IDF whitewashed probe of Gaza border clashes - B'Tselem

A report by B'Tselem and the Palestinian Center for Human Rights shows that IDF probes around Palestinian casualties may not be entirely accurate.

 The tunnels were not under empty fields, rather apartment buildings and homes. Pictured: Gaza City (photo credit: REUTERS)
The tunnels were not under empty fields, rather apartment buildings and homes. Pictured: Gaza City
(photo credit: REUTERS)

B’Tselem and the Palestinian Center for Human rights (PCHR) on Thursday published a report alleging that the IDF’s probes of Palestinian casualties in the 2018 Gaza border conflict were a “whitewash.”

Analyzing Israel’s investigations of the approximately 234 Palestinians killed during the Great March of Return protests from March 2018 until mid-2019, the NGOs said, “The report shows how Israel worked to whitewash the truth and protect the political and military officials responsible – instead of taking action against the individuals who devised and implemented the unlawful open-fire policy, which resulted in the killing of more than 200 Palestinians and the injury of some 8,000 others.”

The report said that, “Israel was quick to announce it is investigating the protests, primarily due to the proceedings underway at the International Criminal Court in the Hague.”

It noted that IDF Maj.-Gen. (res.) Noam Tibon, who headed the initial probes from the 2014 Gaza War had said that even if the military had clearly obeyed the law, investigations were needed in order to “protect our commanders… God forbid, the name of an officer or a soldier can end up at the International Court in The Hague,” but that this could be avoided if Israel self-investigates.

“The reason for the announcement lies with one of the ICC’s guiding principles – the principle of complementarity, which means the Court will assert jurisdiction only when the state in question is ‘unwilling or unable’ to carry out its own investigation. Once a state has investigated the incidents, the Court will not intervene,” stated the report.

Hamas leader Ismail Haniyeh joins the March of Return protesters along the Gaza border, 2019. (credit: PALESTINIAN MEDIA)
Hamas leader Ismail Haniyeh joins the March of Return protesters along the Gaza border, 2019. (credit: PALESTINIAN MEDIA)

However, B’Tselem and the PCHR said, “declaring an investigation is underway is not enough to stave off intervention by the ICC. The investigation must be effective, be directed at the higher-ranking officials responsible for devising and implementing the policy, and lead to action against them.”

In contrast, the report said that “Israel’s investigations in relation to the Gaza protests do not meet these requirements. They consist entirely of the military investigating itself and have not examined the unlawful open-fire policy regulations handed down to security forces or the policies implemented during the protests.”

“Instead, they focus exclusively on lower-ranking soldiers and on the question of whether they acted contrary to these illegal orders,” said the NGOs.

The IDF responded: “The attempt to describe the violent disturbances as civilian demonstrations is not reality and ignores Hamas’s active involvement in the events as well as from the explicit statements of its leaders regarding their purpose...

“The Supreme Court unanimously rejected the petitions filed after the start of the incidents against the legality of the IDF’s open-fire regulations in the face of the violent disturbances. These rules guided the IDF throughout its operational activities during the incidents...

“Contrary to popular belief, B’Tselem did not submit the report to the IDF for comment, and therefore we are unable to comment on the data presented in the report. “It should be noted that since the response to the Freedom of Information Law request was received, dozens of other incidents have been dealt with so that the data appearing in the report are also out of date.”

Likewise, the report said that it is problematic that the IDF allegedly ignores all injuries to Palestinians short of death.“The military arbitrarily decided to investigate only cases in which security forces had killed Palestinians, providing no explanation for this decision. The thousands of incidents in which Palestinians were injured – some so gravely they were left paralyzed or had to undergo amputations – were left uninvestigated,” according to the report.

The NGOs said that a total of 13,457 Palestinians were injured by the IDF: 8,079 of them wounded by live fire, 2,424 by rubber-coated metal bullets and 2,954 by tear gas canisters that hit them directly. Of the wounded, 155 suffered injuries resulting in amputation, added the report.

Next, the report acknowledges that the High Court of Justice itself did examine the legality of the open-fire regulations.Yet, the report said, “The justices dismissed the petitions and allowed the military to continue employing this policy. However, it did not uphold the regulations being implemented in the field – as these were never presented to the Court.”

“The Court only approved the regulations that the state claimed the military was following, ignoring the glaring disparity between the state’s claims and reality on the ground. By the time the petitions were heard, dozens of protesters had been killed and almost 2,000 injured,” according to the report.

B’Tselem and the PCHR said the state and the IDF misled the justices about what was happening in the field and added that the High Court somewhat knowingly looked the other way, not wanting to get into a debate about security issues relating to the Palestinians.

Addressing the issue in depth, the report said the reason the justices did not see the full classified version of the open-fire regulations, and received more of a public paraphrase, was disputed.

According to the NGOs, “The official argument was that the petitioners had not consented to the state presenting the regulations to the court ex parte [without the petitioners present due to the classified nature]. However, the petitioners made it clear” they were willing to leave the room for the justices to see the classified rules without an additional intelligence briefing about the circumstances.

The IDF’s position at the time was that the rules would not be meaningful without presenting the justices with the intelligence circumstances, while the petitioners were concerned that the intelligence briefing would include political spin.

In addition, the report noted that High Court President Esther Hayut admitted that “the category of ‘major rioter or major instigator’ cited by the state in its response ‘is not anchored in international law according to the authorities cited by the respondents,’ but hedged saying that a full exposure to the IDF classified intelligence and explanations could end up justifying the policy.

Essentially, the report said that both the High Court and all Israeli legal officials engage in a fiction of commanders and snipers showing restraint and only trying to prevent a disastrous breach in the Gaza border wall and mass murder of Israeli civilians 100 meters away.

The report details a Hamakor report this past May 25 when several snipers interviewed and confessed that they often had an broad definition for “major rioter or major instigator.”

In the report, one sniper identified as Eldar said, “People with ranks will… badger you, constantly look over your shoulder… saying to you… Are you firing? When are you going to fire? What, why aren’t you firing? Why aren’t you shooting already?.. So it affects you, starts pressuring you.Another, identified as Maayan, said, “When someone comes and tells me, ‘I need somebody now,’ then I’ll stop looking for the right person…  because I have to shoot somebody, but it could be that he didn’t really do anything. It could be that he was standing looking at the view, saying, wow, what a pretty sky.”

Treating these incidents as “mistakes” is incompatible with the reality the snipers described: regulations that give snipers incontestable, nearly limitless discretion and are, in any case, virtually impossible to implement.

In the report, the IDF is described, as of this past April, as having used its Fact-Finding Mechanism to probe 143 of the 234 cases of Palestinians killed by the IDF.

Of the 143 cases, 33 were criminally investigated by the IDF legal division along with three additional cases.Most of the results in the cases have not been publicized, though the IDF legal division has closed four cases and filed one indictment against the soldier who killed Otman Halas, aged 16, on July 13, 2018.

The soldier who killed Halas was convicted in a plea bargain deal and sentenced to 30 days in a military prison – an outcome that the NGOs said was glaringly overly-lenient.