Israeli top brass plays Gaza war crimes blame game

An Israeli military exercise on the Gaza border, March 22, 2015.

Israel’s fight against the upcoming UN Human Rights Council report, and claims from other international organizations about harming Palestinian civilians during last summer’s Operation Protective Edge in Gaza is not the real story. It’s only a front.

Forget the international arena. The fiercest battle is an internal one. It’s the Israel Defense Forces against the Shin Bet security service and those above it (in the government). When suspicions of war crimes abound, what is the practical significance in the chain of command? Where does the buck stop? Who are the responsible ones that are liable to be arrested should they set foot in a foreign airport?

What was sufficient during the time of Baruch Goldstein is insufficient in the age of Richard Goldstone. Israel handled the investigation of the 1994 Cave of the Patriarchs massacre internally, after Goldstein, an armed captain in IDF uniform, murdered 29 Muslim worshippers in Hebron. The world left alone and showed restraint after Ehud Barak, the chief of staff at the time, declared that the country and its army was struck by “thunder on a clear day.” No one foresaw it and no one was condemned as responsible. It was an internal matter, like the 1956 massacre in the Arab-Israeli town of Kafr Qasem.

Not only that: the 20th century was filed away. The current century, however, is characterized by invasive probing a la the UN’s Goldstone Commission, which followed Operation Cast Lead six years ago.

The Goldstone report came out in September 2009, and that was followed nine months later by the Mavi Marmara affair (when nine activists were killed after IDF soldiers boarded the ship, part of a Gaza-bound flotilla). Replicating the damage-limitation style that worked in previous operations, Israel rushed to preempt the Goldstones and investigated itself with a domestic commission, albeit backed up by sympathetic international observers (who were reportedly well compensated). The logic was that an internal investigation that is perceived as reliable would make Israel immune from an international investigation and render it superfluous.

The Jacob Turkel Committee, headed by the former Supreme Court justice, did thorough work. After investigating the May 2010 incident, and its legal and operational aspects, it shook off the dust from broader issues.

The government then appointed a team to implement Turkel’s recommendations, headed by Joseph Ciechanover, a former Foreign Ministry director general and legal adviser to the defense establishment. Other members included two deputy attorney generals, Raz Nizri (criminal law) and Roy Schöndorf (international law), as well as IDF representative Herzi Halevy (before he was promoted to general and named chief of Military Intelligence) and Rahel Dolev (from the Military Advocate General’s office). Dolev was recused from hearings regarding the Shin Bet due to conflicts of interest.

The chief military advocate general at the time, Maj. Gen. Avichai Mendelblit, was torn between his two commanders – the chief of staff and the attorney general – and was limited when collecting information about war crimes during an operational investigation, as officers tend to shut up when they go from being informally questioned to being officially investigated. They consult with lawyers and try avoid implicating themselves.

Thrown to the dogs?

Completion of the team’s work, which was conducted mostly in 2014, stalled apparently because of the recent Knesset election and in practice because of pointed disputes between those involved.

The most important question was whether the politicians would once again throw the army to the dogs, as one senior officer put it. “It won’t help them,” the officer added, “because implementing the Turkel Report is meant to buy Israel an insurance policy. And if the government avoids payment, it won’t get the coverage.

“No one in the world will believe that the GOC Southern Command chief or the chief of staff are responsible for an operation in Gaza. Or that the GOC Central Command chief, and not the defense minister and the government, is really the sovereign in Hebron and Nablus – that the IDF just woke up one morning and started to act, and that the politicians can wash their hands of it.”

Micromanaging leads to macro-responsibility during the process of approving routine operations and sorties, all the more so when it comes to wars and emergencies.

The U.S. laws of war

Last week, the general counsel of the U.S. Department of Defense, Stephen Preston, issued the Pentagon’s first laws of war manual. Preston, a former general counsel for the Navy and the CIA, has his name affixed to the 1,200-page volume, which includes many excerpts from the Israeli experience of fighting terror, exceptional permissions during investigations of suspects and harming innocent civilians.

One of the manual’s more interesting chapters deals with the responsibility of the various levels in command of the army (or military organization). On the one hand, it’s a framework for targeted assassinations of senior commanders. On the other, the highest responsibility is being ascribed to war crimes, all the way up to the White House – and, by extension, to the Israeli prime minister.

Leaders are legitimate targets, by fire or indictment, be they at the head of an operational chain of command or military forces, according to the Pentagon document.

For example, as the commander-in-chief of the U.S. armed forces, the President would be a legitimate target in wartime, as would, for example, the Prime Minister of a constitutional monarchy,” reads the manual. “In contrast, the reigning monarch of a constitutional monarchy with an essentially ceremonial role in State affairs may not be made the object of attack.”

In other words, Barack Obama, David Cameron, Vladimir Putin, François Hollande, Benjamin Netanyahu – yes; Elizabeth II and Reuven Rivlin – no. In addition, the list of permitted targets includes leaders planning “or authorizing a combat operation.”

In Israel’s case, these include the defense minister, members of the security cabinet and perhaps all members of the government.

Clearly, the Pentagon manual is not binding for Israel, but one can conclude from the positions expressed within it what U.S. representatives would say about the Israeli claim, if prosecuted at the International Criminal Court in The Hague or another war crimes forum, that responsibility stops with those in fatigues.

Will a brigade commander who shelled a civilian center or a pilot who bombed it, based on intelligence he received form the Shin Bet and with authorization from superiors – on up to the government – be abandoned? Or will those superiors also join him on the bench? They could very well end up on that bench, along with their legal advisers who participated in the consultations and added their signature to the military order.

Exempting the PM

The Turkel Committee directed the government to confirm that Israeli law has fully adopted international law’s absolute ban on torture and international standards on war crimes. In recent years, a team from the Justice Ministry and the Military Advocate General’s office has mapped out international criminal laws and compared them to Israeli criminal laws. They assembled a working document of hundreds of pages, and draft bills outlawing torture and crimes against humanity – be it murder or genocide. So far, so great and even noble. But from here, as is the norm, the wavering is over how to exempt Prime Minister Benjamin Netanyahu and absolve him of responsibility.

The IDF is demanding that the proposed legislation be advanced in parallel to adjusting responsibilities of commanders and civilians in charge. Officers well versed in the matter argue that the separation between the responsibility of commanders and that of civilians in charge is superficial – to the commanders’ detriment. They demand equal treatment.

International law casts special responsibility on military commanders and civilians in charge because of offenses committed by their subordinates, including the obligation to take steps to prevent violations of the law and disciplinary or penal steps against violators.

The Turkel Committee recommended placing in law direct criminal responsibility for crimes by subordinates, when superiors and commanders didn’t take every reasonable step to prevent them, or didn’t put those responsible for the violations on trial. The officers want “criminal responsibility” to be in the law without the additional word “direct,” to ensure that responsibility will also be put on Shin Bet officials who supplied them with the intelligence and on the respective ministers.

This stance reflects the bitterness of the military following the post-Yom Kippur War Agranat Commission, which toppled the chief of staff, head of Military Intelligence, GOC Southern Command and additional senior officers, all while sparing the politicians.

Menachem Begin, the political rival of Golda Meir and Moshe Dayan, attacked them after the forced resignation of Chief of Staff Gen. David Elazar in April 1974. “Is it possible that the chief of staff goes and the defense minister above him doesn’t go, and the defense minister goes and the prime minister above him doesn’t go?” asked Begin. “If the defense minister is a super chief of staff, the prime minister is a super defense minister.”

He didn’t know what he was saying, for nine years later, the Kahan Commission investigating the September 1982 Sabra and Chatila massacre in Lebanon in practice ousted Chief of Staff Rafael Eitan (by letting him retire a month later at the end of his term) and Defense Minister Ariel Sharon, and spared Prime Minister Begin. It ruled then that the one whose duty it was to deter and prevent bore indirect personal responsibility – not through malicious intent but rather by being distracted and closing his eyes.

Subsequent commissions of investigation or inquiry have seesawed between different levels of responsibility. The Shamgar Commission on Yitzhak Rabin’s 1995 assassination focused on the operational level (the Shin Bet and police) and ignored the part of the prime minister, as the politician in charge of the Shin Bet. The Or Commission, following the Israeli-Arab riots and deaths in 2000, assailed senior police officers and Public Security Minister Shlomo Ben-Ami.

In his 2012 report on the December 2010 Carmel forest fire, State Comptroller Micha Lindenstrauss touched on the senior ranks among the police, prison service and firefighters. He also assigned “special responsibility” to the finance and interior ministers, as well as “general responsibility” to the prime minister and public security minister.

Ciechanover, who rescued Dayan legally from the Agranat Commission, headed a committee to examine the failed 1997 assassination of Hamas leader Khaled Meshal: he was harsh on the operational official (then-Mossad head Danny Yatom) while going easy on the political official (Netanyahu).

The Turkel Commission, meanwhile, was aware of the most sensitive nature of the issue of responsibility at the civilian level – indeed, the government is basically asking to arrange who will be the accused in The Hague. Turkel recently refused to comment on the IDF’s demand for equal responsibility. Instead he said, “Responsibility need not stop anywhere. It is [incumbent] upon everyone to take responsibility.” Enough said.

The litmus test will be in appointing the next committee. To what degree will it be authorized to investigate the responsibility of government members for suspected war crimes, including those directly or indirectly subject to international justice?

The IDF’s rival will be a much more powerful organization, which has operated shamelessly and out in the open in recent years within the Justice Ministry – the front for protecting Benjamin and Sara Netanyahu.


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