Analysis

Closing of Probe Into 2014 Gaza War's 'Black Friday' Lacks Touch With Reality

When a preliminary examination lasts four years, its real purpose is to prevent a criminal investigation

Palestinians take cover as an Israeli strike on a building causes a ball of fire and smoke to rise in the Rafah refugee camp, southern Gaza Strip, August 23, 2014.
AP

The military advocate general’s decision to close an investigation into the August 1, 2014 battle in Rafah took center stage in his conclusions about various aberrant incidents that occurred during Operation Protective Edge in the Gaza Strip. Nevertheless, we shouldn’t ignore the larger picture.

Of the 360 incidents he scrutinized, an indictment was filed in only one – for looting. In his public statement, Military Advocate General Sharon Afek noted that he recommended disciplinary action by commanders or learning operational lessons in some cases, but didn’t specify how many such cases there were or what the outcome of those proceedings was, despite his assertion at the start of the statement that he is committed to transparency.

>> IDF closes probe into 2014 Gaza war's deadly 'Black Friday'

The statement praised the investigations’ thoroughness and efficiency. But assuming that efficiency includes speed, this is hard to accept.

A General Staff forum has yet to complete its inquiry into dozens of incidents, and the decision on Rafah came four years after the battle. Moreover, the Rafah investigation still hasn’t clarified the circumstances of the deaths of 16 of the 70 Gazan civilians killed during the battle. This is an unreasonable length of time, even for a very complex incident.

The General Staff forum consisted of three teams led by reservist brigadier generals. They decided to open almost no criminal investigations. But this is a corruption of the very idea of a General Staff inquiry. As Afek’s decision said, that inquiry was meant to be a preliminary examination of the facts prior to deciding whether to open a criminal investigation. A preliminary examination that lasts four years?

When a preliminary examination lasts that long, it has clearly ceased to be a preliminary to deciding whether to open a criminal investigation, and instead becomes an inquiry that prevents any such investigation. The passage of time isn’t neutral; it destroys the ability to uncover the truth.

As for transparency, the Rafah decision fulfilled this commitment only partially. Transparency is achieved when readers can use the facts to make their own evaluation of the conclusions reached. Afek’s decision didn’t make this possible.

In some cases, the decision noted that efforts were made to assess the proportionality of opening fire in light of the possible civilian casualties. In other cases, it didn’t say this. Were no such efforts made in those cases?

For some reason, the decision discussed fatalities and property damage, but not wounded civilians. Nor did it explain the criteria used to determine proportionality. Without this information, how can we evaluate Afek’s judgment that the commanders’ decisions were reasonable?

Palestinians search through rubble of homes destroyed in Israeli strikes in Rafah, southern Gaza Strip, August 2, 2014.
Hatem Ali,AP

He also didn’t explain how he dealt with the tendency – of which there was some evidence in the cases he analyzed – to adjust reality to fit what military necessity would make desirable. Because the presence of civilians limits the army’s freedom of action, the tendency is not to see civilians, or else to downplay their number or the likelihood of their presence. This plays a critical role in excessive civilian casualties.

Another crucial omission was Afek’s failure to explain the factors that led to suspicions that operations in Rafah had violated the laws of war. The first of these was the Hannibal Directive, which stated that if a soldier were kidnapped, his comrades should try to kill the kidnappers, even at the cost of the abducted soldier’s life.

Afek found that there were significant gaps in commanders’ understanding of this directive, and also between the General Staff’s orders and those issued by the Southern Command and units in Gaza. But he didn’t think these gaps warranted any steps against individual commanders.

He also said the Hannibal Directive doesn’t override the rules of engagement that govern shooting at kidnappers during a kidnapping, and formally, he’s correct. But in practice, if officers and soldiers understood that to prevent the abduction of a soldier, they were permitted, and perhaps even obligated, to kill or endanger their own comrade, what does this imply about the degree to which the lives of Gazan residents could be endangered during combat against Hamas terrorists?

And to tell the truth, the policy of all Israeli governments on prisoner swaps, from the 1985 Jibril deal to the 2011 Shalit deal, exposes our soft underbelly to the enemy and turns a soldier’s abduction into a strategic problem of the first order. This policy is understandable from a human perspective, but nevertheless unreasonable. The Hannibal Directive was born of this mistaken policy. But given this policy, is there a limit to what should be done to prevent the kidnapping of a soldier, including, if necessary, killing or wounding enemy noncombatants?

The second factor which provided grounds for suspicion was the battle orders issued by the Givati Brigade’s commander at the time, Ofer Winter, in which he turned the war into a holy war and Hamas into a group that “curses the God of Israel’s battles.” The problem isn’t just the words themselves, but the fact that they fell on fertile ground.

Even without them, Hamas was viewed as an existential enemy, and Gazan residents as Hamas members in disguise or at least Hamas supporters, and therefore, “woe to the evildoer and woe to his neighbor.” Moreover, there were rabbis who wrote that Jewish law permits shedding the blood of enemy civilians during wartime, and even some secular people said that avoiding risk to our soldiers justifies almost any risk to enemy civilians. It is reasonable to assume that all this had no impact?

Afek’s expectation of finding statements made at the time that would provide evidence of a desire for revenge or punishment seems naïve. This is also true even of something that seems less implausible: finding evidence of indifference to the fate of Gazan residents. Even someone motivated by such feelings presumably isn’t stupid enough to say so, either in real time or afterwards.

A criminal investigation, had there been one, might have uncovered such motives. But an inquiry by commanders, in which those interrogated know their words could incriminate them, clearly won’t.

I don’t envy Afek, who was being pulled in both directions. On one hand, the army and most of the Israeli public is unwilling to convict commanders and soldiers for acts committed while fighting an enemy to protect the state and the people, even if they violated the law (in contrast to, say, theft or looting). On the other hand, he must shield commanders against legal proceedings outside Israel by overseeing internal proceedings that are independent, efficient, speedy and transparent.

Afek met expectations on the first point, but his inquiry doesn’t seem to provide maximum protection against international legal proceedings. Had he included civilian investigators on the inquiry teams alongside the senior reserve officers (who understandably feel solidarity with their comrades in arms and are committed to maximum freedom of action for the army), or ordered a criminal investigation, he would have done better on this score. The length of time that has passed is also an obstacle to achieving this goal.

The picture that emerges from Afek’s decision, to the degree that it reflects reality, is enormously flattering to the army. As such, it gladdens our hearts. Nevertheless, our brains can’t help signaling skepticism.