Israel’s Investigation of Alleged Violations of the Law of Armed Conflict

Israel has a multi-layered investigation system with numerous checks and balances to ensure impartiality before investigative, administrative, and judicial authorities. Israel’s military justice system and its procedures for investigating possible violations of the Law of Armed Conflict are continually reviewed and updated. The three main components of the military justice system are the Military Advocate General’s Corps (MAG Corps), the Military Police Criminal Investigation Division (MPCID), and the independent Military Courts. Israel’s military justice system is subject to civilian oversight by the Attorney General of Israel and subject to judicial review by Israel’s Supreme Court.

In 2010, the Government of Israel created an independent public commission of inquiry known as the Turkel Commission. This inquiry is headed by a former Justice of Israel’s Supreme Court and is made up of several international legal observers. Following a comprehensive review, the Turkel Commission concluded in 2013 that Israel’s mechanisms for examining and investigating complaints and claims of violations of the Law of Armed Conflict generally comply with its obligations under international law. The commission also made a number of recommendations to improve these mechanisms. The Turkel Commission also found that Israel’s system compares favorably with the investigative mechanisms of other democratic countries including Australia, Canada, Germany, the Netherlands, the United Kingdom, and the United States.

At the beginning of the 2014 Gaza Conflict, in accordance with one of the recommendations of the Turkel Commission, the IDF Chief of the General Staff ordered the establishment of a permanent new General Staff Mechanism for Fact-Finding Assessment (FFA Mechanism) in order to examine exceptional incidents that allegedly occurred during the ongoing conflict. The examination conducted by the FFA Mechanism is intended to provide the MAG with as much information as possible. This will help the MAG to decide whether or not to open a criminal investigation. The FFA Mechanism relies on high-ranking IDF reserve and active-duty officers with military operational, legal, and investigative experience outside the chain of command of the operational activity under examination. These examinations also help minimize the risk of such incidents recurring in the future. In some cases, where credible allegations prima facie give rise to a reasonable suspicion of criminal wrongdoing, the MAG may open a criminal investigation without requiring a FFA examination.

When investigating alleged misconduct that occurred during intensive hostilities, it is important that actions be assessed in accordance with the governing legal framework – the Law of Armed Conflict. Violations of the Law of Armed Conflict cannot be inferred solely from the outcome of a particular incident – even when the outcome may involve considerable harm to civilians or civilian objects. Rather, the legality of particular conduct must be assessed from the perspective of a “reasonable commander,” based on the information that was known (or should have been known) to the commander at the time of the decision. This is to avoid a hindsight bias and effects-based condemnations.

Any investigation of alleged violations of the Law of Armed Conflict inevitably is complicated by numerous challenges, especially in an intensive conflict with a non-state actor like Hamas that embeds its military operations in urban terrain. These challenges include, for example, the scene of the alleged violation under hostile control; the lack of eyewitnesses to certain military activity, such as an aerial bombing or covert ground operations; the complex, dynamic nature of certain large-scale military operations; the inadvertent destruction of evidence during intense fighting; the failure of potential witnesses to come forward because they fear retribution for cooperating with the IDF’s investigation or for reporting on terrorist activity; and the concealing of evidence or planting of false evidence by Hamas and other terrorist organisations.

As a result of these various challenges, investigations can take significant amounts of time. Even where an indication of criminal misconduct exists, they can still fail to obtain evidence sufficient to warrant prosecution. Notwithstanding these numerous practical challenges involved in examining and investigating alleged violations of the Law of Armed Conflict in the context of the 2014 Gaza Conflict, Israel is committed to investigating alleged misconduct and holding wrongdoers accountable. This is done through criminal prosecutions or disciplinary action as may be appropriate in each case and it takes extensive steps to ensure that investigations are as effective as possible.

The IDF is reviewing hundreds of complaints from different sources such as the U.N., NGO’s, and private Palestinian complainants regarding its conduct of operations during the 2014 Gaza Conflict. The MAG periodically publishes his decisions regarding these examinations. As of March 22, 2015, the following information has been released: The IDF’s new FFA Mechanism has examined and continues to examine allegations relating to over 120 incidents that took place during the 2014 Gaza Conflict. The MAG has opened 13 criminal investigations without a prior examination by the FFA Mechanism, based on reasonable suspicion of criminal misconduct. One of these investigations has led to indictments filed against three IDF soldiers. In addition, the MAG has ordered criminal investigations into six incidents that were examined by the FFA Mechanism. The MAG has closed 17 cases after reviewing the findings and material collected by the FFA Mechanism and concluding that the IDF’s actions did not raise reasonable grounds for suspicion of criminal behavior. The Report provides detailed information about several cases closed by the MAG. The examination and investigation process is ongoing and the MAG is committed to providing further updates on decisions concerning specific incidents.