IDF Prosecutor, Not Senior Commanders, to Decide on Gaza War Probes, AG Rules

Decision follows complaints that Defense Minister Ya’alon was interfering in case.

Gili Cohen
Gili Cohen
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An Israel Defense Forces mobile artillery unit fires towards southern Gaza in this August 1, 2014 file photo.
An Israel Defense Forces mobile artillery unit fires towards southern Gaza in this August 1, 2014 file photo.Credit: Reuters
Gili Cohen
Gili Cohen

The Israel Defense Forces’ military advocate general makes decisions on investigating the so-called Black Friday events in Rafah independently, and is not subordinate to senior military commanders, Attorney General Yehuda Weinstein declared on Monday.

Weinstein was responding to a query on the matter by the Association for Civil Rights in Israel regarding the investigation of what has been termed Black Friday – the events on August 1, toward the end of Operation Protective Edge, that began with the deaths of three Givati Brigade fighters and the snatching of the body of one of them, Lt. Hadar Goldin, and ended with massive death and injury to Palestinians, most of them reportedly civilians.

Defense Minister Moshe Ya’alon said last week, “The [Givati Brigade] event is not being investigated by the Military Police. I hope no one decides to submit it to investigation by the Military Police.” He explained that it was an incident in which decisions were made that cannot be examined using criminal criteria. His remarks were criticized by human rights groups who claimed they constituted serious interference in the investigation process and undermined the investigation by the military prosecution.

The attorney general’s response came on Monday in a letter written on his behalf by his senior aide, Oren Pono, who added that a decision on investigating the events of that day has yet to be made. But the letter stressed that when the military advocate general exerts his authority, he does so independently, “with law enforcement considerations, and only those, guiding him in the performance of his duties.”

ACRI, through attorneys Dan Yakir and Tamar Feldman, had written to the attorney general in August regarding the apparent implementation of the “Hannibal directive” – an army protocol that calls for the massive use of force in an effort to rescue a captured soldier, even at risk to his life. According to Palestinian sources, the firepower used following the snatching of Goldin’s body led to the deaths of 130 to 150 Palestinians and injury of hundreds more, most of them civilians. The IDF says the fatalities totaled no more than half the toll cited by Palestinians.

The Justice Ministry has refused to publish the wording of the Hannibal directive on grounds that it is classified, but noted that in recent years the order has been reviewed thoroughly by military officials. As part of this review, the risk the procedure poses to the kidnap victim was also examined.

“The instruction adopted by the command in this matter reflects, in our opinion, the proper balance between the various considerations involved,” Pono’s letter said. “Allow us to add that a military action to foil a kidnapping after it has occurred (for example, an action to release hostages) almost always poses a risk to the life of the kidnap victim, and despite this, we don’t believe that there is anything in Israeli or international law that forbids taking action to foil a kidnapping, even under circumstances in which such actions could endanger the life of the kidnap victim.”

The letter explicitly states, “The operational order prohibits fire whose objective is the death of the kidnap victim.”

Military Advocate-General Maj. Gen. Danny Efroni is meant to decide shortly on whether to open criminal investigations of four events that occurred during Operation Protective Edge. In addition to the Black Friday events, there is the bombing of the home of the Al-Batesh family; the bombing of an UNRWA school in Jabalya, and the killing of civilians in the Sujaiyeh neighborhood of Gaza City.

The primary issue to be determined is whether these incidents violated international laws governing warfare, particularly with regard to the proportionality of the fire, and whether the proper distinction was observed between military targets and civilians. Monday’s letter from the attorney general stated that there was nothing in the Hannibal directive “In which it is explicitly stated or implied that it is permitted to act in violation of the principles of international law.”

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