On 11 April 2013 the Israeli Military Advocate General (MAG) issued an “update” on Israel’s investigations of the attacks conducted during its operation Pillar of Cloud (also referred to as Pillar of Defense). The offensive resulted in the death of around 100 civilians and 7 high-ranking members and another 50 or so other members of Palestinian armed groups, according to the UN Office of the High Commissioner for Human Rights (OHCHR).

The MAG concedes that “uninvolved civilians were killed or injured or civilian property was damaged” in a “number of incidents,” but avers that these “usually [involved] unintended damage resulting from an attack against military targets, or alternatively from operational errors, where civilians were mistakenly identified as terrorist operatives.” It concludes that the deadly results of these mistakes, “while regrettable, [do] not indicate a violation of the Law of Armed Conflict,” which it says the Israeli army “consistently implemented.”

The laconic, 5-page ‘update’ only identifies 5 of the 65 cases that the Israeli army has closed to date, and provides no verifiable factual basis for its conclusion. But whatever facts it had at its disposal apparently resulted from a procedure that was never intended to investigate laws-of-war violations. Evidently, the MAG does not recognise its duty to investigate fatal mistakes and to determine, in each case, if the army’s 'mistakes' indicate a violation of the laws of war.

Operational debriefing, not proper investigations

The update is based on the MAG’s analysis of information provided by 'operational debriefings' into individual attacks. Operational debriefings - which usually comprise discussions by officers with their soldiers about a specific operation conducted by their unit - are an after-action review mechanism intended largely to improve military performance. They are not conducted by trained criminal investigators and do not comprise interviews with Palestinian witnesses or information-gathering at the scene of the incident.

Both the UN Committee of Independent Experts examining the domestic investigations as a follow-up to the Fact-Finding Mission Report on the Gaza Conflict of 2008/9 (also known as Israel’s Operation Cast Lead) and the Israeli government’s Turkel Commission have held that operational debriefings are inadequate as a fact-finding mechanism and do not constitute a proper investigation under international law. Yet in most cases, the MAG decides whether to launch an actual investigation based on whether or not an operational debriefing indicates the potential commission of a war crime. Similarly, an extensive analysis of military law and practice by the Open Society Justice Initiative held that Israel’s investigations are limited to a much narrower range of incidents and take much longer to start than other countries (including United States, Canada, Australia and Britain).

The MAG holds that in the cases reviewed “there was no basis to open a criminal investigation or to take any additional measures”, while falsely implying that it based this choice on an actual investigation. In fact, the MAG did not conduct any ‘investigation’ worth the name: it merely analysed the results of an ‘operational debriefing’.

Assuming precautions in targeting

It is not enough to say that civilians died due to a 'mistake'. The laws of armed conflict oblige an attacker to take all feasible preliminary measures to minimize civilian casualties. The attacker must try to foresee and foreclose possible 'mistakes' in targeting and 'unintended' consequences to civilians – for instance, by frequent intelligence-gathering and rigorous scrutiny of that information to determine if a person really is a military target, and by planning the timing of an attack and the weapon used to minimize civilian 'collateral damage'. While attacks that harm civilians are not necessarily unlawful, attacks conducted without due regard for such consequences are.

In the few cases identified by the update, a swarm of unanswered questions remains. In two attacks on 18 November 2012 that targeted the Dalu and Shawa family homes, killing at least 15 civilians, the update cites unspecified “efforts made to minimize the collateral damage to uninvolved civilians,” and says “that the operations staff had not foreseen that as a result of the attack, collateral damage would be caused to uninvolved civilians to the extent alleged.”

Clearly, the IDF did foresee some harm to civilians – it was targeting houses in densely populated civilian neighborhoods – but just not “to the extent alleged.” But apart from using “precision weapons,” i.e. bombs and missiles that could actually hit the houses being targeted, what measures were actually taken to ensure compliance with the principles of precaution and proportionality, if any?

Investigating intention

Not all laws-of-war violations are war crimes that may entail individual criminal responsibility – only those that fulfill the mental element required for international criminal law violations. Other violations of the laws of armed conflict result in state responsibility under international law, invoking the duty to ensure cessation of the violation and provide reparations to victims and their families.

The update implies that if an attack’s harmful consequences are a mistake, they could not possibly amount to the required mental element for the commission of the crime (mens rea). However, under international law, and many domestic criminal laws, recklessness (also known as action without due regard to the expected consequences) is also a form of criminal intent (although the ICC does not explicitly reference “indirect intention”, it is widely seen as being more restrictive than international customary law and national courts).

By noting that in some cases civilians were “mistakenly identified” as legitimate targets, the MAG effectively implies that some operations entailed some laws-of-war violations, albeit through error and miscalculation, without explaining the basis for the absence of the intention required for the commission of an international crime. In order to establish such intention, however, a proper and impartial investigation of the incident is required.

Thus, paradoxically, according to the army’s procedures, an investigation that would provide credibly verifiable information regarding the intention of those who undertook certain attacks is not possible unless the facts demonstrating that intention are established, but neither is a ‘criminal’ investigation, to which the former is a precondition. Take the cases of civilians whom the military’s update admits were “mistakenly identified” as legitimate targets. There is a possibility that in these cases, the required element of intent could be established. To do so would require a thorough and impartial investigation into each incident, which an operational debriefing manifestly is not.

In fact, the government’s own Turkel Commission, discussing the circumstances in which a duty to investigate violations of international law arises, favors a thorough investigation into exceptional and unexpected events, including unanticipated civilian casualties, even if these do not not give rise to a reasonable suspicion of a war crime.

Exonerating allegations

States are neither expected, nor obliged to investigate all violations of the laws of armed conflict; such a demand would be as unrealistic as much as its results would be counter-intuitive. That said, some of the most respectable (as well as conservative) scholars and military officials, including Professor Michael Schmitt, have noted, based on a survey of the practice of Western states in the investigation of laws-of-war violations, “an allegation of […] a war crime” activates a state’s duty to investigate.

Insofar as Operation Pillar of Defense is concerned, substantial allegations of violations of the laws of armed conflict that may amount to war crimes are on record. In particular, the 18 aerial strikes documented by Human Rights Watch included cases of the targeting of innocent civilians in remote areas nowhere in the vicinity of fighting with high-precision guided missiles. In light of such documented evidence, the MAG update’s assessment is haphazard, opaque and inadequate.

In fact, the April 11 update is an unfortunate affirmation of Israel’s deficient institutional and legal practice, with the result of virtual impunity for its military and political officials. More than four years after Israel’s Operation Cast Lead in the Gaza Strip in 2008/9 – with its 100:1 Palestinian-to-Israeli casualty ratio, firing of heavy artillery shells into urban areas, razing of entire neighborhoods, denial of access of medical crews to gravely injured women and children, and use of Palestinians as human shields – Israel’s investigations have resulted only in four indictments of Israeli military officials, one for credit card theft. The investigations did not address the involvement of policy-makers, including political officials, and the indictments did not include mention of violations of international law rules, according to the UN’s Independent Experts Committee. 

A closed circuit of impunity 

Israel’s system of military investigation has created a closed circuit of impunity. By using the failure to conduct a real investigation to avoid its responsibility to establish whether the wrongdoing that had occurred was intentional, the MAG has sought to exonerate the military for both potential laws-of-war violations and an inadequate investigation into those allegations, as a violation of international law in its own right.

The standard for Israel’s laws-of-war investigations needs to be based on sound logic; one that avoids the tautology whereby without investigation there is no evidence, and without evidence there is no investigation. 

The absence of practice and legislation equivalent to international law, coupled with Israel’s long-standing deficient practice in investigating laws-of-war violations, begs the question about what Israel is capable of ‘willing’ in terms of accountability before international law, as the present author has argued elsewhere. In light of this uncertain conclusion, the role of international bodies, such as the International Criminal Court (ICC), in bringing Israeli institutions to improve this standard, should be queried.

Alongside efforts to operationalize domestic universal jurisdiction laws, the exemplary instance presented by the recent investigations ‘update’ should also bear on Israel’s engagements with third states, including the European Union (EU). Put bluntly, the EU cannot rely on Israel to properly apply certain criteria of legality, which the EU depends on to effectively implement its own internal law and respect its obligations under international law.