Israel's System for Reviewing Misconduct Allegations – The report begins with an overview of the IDF's investigative and judicial system for reviewing allegations of misconduct. This system, which involves internal disciplinary procedures, military police, prosecutors, and judges, is also subject to review by the civilian authorities (Attorney General) and the judiciary (HCJ).
The report emphasizes the independence of the Military Advocate General (MAG) Corps, which is responsible for the prosecution of soldiers for military offenses and for criminal offenses (under Israel's Penal Law), and states that whenever the evidence establishes the reasonable likelihood that a crime or infraction has been committed, a military court would indict or a disciplinary procedure would be initiated. In May 2007, the MAG established a specialized unit within the military prosecution, "The Office of the Military Advocate for Operational Affairs," to oversee all investigations and conduct all relevant prosecutions with regard to violations of International Humanitarian Law (IHL).
The Military Police Criminal Investigation Division (MPCID) is conducting investigations of the crimes allegedly committed by IDF soldiers. It reports the conclusions of these investigations to the military prosecution to decide whether or not to initiate criminal or disciplinary proceedings.
The decisions of the military prosecution of whether or not to open a criminal investigation or to file an indictment may be reviewed by the Attorney General and challenged before the Israeli High Court of Justice (HCJ). Petitions to the HCJ may also be submitted by Palestinian victims and NGOs. The report also elaborates on the structure of the military courts, the qualifications of military judges, and the options to appeal the decisions of the military courts before the Military Court of Appeals (this option is available to both the defendant and the prosecution). Moreover, the Israel Supreme Court has discretion to hear cases as a second instance Appeals Chamber.
The Investigation Process – The report continues with an explanation of the process of investigation of alleged violations of IHL. According to the report, the process begins with a review by the MAG of the complaints received from a variety of sources (including NGOs, UN bodies, victims, IDF soldiers, and media). When necessary, the MAG refers individual complaints to command investigation or to criminal investigation (when criminal behavior per se is alleged). With regard to the complaints referred to command investigation, the MAG reviews the records and findings of these investigations, along with any other relevant material available in order to determine whether to recommend disciplinary proceedings, or to initiate a criminal investigation. Following a criminal investigation, the MAG reviews the entire evidentiary record to determine whether or not to file an indictment, or to recommend disciplinary proceedings.
According to the report, there are two main types of complaints – the first type alleges criminal behavior per se (inter alia, maltreatment of detainees, use of civilians as human shields, intentional targeting of civilians, and looting), which is referred directly to the MPCID for criminal investigation. The second type of complaints alleges civilian casualties or damage to property caused by the IDF during battle. These actions must be inspected according to the prevailing circumstances, since the IHL rules do not prohibit harm to civilians or civilian property per se (unless such harm was deliberate or clearly excessive).
With regard to the second type of allegations, the MAG must determine whether the available evidence raises suspicions of criminality prior to initiating a criminal investigation. Nevertheless, the report emphasizes that this procedure does not necessarily delay the process; whenever complaints allege conduct that is clearly criminal in nature, the MAG immediately initiates criminal investigations.
The report also compares the IDF methods of conducting investigations with those employed by the UK, USA, Australian, and Canadian militaries. It reveals that these investigative systems also include field reviews, in parallel with formal military investigations and prosecutions by court martial (or their equivalents). The report claims that these military justice systems are accepted worldwide as adequate for the investigation of allegations of violations of IHL.
According to the report, the IDF has investigated, or is currently investigating, more than 150 separate incidents of alleged violations of IHL during “Cast Lead Operation.” The length of some investigations is dictated by the difficulties of accessing information and genuine forensic evidence from Gaza, and also reflects the thoroughness of the investigations. Some of the investigations have already been concluded with prosecutions for disciplinary and criminal violations; in some cases, the MAG found no evidence of wrongdoing and closed the investigations.
Command Investigations – With regard to the five special command investigations initiated following “Cast Lead Operation,” [3] the report emphasizes that one of the purposes of these investigations is to review the orders and instructions issued by the IDF before and during the operation concerning the need to minimize harm to civilians. These investigations have revealed several instances in which IDF soldiers and officers violated the rules of engagement. In one case, a Brigadier General and a Colonel authorized the firing of explosive shells that landed in a populated area, which is in violation of the IDF orders limiting the use of artillery fire near populated areas. These officers are subject to disciplinary proceedings.
The report provides an update, stating that on 19 January 2010, the MAG issued an opinion addressing each of the five investigations: (1) investigations regarding seven incidents in which a large number of civilians who were not directly participating in the hostilities were harmed. There were no grounds to open a criminal inquiry in four of these incidents, and two command investigations are still under way. The last incident, regarding the alleged strike on the Al Maquadme Mosque, was remanded by the Chief of General Staff for a new special command investigation. (2) Claims regarding thirteen incidents in which U.N. and international facilities were fired upon and damaged during the operation: The MAG did not find a basis to order criminal investigations in any of these thirteen incidents. With regard to two of the incidents, the MAG approved the aforementioned decision to pursue disciplinary proceedings against IDF personnel. It is important to note that with regard to the alleged attacks against U.N. facilities, Israel fully cooperated with the U.N. Board of Inquiry,[4] and that on 22 January 2010, it published that the Government of Israel had made a payment of 10.5 million U.S. dollars to the United Nations for the losses sustained by the United Nations in these incidents.[5] (3) Ten Incidents involving shootings at medical facilities, buildings, vehicles, and crews: The MAG found no grounds to order criminal investigations in any of the ten incidents under review. (4) Destruction of private property and infrastructure by ground forces: This investigation did not deal with specific allegations. The report emphasized that under IHL, it is prohibited to destroy private property, unless it can be justified by military necessity. The MAG concluded that the findings of the investigation were consistent with this obligation, and noted that the extent of destruction per se cannot serve to establish violations of IHL. Nevertheless, the report mentions that the IDF has adopted clearer regulations and orders, as well as a clear combat policy regarding the demolition of structures and infrastructure. (5) The use of weaponry containing phosphorous: The MAG did not find any grounds to resort to disciplinary or criminal measure for the IDF's use of weapons containing phosphorous, concluding that IHL was not violated.
An additional special command inquiry was established by the Chief of General Staff as a result of the MAG recommendation to asses certain allegations discussed in the U.N. Fact Finding Report. The investigation focuses on three sets of allegations, which are being reexamined: the alleged targeting of the Al-Samouni residence, and the injury and death of several dozen civilians who were seeking shelter by the IDF; allegations of mistreatment of Palestinian detainees; and the alleged attack on the Al-Maquadme Mosque. These investigations are still in progress.
In addition to the special command investigations, approximately 90 incidents were referred to command investigation in order to determine whether there are sufficient grounds to open criminal investigations. According to the report, 45 of these investigations have been completed. Seven incidents were referred to criminal investigations; regarding the other 38, the MAG found that the investigations did not raise any reasonable suspicion of violations of IHL.
Criminal Investigations – According to the report, the MAF has already referred 36 incidents to criminal investigation. Special MPCID investigative teams were appointed solely for the purpose of investigating complaints related to “Cast Lead Operation.” Moreover, the MPCID is cooperating with NGOs to locate Palestinian complainants and witnesses.[6] Nineteen of the 36 incidents involved alleged shootings at civilians; 12 were directly referred to criminal investigation, and the other seven were referred to criminal investigation following command investigations. The rest of the 17 incidents, which involve allegations of the use of civilians as human shields, mistreatment of detainees and civilians, pillage and theft, were also referred directly to criminal investigation.
One of these criminal investigations has already led to the indictment and conviction of an IDF soldier who stole a credit card belonging to a Palestinian. The soldier confessed and was sentenced to seven and a half months in prison.
Incidents Discussed in the Human Rights Council Fact Finding Report – This report makes special reference to the 34 incidents that appeared in the Human Rights Council Fact Finding Report. The 34 incidents are included within the command investigations or criminal investigations mentioned above. It should be noted that 12 of the 34 incidents were brought to the attention of the IDF through the Fact Finding Report (ten incidents involving damage to property, and two incidents of harm to civilians). Eleven of the 34 incidents are subject to ongoing criminal investigation by the MPCID (two of them were concluded with no suspicion of criminal conduct). Seven incidents were investigated as part of the special command investigations and with regard to two of them, the MAG requested further review. The remaining 16 incidents are subject to regular command investigations.
The report presents four examples of investigations in which the MAG concluded that there were no grounds for criminal investigation:
(1) Namar wells group [7] – The IDF learned about this incident from the Fact Finding Report. According to the report, the well is located within a closed Hamas military compound, which served as a regional command and control center, and was used for military training and weapons storage. The report reveals that the IDF had compiled a list of sensitive sites inside Gaza, including 143 water wells. The Namar wells, however, did not appear on the list and, therefore, the IDF was unaware of the well’s location. The attack in question was not directed against the water facilities, but rather against the Hamas military compound in which it was located. Accordingly, the MAG found no basis to order a criminal investigation of this case.
(2) The Gaza wastewater treatment plant [8] – In this incident as well, the IDF learned of the allegation of a direct attack against the plant from the Fact Finding Report. After reviewing the findings of the command investigation and the information provided by the Fact Finding Report and the Coastal Municipalities Water Utility Report,[9] the MAG could not rule out the possibility that the damage had been caused by Hamas, and not by the IDF. There was no physical evidence or eyewitness testimony to support claims alleging IDF activity in the area. Therefore, the MAG concluded that there are no grounds to order a criminal investigation regarding the case.
(3) El-Bader flour mill [10] – The IDF conducted an investigation, which entailed gathering evidence from numerous sources, including soldiers and commanders from both the ground and aerial forces, and from the testimony of the owner of the El-Bader flour mill. The investigation suggests that the area of the mill was "used by enemy forces as a defensive zone." Hamas had fortified the area with tunnels and booby-trapped houses. Despite identifying it as a "highly strategic point" in the area, the IDF decided not to preemptively attack the flour mill in order to avoid damage to civilian infrastructure as much as possible. Moreover, early warnings were issued to the residents in the area. During combat in the area, the IDF returned fire and the upper floor of the mill was hit by tank shells. This attack was not followed by a specific warning as it was not preplanned. Later on, in response to enemy fire shot at IDF forces from the mill, a counter attack was ordered. After reviewing all the relevant material, the MAG concluded that the mill was struck by tank shells during combat, and there was no evidence that the mill had been attacked from the air as alleged in the Fact Finding Report. Moreover, this last allegation was not supported in the Fact Finding Report or by the testimony of the mill's owner (who had left the area prior to the attack in response to the early IDF warnings). The MAG also found that under the circumstances, the mill was a legitimate military target according to IHL provisions. Furthermore, the allegation that the attack against the mill was meant to deprive the civilian population of Gaza of food was rejected. Accordingly, the MAG found no reason to order criminal investigation regarding the case.
(4) The House of Abu-Askar Family [11] – The findings of the command investigation suggest that several parts of that house were used to store weapons and ammunitions. Furthermore, the area in which the house was located was frequently used as a launch site for rockets aimed at Israeli towns. Prior to the strike, a telephone warning was made and the house was evacuated. Moreover, the attack was conducted at night in order to limit civilian casualties. The MAG concluded that the area was a legitimate military target, since it was used to store weapons and ammunition, and that the strike did not target the residents of the house, but rather was directed against the weapons stored in it. Therefore, the MAG found no reason to order a criminal investigation.
The report concludes with Israel’s expressed desire to share its investigative procedures and to provide updates to the progress of the ongoing investigations.