How should suspected violations of the international laws of war be investigated? As Operation Protective Edge winds down, Prof. Yuval Shany and Prof. Amichai Cohen discuss the options of an internal investigation by the IDF, an international investigation, and an Israeli commission of inquiry.
The large number of non-involved Palestinian civilians killed and injured during Operation Protective Edge and the extensive damage done to buildings and property in Gaza raise questions and concerns as to whether Israel's actions were in compliance with the international laws of war, which aim to protect civilians from the adverse consequences of warfare. Human rights organizations, physicians, political leaders, and opinion-makers in many countries have expressed the view that some of the events that had transpired during the Gaza conflict raise suspicions of violations of the laws of war; the United Nations Human Rights Council has already decided to establish a commission of inquiry to examine suspected violations of the laws of war during the operation.
To be sure, a significant portion of the charges and allegations levelled against Israel stem from fundamental opposition to the State and its historic conduct toward the Palestinians. Some people also believe that certain allegations against Israel are based on anti-Semitic sentiments. Nevertheless, we can safely assume that at least some of the claims are based on real concerns that activities conducted during Operation Protective Edge indeed violated the laws of war.
What is the correct way to deal with these questions and concerns?
International law requires that the investigation of suspected violations of the laws of war be conducted by an independent and impartial body in a prompt and transparent manner. The investigation must also be credible and effective; it must be conducted in a professional manner and should result, where appropriate, in criminal or disciplinary proceedings.
Which body should conduct this kind of investigation? In this article, we will discuss three possible alternatives that are available to the State of Israel.
An internal investigation by the Israel Defense Forces appears to be Israel’s preferred option. Israel's traditional position has been that military investigations conducted by the IDF meet the requirements of international law with regard to the investigation of suspected violations of the laws of war and that there is no need for any external monitoring of military investigations. We have no doubt that the IDF's investigation mechanism must play an important role in investigating allegations of war crimes. However, it is important to consider the problems arising when Israel relies solely on internal investigations by the Military Advocate General (MAG) and the military police.
Firstly, there is a concern that since the MAG has tended in the past to refrain from initiating investigations by the military police, especially investigations that focus on the higher echelons of the army, an impression may have been created that investigations conducted by the military are not credible and effective. Admittedly, the frequency of military investigations increased somewhat after Operation Cast Lead, probably in response to the heavy international pressure that was exerted on Israel: Dozens of investigations were opened by the military police, a number of indictments were filed, several soldiers were convicted, and some changes were introduced to military policy (for example, the use of white phosphorus in combat operations near civilians was discontinued).
However, the cases that were prosecuted focused on relatively low level personnel and on relatively minor offenses; for example, one case on the use of phosphorus near civilians ended with a reprimand of a battalion commander and a brigade commander. The most significant investigation—the investigation of Givati Brigade Commander Colonel Ilan Malka in the case of the deaths of members of the al-Samouni family—eventually led to a decision by the Judge Advocate General (JAG) to close the investigation without criminal charges. (The MAG concluded that the brigade commander acted as any reasonable commander would have acted.)
It should be emphasized that we are not questioning the MAG's judgment and that it is possible that his decisions were correct in each and every case. Nevertheless, the bottom line is that only a relatively small number of investigations led to criminal proceedings after Operation Cast Lead, and those that did led to very few convictions, mostly for lower level soldiers and relatively trivial offenses. When these results are compared to the large number of allegations of serious violations of the laws of war that were leveled against the IDF for its conduct during Operation Cast Lead, and when the inherent difficulty of having an army investigating its own alleged violations of the law is taken into account, it is not surprising that many observers wonder whether internal IDF investigations truly meet the requirements of international law for such investigations.
Secondly, the IDF has not yet completed implementing the Turkel Report's recommendations for strengthening the military investigation system. In 2012, the Turkel Commission—a government committee headed by former Supreme Court Justice Jacob Turkel that included lawyers, military personnel, and civil servants from Israel, and senior observers from abroad—submitted a report with its recommendations for adjusting Israel's method of investigating suspected violations of the laws of warfare to meet the best practices in international law. The report included a series of recommendations, centered on the need to strengthen the independence, transparency, efficiency, and effectiveness of such investigations. Following the publication of the report, after many delays, a government team was established to implement the recommendations; this team, however, has yet to complete its work, and many of the recommendations have not been implemented. Currently, it is apparent that considerable efforts are indeed being made in the field to investigate the events in Gaza independently, by means of a team from the General Staff, as quickly and as close to the location of the incidents themselves as possible. There is also ample evidence of the IDF's extensive documentation of what had happened during the fighting. In addition, according to news reports, a special government team has been established to monitor the investigations.
These are all positive developments, but they cannot mask the simple fact that the Turkel Report has not yet been fully implemented. The problem of the MAG’s lack of independence, for example, still remains, as the current MAG was appointed using the old method (by the Chief of Staff and the Defense Minister, rather than by the latter at the suggestion of a public committee headed by the Attorney General, as recommended by the report) and was promoted to major-general during his service. The recommendation to strengthen the status of the Chief Military Prosecutor also has not yet been implemented. Even more importantly, the system for investigating the facts—the keystone of the Turkel Commission Report, which is intended to minimize the conflict of interests arising out of having the operational investigation conducted by the implicated unit—has not yet been implemented formally or fully. The civilian supervisory mechanism in the office of the Attorney General has not yet been set up properly, and fixed timelines for the various stages of investigation have yet to be introduced. Even if investigations performed by the military prosecutor's office and the military police find no actual fault with the IDF, it might be difficult to defend their findings given that the improvements to the system of military investigations are recommended by the Turkel committee have not yet been implemented.
Finally and most importantly, the extent of the damage and destruction in Gaza seen throughout the world on television and on the Internet are visible to everyone. In contrast, an internal independent military investigation—especially one that examines the proportionality existing between the operational needs of the armed forces and the damage caused to the civilian population—cannot be transparent given the sensitivity of some of the military intelligence materials relied upon to establish necessity and proportionality. A higher degree of transparency can be achieved, however, through close civilian supervision of the military investigation.
Based on the above, it is our opinion that the special government team that has been set up to accompany the military investigations is a positive step. However, this team has been described in the media as a "legal Iron Dome" that is intended to defend Israel against an international legal attack. This is a problematic "framing" of the purpose of the team, as this approach presents international law as a tool in the battle against Israel, rather than as a system of guidelines that should be observed on principle, as part of the rule of law. Given this state of mind, in which Israel sees international law as a weapon that is being used in a battle against it, it cannot be assumed that observers who examine Israel's legal response to the calls to apply international law standards of investigation and accountability will believe that Israel is really prepared to reveal the whole truth about its military operation in Gaza.
In addition to the option of a military investigation, which presumably is the option preferred by the Israeli authorities, the international community is presenting the option of an international committee of investigation. The United Nations Human Rights Council has already decided to establish a committee to investigate suspected violations of the laws of war. According to press reports, the head of the Palestinian Authority, Mahmoud Abbas, is seriously considering becoming a member of the International Criminal Court. In addition, a variety of countries worldwide have publicly voiced their belief that Israel has committed war crimes.
An international investigation may be less desirable for Israel, given Israel's understandable concerns about sharing sensitive security information with a foreign entity and its fear of political bias in such international bodies. As for an investigation by the International Criminal Court, this would have pros and cons. On the one hand, Israel could benefit from a process that would lead to the prosecution of the Hamas leadership for their policy of deliberately targeting Israeli civilians and deliberately risking the lives of Palestinian civilians by conducting military operations from their midst. On the other hand, although we have no reason to believe that the International Criminal Court is hostile to the State of Israel, there is a real chance that it will conduct a criminal investigation of high level Israeli officials and will conclude that there is a sufficient evidentiary basis to prosecute them.
There is an additional concern that is related to new developments in the field of international law. In recent years, it has become apparent that the international laws of war are changing on the conceptual level. It is becoming clear that the assumption that an army or terrorist group operating from within a civilian population will try to avoid endangering the civilian population—an assumption that has guided policymakers for many years— is now obsolete. Until recently, most experts in international law believed that the principle of proportionality allowed an army to engage in military operations resulting in a relatively large number of citizens harmed as "collateral damage" as long as it did not deliberately target them. While it was true that this principle of proportionality prohibited harming a number of civilians that was excessive in relation to the intended military goal, the term "excessive" was vague enough to allow an attacking army to inflict relatively extensive damage on civilians if that damage was unintentional. As long as the attacking army tried to minimize civilian casualties, and as long as the enemy used civilians as human shields as one of its methods of operation, the attacking army had a relatively high level of leeway. Today a significant change in this approach is occurring. Human rights lawyers are increasingly claiming that a large number of civilian casualties in itself renders an attack illegal. Currently, this argument is still being voiced tentatively by some experts, without a firm determination that this is indeed the standard in international law (many people say "If international law allows such extensive harm to civilians, it is meaningless"). But we know from past experience with international law that such claims could be transformed over time into the argument that "these practices are prohibited by international law."
In our opinion, there is a significant chance that an international commission of inquiry would reach legal conclusions that support this trend in the development of international law, which will further restrict Israel’s freedom of action in the next conflagration of its conflict with its neighbors. This will lead to the imposition of an even heavier legal burden on Israel in terms of the need to reduce civilian casualties who are not involved in the conflict.
To summarize: There is a double reason for Israel to try to avoid an international investigation. First, there is significant concern that international investigations will result in Israeli soldiers, commanders, and leaders being indicted in international criminal proceedings. Second, international investigations will strengthen existing legal trends that will further restrict Israel’s ability to engage in military operations in the future.
International law recognizes national investigations as a "substitute" for an international investigation, provided that the internal investigation is conducted with independence, promptness, transparency, credibility, and effectiveness. As noted above, in the current situation, it is difficult to believe that the international community will consider a military investigation by the IDF without external independent supervision reliable enough to remove the need for an international investigation. Consequently, in the current situation, the State of Israel must create an investigation mechanism or at least a monitoring mechanism for the internal investigation that will provide the necessary independence, transparency, promptness, and effectiveness.
A commission of inquiry: According to an IDI study by Dr. Dana Blander, governmental commissions of inquiry or similar investigative bodies in Israel traditionally have been appointed in response to domestic political pressure regarding various incidents. In many cases, these committees also touched on questions of violation of the law in cases involving the Israeli-Arab conflict, such as the Commission of Inquiry on Sabra and Shatila, the Landau Commission on Interrogations by the Israel Security Agency (Shin Bet), the inquiry into the massacre at the Cave of the Patriarchs in Hebron by Baruch Goldstein, and, to a certain extent, the Winograd Commission on the Second Lebanon War.
The Turkel Commission rejected the proposal that we presented to it for a fixed independent civilian institution that will supervise investigations conducted by the military. The Commission itself, however, recognized that in cases of complaints against Israel's civilian leadership, the proper method of investigation would be an independent, effective, civil investigative commission that would be given a clearly defined period of time for its work.
Allegations made against Israel after Operation Protective Edge include both allegations of specific errors in judgment by commanders in the field and allegations that the way orders were carried out was problematic. Arguments against the use of the "Hannibal Protocol" in Rafah as part of an effort to prevent the abduction of the late Lieutenant Hadar Goldin, or claims objecting to the use mortar shells near UN facilities, for example, are not only criticisms of those who carried out these operations but also of those who approved such courses of action in principle. The broader the institutional responsibility, the more justification there is for the establishment of a commission of inquiry outside the military.
Moreover, given the large number of casualties in Gaza, the dispute regarding whether the victims were combatants or civilians, and the large number of incidents which have been the subjects of serious accusations, including claims made by the UN Secretary-General and the President of the United States regarding attacks on United Nations facilities in Gaza, it seems that there is more and more justification for the establishment of an external and independent commission of inquiry. It is important to note: There is no need to specifically establish a state commission of inquiry. International law is largely indifferent to the internal classification of an investigative committee under domestic law. In our opinion, it would be sufficient to establish an expert committee that is independent, and is not connected to today's military system or to the political echelons that were involved in the operation.
One possible solution would be to use the model of the Turkel Commission itself. In the case of the Turkel Commission, an Israeli commission of inquiry was established under the leadership of a retired Israeli Supreme Court justice, and was comprised of independent international observers who were presented with the investigative material. This combined model could meet the demand for international involvement and provide the necessary level of transparency. While this is not the only way to ensure that an internal investigation receives international legitimacy, we think the principle behind it should serve as the guideline for Israeli decision-makers. As we see it, an independent commission of inquiry that would provide the military's system of investigation with appropriate transparency and oversight is the right mechanism for examining the legal questions that arose during Operation Protective Edge and for trying to deal with the attempts to conduct an international investigation of the events.
Prof. Yuval Shany is an IDI Senior Fellow and the Hersch Lauterpacht Chair in International Law at the Law Faculty of the Hebrew University of Jerusalem, where he serves as Dean.
Prof. Amichai Cohen is a Research Fellow in IDI’s National Security and Democracy project, and is the Dean of the Faculty of Law at the Ono Academic College, where he is a Professor of International Law.