Investigating the Death of Shireen Abu Akleh

On May 11, the Palestinian Health Ministry announced the death of Shireen Abu Akleh. Abu Akleh, who reported on the Israel-Palestine conflict for Al Jazeera, was shot in May while reporting on an Israeli Defense Forces (IDF) operation in the Jenin refugee camp in the West Bank. Israeli soldiers had entered the camp to detain Palestinians suspected of committing security offenses. The IDF faced resistance, including gunfire. Toward the end of the operation, Abu Akleh was hit in the head by a bullet and died almost instantly. Another journalist, Ali Samudi, was injured. 

The Abu Akleh incident has continued to be a a public relations debacle for the IDF. Immediately following the incident, the Palestinian Authority claimed that Abu Akleh was killed by IDF fire. While the IDF did not rule out the possibility that Abu Akleh was shot by a soldier, it suggested that a more probable scenario was that Palestinian fire caused Abu Akleh’s death. In its final conclusions, however, which it released on Sept. 5, the Israeli investigative team acknowledged that Abu Akleh was probably shot by an Israeli soldier. Still, the team concluded that even if an Israeli soldier shot Abu Akleh, it was because he honestly mistook her as a target and that, therefore, no criminal investigation should be opened.

In response, some U.S. lawmakers rejected the Israeli investigation and demanded that the U.S. government appoint an independent U.S. commission. The IDF surely bungled the investigation along the way, insisting that it receive a bullet that ended up not amounting to much, and eventually admitting what was always inferable, which is that Abu Akleh was likely killed by an IDF soldier. While incompetence in handling public relations does not equate to criminal responsibility, a real question remains: Did the IDF do all that it should have done to find out whether a violation of the law occurred in this case and to make sure that such incidents will not happen again? Unfortunately, the information that the IDF has so far made public does not provide a conclusive response to this question.

The Investigations

Abu Akleh’s death attracted significant media attention globally. Not only was Abu Akleh a fairly well-known journalist, she was also an U.S. citizen. Coupled with a U.S. administration eager to prove that it is promoting a balanced approach in the ongoing Israeli-Palestinian conflict, the circumstances created a perfect storm. The Israeli government faced significant political pressure internationally, but especially from the U.S., to investigate the incident. 

Perhaps due to this pressure, IDF Chief of Staff Gen. Aviv Kochavi appointed a team to investigate the matter, headed by Col. Meni Liberty. The team’s initial report, released on May 13—only a few days after Abu Akleh’s death—claimed that it could not reach any determination as to who shot Abu Akleh without examining the bullet that caused her death. The Palestinian Authority, which held the bullet, refused to turn it over to Israel. After much back and forth, the bullet was examined under the supervision of a U.S. general. As it turned out, the bullet was too damaged to provide conclusive proof as to the identity of the shooter, or even whether the shot was fired by the IDF or by Palestinian militants. 

In the meantime, leading global media outlets—such as CNN, the New York Times, Bellingcat, AP, and the Washington Post—conducted their own investigations based on video footage filmed at the scene before, after, and during the shooting, as well as on video soundtrack analysis and eyewitness accounts. The U.N. High Commissioner for Human Rights also investigated the incident. These reports concluded that the most probable scenario was that an IDF soldier shot Abu Akleh, though neither the press nor the U.N. commented on what might have motivated this shooting. 

On Sept. 5, the IDF published the final report of the investigative team appointed by its chief of staff. The most important paragraph in the report is the following:

According to the investigations and their findings, it appears that it is not possible to unequivocally determine the source of the gunfire which hit and killed Ms. Abu Akleh. However, there is a high possibility that Ms. Abu Akleh was accidentally hit by IDF gunfire fired toward suspects identified as armed Palestinian gunmen during an exchange of fire in which life-threatening, widespread and indiscriminate shots were fired toward IDF soldiers. It is also important to emphasize and clarify that throughout the entire incident, IDF gunfire was fired with the intent of neutralizing the terrorists who shot at IDF soldiers. An additional possibility is that Ms. Abu Akleh was hit by bullets fired by armed Palestinian gunmen toward the direction of the area in which she was present in. 

Based on this, the IDF’s Military Advocate General decided that a criminal investigation regarding the shooting would not be opened. 

The conclusions of the investigative team address three separate factual questions. First, who fired the bullet? Second, was the bullet a random projectile or one directed at a specific target? Third, was Abu Akleh the target—and if so, why?

In the initial weeks after the incident, disagreement seemed to focus on the first question about who fired the shot. This was why the IDF had insisted on receiving the actual bullet and examining it. While the IDF did not completely deny the possibility that an Israeli soldier fired the shot, the military argued that it was more likely that a Palestinian had pulled the trigger and that it was impossible to verify this issue without examining the actual bullet. To that end, the IDF halted its inquiries while the Palestinians refused to transfer the bullet. Yet ultimately, as explained above, the bullet itself did not provide any conclusive proof. 

This conclusion put the IDF in an uneasy situation. Although the military did not initially deny that one of its soldiers fired the shot, its public statements emphasized the Palestinians’ lack of willingness to cooperate in the investigation. At the end of the day, the IDF’s insistence that its ability to identify whether one of its own soldiers hinged on possession of the bullet undermined its credibility regarding the entire incident. 

Regarding the second question, namely whether the shot was a random one, some media reports stated that emerging evidence pointed to the conclusion that the shots were targeted ones. Once the IDF admitted that it was probably an Israeli soldier who fired the shots, it seemed reasonable to think that these shots were not totally random. 

But the still unanswered question is why, then, an IDF soldier fired at Abu Akleh. The initial IDF report suggested that if Abu Akleh was shot by an IDF soldier, perhaps it was because she was hit by IDF bullets directed at a Palestinian gunman she was standing near. This claim was rejected by the press, which pointed to footage showing that Abu Akleh was nowhere near the Palestinian soldiers. 

It seems that the IDF has abandoned this claim, as it is not mentioned in its final report. Instead, the report states that the gunfire was conducted “toward suspects identified as armed Palestinian gunmen.” In other words, the IDF claims that an IDF soldier mistakenly identified Abu Akleh as a Palestinian gunman. This claim is puzzling: Investigative reports by the media clearly show that Abu Akleh was wearing both a helmet and a distinctive vest marked PRESS. Moreover, although the soldiers indeed faced gunfire, the same press reports found that the shots were not fired where the journalists, including Abu Akleh, were positioned. Perhaps the solution to the puzzle is that the shooting soldier had only a limited view of the area. In the Israeli newspaper Haaretz, Amos Harel reported that the dominant theory of the IDF's investigators was that the soldier who shot Abu Akleh was firing from within an armored vehicle, through a small opening, that provided only a limited view to the shooting soldier. But ultimately, this question remains unanswered.

Rules of Engagement in Operations in Israeli Territories

The IDF’s September report garnered significant political criticism in the U.S. Some lawmakers called for the soldier responsible for Abu Akleh’s death to be “held accountable.” State Department Deputy Spokesperson Vedant Patel called for a review of the IDF’s “policies and practices” surrounding the rules of engagement, doubling down on Secretary of State Antony Blinken’s call for a review of these rules in August.

Notably, while pushing the IDF to review its practices, the U.S. government did not suggest that an Israeli soldier may have identified Abu Akleh as a journalist and fired intentionally at her. Over the course of the long and bloody history of the Israeli-Palestinian conflict, Israeli soldiers have sometimes been accused of directing their fire at innocent bystanders (though these claims have, in most cases, been discredited). In the very few cases where there was a solid base to the allegations, the soldiers involved have been prosecuted. 

In this case, the main thrust behind the U.S.’s call on Israel to further investigate the matter seems to be its view that either the soldier violated the rules of engagement and acted recklessly, and should therefore be investigated and prosecuted—or that the soldier acted according to the rules of engagement, and the Abu Akleh incident shows that the rules should therefore be reviewed and potentially revised. 

Publicly, Israel has continued to reject the U.S.’s requests. Prime Minister Yair Lapid, currently entangled in a difficult election campaign before Israelis head to the polls in November, stated that “no one will dictate to us Rules of Engagement when we are fighting for our lives.” Lapid emphasized that “[j]ust one man can decide the military’s rules of engagement and that is the chief of staff,” further claiming, “I will not allow the prosecution of any soldier who was protecting himself against armed terrorists.” This last statement might perhaps be inaccurate, since the prime minister has no role in deciding whether criminal investigations should be commenced. Be that as it may, the Israeli position is clear—the rules of engagement should not be changed following the death of Shireen Abu Akleh, nor should any soldier be subjected to a criminal investigation following the incident. 

Lapid used strong words to convey his position and was perhaps too quick to reject the U.S.’s position. The views he presented, however, are rooted in two long-standing policies, the first concerning when a criminal investigation should be opened, and the second concerning the IDF’s rules of engagement in enforcement operations in the territories. 

Rules of engagement are internal military directives that define, among other things, when a soldier may open fire. The rules should conform to a state’s obligations according to international law and domestic law and apply those to concrete situations. Israeli rules of engagement differentiate between cases of law enforcement and cases of “conduct of hostilities.” In both cases, soldiers are allowed to shoot only if they identify a threat. But how certain should the soldier be before opening fire? In law enforcement situations, troops may open fire only if the target is clearly identified and poses imminent danger to the lives of others. Soldiers may also employ nonlethal force (for instance, firing rubber bullets or shooting at suspects’ legs) only if “detainment of suspected person procedure” is employed. This procedure requires soldiers to warn the suspect, both verbally and with warning shots, before they are allowed to shoot. In conduct of hostilities cases, when soldiers are under constant threat, they are not required to follow this full procedure. Soldiers may shoot when they identify a target they believe to be a threat, even without attempting to detain that person.

The problem is that, while the law might be clear, many real-world situations defy clear categorization. In the Abu Akleh case, IDF soldiers entered the Jenin refugee camp as part of counterterrorism activities, in order to detain Palestinians suspected of terrorism. They encountered resistance, including shots fired.

Israel has always maintained that counterterrorism activities in which soldiers face gunfire, such as the incident in Jenin, should be treated as conduct-of-hostilities situations, allowing troops to use firepower relatively flexibly. Critics advocate that law enforcement standards should be used in most circumstances unless a true “battle” erupts, where all enemy forces are considered a threat.  

The Possibility of Criminal Investigations

The IDF’s Military Advocate General has the authority to order a criminal investigation, conducted by the Investigative Branch of the Military Police. The results of the criminal investigation are submitted to the Military Advocate General, which may indict the soldier before a military court. Notwithstanding the discussion above, soldiers are supposed to identify their targets. If a soldier did not identify Abu Akleh correctly, is there a need for criminal investigation to determine whether the soldier was criminally negligent in firing at her?

On one hand, the Abu Akleh case raises factual issues and ambiguities that a criminal investigation may be well positioned to resolve. Were there shots directed at the soldiers at the time that Abu Akleh was shot? Why might the soldier have identified a reporter, wearing a vest and a helmet that identified her as press, as a militant? Was there some indication that there was a real threat coming from the direction where Abu Akleh stood, such that Israeli fire was warranted? 

On the other hand, in any country, opening a criminal investigation against a soldier regarding behavior during a military operation is a dramatic step. This is especially so in countries such as Israel, where service in the army is mandatory. A criminal investigation is typically opened only if there is evidence that a grave violation of the law—such as intentional shooting of civilians during armed conflict—took place. 

In 2013, the Israeli Turkel Commission, entrusted with examining the IDF’s investigations of suspected violations of international law, recommended a middle path. In cases of factual uncertainty regarding soldiers’ conduct, the commission recommended that the investigation be conducted by an independent fact-finding mechanism. The mechanism is to be headed by a retired general, and the factual investigations are to be conducted by reserve officers. The Military Advocate General is responsible for ordering the investigation of suspicions by these fact-finding commissions. Reports are submitted to the Military Advocate General, which decides whether to launch a full criminal investigation based on the report. The mechanism has been used in the past, especially in large-scale operations (such as in Protective Edge, the Israeli military operation in the Gaza Strip, in 2014).

In the Abu Akleh case, a different procedure was used. The investigative team was headed by an officer in active service, appointed by the IDF’s chief of staff. This was not the kind of fact-finding investigation envisioned by the Turkel Commission—and it is doubtful whether this kind of commission satisfies international legal requirements for an effective and independent investigation, due to its makeup and appointment process.  

There is also a question as to whether the investigative team provided recommendations that could mitigate the risk of such an incident happening again. Unfortunately, if such recommendations were submitted, the IDF did not publicize them. 

Situations of violent conflict are dangerous, and mistakes in identification during conflicts are unfortunate, though common, occurrences. Which institution should investigate these cases is an important question. Perhaps even more important is whether the IDF implemented lessons learned in the Abu Akleh case that would lower the danger that such cases will happen again in the future. Regretfully, the final conclusions of the investigation are less than convincing that this is the case.