The Defense Ministry and Israel Defense Forces recently formed a committee to investigate allegations of war crimes raised after recent targeted aerial strikes against Palestinian militants. The names of panel members, however, were not disclosed.
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Heading the panel is a retired judge, but reports conflict on whether on that served in a district court or in a magistrate's court. The rest of the panel is formed of a veteran general, retired Shin Bet commander and an expert of international law.
IDF spokesman confirmed on Thursday that the panel currently investigates "several incidents" and that so far no attack was deemed illegal.
In March, Military Advocate General Brig. Gen. Danny Efroni publically commended the establishment of an external body to probe into the legality of targeted killings, but also avoided commenting on who its members would be. Efroni further refused to answer whether the panel has been assembled to contend and look into claims that had been raised about civilian harm – which could potentially constitute war crimes and which the military pledged to investigate.
The current panel is the third incarnation of a committee which was originally formed following a Supreme Court's decision on the case regarding the assassination of Sheikh Salah Mustafa Shehade in 2002, in which 14 Gaza civilians – including children – were killed. Bagatz ordered that Shehade's killing be investigated. The panel charged with the inquiry was to be headed by then-Military Advocate General Zvi Inbar and presided by veteran Gen. Itzhak Eitan and D., a former branch leader in the Shin Bet.
After Inbar's death, retired Supreme Court Justice Tova Straussberg Cohen was appointed to head the committee but refused to chair the panel regarding the legality of targeted killings. After her, the post was offered to another retired judge, Ze'ev Hemmer, who would be accompanied by veteran General Gabi Ofir. Both left the committee before it could form substantial conclusions. Last year the committee has been active again, but details of its appointees, who have been personally approved by Defense Minister Moshe Ya'alon, remain concealed.
This fact clashes with the self-congratulating tone of the military advocate general, who prides himself in finding confluence between the IDF's activities and international law. In February last year, set to the backdrop of the 2012 Pillar of Defense operation in Gaza and the publication of the Turkel Committee report about criminal aspects in military operations, Efroni announced that the army's Chief of Staff Lt. Gen. Benny Gantz has ordered the formation of an "independent military investigative body." According to Efroni, "today we open an investigation for every incident in which a civilian, unaffiliated with insurgent activities, is killed in Judea and Samaria during a [military] operation that is not an official campaign."
As opposed to the IDF's activities in the West Bank, which is under Israeli sovereignty and does not include aerial assassinations, the military follows a different policy for Gaza and in neighboring Arab countries that permits the employment of aerial killing against targets that "operate under the shelter of civilian populations and from within them, and do so against Israeli civilians and in breach of the laws of war."
The advocate's official statement does not specify what crafts are used by the IDF for assassinations. U.S. President Barack Obama, in a speech he gave at West Point Wednesday, specifically mentioned drones as being employed for "the war on terror." Fully-manned American air-crafts are seldom used.
The code for targeted killings
Numbered for journalistic convenience and grossly abbreviated, the following are the 10 commandments of aerial targeted killing, according to the international law department in the military advocate general. These are pretty words, but at least partially vacuous, as evident by the efforts to hide the panel's activity (or inactivity).
1. According to the law of war, it is permissible to attack combatants and belligerent civilians actively and directly involved in combat. The State of Israel attacks only legal targets. Israel strictly observes the principle of proportionality, whereby an attack is illegal if the collateral damage that it would toll on civilians or their property vastly exceeds the tactical advantages gained by the attack. The proportionality principle demands that the state adopts cautionary measures to mitigate potential collateral damage as much as possible.
2. When it comes to aerial attacks, Israel occasionally enacts constraints that are more stringent than what is required by the law. This following the High Court's decision and due to internal political considerations.
3. An example of such constraints has given during the 2006 Bagatz hearing about "targeted killings". In examining the legality of an intentional attack against a person, who was authorized in advance as a target due to active participation in combats, in areas where Israel enacts laws of occupation, the court has ruled that before going through with the "targeted killing" the option of an arrest must be considered as alternative. The court also ordered to inquire into past claims of damage caused to non-combatants.
4. In aerial attacks, not due to legal considerations – whether local or international – but due to internal policy, the IDF applies on itself constraints that are beyond the demand of the proportionality principle, sometimes to point of aborting the attack altogether, in order to minimize collateral damage. Not legally binding or legally required, this policy is liable to vacillate and change from time to time, and from one front to another. In Gaza, for instance, Israel's use of non-lethal warning fire at the roof of a military target, as part of a procedure termed "Knock on the Roof" is not legally required, and rises from the specific needs of the sector, and isn't implementable in other sectors.
5. Due to the complexity and sensitivity of aerial strikes, and due to their potential ramifications, decisions regarding such attacks are made through ordered operational processes. These processes are set in procedures and standing orders that define the different stages of airstrike planning process and the parties which the commander must consult with prior to the attack.
6. The basic process involves a preliminary legal consultation as a part of the ordered operational planning process of a preplanned airstrike. In addition, and not legally required, a more in depth legal consultation of the legality of the specific airstrike may be sought. "Specific consultation of this kind isn't practicable 'in real time,' when an immediate threat is brewing – as in a case in which a terrorist cell is preparing to fire rockets – in these cases the decision to strike is made in a split second.
7. Intelligence officers, the Air force, Shin Bet personnel, and officers serving in the command fire support centers are trained in international law and learn to factor the benefit an attack is expected to yield and compare it with the collateral damage it could generate. Among other considerations the nature of the terror threat targeted is considered (e.g. participation in firing rockets at Israeli towns) and the part it plays in the military activities of the enemy. The military intelligence insight will also consider the information from which one can assess the collateral damage that could be expected to befall civilians and property.
8. Based on this information, together with the insights of other experts such as operations research specialists, a military commander can properly implement the principle of discrimination, the principle of proportionality, and the imperative to take necessary safety precautions, both in relation to the decision to carry out the attack and in the way the attack is to be carried out (e.g. at what time, the kind of weapon used, etc.).
9. According to standard procedures and also in accordance to the recommendations of the Trikel Committee when the Military Advocate General receives information or a complaint – whatever its source – that has a reasonable likelihood of indicating that a certain IDF attack was a war crime, a criminal investigation is carried out. During warfare the mere harming of civilians in an aerial attack doesn't in itself constitute evidence of a violation of the laws of war, as long as it's proportional. There are cases in which the preliminary information coming in indicates that civilians were killed in an attack and later further intelligence shows that in fact the casualties were not civilians but the lawful objectives of the attack. Thus in these cases there is no suspicion of violation of the laws of war (and definitely not of war crimes) and there is no reason to open a criminal investigation.
10. The 10th commandment deals, without detail, with the committee of aerial assassinations, "a special test process, which was established in accordance with the ruling of the High Court on targeted killings and is an extra-military committee, which looks into the legality of targeted killings. The mere existence of this committee and its charter are above and beyond what is required by international law. The makeup of the committee, which is kept secret, reflects the independence of its members and legal and operational professionalism. The committee's authority is limited to the type of attacks which were the subject of the appeal to the High Court and doesn't cover for example "real time" attacks that were not planned and approved in advance but rather were taken in order to neutralize an immediate threat. It also limits its activities to attacks whose targets may have been wrongfully identified or that caused the death of civilians not involved in terrorism, like in the case of the assassination of Shehade. If the committee finds that there is a reasonable suspicion that a war crime was committed a criminal investigation will be ordered, in accordance with the commitment the state made to the High Court.
The Military Advocate General website doesn't say who the committee reports to – the minister of defense, the chief of staff, the Military Advocate General or the Attorney General – nor do they say how often the committee gives a report. The refusal of the Ministry of Defense and the IDF to reveal the details of the committees work raises doubt whether after the state announced its establishment the committee is actually operational.
After repeated requests for a response, the Ministry of Defense responded with a brief response: "A committee was set up headed by a former president of a magistrate's court and among its members are a senior expert in international law, a former member of the Shin Bet and a reserve General. Due to the sensitivity of the committee's subject matter we do not divulge the names of its members."