Foreword
Operation "Protective Edge" in the Gaza Strip began on July 7, 2014, in response to increased rocket and mortar shell fire by terrorist organizations from the Gaza Strip towards the territory of the State of Israel. The operation lasted 50 days, during which the IDF soldiers and commanders fought valiantly, bravely and courageously, principally against the terrorist organizations Hamas and the Palestinian Islamic Jihad. The operation resulted in 74 fatal casualties on the Israeli side - 68 IDF soldiers, including two soldiers Lieutenant Hadar Goldin and Staff Sergeant Oron Shaul - who have not yet been returned to Israel, as well as five Israeli civilians and a foreign national; thousands of Israeli civilians and soldiers were injured. The terrorist organizations fired approximately 4,000 rockets into Israel from the Gaza Strip and attempted to infiltrate into Israel by sea and through tunnels, so as to carry out terrorist attacks.
According to figures released by the Ministry of Foreign Affairs, 2,125 Palestinians were killed in the Gaza Strip in the course of Operation "Protective Edge" (according to estimates of the Ministry of Foreign Affairs, at least 44% of the Palestinians killed were Hamas military operatives or operatives of other terrorist organizations in the Gaza Strip). According to data compiled by the Coordinator of Government Activities in the Territories, based on information received from Palestinian sources and international organizations, some 11,000 Palestinians were injured, and approximately 10,300 houses were destroyed and another 5,800 were damaged in a manner that makes them unsuited for habitation.
This audit report on IDF activity from the perspective of international law is the last report dealing with Operation "Protective Edge", having been preceded by three other audit reports that have already been published on the following matters: "Addressing the Threat of the Tunnels"; "Preparation for the Defense of the Home Front against Missiles and Rockets"; and "Decision-Making Processes in the Security Cabinet Before Operation 'Protective Edge'" and upon its commencement.
The State of Israel, since its establishment, has been forced into a continuous and tough battle against terrorism and against enemies that rise up against it. Nevertheless, the State of Israel is a Jewish and democratic state that is obligated to uphold the rule of law in taking the actions necessary to safeguard the security of the state and its residents. The waging of war by a law-abiding state against its enemies must be carried out only within the framework of the legal tools available to it. Article 1 of the Basic Law: The Military, recognizes the IDF as "the army of the State". According to the Law and Administration Ordinance, 5708 – 1948, the army is authorized to "take all necessary and legal actions for the defense of the State and for the attainment of its national security objectives" . Basic Law: The Government, recognizes the constitutionality of "military operations required for the purpose of defense of the State and public security" . The various security bodies, therefore, have been endowed with appropriate powers to ensure the security of the State and its residents. They have the legal authority, and sometimes the duty, to exercise powerful and lethal force for the common good and for the defense of the State. However, this authority must be executed reasonably and proportionally, as instructed by the Basic Law: Human Dignity and Liberty and the principles of International Humanitarian Law. It is incumbent upon the IDF to operate in a manner that strikes a balance between the various interests at stake and to exercise military force in an appropriate manner in order to achieve the security objective, and as expressed by Lord Diplock in his famous saying: "You must not use a steam hammer to crack a nut, if a nutcracker would do."
The security bodies, exercising their legal powers to protect the State, are therefore obligated to protect the basic human rights of people, of every person, including the basic rights of uninvolved civilians in the combat zone. Even in the harsh fighting against cruel terrorism and the enemies who rise up against us, the security forces must safeguard the values of democracy, primarily the rule of law and the defense of individual rights. Thus, the State of Israel is distinguished from its enemies and the murderous terrorist organizations that attack its residents. As noted by Supreme Court Justice Haim Cohen with good reason:
"In what way does the State's fighting differ from that of its enemies – in that it fights while preserving the rule of law, and they fight in violation of the law. The moral strength and substantive justness of the authorities' warfare depend entirely on the preservation of the laws of the State: were they to cede this strength and the justness at the base of the State's warfare, the authorities would be serving the enemies' goals. The weaponry of morality is no less important than any other weaponry, and perhaps superior to it – and you have no more effective moral weapon than the rule of law. It is of extreme importance that it be made known to all who must understand, that the rule of law in Israel will never surrender to its enemies."
The first Prime Minister, David Ben-Gurion, also expressed the importance of preserving the moral level of the Israel Defense Forces, saying that "the army relies not only on quantities, equipment, weapons, training. Although without them there is no army, these alone are not enough. The army's main weapon is its moral strength" . Indeed, maintaining legal and moral values during routine times and in times of emergency is an established foundation in the State of Israel's conception of security. The preservation of human dignity and the duty to act proportionately is also the basis of the "Spirit of the IDF", which is the IDF's moral identity card and the ethical code for soldiers of the IDF. The document states: "The IDF and its soldiers are obligated to preserve human dignity. Every person has intrinsic value that is independent of origin, religion, nationality, gender, status and position". The chapter concerning purity of arms states as follows:
"The soldier will use his weapon and his strength only to carry out the mission, and only to the extent required, and will preserve human dignity even in combat. The soldier will not use his weapon and his strength to harm non-combatants and captives, and will do everything in his power to prevent injury to their lives, persons, dignity and property."
If, we dare abandon our Jewish and democratic values, then our enemies will have the upper hand in the long run, for the preservation of the values of democracy, the rule of law and human rights is an essential component of Israel's national security and the shaping of its image. As Chief Justice (Ret.) Aharon Barak pointed out in one of his decisions, "The State of Israel is a state whose values are Jewish and democratic. We have established here a law-abiding state, that fulfills its national goals and the vision of generations, and does so with the recognition and realization of human rights in general and human dignity in particular, between these two there is harmony and compatibility, rather than conflict and discordance" . Indeed, the need for a balance between the protection of human rights and the protection of the state's security is expressed in the constant tension between the Biblical command "Take thee therefore good care of thine selves" and the statement "for in the image of God made He man".
It is important to emphasize that in the current international reality, the moral and legal obligation of the State of Israel's security bodies to respect human rights when exercising their legal powers for the defense of state security is an inseparable part of the demands of the military-political campaign and a significant component in realizing the military-political goals. Lawfare is currently an integral part of the combat of a democratic state, and success in this arena is no less important than success in the military arena, the political arena and the public perception arena . The modern asymmetric warfare challenges in densely populated areas against terrorist organizations embedded in the civilian population require the IDF and the other security forces to devote a considerable amount of effort to maintaining the principle of distinction, which states that only a military objective is a legitimate target for attack, and the principle of proportionality, according to which harm to uninvolved non-combatants must be proportionate to the expected military advantage as a result of the attack. In this context, the Supreme Court noted in one case:
"Indeed, it is a difficult task to protect the enemy's civilians, while the enemy is hiding amongst them, placing them in the line of fire and endangering their safety. The terrorist organizations do not comply with international law and do not meet its most basic requirements, and, inter alia, they deliberately blur the distinction between combatants and civilians. However, the difficulty created by the circumstances and by terrorist elements does not diminish from the IDF's duty to distinguish between them and Palestinian civilians not involved in hostilities, and to act in such a way that to the extent possible only the former will be harmed, while protecting the latter against unnecessary harm."
In a democratic state, the granting of extensive powers to security bodies, including the authority to exercise lethal force, requires the assumption of public responsibility by maintaining effective oversight, monitoring and control mechanisms, to ensure that the security forces act with the responsibility required of them and in accordance with the Jewish-democratic values of our country and the principles of international law.
In the State of Israel there are two independent, professional and objective constitutional mechanisms that have an important role in supervising the defense establishment and in curbing the power it exercises: the judiciary and the State Comptroller and Ombudsman. Article 2(b) of the Basic Law: The State Comptroller states: "The State Comptroller shall examine the legality of the activities, the integrity, the proper management, the efficiency, and the frugality of the inspected bodies, and every other matter which he may consider necessary". As I have mentioned on many occasions since I became State Comptroller and Ombudsman, I view the State Comptroller and Ombudsman as a body that protects human rights in the State of Israel. In my opinion, the institution of the State Audit and the Ombudsman have the obligation and the privilige to be key partners in the realization of constitutional democracy in the State of Israel. The State Comptroller and the Ombudsman must examine whether the activities of the audited bodies are carried out in accordance with human rights law in the broadest sense, and in the words of Prof. Aharon Barak :
"The State Comptroller – both in the role of the general auditor and as the ombudsman – must ensure that constitutional rights are respected. Indeed, the provisions of Article 2(b) of the Basic Law: The State Comptroller state: 'The State Comptroller shall examine the legality of the activities… of the inspected bodies'. This provision authorizes the State Comptroller to examine whether the executive branch adequately protects the constitutional rights of the individual against the state. In my opinion, this is not enough... It is proper... that the State Comptroller – both in his general capacities and as the ombudsman – view, as one of his duties, to be the human rights commissioner." (Emphasis in the original text).
In light of the above, I decided to conduct an audit of the decision-making processes in the military and political echelons during Operation "Protective edge", inter alia, from the perspective of international law, and to assess the IDF's examination and investigation mechanisms regarding allegations of violations of the Law of Armed Conflict.
In recent years, there has been significant development in the activities of investigation and prosecution mechanisms with universal jurisdiction, whose function is to enforce international criminal law, such as the International Criminal Court in The Hague. Israel's enemies seek to undermine its right to defend itself, by attempting to initiate legal proceedings in various countries around the world against senior officials of the Israeli political echelon and against IDF soldiers, claiming that they had committed war crimes and violated international humanitarian law. According to the principle of complementarity, the authority of an international jurisdiction will be exercised as a last resort when states are unwilling or unable to exercise their obligation to investigate and prosecute. Hence, effective mechanisms of oversight, investigation, supervision and control will serve to obviate any need for intervention of external courts or tribunals in the sovereign affairs of the State of Israel.
This audit report, which deals mainly with the observance of international law by the Israeli government and the IDF in the period before, during and after Operation "Protective Edge", is a direct result of my policy to emphasize to the audited bodies that the obligations of the State of Israel based on the Basic Law: Human Dignity and Liberty and on the principles of international law that bind the state, are not merely a noble ideal or a lofty goal; these are constitutional rights and international obligations that impose legal obligations on government bodies, including the IDF. In view of the complexity and sensitivity of the subject under review, I was assisted in the course of the audit by two renowned experts: (a) Professor Miguel Deutsch – an expert on civil and commercial law, serving as a full professor at Tel Aviv University, who has published numerous articles and books on private law. Professor Deutsch served as a member of the Turkel Commission , which examined, inter alia, the examination and investigation mechanisms regarding allegations of violations of the Law of Armed Conflict and has delivered a report on the subject to the government (hereinafter - the Turkel II Report); (b) Professor Michael Newton – a world-renowned expert on international humanitarian law from Vanderbilt University in the United States, who regularly serves as a special advisor on international law for various organizations and countries. Professor Newton was a representative of the US government in discussions on the wording of the definition of "war crimes" under the Statute of the International Criminal Court in The Hague and a representative of the US government to the UN Special Court in Sierra Leone. Professor Newton served in this audit as a special expert consultant to the State Comptroller on the subject of international humanitarian law.
This report examines: the actions of the IDF prior to Operation "Protective Edge" in regard to minimizing the possibility of injury to uninvolved civilians during combat; the wording of the "Hannibal Order" on the eve of Operation "Protective Edge" and in the course of the Operation; the conduct of the cabinet during Operation "Protective Edge" in light of international law; and the implementation of the recommendations contained in the Turkel II Report, particularly with regard to the work of the fact-finding assessment mechanism after the operation was concluded. The report reveals a number of flaws that require determined handling and proper allocation of resources by the Government of Israel and the IDF.
Regarding the IDF's preparations prior to Operation "Protective Edge", it was found that even though the IDF does conduct training courses in the field of international law, the IDF's instructions regarding these courses did not adequately address the need for the training of soldiers and commanders to include the rules of international humanitarian law that apply to military activity within a non-combatant civilian population. The instruction and training of soldiers and commanders in the field of the Law of Armed Conlict is – in an analogy from tort law – the "most effective preventer of damage." In other words, the more IDF soldiers and commanders are aware of what is required of them under the principles of international law, and insofar as these requirements are incorporated regularly in the course of instruction and training – the lower the chances of the occurance of any violations of the Law of Armed Conflict. The Supreme Court rightly held that "military activity in accordance with the humanitarian rules of international law requires these two things: first, memorizing the rules of conduct and internalizing them in all combat units, from the Chief of Staff to privates...; secondly, the creation of institutional tools that will enable the application of the rules and their implementation in practice in times of war".
With regard to the "Hannibal Order", the audit found that even though the General Staff's Employing Fire-Power Policy Order , which was in force at the time of Operation "Protective Edge", requires action in accordance with the principles of international law, the principles of distinction and proportionality were not explicitly mentioned in the "Hannibal Order". It was further found that the Command and divisional "Hannibal Orders" could have been interpreted in two ways with respect to the terms that describe the value of an abducted person's life, and this could have led to different interpretations of the orders by different components in the IDF. I wish to favorably note the steps taken by Lieutenant General Gadi Eisenkot, who ordered the revoking of the "Hannibal Order" in June 2016, following the audit whose findings are noted in this report. In formulating the new order that regulates the operational orders to prevent the abduction of a soldier or a civilian and to thwart such abduction after the incident occurred, the principles set out in the IDF's Employing Fire-Power Policy should be implemented, in order to emphasize to the forces operating in the field the proportionality required in the use of fire to prevent an abduction.
The Turkel II Report included very important recommendations for improving the work of the examination and investigation mechanisms of complaints and allegations of violations of the Law of Armed Conflict. It should be emphasized that the work of the Turkel Commission has received international attention, and the professional report it submitted is highly regarded by the international community and hence the great weight that must be given to the Commission's recommendations. The Government decided to appoint the "Ciechanover Team" for the "examination and implementation of the Turkel II Report" (hereinafter - the Implementation Team), in order to examine the need for various adjustments and improvements in the recommendations of the Turkel Commission and to propose concrete ways for their implementation. The audit found that the various authorities, headed by the Ministry of Justice and the IDF, had taken steps, some of them significant, to implement the recommendations of the Turkel Commission, even before the completion of the work of the Implementation Team. However, it was found that at the time of the conclusion of the audit, there were other areas that required resolute action, and that in some areas proper allocation of resources is required in order to quickly implement the recommendations of the Turkel Commission and the Implementation Team. I shall further note that the audit examined the differences between the recommendations of the Implementation Team and the recommendations included in the Turkel II Report concerning the Ministry of Justice, the Attorney General and the IDF. In my opinion, any significant deviation from the recommendations of the Turkel Commission may be perceived by the international community as a deviation on the part of the State of Israel from the recommendations of a professional committee it itself appointed, with all the implications thereof. In any event, once the government has adopted a decision on the matter, all relevant parties must act as soon as possible to implement the Implementation Team's report, to improve compliance of the state and the army, among others, with their duty to act in accordance with the rules of International Humanitarian Law in times of combat and self-defense.
The recommendation of the Turkel Commission regarding the establishment of the fact-finding assessment mechanism (Recommendation No. 5) noted that in order to determine whether an investigation should be initiated, a factual assessment is sometimes required, the main purpose of which is to gather enough information regarding the incident to decide whether to launch an investigation. The audit team thoroughly examined the work of the fact-finding assessment mechanism, both on the normative level and on the level of the actual functioning of the mechanism. It was found that integrating the activity of the fact-finding assessment mechanism in the same directive and in the same organizational framework regulating the "General Staff debriefing mechanism" is not fully consistent with the recommendation of the Turkel Commission to establish a "separate mechanism for conducting the fact-finding assessment". The IDF should establish a fact-finding assessment mechanism separate from the other operational debriefing mechanisms, in order to prevent the possibility of diverting the mechanism from its function – to conduct a fact-finding assessment - to carrying out General Staff operational debriefings. In addition, the mechanism should operate under the exclusive professional guidance of the Military Advocate General (hereinafter- the MAG), and time should be allocated for the purpose of carrying out the fact-finding assessment, in accordance with the recommendations of the Turkel Commission, in order to prevent delay in the adoption of a decision to initiate a criminal investigation in cases where there is a suspicion of a criminal offense. However, in our opinion, the carrying out of a fact-finding assessment by means of the fact-finding assessment mechanism in the existing format – that is subject to the Chief of Staff and operating separately from the chain of command, in combination with experts from various fields, while maintaining the independence of its operations, and in combination with the independent discretion of the MAG regarding the decision on whether to launch a criminal investigation – is consistent with the provisions of international law.
Regarding the actual operation of the mechanism during and after Operation "Protective Edge", flaws were found concerning the efficiency and speed of the Mechanism's work, both with respect to the collection of the findings and the documentation of the information collected. However, the audit revealed that the Mechanism did its work in good faith and out of a sincere desire to conduct a thorough and complete fact-finding assessment and to arrive at the truth. Moreover, the audit found that the MAG acted to prevent material damage to the factual foundation on which he made his enforcement decisions, and as a result he eventually had sufficient factual basis to decide whether or not to open an investigation. I wish to note the decisive actions taken in the course of the audit's work by the Deputy Attorney General (International Law) and by the MAG and his team, in order to correct the flaws included in the draft report.
The audit also examined the Cabinet's decision-making processes during the operation, inter alia with respect to aspects of international law. I wish to note favorably that from the minutes of the Cabinet discussions that took place from the time the decision was made to launch Operation "Protective Edge" and until its conclusion, as well as from the statements made by the cabinet ministers at the time and other senior officials, the significant weight given to the rules of international law in the IDF activity in Gaza is evident; evident as well were the ongoing legal support of all Cabinet discussions during the operation and the mobilization for assistance to the civilian population in the Gaza Strip during combat. In providing their instructions at the cabinet meetings, both the political echelon and the military echelon were careful to take steps to prevent potential violations of the provisions of international law.
Naturally, some of the topics examined in the audit are classified for reasons of protection of state security. Therefore, the subcommittee of the Knesset State Control Committee decided not to table at the Knesset nor to publish some of the data included in this report in order to protect state security, in accordance with Article 17 of the State Comptroller Law, 5718 – 1958 [Consolidated Version]. However, I wish to note that the confidentiality of the data does not prevent comprehension of the nature of the audit and the publication of the flaws that were found. All the relevant parties cooperated fully in the confidentiality process in order to publish the vast majority of the findings and conclusions of the audit, with a clear understanding, as per the famous statement made by Justice Louis Brandeis, that "sunlight is the best disinfectant". Furthermore, in my opinion, this report can assist other democratic countries that face similar challenges of balancing the protection of individual rights with the protection of national security, and therefore we are also publishing this report in English.
The modern battlefield poses many operational challenges to the armies of democratic countries, including the presence of uninvolved civilians in the combat zone. The principles of Israeli law, first and foremost the Basic Law: Human Dignity and Liberty, as well as the Law of Armed Confluct, require sensitivity to the enemy's civilians that are uninvolved in the hostilities, while carrying out resolute military actions against the enemy. As Supreme Court Chief Justice Aharon Barak noted in one of his cases :
"Such is the fate of democracy, that not all means are acceptable in its eyes, and not all the methods taken by its enemies are open to it. Democracy often fights with one of its hands tied behind its back. Despite this, democracy has the upper hand, as the preservation of the rule of law and the recognition of individual freedoms are an important component of its security outlook. At the end of the day, they strengthen its spirit and power and enable it to overcome its difficulties."
The State of Israel has invested and continues to invest great effort, including the investment of considerable resources and the assumption of risks, so that its actions are consistent with the principles of International Humanitarian Law, and to ensure that those who violate these principles will be held accountable. At the same time, as indicated in this audit report, there are flaws in various areas, and there is still room for improvement. I am certain that the correction of the flaws and the implementation of the recommendations presented in the report – actions that the audited bodies have already begun – will help the State of Israel achieve its ideal goals, especially with regard to the examination and investigation mechanisms. It should be emphasized that correcting the flaws will also greatly help to improve Israel's preparedness to cope with the challenges of the international legal arena. As stated above, the government and the heads of the defense establishment must instill among all the relevant parties the understanding that the legal combat arena is now an integral part of the State of Israel's battlefields against its enemies, and the government and the IDF should prepare themselves well for confrontations in this arena in the same way as the State prepares for confrontations in other areas of combat.
Yosef Haim Shapira, Judge (ret.)
The State Comptroller and Ombudsman
Jerusalem, March 2018