According to the January 2010 Report, the IDF has initiated over 150 military investigations, which include both criminal and command investigations. The July 2010 Update Report provides information regarding the results of some of these investigations, and describes the decisions that have been adopted by the Military Advocate General (MAG) in this regard. With respect to the command investigations, the July 2010 Report reiterates the important role that these investigations play in examining the performance of IDF forces during the operations and identifying specific problems that may have occurred. These investigations also compile initial factual records that can later be reviewed by the MAG in order to decide if there is a sufficient basis for opening a criminal investigation. According to the July 2010 Report, since the January 2010 Report was issued, eleven new criminal investigations have been launched, bringing the total number of criminal investigations by the Military Police Criminal Investigations Department (MPCID) to 47. The July 2009 Report explains that when there is a prima facie case for a criminal investigation, the MPCID does not wait for a command investigation to take place or to be completed.
The report then elaborates on developments in a few specific investigations. These investigations are categorized into the following categories: investigations related to alleged mistreatment of Palestinian civilians and detainees, investigations concerning the alleged targeting of civilian objects and sensitive sites, investigations concerning the alleged targeting of civilians, and investigations concerning damage to private property. Following is a summary of the report's findings regarding each of these categories.
Investigations related to alleged mistreatment of Palestinian civilians and detainees
The report presents a number of examples of the results of the MAG’s review of investigations relating to alleged mistreatment of Palestinian civilians and detainees. In one of these cases, the MAG found sufficient evidence of wrongdoing to prosecute two soldiers; in another, the MAG recommended disciplinary proceedings against a senior IDF commander.
The case of M.R. involved an allegation that IDF soldiers used a Palestinian boy as a human shield. Following a MPCID investigation, the MAG found that there is substantial evidence that the soldiers in question forced the boy to open bags and suitcases suspected of being rigged with explosives. Consequently, criminal indictments were issued against the two soldiers.[7] As of the writing of the July 2010 Report, the prosecution had presented its case, which included the boy's testimony.
Another case, the case of Majdi Abd-Raboo, involved allegations that an IDF unit forced a Palestinian man to assist in obtaining the peaceful surrender of armed operatives who were hiding in a neighboring house. According to the July 2010 Report, following a thorough investigation, it was decided that various parts of Abd-Raboo's testimony could not be substantiated. The evidence, however, did reveal that the unit commander, who was in regular radio contact with the unit, repeatedly authorized the unit to grant permission to Abd-Raboo to enter the house in question at his own request, in order to communicate with the armed men inside. (He did this in the hope of averting an operation that would cause the destruction of his own house.) The MAG concluded that the commander should not have allowed Abd-Raboo to enter the house at the time since that act placed him at risk. Accordingly, the MAG recommended disciplinary proceedings against the commander in this case.[8]
In the case of Abbas Ahmad Ibrahim Halawa and Mahmoud Abd Rabbo al-Ajrami, it was alleged that IDF soldiers took the men from their homes, mistreated them, and forced them to act as human shields. In the case of al-Ajrami, it was also alleged that physical injuries resulted from mistreatment by IDF forces and that al-Arajmi's house was vandalized and looted. During its investigations, the MPCID interviewed both Halawa and al-Ajrami. Halawa refused the MPCID's request for a second interview, however, and only provided the investigators with a written affidavit. The investigations also analyzed medical files submitted by al-Ajrami. The MPCID found no evidence to support the allegations. Accordingly, the MAG concluded that there were no grounds for additional proceedings and closed the two cases.
The case of AD/03, which appears in the Goldstone Report, was also investigated by the MPCID. Despite repeated requests, AD/03 refused to meet with MPCID investigators in order to be interviewed. According to the July 2010 Report, without conducting such an interview, the investigators could not build a criminal case that would prove that a crime was committed beyond a reasonable doubt; therefore the case was closed.
Investigations concerning the alleged targeting of civilian objects and sensitive sites
Like previous reports, the July 2010 Update Report notes that the principle of distinction requiring military forces to target their operation only at identifiable military targets is a core element of IDF standing orders. Following investigations of complaints that this principle was violated and civilian objects and sensitive sites were targeted, five officers were disciplined or sanctioned, two for violating IDF rules of engagement and three others for failing to exercise proper judgment.
Regarding the Al-Fakhura Street case – an incident that involved the shooting of mortar rounds at Palestinian militants situated in proximity to an UNRWA school, which was also discussed in the Goldstone Report – the July 2010 Report notes that the MAG completed his review of the results of the special command investigation and found that the IDF did not violate the rules of International Human Law (IHL), as the attack was directed at a legitimate military target and did not violate the principle of proportionality under the "reasonable military commander" test (i.e., what a reasonable commander in the field with access to the same information would be expected to view as proportionate force). Moreover, the MAG found that the commander in question took the necessary precautions, since he knew that the IDF attacks were aimed at a target in the vicinity of an UNRWA school. The MAG concluded that the anticipated (ex ante) collateral damage was not excessive, found that the choice of weapon was appropriate under the circumstances, and pointed out that IDF forces did not have any air support available at the time.
An additional case discussed in the Goldstone Report, the incident that took place at the Al-Maqadmah Mosque on 3 January 2010, was the subject of one of the five special IDF command investigations. Although the special command investigation originally concluded that the allegation that the mosque was attacked by IDF forces could not be substantiated, new information was presented to the MAG, who recommended that the Chief of General Staff reopen the case. The new special command investigation confirmed that the mosque was indeed damaged due to an IDF strike against a terrorist squad situated nearby. The attacking force, however, was not aware that the adjacent building was a mosque that was being used as a shelter for local civilians; consequently, the commanders in the field did not expect any civilian losses from the attack. The investigation also found that just before the attack, an officer involved in the preparations learned that the building might be a mosque, but failed to bring this piece of information to the attention of his superiors. This officer was disciplined and was forbidden from serving in similar positions of responsibility in the future. The special command investigation also determined that two officers involved in the attack exercised poor professional judgment and deviated from expected professional judgment when they authorized the use of a weapon that was more powerful than the one that they had been directed to employ. These two officers were sanctioned and temporarily suspended from taking part in operational activity. After reviewing the relevant material, the MAG concluded that the soldiers and officers did not violate the principle of distinction and that the disciplinary measures taken against the soldiers were sufficient.
The MAG also reviewed the conclusions of the investigation regarding the attacks on the Hamas Police Stations in al-Sajaiyeh and Deir al-Balahand, which concluded that these strikes were mounted against legitimate military targets, thus complying with the principle of distinction, and that they conformed to the principle of proportionality due to the strategic importance of the targets. Hence, the MAG decided not to take any further action.
With regard to the attack on the Hamas Security Force Building adjacent to the Main Gaza Prison, the July 2010 Report noted that the MAG concluded that the IDF attack targeted a legitimate military target while taking the necessary precautionary measures, which included the use of precision technology. Therefore, the MAG decided not to pursue any further proceedings.
Another section of the July 2010 Report discusses the attack on the UNRWA field office compound, in which the use of smoke-screen munitions containing white phosphorus injured three individuals and caused significant property damage. In this case, the Commander of the Southern Command disciplined two senior commanders, a Brigadier General and a Colonel, for authorizing the use of shells in violation of the safety distances required in urban areas set forth in IDF operational orders (a decision that had been approved by the MAG).
With regard to the use of smoke-screen munitions themselves, the MAG concluded that the investigation did not demonstrate any violation of IHL, which does not prohibit the use of such weapons. However, since the damage caused to the building was greater than anticipated, the IDF issued revised restrictions regarding the use of smoke screens near populated areas and sensitive installations.
Investigations concerning the alleged targeting of civilians
The July 2010 Report notes that following the receipt of relevant information, the MAG initiated a criminal investigation into allegations that an Israeli soldier shot and killed a person waiving a white flag. According to the report, although this incident seems to appear in the Goldstone report, there were some discrepancies between the information received by the MAG and the case discussed in the Goldstone report. Regardless of whether or not the case in question was the same, following an investigation, the MAG ordered the indictment of one IDF soldier on the charge of manslaughter.
With regard to an incident involving the death of a Palestinian woman, Rouhiya al-Najjar, a criminal investigation found that the woman was killed by a ricochet from a warning shot fired by an IDF soldier who sought to prevent the approach of a group of Palestinians that he suspected included a gunman or a suicide bomber. The July 2010 Report noted that the MAG concluded that the soldier who fired the shot was not criminally liable.
With regard to another incident in which it was alleged that an Israeli soldier shot at Palestinian civilians (Amal, Souad, Samar, Hajja Souad Abd Rabbo and Adham Kamiz Nasir), while standing on a tank, the MAG referred the case directly to the MPCID for a criminal investigation. However, the results of this investigation led the MAG to conclude that the evidence was insufficient to initiate criminal proceedings. The second part of this complaint, which alleged that IDF soldiers shot at a horse driven cart, was confirmed by the investigation. However, since this shooting resulted from a concrete warning that alerted the soldiers to plans to detonate carts filled with explosives near IDF positions, the MAG found that the soldiers who shot a warning fire at the cart were not criminally liable and closed the case.
With regard to the IDF attack on the Abd al-Dayem condolence tents, in which the use of flechette munitions resulted in the death of five civilians and the injury of many others, the report states that this case was referred directly to the MPCID for criminal investigation. According to that investigation, a group of terrorist operatives loading a Grad missile aimed at Israel was identified by an Israeli tank crew in proximity to one of the tents. Because of the large distance between the Israeli force and the terrorist activists, the tank commander decided to use a flechette bomb to neutralize the terrorists. The investigation further determined that the tank crew did not identify any civilians in the vicinity of the terrorist squad. Therefore, the MAG concluded that the crew's actions did not violate the rules of IHL, which do not prohibit the use of flechette.
Investigations concerning damage to private property
According to the July 2010 Update Report, the incidents involving damage to private property highlighted the difficulties posed by terrorist groups that operate within densely populated areas. Although Israel made extensive efforts to avoid damaging civilian property, the modus operandi of Hamas and other Palestinian armed groups posed many difficult operational dilemmas.
With regard to the destruction of the Sawafeary chicken coops, an incident described in the Goldstone Report, the command investigation determined that the chicken farm was destroyed for reasons of military necessity: an IDF ground force was stationed in the house next door and needed to secure the area for military operations against the Hamas. The MAG reviewed the findings of the command investigation and decided that the destruction of the Sawafeary chicken coops was lawful and was executed for military purposes; there was no indication that the destruction was intended to deny the Palestinian population access to essential commodities.
The case of the Abu Jubbah Cement-Packaging Plant, an additional incident described in the Goldstone Report, was investigated by the IDF, which concluded that the cement plant was not the target of any aerial attacks and that no artillery fire was directed at it; rather, the plant was damaged in the course of intense fighting that took place in the area. After reviewing the relevant evidence and the results of the command investigation, the MAG determined that the damage caused to the cement plant was incidental to the combat activities and proportional to the military needs under the circumstances.
As for the damage to the Al-Wadiyah Group’s Factories, an incident that was cited by the Goldstone Report as evidence of a deliberate strategy to deprive the Gazan population of essential commodities, the July 2010 Report stated that the command investigation that looked into this allegation concluded that the factories were located in the vicinity of Izbat Adb Rabbo, where Hamas had concentrated significant military resources. That area also served as a base for terrorist attacks against Israel and was accordingly a focus of IDF operations. Since there was a military concern that the factories could be used to attack IDF soldiers, it was decided to demolish them. According to the command investigation, it was not known at the time that the factories were used to produce food products. After reviewing the command investigation, the MAG concluded that the demolition of the buildings was lawful and was not intended to deprive the local population of commodities indispensable to its survival.
The last incident described in the report is the case of the El-Bader flour mill. Following the publication of the Israeli position on this matter in the January 2010 Report, it was discovered that the U.N. possessed information that pointed the blame at Israel for this incident. The IDF re-opened its investigation following receipt of this information. However, the new investigation reached the same conclusions as the first—that is, that no Israeli Air Force attack had been conducted in the vicinity of the flour mill. The MAG therefore concluded that the flour mill was not intentionally targeted by the IDF, and decided to take no further action on this matter.
The Report also provided an update on several changes to military operational guidelines that resulted from investigations of the Gaza operation. According to the report, "Operation Cast Lead" presented complex military challenges in protecting civilians from the hazards of the battlefield. The report holds that the Hamas’ modus operandi of urban warfare and the use of civilian structures as shields contributed to the challenges faced by the Israeli forces, and that although the IDF made extensive efforts to avoid civilian casualties and limit damage to civilian property, it is clear that IDF actions resulted in numerous Palestinian civilian casualties and considerable harm to civilian property. Despite Israel’s position that Hamas bears principal responsibility for these results because it chose methods of warfare that put civilians at risk, the IDF conducted an internal self-examination in order to draw the relevant lessons and to improve its ability to protect civilian population from harm in future military operations.
This process has resulted in the following two changes:
- New written procedures regarding the protection of civilians in urban warfare – The IDF's new guidelines emphasize that the protection of civilians is an integral part of a commander's mission. The new procedures and doctrines also specify steps that will better insulate civilian populations from combat operations and will limit unnecessary damage to civilian property and infrastructure. These steps require thorough research that will enable the IDF to identify and mark existing infrastructure, including installations related to water, food, power, and sewage, as well as health services, educational institutions, religious sites, economic sites, factories, stores, communication and media centers, cultural institutions, and other sensitive sites. The new written procedures also require the assignment of a Humanitarian Affairs Officer to each combat unit beginning at the battalion level and up. This officer will be responsible for advising commanding officer and educating soldiers with regard to the following: protection of civilians, civilian property and infrastructure; planning of humanitarian assistance; coordination of humanitarian movement, and the documentation of humanitarian safeguards employed by the IDF.
- A new order regulating the destruction of private property for military purposes – This new directive was a result of one of the five special command investigations ordered by the IDF Chief of General Staff, which called for a set of clear rules and guidelines that would assist commanders in making decisions relating to the destruction of private property for military purposes. The new order, which according to the July 2010 Report entered into force in October 2009, provides clear guidelines regarding the circumstances in which civilian structures and agricultural property may be demolished for reasons of military necessity.
The Report also referred to the Turkel Committee and its mandate to examine Israel's system of investigations. According to the report, while the Israeli government is confident in its thoroughness, impartiality, and the independence of its investigation system, it has decided to invest an independent public committee with the authority to examine (inter alia) the conformity of these mechanisms with Israel's obligations under international law.
The report emphasized that the investigational mechanisms that the Turkel Committee is reviewing are the same as those used following "Operation Cast Lead" and that the Committee's concluding report will be made available to the public.