IDF likely wrapping up Gaza border crisis probes - exclusive

There were 14 criminal probes, 2 convictions

IDF tanks along the Gaza border  (photo credit: REUTERS)
IDF tanks along the Gaza border
(photo credit: REUTERS)
With the IDF Spokesman's Office telling The Jerusalem Post that, to date, 14 criminal investigations and two convictions resulted from the killings of more than 200 Palestinians during the 2018 Gaza border crisis, the IDF is likely close to wrapping up its probes, the Post estimates. 
The IDF Spokesperson provided the most updated statistics on the probes from the 2018 conflict, which have received special attention from the International Criminal Court and the UN Human Rights Commission.
In fact, the ICC Prosecution issued special statements in May 2018 in real time with the ongoing conflict, seeming to threaten Israel for potential war-crimes allegations.
The conflict was so broad and there were so many deaths and casualties on the Palestinian side that human-rights groups brought petitions to Israel’s High Court of Justice, seeking to declare the IDF’s rules of engagement illegal.
While the High Court eventually rejected the petitions, this was only after the IDF brought a major-general directing operations, its international law division chief and others to testify directly to the justices about the open-fire rules.
“Cases of deaths of Palestinians during the confrontation with public disorder and terrorist attacks that took place on the Gaza border since March 30, 2018, were probed by commanders and by the Fact-Finding Assessment (FFA) mechanism,” the IDF Spokesperson’s Unit told the Post.
From the FFA, certain cases proceeded on to the IDF military advocate-general for full criminal probes, while others were closed.
The FFA is a special mechanism that was established during and after the 2014 Gaza War based on recommendations by quasi-independent government commissions chaired by former Supreme Court justice Jacob Turkel and former Foreign Ministry legal adviser Joseph Ciechanover.
It is designed to strike a balance between quick handling of a larger volume of cases than IDF police and lawyers are used to dealing with to vet files to find the more serious ones, as well as still having experts substantively delve into the cases.
Critics say the FFA gives operations officers too much leeway in controlling a probe’s narrative before it gets to lawyers. But most foreign militaries have complimented Israel for creatively addressing a difficult issue.
While a statement by the IDF left open the possibility of additional decisions in the future, with between two to three years having passed since the events in dispute, the chances of additional indictments clearly appeared remote.
The probes of killings that took place during a widespread and dynamic conflict involving sometimes thousands of people at several different locations were highly complex, a senior official said.
In addition, there were special challenges since significant aspects of the evidence were in Gaza, Hamas’s territory, the source said.
Furthermore, many Palestinian victims and their families did not hand over all evidence or fully cooperate with investigations.
Supporters of Israel will likely applaud the IDF for 14 criminal probes and two jail sentences of its own soldiers for firing on Gazan Palestinians in tense operational situations.
Critics, including B’Tselem, which released a report on Monday, have dismissed IDF probes as insufficient or a whitewash.
The two convictions came on June 15, 2020, and October 28, 2019.
The 2019 conviction was for the killing of Palestinian Otman Halas, 16, on July 13, 2018.
Halas was climbing the border fence, which is illegal. But he was not considered an immediate danger, and the IDF officer in charge did not authorize firing on him.
This meant that the soldier who fired at him did so against the rules of engagement. He was convicted in a plea bargain and sentenced to 30 days in a military prison.
Questioned about why the sentence was so lenient for the death of a Palestinian, a senior official indicated that there had been evidentiary problems in making a firm linkage between the particular soldier shooting and the specific killed Palestinian.
The 2020 conviction was for the killing of an unnamed Palestinian on November 14, 2018.
The soldier was convicted in a plea bargain for exceeding his authority to the point of endangering a person’s life and negligently causing a wound. He was sentenced to 45 days in a military prison.
An IDF investigation found that the Palestinian was killed when he and two others approached the border fence but then moved farther away.
Although the rules of engagement permitted firing at the knees of Palestinians approaching the border fence within certain proximity, the same rules prohibited firing if those Palestinians had started to move away.
The soldier’s violation was that he fired on the Palestinian after he was already starting to move backward and without authorization from his commanders.
Part of the difficulty in linking the specific soldier’s illegal firing to killing the Palestinian was that the Palestinian side neither provided medical documents nor was an autopsy performed to determine the cause of death, a senior official said.
No specific updates were given regarding the IDF’s criminal investigations of the circumstances surrounding the death of Abad Al Nabi and three other Palestinians on March 30, 2018, the death of three Palestinians east of Jabalya on April 20, 2018, the deaths of two Palestinians east of El-Bureij on May 15, 2018, and the death of paramedic Razan Alnajar on June 1, 2018. But the impression was that no additional indictments would be issued.
Alnajar was a significant case both because she was a medic and because the FFA had recommended no criminal investigation. Military Advocate-General Maj.-Gen. Sharon Afek overruled that recommendation and ordered a full probe.
In addition, there was a public-relations controversy between the IDF and critics about whether Alnajar had remained as an entirely innocent paramedic or purposely put herself at risk.
There has also never been any public announcement regarding the April 6, 2018, killing of journalist Yaser Murtaja.
However, the Meir Amit Intelligence and Terrorism Information Center issued a report indicating that Murtaja wore “two hats,” one as a journalist and one as being associated with terrorist groups, which means the FFA of his killing probably did not lead to a full criminal probe.
UNHRC reports have supported the narrative that the vast majority of Palestinians confronting the IDF had been peaceful protesters, which would make soldiers’ use of deadly force a war crime.
The IDF had said the protests were a mix of violent and nonviolent protesters, with most of the protests organized by Hamas and a large volume of the Palestinian deaths being Hamas operatives.
There was also disagreement between the IDF and the UNHRC about the identity of the killed Palestinians.
The UNHRC identified only a small percentage with Hamas, while the IDF and the Meir Amit Center said up to 80% of those killed, especially on days when there were many protesters and rioters, were affiliated with Hamas or other armed groups.