Investigation of allegations of misconduct

Yes. The IDF maintains a robust justice system which includes the examination and investigation of alleged misconduct in an independent and effective manner. This system is overseen by Israel’s civilian justice system, including the civilian courts. For more information on this system and the manner in which allegations or suspicions of operational misconduct are examined in Israel, see here.

What is the mechanism for investigation such allegations or suspicions?

Where an initial allegation or suspicion of misconduct does not by itself reach the level of criminal suspicion, the Military Advocate General (the ‘MAG’) requires additional factual information in order to make a decision whether to open a criminal investigation or not into the incident. In order to obtain this information, the MAG utilizes the General Staff Fact-Finding Assessment Mechanism (the ‘FFA Mechanism’).

The FFA Mechanism, headed by a Major General, is tasked with providing the MAG with the most comprehensive and substantiated factual information possible in order to assist with decisions whether or not to open a criminal investigation, as well as for the purpose of a lessons-learned process and the issuance of operational recommendations that will help mitigate the risk of exceptional incidents occurring in the future.

In accordance with the Turkel Commission’s recommendations, in the past few years the FFA Mechanism was made a permanent body, rather than a temporary ad-hoc one, created for specific operational events.

On 4 April 2018, the (then) IDF Chief of Staff ordered that the FFA Mechanism examine exceptional incidents allegedly occurring during the Gaza border events and provide the findings and materials to the MAG for his review.

Due to the unique nature of the Gaza border events, and the expectation that these events would be ongoing, a dedicated team was established within the FFA Mechanism tasked with examining these events. This team was headed by the then Head of Doctrine and Training in the IDF, and after his transfer to another position in the IDF, has been headed by a Brigadier General in the reserves with extensive experience in fact-finding in operational circumstances.

This team comprises of senior active duty and reservist officers with relevant professional military expertise (such as in field intelligence and marksmanship). The team is accompanied by legal advisors. All members of the team are outside the chain of command of these events.

The FFA Mechanism has been referred all alleged incidents of death occurring during these events, and has prioritized incidents involving minors, medical personnel or first aid volunteers and journalists. These incidents have come to the attention of the IDF through various means, including operational reports and the media. More than 60 incidents have originated from complaints submitted by different organizations and on behalf of the families of the victims.

However, the manner of the FFA Mechanism’s examinations involve examining the conduct of relevant IDF forces in general with regard to each sector of their responsibility, and not just individual incidents which allegedly resulted in death (see below).

The FFA Mechanism possesses substantial resources and wide-ranging authority which enable the collation of information and materials from any relevant IDF sources, as well as the capacity to request information and materials from external sources, including from civilian witnesses and international organizations. IDF personnel are obligated by law to cooperate with the FFA Mechanism and to provide it with any information in the person's possession that may be relevant to their examinations. The FFA Mechanism’s findings and any materials prepared by it are privileged under law.

How does the FFA Mechanism conduct its examinations into the Gaza border events? 

The dedicated team of the FFA Mechanism established to examine incidents occurring in the Gaza border events has operated continuously since it was established.

In addition to examining specific incidents in which Palestinians have died during the events, the FFA Mechanism is conducting a broad examination of the actions of IDF forces, by assessing their conduct according to their responsibilities for different sectors along the Gaza border.

In order to conduct these assessments, the FFA Mechanism gathers testimonies from operational authorities throughout the chain of command, and obtains any relevant materials in their possession, such as documentation regarding their use of force and any known results, data regarding the deployment of the forces and the equipment used, and information regarding the forces’ preparations for the events. Additional materials are extracted from the various operational systems, including intelligence information and operational reports concerning the sequence of events of each riot. The FFA Mechanism also actively searches for and assesses open source information, including from social media, and are in contact with Palestinian and other sources to obtain information that may provide further details.

These materials are then used to compile a full picture regarding the IDF's actions in each sector on a specific date, which includes the manner in which the forces prepared for the riots, the type and extent of the means and methods employed at each of the sites, the implementation of the SOPs by the forces and policy decisions made by commanders within the confines of the SOPs.

On this basis, the FFA Mechanism conducts an in-depth examination of each of the sectors in order to determine the causes of exceptional injuries to individual persons (including death) and to examine the compliance of the policy according to which each force conducted itself with the SOPs.

By conducting a broad examination of the conduct of different IDF forces by sector, the FFA Mechanism is able to evaluate the overall policy for dealing with the events per IDF force, as well as to establish a factual basis that will assist in the assessment of any future claims that may arise regarding IDF conduct.

What challenges has the FFA Mechanism faced in its examinations of the Gaza border events? 

Due to the chaotic and complex nature of these events, the examination process is complicated and lengthy. Some of the challenges in conducting these examinations include the following.

First, these events occurred primarily in an area which is controlled by Hamas and not by Israel. As noted above, Hamas is waging an armed conflict against Israel, and Israel does not have unfettered access to the area of these events. As a result, the FFA Mechanism is unable to conduct examinations at the scene of the incidents, which affect, for example, efforts to determine the trajectory of bullets and the collection of any physical evidence located at these scenes.

Second, where complaints have been submitted by Palestinians alleging that their family members were injured during the events, the FFA Mechanism's requests to collect testimony from the injured family member or from witnesses have mostly gone unanswered. The same has been the case with regards to Palestinians claiming that they were injured by IDF forces or that they witnessed such injuries taking place.

Third, requests to be provided with medical records have generally gone unanswered, and medical records that have been provided have been very limited. In particular, the FFA Mechanism has been refused cooperation from the Palestinian Authority in obtaining medical records and any information from Hamas.

Fourth, some of the examinations were conducted parallel to the events taking place. Meaning, these events were ongoing during the examination, and involve examining the conduct of forces still engaged in operational activity. As the events continue, the number of incidents to be examined by the FFA Mechanism increases, and the resources required increases as well.

The challenges faced affect the ability to provide unequivocal findings on individual incidents. For example, in the absence of detailed medical records, there is a significant difficulty in determining the type of injury suffered, the trajectory of the bullet and the degree of connection between the injury and the cause of death. Due to the fact that the IDF does not know the identities of the Palestinians being acted against, and that such Palestinians are mostly evacuated by medical personnel in Palestinian organizations quickly from the area, in some cases it is difficult for the IDF to connect the names of deceased or wounded appearing on published lists to a specific instance of IDF fire.

The FFA Mechanism has developed different methods and tools in order to mitigate these challenges. This has included extensive and thorough examination of visual documentation of specific riots on social media, the use of public images published of deceased and wounded to glean identifying details which can be traced back to IDF documentation of the riots, and ongoing efforts to obtain witness testimony and materials. Such efforts have contributed to the FFA Mechanism’s examination efforts, including in linking between deceased and harmed Palestinians and specific operational activity.

What happens to the FFA Mechanism’s findings and materials? 

The FFA Mechanism’s findings and materials are provided to the MAG so that they may be used when making a decision whether to order a criminal investigation. The MAG can also order the FFA Mechanism to collect additional information where deemed necessary.

Where the findings and materials of the examination give rise to a reasonable suspicion of criminal misconduct, the MAG will order a criminal investigation. As this includes suspicion of criminality under Israeli law, criminal investigations will be opened even when there is no suspicion of a violation of international law, as Israeli penal law criminalizes actions which are not considered crimes under international law.

Criminal investigations ordered by the MAG are conducted by the independent Military Police Criminal Investigative Division, and particularly by the Military Police Criminal Investigative Unit for Operational Affairs (‘CIUO’). The CIUO is a dedicated unit within the Military Police specializing in investigations of suspected misconduct occurring during operational activities.

The MAG may order disciplinary procedures to be initiated against IDF personnel where an incident indicates wrongdoing that does not give rise to a suspicion of criminal misconduct (for example, for a ‘military’ offense such as failure to obey orders).

With regard to the Gaza border events, as of December 8, 2021, the MAG has ordered fourteen criminal investigations which relate to thirty six separate incidents of Palestinian fatalities. Thirteen of these investigation regarding 22 of the fatalities have been completed, while one criminal investigation regarding 11 of these fatalities is currently being conducted by the CIUO.

All of the said decisions have been reached after considering all of the relevant information available, including military debriefings, the FFA Mechanism’s findings and the FFA Mechanism’s conclusions. Examination of all other incidents are ongoing.

In this context, it is worth mentioning that the criminal investigation of three of the thirty six incidents of Palestinian fatalities mentioned above were launched by MAG without referring the incidents to the FFA Mechanism. These decisions were based on a review of the relevant military debriefings and other available sources of information. These investigations were also being conducted by the ‘CIOU’ and are currently ongoing as-well.

October 29, 2019 Judgment

On 28 October , 2019, a judgment was issued in the case of a soldier who, based on a plea bargain, was convicted of acting without authorization in a manner endangering to life and well-being.

The court found that the rioter continued to climb the fence, in an attempt to infiltrate into Israel, despite warning shots being fired into the air. The court also found that the soldier was operating in a situation of emergency, in the midst of a violent riot and that these circumstances, under which he had to make quick decisions under pressure, must be taken into account.

During the course of the investigation, the causal link between the soldier's actions and the harm caused to the rioter could not be established at the evidentiary level required in criminal proceedings.

The Military Court in the Army Forces district upheld the plea bargain between the parties and sentenced the soldier to 30 days of imprisonment by way of military labor and 60 additional days suspended for a three year probationary period. Additionally, the soldier was demoted to the rank of private.

June 15, 2019 Judgment

On 15 June, 2020, a judgment was issued in the case of a soldier who, based on a plea bargain, was convicted of acting without authorization in a manner endangering to life and well-being, and of negligent injury. The judgment refers to the acts of the soldier in the course of a border incident, which occurred on 14 November, 2018. At the time, three Palestinians approached the border. They entered a restricted area near the security fence, where Israeli forces performed routine maintenance work. An IDF force that secured the maintenance workers, warned the group not to approach the fence, firing several warning shots. Despite the warnings, the group went back and forth and approached the fence several times. The Court found that during this event, the defendant, who joined the security forces on the spot, fired an unauthorized warning shot. Afterwards he fired another unauthorized shot towards the leg of one of the Palestinians, who was injured by the gunfire.

Based on these facts, and taking into account the personal circumstances of the soldier, the Central Region Military Court upheld the plea bargain and sentenced the soldier to 45 days of imprisonment by way of military labor and 60 additional suspended for a two year probationary period. Additionally, the soldier was demoted to the rank of private and will have a criminal record.

Allegations concerning the death of Rouzan al-Najjar on 1 June 2018

The MAG Corps received reports, as well as complaints from non-governmental organizations, which alleged that on 1 June 2018, a number of Palestinian medics, among them Rouzan al-Najjar, provided medical care to those injured in the violent riots along the Gaza Strip’s border with Israel. It was also claimed that at approximately 18:30, an IDF soldier shot at the medics, among them al-Najjar. As a result of the shooting, al-Najjar suffered a chest injury, and was evacuated to the ‘European’ Hospital in the Gaza Strip without any sign of life.

A thorough review of the operational examination was conducted by the MAG Corps. Due to the substance of the claims, and following consultation with the Commander of the Southern Command, as required by law, the MAG ordered that the Military Police Criminal Investigative Unit for Operational Affairs investigate the incident.

The investigation has concluded the following: on 1 June 2018, an extremely violent riot took place near the security infrastructure, with the participation of approximately 1500 individuals. Participants in the violent riot hurled rocks and Molotov cocktails towards IDF forces. Balloons with suspicious means were launched, tires were set on fire, and slingshots and drones were used against IDF soldiers. Additionally, during the riot there were attempts to sabotage the security infrastructure and infiltrate Israel.

The investigation was comprehensive and thorough. It included various investigative methods, aimed to trace the chain of events which led to al-Najjar’s unfortunate death. In doing so, various materials were collected, such as medical documents and IDF operational logs, and testimonies were taken from eye-witnesses including from Palestinian medics who were present during the events. Relevant military officials were also interrogated.

The investigating authorities also contacted the Palestinian medics who were present during the events who appeared in the New York Times investigative report concerning the event, and the Forensic Architecture research agency which contributed to the report, in order to collect their testimonies and receive additional materials. Both refused to cooperate.

As part of the in-depth investigation, all shots fired by the IDF during the relevant time frame were examined, and all scenarios which could have led to al-Najjar’s death were assessed.

Despite the IDF’s significant efforts, the results of the investigation did not establish that any shots were aimed at al-Najjar, nor that she was injured as a result of a shooting that was conducted while in breach of the SOPs. The results of the investigation also could not support a determination, at the threshold required under criminal law, regarding the exact circumstances of the shooting which led to al-Najjar’s death, nor regarding the identity of the shooter.

In this state of affairs, despite the tragic result, the evidence did not establish that a criminal offense had been committed by anyone in the IDF.

In light of the above, the Military Advocate General has ordered the closing of the investigation without taking further criminal or disciplinary steps.

The remaining instances of fatalities are still undergoing examinations and are at various stages of this process, or have been provided to the MAG for review. In cases where an examination has suggested flaws in the forces’ conduct that do not give rise to a criminal suspicion, the MAG has directed the findings of the examination to the relevant commanders so that they may conduct a lessons-learned process.

Where an allegation is filed by an organization, lawyer or family members representing a victim, the IDF provides a written explanation of the MAG’s decision. As noted above, this decision may be challenged before the Attorney General and petitioned before the Supreme Court.

Where an allegation is filed by an organization, lawyer or family members representing a victim, the IDF provides a written explanation of the MAG’s decision. As noted above, this decision may be challenged before the Attorney General and petitioned before the Supreme Court.

Is the Military Advocate General’s decision final?

In accordance with the Attorney General's Regulation No. 4.5003, the decision of the MAG not to order a criminal investigation in cases of fatalities can be challenged before the Attorney General.

As with any determination by a public authority, a decision of the MAG, as well as a decision by the Attorney General following a review of a decision by the MAG, may also be petitioned to the Supreme Court sitting as the High Court of Justice.