Three Years Later, Gaza War Crime Probes by Israeli Army Still Languishing

In certain cases - such as 'Black Friday' in Rafah - the IDF has not yet even decided whether to investigate or not

Black Friday: Smoke rises from Rafah after Israeli airstrikes, August 1, 2014
Ahmed Ebu Saud / Anadolu Agency

The third anniversary of Operation Protective Edge, the war in Gaza in the summer of 2014, arrives in two weeks. The soldiers who had just been drafted into the Israel Defense Forces in July 2014, under rocket fire from the Gaza Strip, will be released soon. But with nearly three years passing since the fighting ended, the IDF is still investigating a number of incidents that raised suspicion of violations of international law. In certain cases – such as “Black Friday” in Rafah – the IDF has not yet even decided whether to investigate or not.

Many complaints were submitted to the IDF’s Military Advocate General by human rights organizations and lawyers, as well as complaints originating in media reports and from such groups as Breaking the Silence. Figures from the MAG show that about 500 such cases were examined, most using the IDF’s “General Staff process” – a team of officers in the standing army and reserves whose role is to examine claims of violations of the law of armed conflict.

The team is responsible for putting together the factual basis of the claims, at least as far as the IDF is concerned, about the incidents. The findings then serve as the basis for the decisions of the Military Prosecution Service as to whether there is, or is not, a foundation for a Military Police investigation of the incident. The officers, who are retired veterans of the Military Advocate General’s Corps, work in teams in various fields, accompanied by a legal adviser – an officer with the rank of colonel. The unit, now commanded by Maj. Gen. (res.) Yitzhak Eitan, a former head of Central Command, has the ability to investigate actively and independently: They collect information about the incidents, including video, operations logs, recordings of military communications and testimony.

The unit is examining the events of “Black Friday” in Rafah, the operations of the Givati infantry brigade in the area after the body of 1st Lt. Hadar Goldin was abducted. The Givati inquiry into the events found that about 800 artillery shells and 260 mortar shells were fired by the IDF in Rafah, while Air Force planes bombed about 20 targets. The main question under examination in this case is the proportionality of the fire. But as of now, almost three years and hundreds of hours of inquiry later, Military Advocate General Brig. Gen. Sharon Afek has not yet decided if a criminal investigation should be opened in this case.

“Decisions need to be made. We can’t just run away from making a decision,” an officer who served in a significant capacity in the MAG told Haaretz. Even if an investigation of this sort is ordered open, he said, it would be ineffectual.

It seems that any investigation that would be undertaken – and as time goes by it seems more unlikely that a decision to order an investigation would be made – will lead to criticism of the MAG, whether for the decision not to investigate the death of dozens of innocent Palestinians, or for the decision to investigate commanders for their actions. Then-Minister of Defense Moshe Ya’alon voiced strong opposition to an investigation of the incident, saying he “hopes that no one decides to put him in a Military Police investigation.” Similarly, then-Southern Command head Maj. Gen. Sami Turgeman, who will retire from the IDF in about a month, said “there is no need for investigations of decision-making during combat.”

According to IDF data, 32 investigations were opened following Operation Protective Edge, for, among other things, killing of civilians, use of deadly fire contrary to orders, and looting and beating of Palestinians. To date, only one case has resulted in an indictment, with Golani Brigade combatants being convicted of looting 2,420 shekels. The IDF said that during the investigations most incidents proved to be cases in which “there was no reasonable suspicion that a criminal act was carried out by IDF forces, whether by particular soldiers or in the level of policy.”

Even today, three years after the fighting in Gaza began, the IDF is still investigating suspicions that international law was violated by soldiers. These include cases in which Palestinian civilians were killed in the attack on an UNRWA school, and suspicions of looting and vandalism. The IDF did not answer Haaretz’s question of how many investigations were still going on despite the time elapsed, but there are more than five.

Some of them grew out of a Breaking the Silence report, which led to one of the witnesses being officially labeled as a suspect in the violation of the law of war. The IDF managed to reach the soldier, who in the meantime has been discharged, but he refused to cooperate. This led the MAG to request a court order to force Breaking the Silence to hand over the raw material it gathered on the incident. In the end the sides came to an agreement in which the material will be handed over but without divulging the soldier’s personal information.

The aggravated prolonging of these investigations contravenes the recommendations of a team appointed by the government to look into the matter of investigations of violations of the laws of war, which were adopted by the cabinet a year ago. These defined a clear framework for how long the military’s investigation should take to find out the facts of the cases, what the time frame should be for a decision on whether or not an investigation should take place, and of course how long an investigation should last.

The report penned by the team, which was headed by Dr. Josef Chechanover, decided that the maximum time for the fact finding would be 14 months, for the investigation itself a year and an additional year at most for the MAG to decide whether or not to prosecute.

“The intention is that these cases will be dealt with in under a year and a half from the time the investigation begins, and with complicated cases under a year and nine months,” the report said, stressing the need for timetables when dealing with these cases. “Military Advocate General representatives stressed that prolonging [investigations] beyond these timetables will not be taken lightly and will not be done regularly, but would rather require a real and detailed justification.”

After Operation Protective Edge, 52 Military Police investigations were opened. Three investigations ended in charges: A soldier confessed and was convicted of stealing a credit card, two soldiers were charged with using a child as a human shield and were convicted of contravening orders so that human lives were endangered, and a soldier was charged with killing a Palestinian but was in the end convicted through a plea bargain of illegal use of a weapon.

“After Operation Protective Edge, as was the case after Operation Cast Lead, as it was during the 50 years of occupation, the Military Advocate General determined that the IDF operated according to the law, including when bombing dozens of homes and their inhabitants and killing over 500 Palestinians under the age of 18. The Military Advocate General’s judicial interpretation is wrong, distorted and is based on an immoral worldview,” said the anti-occupation human rights NGO B’Tzelem. “Without really bringing lawbreakers to justice, there is nothing to stop cases like this from happening again in the future, and even worse cases.”

The IDF responded by saying: “The IDF takes the investigation of allegations of violation of the laws of war, or other abnormal behavior of its forces during combat, very seriously. Already during Operation Protective Edge and since it ended, the Military Advocate General looked into hundreds of reports [of criminal incidents] that allegedly took place during the fighting. With regard to over 30 incidents, the Military Advocate General ordered the opening of a criminal investigation. Most of the investigations were concluded, and with regard to most of the events a decision has already been made by the Military Advocate General. The rest of the investigations that were concluded are in different stages of examination. With regard to many other events it was found that there was no reason to open an investigation. Additional incidents, included the events that took place in the Rafah region on August 1, 2014, are being studied by the Military Advocate General. We would like to stress that the IDF dedicates a great deal of resources to the investigation and study of the allegations and reports it received. Naturally, the study and investigation processes of some of the incidents that took place in the field are not under the control of the IDF, are complicated and take time.”