Preempting The Hague: How the IDF Seeks to Avoid International Legal Action

The decision to investigate incidents that occurred during Operation Protective Edge in Gaza last summer has caused an uproar in the IDF. Yet this is how Israel aims to reduce international pressure and thwart legal measures against IDF officers abroad.

Amos Harel
Amos Harel
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Palestinian Foreign Minister Riad al-Malki (C) leaves the International Criminal Court (ICC) at the Hague, Aug. 5, 2014.
Palestinian Foreign Minister Riad al-Malki (C) leaves the International Criminal Court (ICC) at the Hague, Aug. 5, 2014.Credit: Reuters
Amos Harel
Amos Harel

The storm over the Givati Brigade – relating to allegations of sexual harassment and other offenses in the brigade’s Tzabar Battalion – that occupied the Israel Defense Forces for much of the second half of December, gave way this week to another controversy, one that appears to be more connected to principle.

The more officers summoned to Military Police bases around the country for questioning, concerning incidents that took place during Operation Protective Edge in Gaza last summer, the more intense the dispute becomes in the IDF. The General Staff and the field commanders are in an uproar over the 13 investigations that have been launched by the Military Police, under the instructions of the Military Advocate General’s Office. And even if past experience, from the first intifada up to the recent Gaza war, shows that only rarely are indictments handed down against officers for either criminal or disciplinary infractions in battle – no one wants to become the exception to the rule.

The person at the heart of the current furor, Maj. Gen. Danny Efroni, the military advocate general, doesn’t appear to be overly bothered by the anger aimed at him. This week, he said, as reported by Gili Cohen in this paper, that he will not change the way he conducts investigations just because the suspects are senior officers. The MAG explained that it’s his obligation to give the same treatment “to a private who has just been drafted and to senior commanders with glorious records.” As far as he’s concerned, Efroni added, the “rule of law” in the IDF is not an empty slogan.

There’s also a political rationale underlying the inquiries, which was enshrined in the second part of the final report of the Turkel Committee that investigated the affair of the Turkish flotilla in 2010: Because Israel assumes, against the background of both the events of Operation Protective Edge and in the wake of the 2009 United Nations’ Goldstone Report concerning Operation Cast Lead in Gaza, that a thorough internal investigation will reduce international pressure and thwart legal measures against IDF officers abroad – the Turkel Committee proposed that it has a vested interest in pursuing such military inquiries.

Following publication of the Turkel report, a new military investigation mechanism was established, under Maj. Gen. Noam Tibon, whereby operational debriefings (mainly regarding incidents in which a large number of Palestinian civilians are killed) are undertaken and the findings are shared with the MAG. Brigade and battalion commanders don’t like this system, but Efroni is convinced that he is thereby sparing them an encounter with the International Criminal Court in The Hague. The Hague hazard, which was previously perceived as being theoretical, became more concrete this week after the Palestinian Authority applied to join the court.

The publication of video clips this week on the Ynet website, including recordings from the IDF field-radio network during the battle in Rafah last August 1 (now known as “Black Friday”), should be seen in this context. This information was leaked as part of a struggle that has two goals: to restrict the freedom of action of the MAG in the investigation of operational flaws and, as part of an ongoing effort, to save Col. Ofer Winter, commander of the Givati infantry brigade.

Winter has been at the eye of the storm since the fighting in Gaza erupted last July. In the Tzabar Battalion episodes, which came to light after the war and are not directly related to it, Efroni has decided to terminate the investigation against Winter. But with regard to “Black Friday” in Rafah, if the MAG decides to launch an inquiry, Winter’s orders and actions in the attempt to thwart the abduction of Lt. Hadar Goldin that day will be the linchpin of the entire inquest.

Contrary to the impression that might arise from some media reports, Efroni did not “reinvent the wheel” after Operation Protective Edge. After Operation Cast Lead, his predecessor, Maj. Gen. Avichai Mandelblit, ordered the Military Police to question the man who was then the Givati commander, Col. Ilan Malka, under caution. The criminal investigation against Malka was terminated, but his promotion was delayed and he was reprimanded in relation to another incident, as was the commander of the Gaza Division, Brig. Gen. Eyal Eizenberg, the present chief of Home Front Command.

Chief of Staff Benny Gantz noted on Wednesday that he has “full confidence in the Givati Brigade commander, in the battalion commanders and the company commanders in Givati and in other brigades.” The soldiers and officers, he added, receive “full command-level support and if someone deviated and committed serious and forbidden acts, we will deal with that, too. We will investigate, and where necessary we will complete the process with [criminal] investigations.” In an unusual move for him, Gantz also ordered another Military Police investigation: to find out who leaked the Rafah battle recordings.

To no one’s surprise, politicians are also jumping on the bandwagon in support of officers under fire. The first to do so wasn’t Naftali Bennett this time, but rather Moshe Kahlon, in the form of a Facebook post after the recordings were made public. Kahlon articulated the limits of the criminal investigation, according to his viewpoint: Looting and intentional shooting of civilians should be subject to a criminal investigation, but the unintentional killing of civilians during military activity must not be investigated.

That’s a problematic argument, for three reasons. First, because inordinate shooting in a civilian setting (“Stop the shooting, you’re shooting like retards!” a Givati battalion commander is heard reprimanding his men over the radio network) reflects a professional problem. And it’s been proven that operational debriefings don’t necessarily clarify the facts fully. Second, if the IDF is indeed the world’s most moral army, as we’re told day and night, it cannot ignore the killing of dozens of civilians, even if it was unintentional, not to mention if it was deliberate. And third, international law mandates such a criminal inquiry, and Israel is playing on that field, albeit to its displeasure.

In any event, the whining over the humiliation of IDF brass in the investigation sounds exaggerated. If a brigade or battalion commander is capable of leading his troops into battle bravely, under enemy fire, he should certainly be capable of coping with a few annoying questions from a second lieutenant in the Military Police.

Gloomy picture

This week, the IDF announced the conclusion of its operational debriefings into Operation Protective Edge. If the investigations of the Second Lebanon War, in 2006, broadcast a clear sense of disappointment in the army’s ranks, to the point of self-flagellation – this is not the spirit of the debriefings concerning Gaza. The IDF came out of the Strip determined to persuade the nation that it won the war.

Clearly, the Knesset’s Foreign Affairs and Defense Committee doesn’t intend to stand in its way. The committee’s new chairman, MK Yariv Levin (Likud), announced this week officially what was obvious a month ago, when the election was called: Publication of the committee’s report on Operation Protective Edge will be delayed at least until after March 17, Election Day.

The conclusions of the various subcommittees – on the performance of the security cabinet during the war, on the deployment of intelligence units, on the quality of the IDF’s response to the type of warfare conducted by Hamas in Gaza – will all await the results of the voting. In fact, even if Levin didn’t say so explicitly, it’s safe to surmise that those reports will never see the light of day.

The Atlantic magazine this week devoted a 10,000-word article by James Fallows to “The Tragedy of the American Military,” a thoroughgoing and lethal analysis of the wars fought by the United States in Afghanistan, Iraq and, lately, Syria. The subhead sums up the conclusion: “careless spending and strategic folly combine to lure America into endless wars it can’t win.”

Last month, the London Review of Books published a review of similar length about five recently published books that level merciless criticism at Britain’s military involvement in Afghanistan. The British, according to an officer in the U.S. Army’s Special Forces who’s quoted in one of the books, “wrote checks they could not cash” in regard to Afghanistan. The review, by James Meek, was titled “Worse than a Defeat.”

It’s hard to compare Gaza to Afghanistan and Iraq. Even if we see, as we should, Operation Protective Edge as yet one more episode in a prolonged campaign that seems to have begun with Israel’s withdrawal from Gaza in 2005 – the most recent war in the Strip is not comparable in its length, price or operational scale to the broad campaigns waged by the Western powers in Asia during the past 13 years. The operation last summer need not be considered a failure, as the IDF recorded some genuine achievements. Nevertheless, only a little more than four months after the cease-fire, a gloomy picture presents itself.

The public has long since returned to its everyday problems, and rightly so. The army is convinced it won. Most of the media reportage about the Gaza war is focused on the forthcoming distribution of medals and on defending commanding officers in the face of what’s seen as their persecution by the IDF’s legal authorities. Plus, MKs are too busy with the upcoming election to address the findings of the various investigations. There remains only the state comptroller, but it will take months, maybe a year, before his staff finishes writing its report on various aspects of the war.

Gaza 2014 was the handwriting on the wall with regard to the character of the enemy Israeli is liable to encounter in possible future wars in Lebanon, Gaza or the West Bank. The IDF still appears to be trying to find its way when it comes to a solution for an asymmetrical conflict with an enemy that insinuates itself into a civilian population. Few among the decision makers are willing to acknowledge this state of affairs or to deploy for the changes that are required in order to cope with it.

Demographic shift

Toward the end of the war last summer, a discussion arose about its cost vis-a-vis different segments of the Israeli public. Indirectly the analysis gave rise to some political implications. Does someone who makes the ultimate sacrifice in uniform attest to the quality and contribution of any specific camp? Habayit Hayehudi, in particular, is good at translating the predominance of the religious-Zionist movement in infantry brigades and in the elite units into achievements at the ballot box. But the impression this time is that the communal or social origins of the soldiers who were killed was more balanced: religious soldiers alongside kibbutzniks, what used to be called the “Old Eretz Israel” alongside the periphery, and so forth.

Prof. Yagil Levy, of the Open University, who has been researching army-society relations for many years, has studied the demographic breakdown of the IDF’s fallen soldiers. After the second intifada and the Second Lebanon War, Levy’s analysis of the data showed a concrete change. For example, if a comparison is drawn between the soldiers killed in the first week of the Lebanon War of 1982 and those who fell in the entire 2006 war, it emerges that the share of the fallen whom Levy categorizes as “secular middle class” decreased from 68 percent to 54 percent.

The same percentages held for the war last summer, he maintains, perhaps contrary to the public impression. In Gaza, too, 54 percent of those killed were from the secular middle class (which includes members of veteran kibbutzim and moshavim). The others are divided between religiously observant soldiers (20 percent) and soldiers from the periphery (new immigrants, residents of remote towns, minorities – 26 percent).

According to Levy, the data regarding those who fell in Operation Protective Edge only reinforce the trend that was discerned at the start of the last decade. In the social composition of the IDF, as in its soldiers who fall in battle, the periphery has acquired considerable weight, and it remains intact.

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