Analysis: The first legal strike

Primary critique of IDF investigations has been they do not meet international standards of prompt investigation.

September 11, 2014 07:30
2 minute read.
israeli apc

Israeli armored personnel carrier (APC) near the border with the Gaza Strip.. (photo credit: REUTERS)


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Until Wednesday, on any legal controversies related to the recent Gaza war, the IDF and the state were either taking a beating, or were mostly reacting tactically to reports on individual incidents of war crimes allegations against the military.

Wednesday, however, marked round one of the IDF’s first strike to reset the legal playing field on the issue.

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Opening only five criminal investigations, and closing just seven cases, is not necessarily hugely impressive.

But doing it only two weeks after the Gaza war ended and giving updated information and perspective on how the other 99 initial probes under way are functioning, is record time for the IDF and likely for many other militaries.

In the bigger picture, what appears to be a quicker pace in decision-making could undercut international attempts to bring Israeli soldiers before the International Criminal Court.

The reason is that the ICC can only investigate war crimes allegations in the case of a state that is not performing its own investigations.

While there are many, one of the primary critiques of IDF investigations until now has been that they moved so slowly that they did not meet international standards of a prompt investigation.


Though the IDF always responded that there is no concrete international law definition of what prompt means, the quasi-governmental Turkel Commission Second Report, which reviewed whether the IDF’s investigative apparatus met international standards, said that even though the IDF met international standards, it should significantly improve the speed of its decisions.

If the IDF did not comply (with the non-legally binding) Turkel recommendations for improvement, it would have provided ammunition for critics to demand an ICC investigation – though there are plenty of other obstacles to that.

None of this remotely signifies that the IDF is out of the legal danger zone.

This is only round one, and there are 99 initial probes that need to be decided on in weeks or months, as opposed to some that have taken years in the past.

One case the IDF closed, involved hitting a civilian house, with hotly disputed issues regarding what is considered sufficient warning for a civilian target – so some critics will already be up in arms with the IDF’s decisions.

And some of the most controversial decisions, alleged attacks on hospitals, mosques, “the Hannibal Procedure” – attacks to recover a soldier believed kidnapped, and the volume of casualties in Shejaia will bring heavy criticism.

But for round one at least, the IDF has surprised many with the speed of the decisions on its initial legal reviews.

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