Investigating the Gaza Operation

09/03/2011

 

101 with the Deputy Military Advocate for Operational Affairs

 

Interviewer: LT Anat Sapozhnikov, Internet, Public Affairs and Information Section, IDF MAG Corps

 

When Major Dorit Tuval chose to join the IDF Academic Reserve ("Atuda") and attend law school, she did not imagine the extent to which this would involve her in a fascinating military and legal career at the IDF Military Advocate General's Corps (MAG Corps), touching on central issues of national and international interest.

 


Over the past decade, Major Tuval has served in various MAG Corps positions both in and outside of the courtroom. For the past year and a half, however, Major Tuval has been serving as Deputy Military Advocate for Operational Affairs responsible for overseeing all investigations and prosecutions of alleged operational misconduct by IDF personnel. This period coincided with an unprecedented wave of complaints alleging misconduct by IDF personnel during the Gaza Operation (27 December 2008 – 18 January 2009), as a result of which the IDF authorities have carried out and reviewed an equally unprecedented number of investigations, as well as prosecutions handled by the Office of the Military Advocate for Operational Affairs.

 


Recently, Major Tuval's role as a prosecutor in the "eye of the storm" and specifically her involvement in the prosecution of IDF soldiers for misconduct during the Gaza Operation, came into stark relief when demeaning and highly offensive remarks against her had been graffittied on the side of one of Tel Aviv's major intersections in response to an indictment filed against two Israeli soldiers for their actions during the Gaza Operation.

 


We asked Major Tuval to meet with us to share some of her experiences as a prosecutor at the forefront of Israel's investigative efforts in the aftermath of the Gaza Operation.

 

 
Interviewer: So tell me about the graffiti incident. That must have really been personally disturbing for you? How do incidents like this impact your work?

 

 


Major Tuval: I don't think anyone, no matter how senior or how experienced, can be completely immune from being impacted by public criticism, particularly when it takes such a disturbing form. But from day one in this job, I knew that the sorts of decisions we would be required to make would rarely, if ever, please everyone. Operational matters are nearly always complex and highly sensitive affairs. Each time we decide to prosecute or not to prosecute in a specific case, we've either angered a soldier, his family or those people who think it unfair to ask a soldier to endanger his life and then to take him to court for his actions, or the victim and his family who have suffered loss or trauma and demand justice, or those organizations and countries claiming that Israel isn't properly upholding the rule of law.

 


But ultimately, our decisions take place in a different realm and our professional duty is clear. At the end of the day, what really matters is that you are able to look at yourself in the mirror and know that you did your best to search for the truth, to uphold the law and to do justice. That is what our professional integrity demands both as officers of the law and as officers of the IDF. To some people looking from the side it may not always be immediately obvious why, but ultimately I think most people understand that it is first and foremost in the interest of the IDF as a whole that wrongdoers and offenders be exposed and, where appropriate, brought to justice. It's not only the IDF's reputation as a whole which is being tarnished by those individuals guilty of misconduct, but also its ability to operate properly as an institution committed to upholding the rule of law and the highest moral standards. It is this understanding which guides us and the reason I can safely say that my conscience is clear, no matter the criticism. It should also be remembered that when indictments are filed, it is ultimately for the court to determine guilt according to what can be proven in law.

 


In the specific incident you mention, I believe the graffiti was motivated by anger following an indictment which was filed against two soldiers, who in the course of carrying out a house search during the Gaza Operation compelled a young boy to open several bags and suitcases suspected of being rigged with explosives. Based on the findings of the investigation, we found substantial evidence that the soldiers had failed to comply with IDF orders prohibiting the use of civilians in carrying out military operations. Such cases go to the heart of the moral and professional ethics demanded of the IDF.

 

 
Interviewer: You mentioned the commitment to professional ethics and values, but some have said that the IDF was initially slow to react to allegations. In fact, some have said that it was only due to the Goldstone Report that the IDF started taking the allegations seriously.

 


Major Tuval: That is simply not true. As a matter of fact, many of the investigations relating to the Gaza Operation were launched long before the Goldstone Report was released. One should bear in mind, however, that it often takes time before information revealing alleged misconduct surfaces in the aftermath of a military operation. Sometimes the first time the authorities hear of a complaint leading to initiation of an investigation is when new allegations have come to light following publication of a report by one of the many active NGOs. Similarly, complaints by soldiers who witnessed an incident are sometimes filed only months after events have occurred. But I can tell you that we did not sit at our desks waiting for complaints to arrive. The MAG Corps has been extremely proactive from the start, not only in carefully evaluating every piece of evidence that has come to our attention, but also actively seeking information and evidence that could in any way have a bearing on our investigations or on opening new investigations.

 


Interviewer: But still, it is over two years after the Gaza Operation and it seems that the army is still a long way off from ending the investigations of alleged incidents relating to the Operation.

 


Major Tuval: It is true that a number of investigations are still ongoing. We should remember, though, that the Gaza Operation and the number of allegations which were made presented an unprecedented challenge to the military justice system. The number of alleged cases brought before the MAG Corps in relation to the Gaza Operation was extremely high, even in comparison to foreign military justice systems confronting allegations of misconduct in the course of military operations, and this was in addition to the regular work of the office of the Military Advocate for Operational Affairs which routinely handles all other incidents related to IDF operational activity, including operational activity in the West Bank and training accidents involving IDF personnel. To meet this challenge, a number of measures were taken to increase capacity. In this regard, significant additional human resources were allocated both to our office and to the Military Police Criminal Investigative Division (MPCID). This gave a real boost to the investigation process. Having said all that, the increase in capacity did not diminish the unique complexity that characterized many of these cases which related to alleged misconduct in the course of active hostilities.

 


Interviewer: In what way are these cases complicated? Isn't the office of the Military Advocate for Operational Affairs supposed to be specifically designed for dealing with such cases?

 


Major Tuval: Indeed we are, but such cases still share inherent difficulties that make investigating them particularly challenging. Take for example the fact that the Gaza Operation involved a large number of IDF forces operating at the same time inside the Gaza Strip. Ascertaining which forces might have been involved in an alleged incident is not an easy task, especially given that many of the complaints or allegations made were highly nonspecific (for example, a civilian who claims that she was shot at while crossing the street, but does not know from which direction or by whom). Also, the alleged incidents took place in areas which remain under enemy control, with no real possibility of examining the scene with forensic investigative tools. Local witnesses are also not always accessible or prepared to cooperate. Sometimes, important potential evidence may have been destroyed as a result of the hostilities.

 


Interviewer: Is it this complexity that you describe that accounts for the relatively small number of criminal indictments filed so far for unlawful behavior in the course of the Gaza Operation?

 


Major Tuval: This complexity is no doubt at least part of the explanation. It is coupled with the fact that, when it comes to the world of criminal law, only the evidence speaks. In order to file an indictment, I need to be convinced that there is sufficient evidence to prove that the accused committed the crime and to obtain a conviction according to criminal law standards. This decision is based solely on professional considerations. If the evidence at hand does not meet the threshold for filing a criminal case, the case will not hold up in a court of law. Therefore, we never ask ourselves whose word we prefer, that of an IDF soldier or of a Palestinian witness or victim; the question is always which version is more plausible, more reliable and more coherent, in light of other testimonies gathered and other sources of information.

 


It may be useful here to distinguish between three types of cases: In one group of cases, the investigation clearly reveals the facts of the case, but based on the evidence gathered we have concluded that the acts in question did not constitute a violation of Israeli law, IDF orders, or the Laws of Armed Conflict. For instance, when a military action resulted in the loss of civilian lives, but such loss of life, while tragic, was found to have been the result of a legitimate IDF attack on a military target, and the collateral damage expected was properly considered to be proportionate under the Laws of Armed Conflict with reference to the military advantage anticipated from attacking the military target. In a second group of cases, we again have a clear sense of the facts of the case, but unlike the first type of cases, our investigation has concluded that acts committed by IDF personnel constituted unjustified deviation from orders or unlawful misconduct. In such cases, disciplinary or criminal proceedings are taken against the relevant personnel, as appropriate. Finally, there is a third category, in which the investigation cannot reveal what exactly took place, despite all of our attempts to gather substantive evidence (indeed, in some cases we instruct the MPCID to conduct further investigatory steps in order to obtain all possible evidence). In such cases, where the basic facts of the case themselves remain unclear, we simply do not have the decisive evidence required by criminal law to proceed with the case.

 


Take, for example, the incident of the alleged shooting of four Palestinian civilians on 7 January 2009 in the neighborhood of Izbat Abd Rabbo. The MAG referred the case to a criminal investigation. The MPCID did not spare any efforts in investigating the case, collecting testimony from Palestinians who witnessed the events, reviewing medical reports and death certificates, examining aerial photographs, and questioning dozens of IDF commanders and soldiers. At the end of the day, however, the evidence at hand, when weighed in accordance with the common standards of criminal law, provided no grounds for any additional proceedings, particularly due to substantial discrepancies between the complaint and the findings of the investigation.

 


Interviewer: So does that mean that you have closed the case?

 


Major Tuval: Yes, at least for the time being. But in the event that new evidence or leads are revealed, we will pursue them without hesitation and renew the criminal investigation, if justified.

 


A relevant example is an investigation relating to allegations regarding the shooting of Majda and Rayya Hajaj while walking with a group of civilians carrying white flags in the village of Juhr ad-Dik on 4 January 2009. The MAG ordered a criminal investigation on the basis of a complaint filed by an Israeli NGO. At some point, however, although the investigation remained open, it had exhausted all possible avenues and could not go any further until subsequent information was brought to our attention that enabled further investigation. According to the new findings, it appeared that an IDF soldier discharged his firearm in a manner inconsistent with the orders given to him by his superior officer resulting in the death of a civilian. However, the investigators could not make a positive identification of the civilian killed. The MAG thus ordered the indictment of the soldier on the charge of manslaughter of an unknown civilian. Given that the case is still pending, I cannot elaborate further. But I will note that in light of the time and place of the incident, we have reason to believe that the case broadly corresponds to allegations made in the Goldstone Report regarding the deaths of Majda and Rayya Hajaj.

 


Interviewer: I assume that discrepancies between the versions provided by IDF soldiers and by Palestinian victims or witness are not uncommon. Does this mean that the probability for indictments to be filed in such cases is generally very low?

 


Major Tuval: I wouldn’t rush into making such general assertions. As I said before, in each and every case we are bound to apply the standards of criminal law and make a judgment. Indeed, we are often faced with incompatible or even conflicting testimonies with respect to the very same event. This is far from surprising. Any criminal lawyer will tell you how tricky and subjective human memory is. People may experience the same reality differently, and I believe that this is particularly true with respect to intense events like the ones that take place in a combat zone. This is not only due to subjective reasons. Persons involved in such events often see the relevant scene from different places (for example, a soldier looking through the sight of a tank and a civilian peeking through the window of her house). Discrepancies, therefore, exist not only between the testimonies of soldiers and civilians, but also among the testimonies of different soldiers who were involved in a particular incident, as well as among the testimonies of different civilians who claim to have witnessed a particular event.

 


An example where differences in the testimonies provided by different soldiers added to the difficulty in establishing the exact factual circumstances of an incident arose in relation to certain aspects of the case of the Abu Halima family. This investigation, which involved interviews with dozens of witnesses, included several incidents taking place on 4 January 2009, which were reported separately but were investigated together because of overlapping factual circumstances. The first allegation concerned the lethal shooting of artillery shells containing white phosphorus at a house in al-Atatra neighborhood belonging to the Abu Halima family. Indeed, the IDF employed munitions containing white phosphorous in the Gaza Operation in order to provide a "protective screen" for troop movements. As you may know, the use of such munitions is not, in and of itself, unlawful and was subject to a special command investigation subsequent to the Gaza Operation. In the Abu Halima family case, the MPCID investigators interviewed members of the family who were present at the house at the time of the alleged shelling. These witnesses also provided the investigators with medical records depicting the types of injuries sustained by them and by the deceased family members, as well as with photographs of the house itself. This evidence served as a basis for consultations with several technical experts, who were asked whether the evidence was consistent with the expected effects of white phosphorus. After a strenuous and detailed investigation, we reached the conclusion that it was unclear what ammunition had hit the house, and who had launched it. Furthermore, there was evidence from one of the Palestinian witnesses indicating that terrorists may have been operating in the area surrounding the Abu Halima house. It was therefore determined that there was no evidence providing a basis for further proceedings.

 


The other allegations in this case concerned close-range shooting of evacuating civilians, first by tractor and then on foot. The difficulty here was to locate and interview all of the IDF soldiers who were operating in that area at the relevant time and then cross-check all testimonies in order to get the big picture. Each group of soldiers described the events of that morning in a slightly different manner, and it is here where we see an example of difficulties created by different testimonies by IDF soldiers. But even if you assume, as we did, that they were all referring to the same two alleged incidents of shooting at evacuating civilians, we arrived at the conclusion that the soldiers acted lawfully in light of a perceived threat.

 


Interviewer: You mentioned cases where discrepancies exist among Palestinian witnesses themselves. Could you share with us an example in point?

 


Major Tuval: Take, for instance, the incident involving an alleged attack on the Abd al-Dayem condolence tents in Beit Hanoun on 5 January 2009. Referring to this incident, the Goldstone Report depicted a horrific scene, in which grieving family members were suddenly hit by a barrage of metallic arrows (known as flechette submunitions), resulting in the death of five persons and the injury of 17 others. The investigation of this incident was exceptionally difficult. The shooting was from a tank located some 1,500 meters from the place where the flechette submunition actually hit. However, all the members of the tank crew explicitly stated in their testimonies that they acted in response to a sighting of a "launch squad", which is a group of terrorist operatives preparing to fire a rocket at Israeli urban areas. Indeed, they reported this in real-time over the internal communication system while the event was occurring. But most importantly – one of the Palestinian witnesses who were interviewed in the course of this investigation confirmed that a launch squad was operating in that immediate area on that morning, and that it was involved in rocket launchings. Other Palestinian witnesses – the MPCID collected testimony from 18 of them – gave different versions. I already mentioned potential explanations that could account for these discrepancies. Another potential explanation, which was also generally acknowledged by the Goldstone Report, is that many of the Palestinian witnesses refrained from talking about Hamas actions during the Gaza Operation due to fear of reprisals.

 


In any event, in the said incident, after reviewing the findings of the investigations that looked into the incident, the MAG determined that the actions of the tank crew did not violate the Laws of Armed Conflict. The firing of the flechette shells was justified by military necessity – as I mentioned, it was directed against a military target in order to thwart an imminent threat to Israeli civilians – and it was not disproportionate. The members of the tank crew said that they employed all visual means at their disposal to identify the presence of any civilians, and that no civilians were identified in the immediate vicinity of the launch squad. Obviously, the tank crew had to act very quickly and in the midst of the "heat of battle" in order to prevent a rocket from being launched. But even if you assume, for the sake of the argument, that they could have acted more carefully, we still had no indication that collateral damage caused could have been expected in the circumstances. At the end of the day, this is what counts. This is how the Laws of Armed Conflict differentiate between war crimes and lawful operational conduct, while taking into account what is sometimes referred to as the "fog of war". Imposing a higher standard on ourselves would not only be impractical, it would be divorced from criminal law standards, and the court would not convict in such a case.

 


Having said that, even though our decision in the al-Dayem case was that no further proceedings were required, we did make a recommendation to the Chief Officer of the Armored Corps to revise the standing orders on the use of flechette munitions. Not many know this, but when we make a decision with respect to a particular case, including when we decide to close an investigation, we are empowered to make recommendations for the relevant IDF units in light of the investigation findings. We take this part of our work very seriously, because this is where we can help make sure that operational mistakes do not repeat themselves later. Our recommendation in the al-Dayem case was fully accepted and implemented, and I think that this is one of the most valuable "lessons learned" of the Gaza Operation.

 


As has been reported, there were of course a number of other "lessons learned" that came out of our investigations and resulted in changes to military orders intended to improve protection of civilians and civilian property on the battlefield.

 


Interviewer: Do you anticipate any further “lessons learned” coming out of investigations related to the Gaza Operation?

 


Major Tuval: It is perhaps too soon to tell, but I can note that we are currently in the process of reviewing the findings of a special command investigation which was recently completed, addressing the issue of treatment of Palestinian detainees held by IDF forces in the Gaza Strip during the Gaza Operation. This special command investigation, headed by a senior officer outside the chain of command during the Gaza Operation, did not examine specific allegations of mistreatment of detainees, which are investigated by the MPCID. Rather, it considered general allegations made in the aftermath of the operation, that IDF forces had held detainees in harsh and degrading conditions, such as in pits exposed to bad weather conditions, while handcuffed and with their eyes covered, without food or ability to relieve themselves. The investigation included interviews and conversations with commanders, military police and specially trained military questioners of the relevant units, from the highest Command levels down to Division and Brigade levels. The investigation report makes a series of recommendations on ways to improve IDF procedures for managing detainee-related issues in the future – including with respect to the conditions of detention, questioning of detainees and documentation of detention-related operations – with emphasis on detention of persons in the initial 24-hour stage of ground forces operations. We are currently examining whether besides these recommendations further criminal or disciplinary measures are necessary.

 


Interviewer: Before we finish, could you give us a snapshot of what’s currently keeping you busy at the office of the Military Advocate for Operational Affairs, besides the special command investigation just mentioned?

 


Major Tuval: As one might expect given the numbers of allegations made and investigations conducted, our hands are fairly full. In addition to the investigations that are still ongoing, five new MPCID investigations relating to the Gaza Operation have been initiated over the past few months, bringing the total number of criminal investigations to 52. In addition, we are in the process of trial proceedings in the case that I mentioned earlier in which an IDF soldier is charged with manslaughter of an anonymous civilian.

 


Interviewer: Judging by the experience with the case with which we opened this interview, where two IDF soldiers stood trial for compelling a boy to open several bags and suitcases suspected of being rigged with explosives, are we to expect another emotionally charged trial?

 


Major Tuval: You are right in saying that cases involving IDF operational activity draw more attention and emotional reaction than usual in other criminal cases, especially when IDF soldiers are accused of wrongdoing in the course of a military operation in which they risked their lives. The atmosphere surrounding the case that you mention was highly emotional, and when open hearings were held, the court-room was packed with relatives and friends of the defendants, some wearing T-shirts with the printing “We are victims of Goldstone”.

 


Interviewer: Do you think that this atmosphere contributed to the relatively lenient sentence imposed by the court – a three month suspended prison sentence and demotion of the soldiers to the rank of a sergeant – which attracted harsh criticism from some quarters?

 


Major Tuval: I think we should be cautious in hypothesizing about the rationale underlying sentencing decisions. In this case, the court was very clear about the reasons underlying its decision. While severely condemning the actions of the defendants, emphasizing the risk that they had posed to the fundamental value of human dignity, to IDF moral strength, and to its image, the court also made note, among other things, of the personal circumstances of the defendants and their contribution to Israel’s national security. The court also gave weight to the unprecedented nature of the case and the surrounding circumstances, stressing that the defendants did not seek to humiliate or degrade the boy, noting their mental and physical fatigue at the time of the events, as well as the existential anxiety forming the background to the incident. The court – which had two legal judges on the panel (rather than the usual panel comprising one legal judge and two laymen judges) – made it very clear that in any incident of similar conduct in future, punishment would be much more severe. Let us hope that such incidents remain a hypothetical.

 


Interviewer: Dorit, joining you in this hope, I would like to thank you very much for this interview and wish you success in your work.

 

 

 

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