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Operation "Protective Edge" - IDF Activity from the Perspective of International Law

the State Comptroller published a Special Report: Operation "Protective Edge" - IDF Activity from the Perspective of International Law

On Wednesday, March 14 at 4:00 p.m., the State Comptroller and Ombudsman, Justice (Ret.) Joseph Chaim Shapira, published a Special Report: "Operation 'Protective Edge': IDF Activity from the Perspective of International Law, Particularly with Regard to Mechanisms of Examination and Oversight of Civilian and Military Echelons".

This Report is further to three previous Reports concerning Operation 'Protective Edge': "Readiness for Protection of the Home Front from the Threat of Rockets and Missiles (Physical Safeguards, Warning Systems and Population Evacuation)"; "Dealing with the Danger from the Tunnels"; "Decision-making Process in Cabinet in Regard to the Gaza Strip Before Operation 'Protective Edge' and at its Commencement".

For the purpose of this audit the State Comptroller was aided by experts ,among them : Prof. Michael Newton, an internationally renowned expert on international and humanitarian law from Vanderbilt University in the US, who acts as a special consultant on international law to various states and organizations, and among other things also served as a special consultant to the Iraqi Special Tribunal which trialed Sadam Hussein. He is also the Chief Editor of Terrorism International Case Law Reporter of Oxford University. In the past he served as one of the two U.S. delegates who successfully negotiated the Elements of Crimes Document for the International Criminal Court in The Hague and a U.S. representative on the U.N. Planning Mission for the Sierra Leone Special Court; and Prof. Miguel Deutsch from the Faculty of Law at Tel Aviv University who was a member of the "Turkel Commission".

Main Findings:

Regarding IDF preparation prior to Operation "Protective Edge", it was found that even though the IDF conducts training in the field of international law, the IDF directives regarding training in this field don't provide an adequate response to the need to train and instruct soldiers and field commanders about the rules of humanitarian behavior according to the law of wars, which apply to military activity in the midst of uninvolved civilians.

Regarding the "Hannibal" Order the audit determined that although the General Staff's Weapons Engagement Policy Directive requires that the IDF forces act in the field in accordance with the principles of international law, the principles of distinction and proportionality were not expressly mentioned in the "Hannibal" orders. It was also found that according to their phrasing at the time, the command and division "Hannibal" Orders could have been interpreted in various ways with respect to the terms that describe the value of an abducted person's life. This could have led to different interpretations of the orders by different bodies in the IDF.

The State Comptroller favorably notes the action of the Chief of General Staff, Major General Gadi Eizenkot, who ordered, as a result of the audit and its findings, the cancellation of the "Hannibal" Order in June 2016 and writing a new order.

It was found that the integration of the Mechanism's activities to clarify facts under the same organizational command with the "General Staff's operational debriefing apparatus" isn't fully compatible with the Turkel Commission recommendations for establishing "a separate mechanism for the IDF, for performing a fact finding assessment separate from other operational investigative units, in order to avoid the possibility of shifting the Mechanism from its mission - fact finding assessment - to doing General Staff operational debriefings. Additionally the Mechanism should operate solely under the professional guidance of the Chief Military Prosecutor (CMP), and adequate time should be allocated to perform the fact finding assessment, in accordance with the Turkel Commission recommendations. This this is necessary in order to prevent delays regarding the decision to commence a criminal investigation in those cases where there is suspicion of a criminal offense.

Nevertheless, The State Comptroller believes, that a fact finding assessment using the Mechanism in its current format - subordinated to the Chief of General Staff and with a separate chain of command, in conjunction with experts from other disciplines, while preserving operational independence, together with the independent discretion of the CMP regarding the decision to open a criminal investigation - is compatible with the dictates of international law.

Regarding the manner that the Mechanism performed during and after Operation "Protective Edge" flaws were found in the efficiency and expediency of the Mechanism's work both in collecting the findings and in documentation of the information collected. However, the audit found that the Mechanism did its work in good faith and with a sincere desire to carry out a complete and thorough fact finding assessment and to arrive at the truth. In addition, the audit found that the CMP acted to prevent material damage to the factual basis on which he made his enforcement decisions, and as a result, he had sufficient factual basis for making a decision whether or not to open an investigation. The State Comptroller favorably notes the resolute actions that were performed during the audit by Attorney General and his staff and the CMP and his staff to correct deficiencies that were included in the draft audit report.

The audit also examined the Cabinet's decision taking process during Operation "Protective Edge" including everything connected with international law.It is apparent that significant weight was given to the rules of international law in the course of IDF activity in Gaza, that ongoing legal support was given to all Cabinet discussions during the operation, and that there was mobilization to assist the civilian population in Gaza during the hostilities.

In accordance with a decision of the Knesset Subcommittee on State Audit under section 17 of the State Comptroller Law – 1958, this Report will be publicized only in part, for reasons of state security. However, this will in no way impact upon the ability to understand the audit findings and publicize the essential deficiencies uncovered.

Operation "Protective Edge" - IDF Activity from the Perspective of International Law, Particularly with Regard to Mechanisms of Examination and Oversight of Civilian and Military Echelons