Addressing Alleged Misconduct in the Context of the War in Gaza

Addressing Alleged Misconduct in the Context of the War in Gaza

The IDF is conducting examinations and investigations of possible misconduct in the context of operational activity, in accordance with its obligations under Israeli and international law. The IDF's robust military justice system, headed by the Military Advocate General ('MAG'), is in charge of such examinations and investigations, which have also been taking place during the current war. The MAG is subject only to the law on professional matters and operates with full independence. The MAG's decisions on these issues are subject to civilian oversight and can be challenged on appeal in front of Israel's Attorney General, as well as before the Israeli Supreme Court.

Examination and Investigation of Operational Incidents

IDF forces are obligated to report incidents that raise suspicion for violations of the law or IDF orders. Any report (submitted by IDF forces or received otherwise), complaint, or allegation that suggests misconduct by IDF forces, undergoes an initial examination process, irrespective of its source.

In certain cases, the report, complaint, or claim received raises prima facie a reasonable suspicion for criminal misconduct (such as concrete allegations that raise a reasonable suspicion of looting or the abuse of detainees). In such cases, the MAG promptly orders to open a criminal investigation. Criminal investigations of alleged misconduct occurring in the context of operational activity are conducted by a specialized department under the IDF Military Police Criminal Investigation Division, the National Unit for Operational Affairs. The unit's work is directed by the MAG.

In other cases, additional information is needed in order to determine whether there is a reasonable suspicion of criminal misconduct. In the context of armed conflict, death or injury to a civilian or harm to civilian objects, while tragic and regrettable, in most cases do not by themselves indicate a reasonable suspicion of criminal conduct, as they can be explained by lawful operational activity. Hence, most cases require prior factual assessment. In general, such cases are referred to the General Staff’s Fact-Finding and Assessment Mechanism (“FFA Mechanism”), which is responsible for conducting factual assessments of exceptional incidents.

During the 2014 Gaza Conflict, following the recommendation of the Turkel Commission,[1] the IDF Chief of the General Staff ordered the establishment of a new FFA Mechanism, to examine exceptional incidents that allegedly occurred during the conflict. Since then, the FFA Mechanism has been solidified as a permanent body which conducts factual assessments of such incidents and has over time accumulated distinct professional experience, expertise, and tools that accommodate its factual assessments.

The FFA Mechanism is headed by a senior officer (at the rank of Major General, the second highest rank in the IDF aside from that of the Chief of General Staff) and is comprised of high-ranking IDF active duty and reserve officers, as well as civilians employees, who all were outside the chain of command for operations during the war. They hold expertise in relevant fields including intelligence, munitions, and weaponry, targeting operations, linguistic skills that assist in gathering open-source material, and are provided with legal advice. The composition of the FFA Mechanism and its professional independence ensure that its assessments are impartial and of a high professional standard.

The FFA Mechanism has broad-ranging authorities and capabilities for obtaining information from within and outside the IDF, and the legal status of its work is anchored under the Israeli Military Adjudication Law from 1955. IDF soldiers are obliged to cooperate with the FFA Mechanism.

The FFA Mechanism developed its expertise and solidified its position in the military system throughout the years. In the context of the current conflict, the FFA Mechanism led the development of advanced digital applications for enhancing fact-finding capabilities. These capabilities include, inter alia, collection of open-source material, preservation of operational records, and geo-location of ground forces.

Once a factual assessment is complete, the findings and collected materials are submitted to the MAG corps for a decision on whether the opening of a criminal investigation is justified. In this regard, when required to reach a decision, supplementary examinations and materials may be requested from the FFA Mechanism or other relevant entities. The FFA Mechanism also recommends lessons-learned from examined incidents to improve IDF practices and procedures.

When the gathered information indicates a reasonable suspicion of criminal misconduct that justifies a criminal investigation, a criminal investigation is opened.  When criminal proceedings are found not to be warranted, the MAG may refer the incident to the commanders and recommend taking other types of corrective action against individuals. One such type of corrective action is a disciplinary proceeding. Disciplinary proceedings include a formal hearing before the soldier's commander, who then has the authority to convict the individual on a variety of violations in accordance with military law. In cases of conviction, the commander has the authority to sentence the soldier to certain disciplinary punishments, which may include reprimands, demotions, fines, or imprisonment; depending on the type and circumstances of the offense, and subject to limitations of the law. Another type of corrective action in the IDF is command measures. According to internal military regulation, in certain circumstances, a commander may initiate administrative sanctions in response to misconduct, which can include measures ranging from counselling, notices, or reprimands; to dismissal from the soldier's position or unit. Command measures do not negate the option of concurrently initiating other types of proceedings against alleged violations.

The Current Conflict

Since the beginning of the current conflict, the MAG has ordered the opening of criminal investigations in a number of incidents that raised suspicion of detainee mistreatment, deaths of detainees, pillaging, and the illegal use of force. Those investigations are ongoing.

Many other incidents have been referred to the FFA Mechanism. So far, the FFA Mechanism has been collecting relevant material and documentation on hundreds of incidents in the context of the current war. Different incidents vary in terms of where they are in the information gathering and assessment process, dozens of which are in advanced stages. The information gathered includes, inter alia, open-source material on the incident, relevant military directives, identification of the unit that participated in the incident, operational data regarding means and methods employed during the incident, and relevant information regarding enemy conduct which may have affected the outcome of the incident or operational considerations.

Of course, it should be noted that factual assessments and investigations during an ongoing war, particularly when that war involves a significant ground operation, present practical challenges. Those challenges are particularly evident in the current war, considering its scale and intensity, and in light of Hamas modus operandi. The IDF works to minimize such challenges to the extent possible, notwithstanding that conducting assessments and investigations of combat situations may be complicated at the moment, and the current fog of war may affect factual assessment capabilities.

The IDF is committed to examining alleged misconduct of IDF forces, and to holding wrongdoers accountable by means of appropriate measures. The IDF is acting to ensure that the examination and investigation processes are as effective as possible.

[1] Public Commission to Examine the Maritime Incident of 31 May 2010, The Turkel Commission Report, Part Two (February 2013). The commission was an independent public commission of inquiry headed by a former Justice of Israel’s Supreme Court, and that included distinguished international legal observers. It was established in order to examine the operation carried out by the State of Israel on May 31, 2010, to enforce the naval blockade imposed on the coast of the Gaza Strip (the Marmara incident). The second part of the Turkel Report included recommendations for further improving the IDF mechanisms in place for addressing allegations of legal violations, including a recommendation to establish a permanent independent fact-finding and assessment mechanism.