A series of events have converged to impact the future of IDF investigations and International Criminal Court preliminary probes into alleged war crimes during last summer’s Gaza war.
But before getting into those events, the playing field must be set.
Weeks after the July-August war, the IDF came out with rapid decisions on opening eight criminal investigations, and soon after, in December, it announced five additional investigations.
This was about as fast as a military had responded to a war as long and with as many incidents as last summer’s.
But since then things have been quiet, and as the six-month mark since the fighting closes in, the preliminary probes (designed to determine whether to open criminal investigations) into at least two of the most serious, and globally viewed by many as infamous, incidents, have not been completed.
This, despite the ICC prosecutor’s decision six weeks ago to open a preliminary probe into the IDF’s conduct and an anticipated harshly negative report from the UN on the issue due on March 23.
Two major recent personnel changes likely have or will delay decisions on the most complex and serious incidents even more.
Lt.-Gen. (res.) Benny Gantz was replaced as IDF Chief-of-Staff by Lt.-Gen. Gadi Eisenkot on Monday, and in early February Maj.-Gen. (res.) Noam Tivon, who had headed a large fact-finding apparatus designed to move initial investigations forward faster, retired.
The IDF would likely say that with a large, multidisciplinary and professional staff in place performing initial investigations, Tivon stepping down should not have a major impact.
It would also likely point out that Gantz had no direct involvement in the investigations, which were put under Tivon and the legal division’s control. Even though Tivon has been replaced by Maj.-Gen. (res.) Yitzhak Eitan, he is new in the post, and even if Gantz and Eisenkot are not formally involved in the probes, some bureaucracy is going too slow simply because of the nature of such a major turnover.
This means Israel will likely be hit with the March UN report before having had the chance to announce its initial findings on some of its most vulnerable points.
Some observers on the pro-Israel side have said this delay could undermine some of the slack it may have won globally by its initial quick decisions, and even break with some of the quasi-government Turkel Commission recommendations which said initial investigatory decisions should be made within weeks.
The IDF might say that making decisions within weeks might only have applied to the large number of isolated occurrences, but not to ones like the August 1 Hannibal Protocol incident in which dozens or even hundreds of operational attacks were ordered in a short period in an effort to stymie the kidnapping of Lt. Hadar Goldin.
In the shadow of possibly its greatest war crimes investigations challenge yet, and with all of these moving pieces, the IDF is currently hosting an unprecedented conference of top military legal officials and academics from around the globe.
Thirteen of the officials are the head of their military’s legal divisions, including the US, a wide range of European countries, Canada, NATO, Australia and India.
The conference is undoubtedly future-oriented, focused on improving all of the militaries’ handling of asymmetric adversaries like Hamas, who abuse the law of armed conflict.
But with the common problems these legal officials encounter, it is equally an opportunity for Israeli legal officials to feel out their counterparts on competing principles in borderline decisions they are struggling with regarding whether to order certain criminal investigations.
After all, whether the ICC prosecutor decides to validate or invalidate Israel’s self-investigations could be heavily impacted by legal officials in influential militaries and top academics abroad.
Another possible source of delay which has raised its head around half-a-dozen times since September, is disagreement between opposing camps within the IDF and the government about how seriously to consider a criminal investigation.
On one side are some of the IDF lawyers and the attorney-general, and on the other side are Defense Minister Moshe Ya’alon and IDF commanders involved in some of the incidents, such as Col. Ofer Winter in the Hannibal Protocol incident.
Most recently, there was even a media report which implied that the IDF was backtracking from confirmations that the Hannibal Protocol had been ordered on August 1.
It appears that this report was partially based on official briefings, but partially also based on selective interpretations and leaks by those opposed to a criminal investigation into the incident.
The delay could also be related to a number of other non-professional factors, such as anticipated changes that Eisenkot may make to the IDF high command and the national election which could lead to a new, and more or less supportive, defense minister.
Then again, the August 1 fight, which reportedly involved the IDF firing hundreds of rounds of artillery, juxtaposed with the more than 100 other incidents being reviewed, may just be taking longer to examine from a professional perspective than what benefits Israel diplomatically.
The IDF likely hopes to make decisions on the remaining incidents long before the one-year mark in August and, unstated, likely hopes to come away with some sympathy and understanding from the current military lawyer conference.
But the UN and the ICC are already in the game, and continued delays, professional-related or not, will likely not receive much understanding in those key arenas.