Amos Harel :State Watchdog Criticizes Israeli Army’s Use of Hannibal Directive for Thwarting Soldier’s Abduction
Israel’s
main government watchdog has demanded that military service members,
including officers, receive more training on compliance with
international humanitarian law in armed conflicts. It was also critical
of the army’s use of a controversial protocol, since modified, to thwart
a soldier’s abduction in the 2014 war in the Gaza Strip, and
recommended improvements to the way irregular incidents during combat
are investigated.
The
recommendations and criticism were part of a special report by State
Comptroller Joseph Shapira, released Wednesday, on international law as
it relates to Israeli combat operations in the war, known in Israel as
Operation Protective Edge. Many of its conclusions read like a rebuttal
to international criticism of Israeli actions in the Strip during the
war.
Wednesday’s report was the latest in a series
on the summer 2014 conflict. The series has addressed the performance
of the security cabinet before and during the war, Israel’s response to
offensive tunnels dug from Gaza into Israeli territory and home front
preparedness. The reports on the tunnels and
the security cabinet stirred great public interest about a year ago.
Education Minister Naftali Bennett, a member of the security cabinet,
pointed to them as evidence of his suitability to serve as defense
minister in a future government (an issue that coincidentally became a
topic of discussion this week as well).
The
latest report is unlikely to garner great public attention, but it is
important in terms of Israel’s foreign relations and international legal
standing. It is sure to be read very carefully in Israel’s military
prosecution, in the United Nations and at the International Criminal
Court in The Hague.
Shapira and Defense Establishment Comptroller
Brig. Gen. (res.) Yossi Beinhorn begin the report by noting Israel’s
commitment to compliance with international laws governing armed
conflicts. They cite the principles of distinction (only military
personnel or property may be targeted) and proportionality (harm to
uninvolved civilians must be proportional to the expectation of military
benefit from the action, which is how every operation is examined under
international law.) They even quote Israel’s first prime minister,
David Ben-Gurion, and former Supreme Court President Aharon Barak to
illustrate the importance of the army’s compliance with the morality of
warfare and the rules of international law — distinctions that were once
understood but are now strongly disputed in the Israeli political
arena.
But that, more or less, is where their
“subversion” ends. The comptroller’s report on the legal issues treads
pretty lightly and its criticism of the army and the political
leadership is limited. The comptroller does call to focus more on
international law during military training and makes some comments about
the mechanism the military set up, at the recommendation of the Turkel
Committee, to investigation combat irregularities. But except for this,
the report — which in an exceptional move, was also translated into
English — generally addresses the international community.
Here
the message is clear: The security cabinet weighed the legal aspects
before ordering the operation in Gaza; the army tried to play by the
rules and, most important, it investigated itself thoroughly after the
war was over. In other words, there is no reason for international legal
bodies to launch legal proceedings against senior Israeli officials
because Israel deals with its exceptions as required. That’s a
conclusion aimed primarily at the ears of the chief prosecutor in The
Hague, who has already announced that for the first time she is
considering such proceedings against Israel and in that context was
eagerly awaiting Shapira’s report.
Shapira
spends some time on the Hannibal directive, which allowed the army to
take action to prevent a soldier from being abducted even if it meant
putting the captured soldier’s life at risk. As reported by Haaretz in
June 2016, Chief of Staff Lt. Gen. Gadi Eisenkot has canceled that directive and replaced it with a new one, after lengthy arguments both within and outside the army.
In
any case, with regard to the earlier directive Shapira found
discrepancies between the directive as issued to the General Staff
officers and the way it was described to the division commanders and
below. Although it was made clear to the General Staff that any action
to thwart a kidnapping must uphold the principles of distinction and
proportionality, these restrictions were not included in the orders
issued to the lower levels of command.
The report does not provide details about what led to the debate over the Hannibal directive, which were the events of “Black Friday,”
August 1, 2014 in Rafah. On that day the army used massive force to try
to prevent the abduction of 1st Lt. Hadar Goldin, who has since been
declared killed in action and whose remains are still being held by
Hamas as a bargaining card for over three and a half years.
Dozens of Palestinians died during the fighting
in Rafah, including civilians. The incident is still under
investigation, slowly, by the Military Prosecutor’s Office. The
likelihood that Military Adjutant General Brig. Gen. Sharon Afek will
decide to turn this into a criminal investigation looks very low for
now, certainly given the present political climate.
Afek,
the military prosecution and the Military Police can live with the
comptroller’s new report and put their focus on Shapira’s practical
recommendations for improvement. The bigger question is how the report
will be received in the international arena. Here Israel has at least
one thing on its side: In an era in which Russia and Syria, on one side,
are slaughtering antigovernment civilian rebels without mercy; and
Saudi Arabia, on the other side, is conducting a dirty war against the
Houthi rebels supported by Iran in Yemen — the focus on Israel will look
like just another use of the double standard they have been complaining
about in Jerusalem for years.
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