September 29, 2016
Earlier this month, former Israel Defence Forces (IDF) deputy chief of staff Uzi Dayan testified in defence of an Israeli soldier (Sgt. Elor Azaria) who was captured on film summarily executing a Palestinian man in Hebron who posed no threat. Dayan protested that, in opening an investigation into the incident, the authorities had violated the accused’s “right to innocence”:
Azaria’s right to innocence was trampled on. My basic argument is that a fighter, even if he made a mistake and if he sinned, you don’t move it on to a criminal trial unless there’s good reason. A good reason – if the commission of inquiry finds that there was malice.
The Israeli human rights organisation B’Tselem recently published an important report on Israel’s military investigations of alleged violations during Operation Protective Edge, Whitewash Protocol: The so-called investigation of Operation Protective Edge. It finds that Israel’s “so-called” investigations into Protective Edge amount to a “whitewash mechanism,” as Israel “continues to devote most of its efforts to creating a façade and nothing more”:
There was no accountability after Operation Cast Lead, only whitewashing. Now, after Operation Protective Edge, there is no accountability either, only whitewashing. This is not a theoretical legal issue: we are talking about human lives, and the toll might, heaven forbid, mount even higher.
Importantly, B’Tselem concludes that “it is highly doubtful” that Israel’s sham investigations will suffice to prevent the International Criminal Court from stepping in should it find that it has jurisdiction.
B’Tselem quotes a number of senior Israeli military and political officials effectively affirming along with Dayan Israeli soldiers’ “right to innocence,” and explaining what this means in practice.
Moshe Ya’alon, defence minister during Protective Edge, expounded his legal philosophy in near identical terms (“malice”) to Dayan:
If it’s an operational question of flanking or opening fire – [there has to be] a command level inquiry, not an MPIO investigation. This is backing one’s subordinates, because looking at these incidents through the eyes of the command is important. If there’s no . . . concern over malice, or anything that has a criminal aspect, there is no reason whatsoever to take the operational experience into a criminal investigation instead of an operational inquiry.
Col. Ehud Ben Eliezer, chief military prosecutor at the end of Operation Protective Edge, agrees:
We send people to fight, and I’m going to bring them in for investigation only when it is truly justified. If the circumstances indicate a sharp deviation from the expected norms, or from the orders – then yes, there will be certain cases, which must be chosen carefully, that will get a criminal investigation.
In other words, Sgt. Azaria should not be disciplined for carrying out a summary execution because summary executions are in line with IDF norms and practice; similarly, soldiers should not be investigated for laying waste Gaza’s civilian infrastructure because, as B’Tselem has documented, this was Israel’s “policy”:
[E]ven now, two years after the fact, there has been no investigation of policy issues, including the policy of targeting inhabited homes, which resulted in the Israeli military killing hundreds of people; the policy of indiscriminate artillery fire at inhabited areas; and the policy of destroying farmland and thousands of homes. . . . Israel has decided to investigate only “exceptional” cases and entirely ignores the responsibility carried by the political leadership and the senior military command for determining policies and directives.
Then-Justice Minister Tzipi Livni, a reputed dove much beloved by groups like J Street, assured soldiers and officials after Protective Edge that their “right to innocence” would be defended:
When the fire stops, the legal fire directed at Israel, its leaders, its soldiers and its commanders will begin. I, as minister of Justice, intend to stand at the frontlines in this battle, together with the Attorney General, the State Attorney and the MAG, as well as the State Comptroller, and we will give each soldier and each commander in the IDF a legal bulletproof vest.
Meanwhile, Brig. Gen. Golan Maimon, Israel’s chief military police officer, elaborated on the military legal system’s approaching to fact-finding:
We don’t use the same tools in the investigations of Operation Protective Edge cases as we use in the case of criminals or serious criminal incidents. They are completely different tools. . . . Our pursuit of the truth is done with great sensitivity and a very clear recognition that these are soldiers in the Israel Defense Forces.
Truth cannot be permitted to infringe Israelis’ “right to innocence.” Some months after Protective Edge, Maimon explained what this “sensitivity” in truth-gathering means in practice:
I have the tools and the professional personnel to know how to select [which cases to pursue], and the fact is, that of all the Operation Protective Edge investigations, only one suspect was arrested: a suspect looter.
Indeed, only one investigation into Israeli soldiers’ conduct during Protective Edge – in the course of which 2,200 Palestinians were killed, including 550 children, while fully 18,000 homes were severely damaged or destroyed – resulted in indictments; all related to an incident in which the equivalent of $620 was looted from a home in Shuja’iyeh.
The Shuja’iyeh neighbourhood, one of the most densely populated in Gaza, was the target of saturation bombing during Protective Edge. It was systematically levelled.