The army is at war with itself.
A bombshell has fallen within the ranks, turning military commanders and lawyers against each other on a possibly unprecedented level over whether the IDF legal division, the Office of the Military Advocate-General, should criminally investigate IDF commanders and soldiers over certain incidents from last summer’s Gaza war.
And though innumerable factors will decide whether the International Criminal Court initiates war crimes indictments against military personnel, the outcome of the internal IDF war may determine the country’s fate in what may be the largest battle for legitimacy Israel has ever faced.
The most debated incident in the war and the one which may go to the heart of how the world judge’s the validity of the IDF’s self-investigating apparatus was the August 1 “Black Friday” use of the controversial Hannibal Protocol to try to thwart the capture of Lt. Hadar Goldin, slain during the recent war.
The Hannibal Protocol is thought to involve massive use of infantry, artillery and air fire against a wide area in which the IDF believes the enemy is trying to make off with a captured soldier.
Allegations are that IDF fire killed anywhere from the mid-thirties to around 100 to as many as 150.
Mid-thirties would be based on reports of around 70 total dead and IDF estimates that around 50% of Palestinian dead in Gaza war were civilians, though there are also several unofficial reports that the IDF put the number at 40, but the IDF has not given an official number pending its preliminary investigation and decision on whether to fully criminally investigate. Around 100 would be 80% of the UN's 130 figure and 150 would be 80% of some NGOs 190 figure, with 80% being the highest estimated percentage of civilians estimated by some NGOs as killed in Gaza.
No one, neither Israel nor the UN nor the NGOs have given an official number of civilians killed out of the total dead to date.In retrospect, the internal war over whether the IDF would criminally investigate or indict those soldiers involved in the incident was on as early as late September when Givati Brigade commanders and soldiers, unusually, gave public interviews describing their actions.
Col. Ofer Winter, his deputies and the lower-ranked soldiers involved were saying loud and clear that they did their jobs and risked their lives as directed by the General Staff.
Implied was that the IDF legal division should lay off them, as they would not be sacrificial lambs for defending the state against delegitimization.
That warning shot was mild compared to Tuesday’s unauthorized release of classified recordings of the Givati Brigade’s operations to Yediot Aharonot
from Aug. 1 in real-time and the aggressive comments directly against the IDF legal division opening criminal investigations.
This time, the anonymous, but presumably Givati, commentators, even more explicitly said that they would not go down for army lawyers’ “Schabas tax.”
This is a reference to the idea that IDF lawyers need to criminally investigate a certain number of soldiers merely to satisfy international pressure (symbolized by the UN’s Schabas inquiry into the Gaza war) to explain the deaths of more than 2,000 Palestinians, of whom 50-80% were allegedly civilians.
The leak was so unusual that the IDF has announced a spin-off investigation into who leaked the classified recordings, regardless of the decision on whether to fully criminally investigate the Hannibal Protocol incident.
IDF Chief of Staff Lt.-Gen. Benny Gantz and Defense Minister Moshe Ya’alon took the unusual tack of publicly slamming the unauthorized leak, then walked a fine line between saying they fully supported the Givati fighters, while saying that the investigations must be completed without pressure.
Some contextualize the IDF commanders versus lawyers conflict within debates in past eras, such as during the first and second intifadas, about how many criminal investigations there should be for killing Palestinian civilians.
Others say this is a faulty contextualization since in other eras the issue had more to do with defining whether a peacetime or wartime legal framework applied, and that clearly a wartime framework applies to last summer’s war.The Jerusalem Post
consulted a wide range of views on the issue and there appear to be intensely strong and grounded views on both sides.
Those supporting the Givati commanders say that unless there were for sure war crimes, no investigation should be opened, as the act of opening an investigation will place a cloud over one of the IDF’s most crucial brigades and break the faith between soldiers on the battleground and those back at headquarters.
They say “kissing up” to Schabas, whom they call hopelessly biased due to his history of calling for war crimes cases against Prime Minister Binyamin Netanyahu even before he took over the UN inquiry, and his supporters is worthless.
They add that Israel waited out the UN’s Goldstone Report after the 2008-9 Gaza war (Operation Cast Lead) until it became old news and that it can do the same with Schabas.
The other side says that even if IDF soldiers will be acquitted eventually, opening up criminal investigations is crucial.
They note that opening investigations shows the ICC how serious Israel is and that, Schabas aside, opening the investigations could concretely shield these soldiers from ICC war crimes investigations.
At the end of the day, though, most feel that IDF legal division head Maj.- Gen. Danny Efroni will decide the issue, ignoring the now massive pressures, based on strict legal and case specific considerations.
Efroni even bucked the attorney-general in ordering an investigation of former IDF chief of staff Lt.-Gen. (res.) Gabi Ashkenazi in the Harpaz Affair and essentially threw down the gauntlet to those pressuring him in a little-reported speech only days before the recordings leaked.
Maybe the concern about where Efroni is going and willing to go is what led the leakers to release the recordings.