Investigations and Findings Regarding an IDF Air Strike on January 5, 2009 in the Zeitoun District, Gaza Strip, during the Gaza Operation
The Military Advocate General's Corps (the "MAG Corps") of the Israel Defense Forces (the "IDF") received various reports and allegations regarding an IDF strike on January 5, 2009, in the Zeitoun District of Gaza City, which occurred in the wider context of the Gaza Operation of December 27, 2008 to January 18, 2009 (the “Gaza Operation”). According to these reports and allegations, as a result of the strike twenty-one Palestinian residents were killed and a number injured, all of whom were not taking a direct part in the hostilities (the “Incident”).
Following the Incident, a command investigation was conducted (the “Command Investigation”). After considering the findings of the Command Investigation, the (then) Military Advocate General (the “MAG”) instructed the Criminal Investigative Division of the Military Police to open a criminal investigation into the Incident (the “Criminal Investigation”). The Criminal Investigation was thorough, rigorous and comprehensive, and despite the difficulties and challenges involved in investigating incidents of an operational nature that occur during the conduct of hostilities, succeeded to a great extent in providing a comprehensive picture of the Incident.
The findings of the Command Investigation and the Criminal Investigation were submitted to the IDF Chief of General Staff, who determined that the Incident revealed professional shortcomings in the conduct of the Commander of the Givati Infantry Brigade (the “Brigade Commander”). As a result, the Chief of General Staff imposed a command sanction on the Brigade Commander, preventing him from future promotion to a command position in an operational environment.
In parallel, on the basis of the findings of the Criminal Investigation, the MAG assessed the criminal responsibility of the Brigade Commander for the death of Palestinian civilians not taking a direct part in the hostilities, following the determination that the strikes in question were carried out on the orders of the Brigade Commander.
This assessment was conducted according to the relevant Israeli criminal law, and in light of the principles and rules of the Law of Armed Conflict, which inform the standard of behavior for a “reasonable military commander” making decisions regarding military strikes.
In a recently issued legal opinion, the MAG found that the Criminal Investigation comprehensively refuted the serious allegations cast against the IDF, according to which the strikes were directly and intentionally aimed at civilians not taking a direct part in the hostilities, or alternatively were carried out in a reckless manner with respect to the possibility that such civilians may be harmed as a result thereof. The investigation also found that there were no grounds to the allegation that IDF forces directed civilians to gather in the house which was later struck. As a result, the MAG concluded that there are no grounds for the allegation that the Incident involved the commission of war crimes, which according to international law require a mental element constituting criminal intent.
In addition, the MAG found that with respect to the strikes in which civilians not taking a direct part in hostilities were harmed and that were the subject of the allegations filed with the MAG Corps, none of the persons involved – including the Brigade Commander – acted negligently in a manner giving rise to criminal responsibility under the circumstances. Notwithstanding the fact that a number of decisions made by the Brigade Commander during the Incident were found to be deficient, and that he was expected to act otherwise, the MAG found that the decisions taken during the Incident did not deviate from the boundaries of discretion that a “reasonable military commander” operating in similar circumstances possesses.
In this regard, the MAG noted that the serious challenges and complex operational circumstances of the Gaza Operation, which took place mostly in a heavily populated urban environment, as well as the particular circumstances of the Incident and the fact that prior to the Incident, RPG fire was directed towards the IDF ground forces in the area, were relevant to the manner in which the decisions of the Brigade Commander during the Incident were assessed. In this respect, the more intensive the combat, and the more considerable the operational challenges facing the IDF forces (and as such, the dangers posed to the security of the IDF forces), the wider the discretion of a "reasonable military commander" operating in the circumstances.
In light of the above, the MAG found that there were no grounds for employing criminal or disciplinary measures against any of those involved in the Incident, and instructed that the file be closed. In doing so, the MAG also took note of the aforementioned command sanction taken against the Brigade Commander.
Aside from the above, the MAG emphasized that as a result of the Incident, lessons needed to be drawn in order to prevent the reoccurrence of similar incidents in the future; and to this effect made a number of recommendations to the Chief of General Staff. The process for implementing these recommendations has already begun.