The IDF’s war crimes probes in the 2014 Gaza war are a thinly veiled attempt to appear to investigate while providing a whitewash mechanism to clear all the soldiers, commanders and politicians involved of wrongdoing, a B’Tselem report said on Tuesday.
Two years after the war ended, the human rights group has concluded that the only way justice will be done for what it estimates were 1,391 Palestinian civilians killed by the IDF during the war, will be if the International Criminal Court prosecutor intervenes.
One central claim of the report is that while the IDF’s five reports explaining which cases have been criminally investigated and the reasons for not issuing indictments could show a genuine push to review war crimes allegations if each case is looked at in isolation, the broader picture is problematic.
The report notes that in case after case where the IDF killed large and often double-digits numbers of Palestinian civilians
in attacks on residential buildings or other non-military areas, the IDF legal division decided there was no criminal case because the tragedies were not intentional, but due to mistakes.
IDF intelligence is blamed by the IDF legal division of having misestimated in good faith that civilians were combatants or estimating a residential building was uninhabited, when in fact civilians were still there.
In response, the IDF said B’Tselem has operated a long “campaign of delegitimizing the Israeli legal system in general, and in particular the military justice system,” and it questioned the organization’s “real motivation.”
The IDF said the report reveals “a complete lack of understanding of the reality of fighting in the Gaza Strip,” and ignores the fact that “the majority of air strikes carried out by the IDF during Operation Protective Edge” did not cause civilian casualties.
“The IDF is committed to the rule of law in all its operations, including combat operations, and investigations of allegations of violations of the law during operations.”
B’Tselem said that once a pattern of IDF intelligence failures develops in safeguarding civilians when striking residential areas that are supposed to be presumed as protected areas, the IDF cannot keep claiming its targeting failures as mistakes if it made no attempt to change.
“Therefore, it is unacceptable to allow the planners of these attacks to base their assessments of the anticipated harm to civilians on assumptions that were repeatedly proven unfounded, and debunked by their own actions or the actions of their colleagues – at a heavy death toll,” said the report.
It says that the IDF’s probes miss the boat, “doing no more than examining what they knew in practice, while entirely disregarding the question of what they [IDF commanders] should have known, including the obligation to learn from their own experience.”
B’Tselem asks rhetorically, “If the military’s technological and intelligence capabilities do not allow it to detect the presence of civilians and determine their identity and age, or discern how many stories there are in a building being targeted, to what extent can the information given to those responsible for other strikes during Operation Protective Edge be relied upon?”
The NGO is not alone in this approach.
In a recent posting on the influential Just Security blog, top ICC commentator Alex Whiting (along with Ryan Goodman) wrote that “where military forces follow targeting practices that repeatedly result in unjustified civilian casualties...
‘or is aware that it will occur in the ordinary course of events’ – could provide a hook for prosecution.”
While not addressing Israel specifically, he added, “The Office of the Prosecutor has indicated that it might argue that failing to correct a process that results in repeated unjustified civilian casualties could satisfy the intent requirement in the Statute.”
B’Tselem’s report concludes that the IDF legal division cannot properly probe its own soldiers either because the division has a conflict of interest in both approving attacks and then needing to probe the same attacks or because its interpretation of what goes beyond a mistake to being a war crime is unreasonably narrow.
Other points the report raises are numerous statements by the political echelon, including former defense minister Moshe Ya’alon, various IDF law enforcement officials and even opposition leader Isaac Herzog, which it says indicates that there is a bipartisan effort in Israel to shield soldiers from serious war crimes probes.
Further, despite all the information publicized by the IDF legal division, B’Tselem complains that out of 70 documented incidents in which residential buildings were attacked leading to killing at least three Palestinians (and a total of 606 Palestinians), the IDF has only produced information on 11 incidents.
In the past, the IDF has rejected such accusations on multiple grounds. It has accused NGOs of ignoring Hamas’s willful fighting from within civilian areas – making it nearly impossible to attack its operatives without civilians sometimes being harmed.
The IDF and supporters have also claimed that the civilian casualties were closer to 1,000 and that given the more than 6,000 attacks it carried out, if complaints were only filed in a few hundred cases and only a few dozen led to errors, that the percentage of errors was small, even if the volume of casualties was tragic.