Three years after the outbreak of demonstrations by Gaza Palestinians along the border with Israel, the Israeli military advocate general’s office and the Israeli army have yet to complete a large number of investigations into clashes with Israeli forces along the border that resulted in Palestinian fatalities.
Israeli army data show that, as of April, the army has examined 237 incidents in which Palestinians were killed – beginning with the outbreak of the protests in March 2018 until they waned in March 2020 as the coronavirus pandemic took hold. In 146 of the cases, the examinations have been completed, while the 91 other cases are still under investigation.
The incidents are being investigated by a General Staff investigation team established by the army chief of staff at the time, Gadi Eisenkot. The team has been examining the cases and has been working to determine whether the circumstances warrant a more formal investigation by the military investigative police.
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Data from the end of April that the army provided to the Israeli human rights group Yesh Din show that the examinations have led to 36 higher-level investigations. In a response for this article, the army said that other incidents have been dealt with since April that are not reflected in the figures. Two indictments have been filed against Israeli soldiers.
In 95 incidents in which Palestinians were killed, the cases were closed after no operational failings were found. Another 15 incidents are still being examined and are awaiting a decision by Military Advocate General Sharon Afek, who is due to decide whether to launch a formal investigation or close the cases. In three cases, investigations were opened at Afek’s request, without the involvement of the army’s General Staff.
Thirty-six higher-level investigations have been opened, two of which have resulted in the indictments against Israeli soldiers, according to the data provided to Yesh Din. One involved a July 2018 incident in which Othman Rami Jawad Hiles, a 14-year-old Gaza resident, was killed. The indictment against an Israeli Givati brigade soldier in September 2019 alleged that the teen began climbing the border fence and that the soldier fired at him without receiving permission from his commander and contrary to open-fire regulations. In a plea agreement, the soldier was charged and convicted of exceeding his authority to the point of endangering life or health and was sentenced to 30 days of military base work, a suspended prison sentence and demotion to the rank of private.
The second indictment was filed against a soldier from the paratroopers brigade. He was also convicted of exceeding his authority to the point of endangering life or health in a plea agreement, in addition to negligent infliction of bodily harm. That case involved an incident in November 2018 near the northern border fence not far from Gaza’s Mediterranean coast. As in the first case, the soldier was accused of firing at Palestinians approaching the fence without obtaining the permission from his commanders and in violation of open-fire regulations. A Palestinian fisherman was shot and killed near the shoreline in that incident. The military court approved a plea agreement sentencing the soldier to 45 days of incarceration to be served in army base work, a suspended sentence and demotion to the rank of private.
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Action on 34 other cases is awaiting a decision by Afek, the military advocate general.
In March of this year, Fatou Bensouda, the prosecutor general of the International Criminal Court in The Hague at the time, announced a decision to launch a formal investigation against Israel and Hamas, which controls Gaza, on suspicion of committing war crimes. In a legal opinion issued in late 2019, Bensouda cited three categories of possible war crimes: those allegedly committed by Israel and Hamas during the war that the two sides fought in the summer of 2014; those allegedly committed by Israel is response to the mass demonstrations along the Gaza border fence; and those allegedly committed by Israel due to its settlement activity in the occupied territories.
For its part, Israel, which is not a member of the International Criminal Court, denies that the court has any jurisdiction to consider the three issues. It also noted that any wrongdoing on the part of Israeli forces is investigated by Israel’s military prosecutor’s office.
The IDF Spokesman’s Office said in response for this article that the cases are being investigated independently and professionally. “These investigations are particularly complex, partly because the events took place in an area beyond Israel’s control, and due to the lack of cooperation and the failure to transfer information from the Gaza side.”
“In some cases, the examination and investigation procedures have not yet been completed. This is due to the complexity of the incidents, the multiplicity of incidents, and the need for in-depth examination before reaching conclusions,” the army said. “In the vast majority of cases that have been investigated, it was found that the IDF soldiers acted lawfully and that there were no grounds for legal action.”