights Council and other detractors will likely focus on the many shortcomings the report points out.
The International Criminal Court has taken a range of decisions in examining war crimes allegations viewed by Israel both as fair and unfair to Israel, but if its decision to criminally investigate the US for torture in Afghanistan is any sign, the comptroller’s criticisms will be Exhibit A for critiquing Israel’s legal system.
During the 2014 Gaza war (Operation Protective Edge) around 2,125 Palestinians died and around 11,000 were injured, while Gazans fired 4,564 rockets and mortar shells at Israel. Seventy-three Israelis and a Thai farm worker died, thousands were wounded, and Israel carried out thousands of air strikes on the Gaza Strip.
Underlying much of the comptroller’s determinations that international law’s minimal requirements had been followed was the idea that fighting in Gaza against Hamas, which regularly used its civilian population as human shields, created a tremendous challenge.
Some areas in which the comptroller criticized the IDF related to resources devoted to humanitarian issues.
Some areas in which the comptroller criticized the IDF related to resources devoted to humanitarian issues.
For example, in the report, the Office of the Coordinator of Government Activities in the Territories relayed that, “Another area in which the Coordinator [COGAT] identifies a gap is with regard to the study of civilians and intelligence gathering, which requires the investment of many additional resources. It is estimated that today, our capabilities in this area in regard to Judea and Samaria and Gaza stand at about 50% as compared to the actual needs, due to gaps in terms of resources.”
Surprisingly, the IDF spokesman explicitly told the comptroller that due to scarce resources, the IDF might not be able to overcome the gap in its intelligence that helps avoid targeting civilian targets.
However, The Jerusalem Post has learned that the intelligence in question did not affect the IDF’s ability to evacuate civilians, and in one reading, may be more connected to general planning than to what happened operationally during the war.
Further, COGAT questioned whether civilian affairs officers in the field, whose job it is to liaison with Palestinians to better ensure their safety, could properly do their jobs when only 34% knew Arabic.
Again, the IDF said the lack of already available Arabic-speaking officers, the desire for the officers to be trained for combat and the lack of resources for training them in Arabic was a hurdle, though it said the number of Arabic speakers was rising.
Next, the comptroller credited the IDF for providing courses in the law of armed conflict to its soldiers and commanders, fulfilling that international law requirement.
But the comptroller quoted IDF legal officials themselves admitting that the number of course hours was insufficient.
Further, they said that in the absence of any kind of exam or requirement that blocks advancement absent a show that a given officer has absorbed the rules, many officers did not take the courses seriously enough.
ANOTHER MAJOR POINT was criticism of the IDF’s compliance with the quasi-government 2013 Turkel Commission recommendations.
The comptroller found that the IDF complied with many recommendations and is working seriously on others, but that there were also important recommendations that it did not, or did not fully comply with.
The commission, named for its leader, former Supreme Court justice Jacob Turkel, reviewed Israel’s apparatus for self-investigating war crimes allegations and made 18 recommendations for improvement.
One of the key recommendations was that legal proceedings should proceed without being affected by the IDF’s operational debriefings. Operational debriefings are designed to evaluate a mission’s successes and failures from a military perspective.
The commission found that any connection between the operational briefing process and legal investigations could lead to interference with the legal process. For example, operational briefings could lead soldiers to coordinate their stories prior to being criminally questioned by the Military Police.
Eventually, the IDF chose a compromise position, inventing a format called Fact Finding Mechanisms, which would operate in parallel to operational briefings.
While the comptroller said the Fact Finding Mechanisms system fulfilled international law’s minimal requirements, it also found that this compromise position did not sufficiently isolate the legal process from the operational briefing process, and retained the same problems warned about by the Turkel Commission.
Moreover, Shapira said that the Fact Finding Mechanisms staff were often underqualified and did not give all necessary data to the IDF legal division for making informed decisions.
To the IDF legal division’s credit, the comptroller did say that whenever such issues came up, the division made sure to acquire additional necessary evidence on its own and that its final decisions were based on judgment and evidence complying with international law’s minimal requirements.
Further, Israel’s Fact Finding Mechanisms system is being studied by other countries as more advanced than what other countries often have for the same purpose.
The Turkel Commission had also recommended a series of time limits for how long the IDF prosecution can take to decide whether to open a criminal investigation and for whether to file an indictment.
The report found that maximum time limits have been seconded by the Ciechanover Commission, but that they are still not being used in practice and that 80% of Fact Finding Mechanisms processes took longer than the time they were given to complete their probes.
The Post has learned that the IDF view is that most of these time limits were set for peacetime probes and that they do not apply or apply very differently to probes relating to a war like in Gaza in 2014.
Although the report did not discuss specific cases by name, even three-and-a-half years after the war ended, the IDF legal division still has not decided whether to criminally investigate the three incidents with the most Palestinian civilian casualties: Black Friday, the Shejaia incident and the Khuza’a incident.
A crucial issue discussed in the report was the Hannibal Protocol or Black Friday incident. This was the bloodiest incident of the war in terms of dead Palestinian civilians, and the report contains revelations regarding it.
The comptroller criticizes the IDF’s Hannibal protocol orders, a disconnect between senior command and field commanders and the soldiers involved in the incidents as having “gaps in understanding the orders that might be understood as ambiguous regarding the possibility of deliberate harm to the abducted person and that might even create a lack of clarity among the forces operating in the field regarding the employment of firepower to prevent abduction.”
This seeming disconnect between the IDF senior command and commanders in the field, noted the comptroller, could also be seen in relations with legal advisers. The report said that division and more junior commanders were not familiar with the lawyers they might consult and that the those lawyers were less confident about giving real-time war-related advice than their counterparts giving legal advice to the senior command.
At the same time, the report generally gave high compliments to the IDF’s legal apparatus and its incorporation in war decision-making.
FURTHER, the Post has learned that the IDF will likely reach a decision regarding the Hannibal Protocol incident by the end of 2018. The IDF would say that only the IDF’s findings, which will be based on all of the evidence as opposed to the those of the comptroller – whose vantage point was limited to reviewing the Hannibal protocols on file – can really determine what happened during the incident.
On a related issue, the IDF Planning Directorate had warned that based on a 2013 military exercise, thousands of Palestinians could theoretically have gotten hurt by the IDF’s conduct. The report does not indicate that the shortcomings highlighted by the IDF Planning Directorate were corrected.
On the more unambiguously positive side, the comptroller gave high marks to the security cabinet for taking into account international law and reducing danger to Palestinian civilians when it made targeting policy for the war.
Shapira cited the cabinet as discussing ensuring civilian safety in 18 cabinet meetings during the war.
He wrote that the cabinet minutes and statements of ministers made it “clear that both the political echelon and the senior military echelon explicitly considered the limitations and rules set forth in international law with regard to the conduct of the fighting in Gaza, and the prime minister gave explicit instruction to refrain from harming uninvolved civilians.
“The minutes also indicate that both the political and the senior military echelons took into account, as part of the conduct of the hostilities in Gaza, the issue of humanitarian assistance to the residents of Gaza,” said the comptroller, adding that throughout the war the cabinet received legal advice to better comply with international law.
The report also gives explicit examples where top commanders told the cabinet that the IDF had refrained, due to danger to civilians, from striking targets that legally could have been hit.
Deputy Attorney-General for International Affairs Roy Schondorf said that “the state comptroller’s thorough Report is yet another reflection of Israel’s unwavering commitment to the rule of law. We are committed as a nation to an ongoing process of critical examination and self-improvement.”
He said the report highlighted “the prevalence of legal counsel at senior decision-making levels and the valuable role” of government and IDF lawyers “in ensuring that Israel conducts its military operations in accordance with its obligations under domestic and international law.”
Schondorf acknowledged that “the report sheds light on certain issues that require further improvement. Many of these issues have already been addressed, and we will study the report thoroughly... to further improve.”
The IDF responded to the report saying it “welcomes the Comptroller’s Report, will carefully study its findings and will act to implement the suggestions,” the army said in a statement.
“The IDF attributes great importance to the rules of international law and acts accordingly. As the report states, during the conduct of the fighting in Gaza, the senior military echelon gave significant importance to the rules of international law and many steps were taken to ensure their implementation. The report shows the IDF’s commitment.”
Two top independent international law experts advised the comptroller regarding the report. One was Prof. Michael Newton, an expert from Vanderbilt University who helped negotiate the founding statute of the ICC, and the second was Prof. Miguel Deutsch of Tel Aviv University, who was a member of the Turkel Commission. Initially, Prof. Moshe Halberthal was also to advise the comptroller, but he later resigned due to personal issues.