IDF Commander Involved in Israeli Air Strike on Gaza Family Acted 'Within Reason,' Probe Reveals

Military prosecution closes investigation into deaths of the Samouni family members during Operation Cast Lead, saying they were not done knowingly or 'in a manner that would indicate criminal responsibility.'

An Israel Defense Forces commander who was involved in the deaths of 21 Palestinians during Operation Cast Lead acted within reason, according to details obtained by Haaretz.

A military criminal investigation over the deaths of the 21 Gazans in the strike on the Samouni home during Operation Cast Lead revealed mistakes in the judgment of then-Givati Brigade commander Col. Ilan Malka. However, the military prosecution announced Tuesday that no legal steps will be taken against those responsible, as the killings were not done knowingly and directly, or out of haste and negligence "in a manner that would indicate criminal responsibility."

Cast Lead - AP - May 3, 2012

The IDF criminal investigation unit told B’Tselem on Tuesday that it was closing the case. Haaretz obtained additional details regarding the investigation. The case was handled by the commander of the central unit for special investigations. The final decision was made by Military Advocate General and Brigadier General Danny Efroni. According to the law, the investigators are not allowed to read through the investigation, although all the information on both the operational and criminal level are open to the Military Advocate General.

The incident began in January 2009 after several RPG rockets were shot toward Givati soldiers from the area between the Samouni family home to the nearby mosque. Photographs taken by an unmanned military aerial vehicle showed two people running toward the family’s house and joining another person who was in the yard. The Israel Air Force rockets were aimed at a person who was climbing the wall surrounding the building.

The investigation further revealed that IAF officers sounded warnings in order to check whether the people in the photographs could be frightened Palestinians attempting to flee. According to the investigation, the warnings were not specific, but said in a general manner. The IAF took heed to these warnings during the fighting, in order to sharpen the awareness of the decision-makers before they instructed to open fire.    

Were there any indications that the people in question were civilians, it would be the responsibility of an officer to stop the attack. This did not take place, since there was no such indication. Col. Malka said during his investigation that he did not hear his officers give any such warnings, but because the warnings were general rather than specific, the strikes would have taken place anyway. Malka, who knew that the IDF had spread leaflets in the area warning residents to leave the neighborhood but according to his testimony did not know that other residents had assembled in the Samouni home, assumed that there were not residents in the area.

After the first strike, Malka ordered another round to be launched from a fighter jet. The strikes, which were characterized as “warning shots,” were directed at an open area between the mosque and the Samouni home, and later at the roof of the house and then the house itself. Malka testified that because the soldiers in nearby houses were in dangerafter facing rocket fire, the move to attack the home was necessary in order to protect his troops. The strike deviated from the minimal security needs demanded of the IDF, in accordance with instructions given to prevent death from friendly fire.

Efroni ruled in his opinion that the circumstances of the incident, and due to the brigade commander’s evaluation of the situation, Malka’s acted within reason, even if a different commander would have taken different steps in a similar situation. Nonetheless, Efroni criticized Malka’s conduct in the last stage of the incident, during which the three suspected of shooting the rockets were spotted among a crowd of civilians leaving the house. Malka instructed to strike any way, although at this point IAF officers got involved, said they identified children in the crowd, and prevented the strike.

It was at this point that Malka erred. Thus, IDF Chief Benny Gantz initially decided to prevent Malka to receive a command post. The freeze in his promotion was eventually removed and Malka is set to be promoted to brigadier general, two years after it was originally supposed to take place.  

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