Israel’s main government watchdog has demanded that military service members, including officers, receive more training on compliance with international humanitarian law in armed conflicts. It was also critical of the army’s use of a controversial protocol, since modified, to thwart a soldier’s abduction in the 2014 war in the Gaza Strip, and recommended improvements to the way irregular incidents during combat are investigated.
The recommendations and criticism were part of a special report by State Comptroller Joseph Shapira, released Wednesday, on international law as it relates to Israeli combat operations in the war, known in Israel as Operation Protective Edge. Many of its conclusions read like a rebuttal to international criticism of Israeli actions in the Strip during the war.
Wednesday’s report was the latest in a series on the summer 2014 conflict. The series has addressed the performance of the security cabinet before and during the war, Israel’s response to offensive tunnels dug from Gaza into Israeli territory and home front preparedness. The reports on the tunnels and the security cabinet stirred great public interest about a year ago. Education Minister Naftali Bennett, a member of the security cabinet, pointed to them as evidence of his suitability to serve as defense minister in a future government (an issue that coincidentally became a topic of discussion this week as well).
The latest report is unlikely to garner great public attention, but it is important in terms of Israel’s foreign relations and international legal standing. It is sure to be read very carefully in Israel’s military prosecution, in the United Nations and at the International Criminal Court in The Hague.
Shapira and Defense Establishment Comptroller Brig. Gen. (res.) Yossi Beinhorn begin the report by noting Israel’s commitment to compliance with international laws governing armed conflicts. They cite the principles of distinction (only military personnel or property may be targeted) and proportionality (harm to uninvolved civilians must be proportional to the expectation of military benefit from the action, which is how every operation is examined under international law.) They even quote Israel’s first prime minister, David Ben-Gurion, and former Supreme Court President Aharon Barak to illustrate the importance of the army’s compliance with the morality of warfare and the rules of international law — distinctions that were once understood but are now strongly disputed in the Israeli political arena.
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But that, more or less, is where their “subversion” ends. The comptroller’s report on the legal issues treads pretty lightly and its criticism of the army and the political leadership is limited. The comptroller does call to focus more on international law during military training and makes some comments about the mechanism the military set up, at the recommendation of the Turkel Committee, to investigation combat irregularities. But except for this, the report — which in an exceptional move, was also translated into English — generally addresses the international community.
Here the message is clear: The security cabinet weighed the legal aspects before ordering the operation in Gaza; the army tried to play by the rules and, most important, it investigated itself thoroughly after the war was over. In other words, there is no reason for international legal bodies to launch legal proceedings against senior Israeli officials because Israel deals with its exceptions as required. That’s a conclusion aimed primarily at the ears of the chief prosecutor in The Hague, who has already announced that for the first time she is considering such proceedings against Israel and in that context was eagerly awaiting Shapira’s report.
Shapira spends some time on the Hannibal directive, which allowed the army to take action to prevent a soldier from being abducted even if it meant putting the captured soldier’s life at risk. As reported by Haaretz in June 2016, Chief of Staff Lt. Gen. Gadi Eisenkot has canceled that directive and replaced it with a new one, after lengthy arguments both within and outside the army.
In any case, with regard to the earlier directive Shapira found discrepancies between the directive as issued to the General Staff officers and the way it was described to the division commanders and below. Although it was made clear to the General Staff that any action to thwart a kidnapping must uphold the principles of distinction and proportionality, these restrictions were not included in the orders issued to the lower levels of command.
The report does not provide details about what led to the debate over the Hannibal directive, which were the events of “Black Friday,” August 1, 2014 in Rafah. On that day the army used massive force to try to prevent the abduction of 1st Lt. Hadar Goldin, who has since been declared killed in action and whose remains are still being held by Hamas as a bargaining card for over three and a half years.
Dozens of Palestinians died during the fighting in Rafah, including civilians. The incident is still under investigation, slowly, by the Military Prosecutor’s Office. The likelihood that Military Adjutant General Brig. Gen. Sharon Afek will decide to turn this into a criminal investigation looks very low for now, certainly given the present political climate.
Afek, the military prosecution and the Military Police can live with the comptroller’s new report and put their focus on Shapira’s practical recommendations for improvement. The bigger question is how the report will be received in the international arena. Here Israel has at least one thing on its side: In an era in which Russia and Syria, on one side, are slaughtering antigovernment civilian rebels without mercy; and Saudi Arabia, on the other side, is conducting a dirty war against the Houthi rebels supported by Iran in Yemen — the focus on Israel will look like just another use of the double standard they have been complaining about in Jerusalem for years.