A Question of Time: Israel’s State Comptroller Finds Flaws in the IDF’s ‘Protective Edge’ Investigations

In July 2014, a deadly series of events began when Hamas operatives kidnapped and murdered three Israeli teenagers in the West Bank. After waves of arrests of Hamas leaders by Israeli security agencies in response and Hamas’s subsequent launching of 40 rockets from Gaza into Israel, the Israel Defense Forces (IDF) began Operation Protective Edge: an air campaign that soon expanded into a limited ground invasion of Gaza primarily aimed at locating and destroying cross-border “terror tunnels”designed by Hamas. During the seven-week military campaign, more than 2000 Palestinians were killed as well as more than 70 Israelis. While almost all the Israelis killed were soldiers, a significant number of the Palestinians killed were civilians: according to estimates, civilians made up between 36 and 70 percent of Palestinian deaths.

Both parties accused each other of violating the laws of war. Israel accused Palestinian groups, inter alia, of deliberately targeting Israeli civilians in their rocket attacks or at the very least using indiscriminate methods of warfare. The Palestinians, in turn, accused Israel, inter alia, of using disproportionate force in a densely populated area, targeting non-military targets (such as the residential homes of Hamas leaders and UNRWA schools) and using weapons indiscriminately. Israel’s military legal authorities took steps to investigate many of the allegations against the IDF.

Now, those investigative steps have been reviewed in a report by Israel’s State Comptroller: an independent state agency, authorized by law to audit the legality, good conduct, proper administration, effectiveness, efficiency and other aspects of the functioning of state institutions. On March 14, 2018, the Comptroller published a 129-page report on the international law aspects of Operation Protective Edge, focusing on mechanisms for investigating alleged international law violations by the IDF. The report draws public attention to the considerable delays in completing the outstanding preliminary examinations and criminal investigations, and, consequently, raises questions about the effectiveness and credibility of existing accountability mechanisms. What’s more, the delays described in the report might undermine the legitimacy of IDF’s investigation procedures in the eyes of the Israeli public and international observers. After all, justice delayed is justice denied.

The report touches on recommendations issued a year before Operation Protective Edge by an Israeli governmental commission of inquiry that addressed the question of proper timelines for conducting military investigations. The entity in question, known as the Turkel Commission, was appointed in the aftermath of the 2010 Turkish Flotilla incident to review, inter alia, the manner in which alleged international law violations are investigated by Israeli security forces. In 2013, the commission published the relevant part of its report, containing two key recommendations relevant to this discussion:

• Recommendation No. 6 calls for the adoption of guidelines stipulating a time frame of “a few weeks,” within which the Military Advocate General (MAG) will have to decide whether or not to open a criminal investigation on the basis of the materials before him. It is within this time that preliminary examinations can take place;
• Recommendation No. 10 calls on the MAG, in coordination with Israel’s Attorney General, to determine a time frame limiting the period between the decision to open a criminal investigation and the decision to initiate legal or disciplinary proceedings or to close the investigation file. The MAG should also publish, at least on an annual basis, statistical data on the timelines for handling investigation files.

These recommendations were reaffirmed by the Ciechanover Committee, a committee of senior government officials convened by the Israel government to issue recommendations concerning the specific manner implementation of the Turkel Report. The Ciechanover Committee’s own recommendations were approved by the Israeli Security Cabinet in 2016, two years after Operation Protective Edge. With regard to Recommendation No. 6, the Ciechanover Committee stipulated that the MAG should have 14 weeks to make his initial decision on whether to launch a criminal investigation, which can be extended in exceptional cases by an additional 14 weeks. In cases emanating from large-scale combat operations that generate a particularly large number of complaints alleging violations of international law, several changes in the time frame would be warranted: the starting date for the 14-week clock would be the end of active hostilities (and not the date of the incident in question), and the MAG could extend the first and second 14 week periods by 90 days each.

Regarding Recommendation No. 10, the Ciechanover Committee provided that a nine-month time frame would be allocated for the MAG to conduct a criminal investigation (which can be extended by three months, in special cases) and that another period of nine months to one year would be allotted for the prosecutor's decision whether or not to prosecute on the basis of the outcomes of the investigation (which can be extended by three to six months, in special cases).

Operation Protective Edge took place between the issuance of the Turkel and Ciechanover Reports. Although the Turkel Recommendations were not yet formally adopted at the time, the military authorities attempted to conduct themselves according to those recommendations. Most significantly, during the Operation they did follow the Turkel Commission’s recommendation of establishing a fact-finding mechanism outside the chain of command to facilitate the work of the MAG and military prosecutors. Military authorities also established short timelines for the conduct of investigations in a manner compatible with the Turkel Recommendations.

The State Comptroller's report examined the functioning of these examination and investigation mechanisms put in place by the IDF, in particular, the functioning of the General Staff’s Fact-Finding Assessment Mechanism (FFAM)—a professional task force headed by an army general, operating outside the chain of command, and invested with authority to examine hundreds of “exceptional incidents” that occurred during the Operation involving possible violations of international law. The FFAM conducted preliminary examination of cases referred to it by the IDF Chief of Staff (after consulting with the MAG), with a view to providing the legal authorities in the IDF with a factual basis for their subsequent decisions as to whether to open criminal investigations and whether to prosecute those responsible for violations of international law or Israeli law. The legal authorities in question include the MAG, the Investigative Military Police and military prosecutors.

The IDF’s Operations Division, which governed the work of the FFAM, set a deadline of 30 days for the FFAM to conduct an examination, though in some cases the time was extended or the case was referred back to the FFAM for further study. The State Comptroller found that these timelines were not respected in more than 80 percent of the cases, and that there were considerable delays in the mechanism’s operation. Significantly, even today, more than three years after Operation Protective Edge, 11 incidents are still being examined by the FFAM, including what are arguably the two most serious incidents that occurred during the Operation: the fighting in Rafah on Aug. 1, 2014 (an incident sometimes dubbed as “Black Friday,” which involved widespread shelling of areas in Rafah in response to the kidnapping of an IDF soldier) and in Shuja'iyya on July 20, 2014 (extensive exchange of fire by in a densely populated area in Gaza following the destruction of an IDF armored personnel carrier by by an anti-tank missile).

The State Comptroller also criticized the fact that the timelines identified by the Ciechanover Committee have not yet been incorporated into the relevant military prosecution guidelines. Additionally, as of March 2018, the Investigative Military Police had not yet received necessary resources that would enable it to quickly complete the Operation Protective Edge criminal investigations.

The cases pending before the FFAM potentially involve violations of international law during an armed conflict; in some, allegations of war crimes were made. It is unacceptable that investigations of this importance can remain pending preliminary examination for years and years after the facts at hand. This practice stands in marked contradiction to the recommendations made by the Turkel Commission and the Ciechanover Committee as to the introduction of short timelines for investigations. It also violate the applicable military guidelines, which stipulate that the preliminary examination should typically end within a month. The State Comptroller’s characterization of such a situation as "improper" is a gross understatement.

The delays in concluding the Operation Protective Edge investigations cast into doubt the effectiveness of the new FFAM procedure. The State Comptroller recommends that a realistic time frame be set for future preliminary examinations, that the mechanism be allocated the necessary resources and that the MAG consider opening an investigation before the completion of the examination in cases of delay. But these proposals do not address the need for an urgent response at this point in time in order to bring to close the Operation Protective Edge investigations. Nor do they adequately respond to the concern that the existing state of affairs creates the impression of deliberate "foot-dragging" by the military authorities in a way that could harm public trust in the military justice system.

In a world in which the International Criminal Court is currently examining whether to launch an investigation into alleged war crimes committed by the IDF during Operation Protective Edge, the flawed functioning of the IDF’s internal investigation mechanisms could have dramatic legal implications. Such flaws could harm Israel's ability to invoke the principle of complementarity under the Rome Statute, which is premised on claims that the relevant case is examined by the domestic legal system in a credible and effective manner. These factors only strengthen the need for the MAG and the other military authorities to act without delay to complete all the outstanding Operation Protective Edge examinations and investigations and expeditiously reach decisions on all outstanding cases, including those of Rafah and Shuja'iyya.