Internal inquiry must not whitewash Israeli war crimes in Rafah

Over the last couple of weeks in Israel, in what has been called an “exceptionally widespread attack”, politicians, op-ed writers, and reservists have urged the IDF Military Advocate General (MAG) Danny Efroni to end investigations into a number of incidents that occurred during the recent assault on the Gaza Strip (so-called ‘Operation Protective Edge’)

Out of dozens of alleged incidents of wrongdoing, Efroni has in fact so far ordered the opening of just 13 criminal investigations (a number of which are for cases of looting). Yet even this is too much for those who, like Naftali Bennett, believe Israel’s “brave warriors” are being unfairly attacked.

Overshadowing the debate, and the MAG’s decision-making process, is the imminent prospect of the Palestinians joining the International Criminal Court (ICC) in order to seek war crimes charges against Israeli officials. Ramallah officials have already confirmed that last summer’s attack on Gaza will be high on the agenda.

ICC threat

This is a possibility that has long troubled the Israeli government. Last February, a senior legal official at the Ministry of Foreign Affairs warned that the ICC “challenge” was potentially “very significant” and “far-reaching.” Around the same time, it was revealed that “massive legal efforts by a relatively new division of the Israeli Justice Ministry” were being directed at preventing the Palestinians pursuing the ICC track.

What does this have to do with the MAG? For some – and this apparently includes Efroni himself – the Israeli military’s processes of investigation are the most effective defense against international prosecutions. In a recent piece titled ‘Preempting The Hague: How the IDF seeks to avoid international legal action’, Haaretz correspondent Amos Harel explained.

Israel assumes, against the background of both the events of Operation Protective Edge and in the wake of the 2009 United Nations’ Goldstone Report concerning Operation Cast Lead in Gaza, that a thorough internal investigation will reduce international pressure and thwart legal measures against IDF officers abroad.

Thus, according to Harel, while IDF commanders are unhappy with the MAG’s investigations, “Efroni is convinced that he is thereby sparing them an encounter with the International Criminal Court in The Hague.”

Harel is not alone in this assessment. Ilan Katz, an Israeli former military deputy advocate general, told Associated Press that “if Israel can show the court that it has carried out its own investigation in good faith, it could avoid an outside probe.” One Israeli columnist wrote last week how Efroni “explains that at the end of the day, [criminal investigations are] meant to clear the commanders, and that they help avoid international investigative committees.”

It’s not just the ICC either – there is also the UN Human Rights Council’s inquiry headed up by William Schabas. In fact, defenders of the Givati Brigade cited in the Israeli press have spoken of a refusal to be a “Schabas tax”, a reference “to the idea that IDF lawyers need to criminally investigate a certain number of soldiers merely to satisfy international pressure…to explain the deaths of more than 2,000 Palestinians.”

Now to believe – as Bloombergcolumnist Noah Feldman does – that the “most salient” barrier to ICC involvement is Israel’s own criminal investigations, one needs to be also believe that “Israel has a robust judicial system” and a military “operating under judicial supervision that’s almost unmatched anywhere in the world.”

Culture of impunity

The statistics, however, tell a story of impunity. In a 13 year period when more than 5,000 Palestinians were killed by Israeli forces in the occupied West Bank and Gaza Strip, Israel’s military courts convicted just seven soldiers for offences involving the death of civilians. According to Israeli NGO Yesh Din, “the likelihood that a soldier who unjustifiably killed a Palestinian civilian will be investigated, let alone penalised, is slight to non-existent.”

‘Operation Protective Edge’ was the third such large-scale assault on the Gaza Strip since January 2009 – and the precedent here too, is one of a systematic absence of accountability. After ‘Operation Cast Lead’, for example, when Israel killed 1,400 Palestinians, 500 incidents of suspected breaches of the law led to 52 investigations – which produced just three indictments. The harshest sentence was handed down for stealing a credit card.

This track record of impunity led prominent Israeli NGOs to reject invitations by the Israeli military to assist in the current, ongoing investigations, so as, in the words of B’Tselem, to avoid playing a role in the “existing whitewashing mechanism”. The group pointed out that, among other problems, the MAG has a “dual role”.

He gives legal counsel to the military before and during combat, yet is responsible for deciding on indicting those who violated the law. Where unlawful orders were issued following the MAG’s legal counsel, there is an inherent conflict of interests.

Rafah, August 1

Much of the recent publicly-aired tensions in Israel concern questions about – and a possible investigation into – the conduct of the Givati Brigade in Rafah, following the then-suspected kidnapping of Hadar Goldin by Hamas fighters on August 1. One Israeli commentator called it “the most debated incident in the war and the one which may go to the heart of how the world judge’s the validity of the IDF’s self-investigating apparatus.”

On that morning, shortly after a 72-hour ceasefire had gone into effect, Hamas fighters encountered Israeli soldiers conducting operations in Rafah, engaged them, and killed three, taking Goldin’s body. While Israel said it had interpreted the terms of the truce as allowing its forces to continue targeting tunnels, officials later acknowledged that Hamas had “never committed to [such] a truce deal…even though Washington led the Israeli government to believe that Hamas did in fact promise to do just that.”

The Israeli soldiers involved were part of the Givati Brigade, commanded by Col. Ofer Winter, a figure now notorious for telling his forces pre-invasion that they were engaged in a war to “wipe out” an “enemy who defames” God. As since confirmed by IDF Chief of Staff Benny Gantz, on receiving the news Friday morning that Goldin was missing, “the Hannibal order was declared [by Winter]”.

Hannibal Directive

The Hannibal Directive was formulated in the mid-1980s, and its authors were Maj.-Gen. Yossi Peled, Col. Gabi Ashkenazi, and Col. Yaakov Amidror. Peled claimed that the order allowed the army to risk the life of the abducted soldier but was not an order to kill him/her. In 2011, the issue returned to the spotlight thanks to Gilad Shalit’s negotiated release from captivity. After Shalit had been freed, Gantz told a meeting of IDF commanders that when it came to Hannibal and preventing a kidnapping, “there are no right or wrong answers.”

It’s not like in school. You have to use your judgment. Every area has its own instructions, but the overall instruction is that kidnapping is the kind of event that we must prevent.

Last September, the IDF Spokesperson confirmed the existence of the Hannibal Directive, and described it as “an army regulation dealing with an abduction incident on any front” which “determines the manner in which the IDF handles an abduction incident from the preparation stage up to the stage in which the abduction is foiled or contact with the abductors is lost.”

There is a possibility that someone within the Givati will be hung out to dry over the events of August 1 – this is hinted at in an August report which noted that the Givati commander headquarters applied Hannibal “without the immediate authorization of the Gaza Division and Southern Command.” But it is clear that the declaration of the Hannibal Directive that day cannot be described as a ‘rogue’ action.

This is because the Directive has been approved by the highest levels of the IDF chain of command – and, crucially, because the expectation is that it will be implemented based on the decision, in the moment, of commander/s on the scene (like Gantz described above). Military figures interviewed by Israel Hayom in 2011 agreed that “commanders in the field will still determine how far the protocol goes.”

Devastating Rafah

There is no doubt the Hannibal Directive was carried out. Company commander Col. Eli Gino has confirmed how they “officially announced the implementation of the Hannibal Directive on the radios about 20 minutes after [the suspected capture of Goldin]. Another company commander was unashamed: “Everything I did, even if I destroyed structures or hurt Palestinians, was out of confidence in the righteousness of the way” and “as we’ve been taught in the army.” Givat’s Major David Chen, meanwhile, described the attack on Rafah as “a decisive, aggressive assault, to assure we do not have a 2nd Gilad Shalit.”

And the results were devastating. According to a report by PCHR, by 10:00 on August 2 the Israeli army had “launched 100 airstrikes”, fired “hundreds of tank shells indiscriminately” and “bombarded houses without prior warning.” Human rights NGO al-Mezan described an “intensive bombardment by artillery and aircraft”, and “carpet shelling” of Rafah. The Israeli media reported that on August 1, the Israeli army fired more than 1,000 artillery shells in just three hours, in addition to pounding the neighbourhood with “some 40 air strikes.”

The IDF unleashed “immense power” as “bulldozers tore down houses”, and “artillery batteries, tanks, and aircraft opened fire, isolating the abduction zone and reportedly targeting all vehicles leaving the area.” Anonymous Israeli military sources subsequently described the attack as “the most aggressive action of its type ever carried out by the IDF.”

There is no shortage of evidence about the amount and intensity of fire used. Haaretz reported “Dozens of innocents killed in IDF’s ‘Hannibal’ protocol’“, with “IDF sources” acknowledging “that senior commanders in the field ordered the [Hannibal] procedure implemented in full.” The paper noted that “the army knows that innocents were hurt as a result of the massive use of force.”

A precise fatality count for the bombardment of Rafah is elusive: Palestinian human rights groups cited by Associated Press gave figures of 121 and 69 killed on August 1 and August 2 respectively. The dead included 55 children. A report by Reuters on October 13 talked of “an Israeli air and artillery bombardment on Aug. 1 that killed 150 people in a matter of hours”, wounding another 200 – “the majority civilians.”

Haaretz writer Uri Misgav summarised the events of August 1 thus: “What happened in the framework of the Hannibal Directive was the “intentional crushing, without notice, of a densely populated urban area.” Givati’s Col. Winter remains proud of his brigade’s actions: “Everything we did stemmed from the understanding that we could bring Hadar Goldin back alive. That is why we used all the force. Anyone who kidnaps has to know he will pay a price. It was not revenge, they just messed with the wrong brigade.”

As Al-Haq head Shawan Jabarin wrote, “the formal existence of such a directive that calls for the massive bombardments of civilian areas without any regard for the principles of proportionality or distinction…is a clear recipe for war crimes” – and it “appears to have been implemented precisely.” The evidence for this is overwhelming, as is the evidence for the cynical, inadequate nature of the Israeli military’s internal investigation process. From the point of view of accountability, of justice for victims, there is no reason why the responsible Israeli officials should not face arrest warrants and ultimately, their day in the dock.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.