Last November, some two months after the war in the Gaza Strip ended, U.S. Joint Chiefs of Staff chairman Gen. Martin Dempsey surprised a few people. Speaking at a conference in New York, he said Israel went to “extraordinary lengths” to prevent injury to innocent people in Gaza. “The Israel Defense Forces is not interested in creating civilian casualties. They’re interested in stopping the shooting of rockets and missiles out of the Gaza Strip and into Israel,” he added.

It is unlikely Dempsey’s statement will satisfy the committee from the United Nations Human Rights Council that is currently formulating its final report on the mutual accusations of war crimes by both Israel and Hamas during last summer’s Operation Protective Edge. However, the U.S Army commander’s words do reflect an increasing understanding in Western armies of the constraints with which Israel has to contend in conflicts with terror organizations in densely populated areas. This understanding is the result of a two-pronged effort on Israel’s part: in the legal arena, with the military prosecutor’s close monitoring of decisions taken during the war and investigations of suspected offenses afterward; and in the public diplomacy arena, mainly by close contacts with other armies.

After the war, the Pentagon sent a team of experts to Israel to hear about conclusions being drawn from it, in particular concerning harm to civilians. In parallel, a team of senior Israeli officers – headed by permanent General Staff committee chairman Maj. Gen. Noam Tibon and Military Advocate General Maj. Gen. Danny Efroni – went on a working visit to Washington on the same matter. Then, in February, Efroni took the initiative to host a conference in Israel attended by dozens of top military legal people, from 14 countries, who discussed democracy’s war on terror.

The military prosecution is now parrying contradictory pressures. Ever since the war ended, the international community has been expecting clarifications from Israel – along with punishment of commanders – because of the killing of civilians during the fighting. Even according to the mildest version of events, more than 1,000 Palestinian civilians were killed by IDF fire, among them hundreds of children. The Israeli government is hoping that the work by the military advocate general and his people will allow to it to fend off at least some of the criticism in the international arena.

In right-wing parties, though, as well as, to a large extent, among IDF field commanders, there has been strong opposition to the investigation policy. Why, they ask, does the prosecutor’s unit need to examine a field commander’s judgment during a war?

Open gallery view Military Advocate General Maj. Gen. Danny Efroni. Credit: Moti Milrod

The man at the eye of the storm is the military advocate general, Efroni. In separate conversations with Haaretz over the past several weeks, he and the IDF’s chief prosecutor, Col. Udi Ben Eliezer, outlined the prosecution’s policy in the wake of the war.

Both men were careful not to give details about decisions that have not yet been reached – above all, the question considered to be the most dramatic: Will there be a military probe into the incident in Rafah that has become known as “Black Friday”? (Following the suspected abduction of 2nd Lt. Hadar Goldin in a tunnel under Rafah, the IDF implemented the Hannibal Directive, killing dozens of Palestinians after launching heavy artillery fire and airstrikes in order to prevent militants from taking the Israeli officer.)

However, what they did say reflected a determined effort to maintain the prosecution’s independence, even during stormy political times in which Defense Minister Moshe Ya’alon – in the midst of the election campaign – allowed himself to warn against a criminal investigation of commanders in the Rafah affair. “It’s an operational event. It’s not something you investigate with criminal tools,” claimed Ya’alon in January. Hundreds of reserve soldiers and officers signed a petition in this spirit at the time.

Efroni, who is expected to complete his four-year tour of duty in the fall, returned to the IDF from civilian life to take up the position of military advocate general in September 2011. Shortly after his return, he succeeded in arousing the ire of a powerful faction in the military (and its media supporters) when he reopened an investigation into the Harpaz document affair [concerning a forgery and campaign that attempted to discredit a candidate for chief of staff], a decision that ultimately led to the police recommendation for a trial of former chief of staff Gabi Ashkenazi and some of his close associates. In the Gaza affair, too, it is evident that Efroni is heading toward conflict with Ya’alon and senior officers.

If this bothers him, the military advocate general doesn’t show it. As he sees it, his job is to find out the truth and investigate suspicions of offenses, regardless of external pressures.

The IDF's values

“You will never hear me say, ‘The IDF is the most moral army in the world,’” declares Efroni, who refuses to adopt the mantra decreed by then-Chief of Staff Shaul Mofaz during the second intifada [2000-2006] and recited ever since, as though it were holy writ, by the top levels of the government and the army. “I think that our army has good values, but some of this has to do with the fact that it investigates and examines suspected offenses in a professional way. If we don’t do that, the IDF’s values will very much be thrown into question.”

Since the war, the examining committee – initially headed by Maj. Gen. Tibon and, following his retirement from the IDF, now by Maj. Gen. (res.) Yitzhak Eitan – has looked into some 120 incidents in which suspicions arose of transgression of military law. Of them, 65 incidents were forwarded for examination by the military prosecution, which has opened investigations into six of them and, in the meantime, closed 17 additional cases without launching criminal probes. At the prosecution’s initiative, another 13 investigations that did not go through the General Staff committee are also underway. These investigations deal, inter alia, with complaints of looting, torturing of detainees, and harm to a civilian woman who was carrying a white flag.

Subject to legal hearings, the first indictments are expected soon against soldiers from the Golani Brigade, who are accused of looting after the harsh battle in the Shujaiyeh neighborhood of Gaza City. Examination of a considerable number of the incidents began in the wake of complaints submitted to the prosecution by human-rights organizations. Seven Palestinians even came to the Erez crossing, where Military Police investigators took testimony from them in the various affairs. In two instances, looting investigations were closed after the Palestinian complainants refused to present themselves and testify. Thus far, dozens of officers and soldiers have been questioned – some under warning. The most senior officers among those investigated were at the rank of battalion commander, but it is possible that more senior officers will yet be summoned for questioning.

According to Efroni, “It is clear to all of us that we will put a commander or soldier on trial for a black incident – not for a reasonable error in the midst of fighting like, for example, if you shoot to wound a terrorist and by mistake you hit a civilian. I don’t know how some of our investigations will end, but we will not hesitate. If needs be, we will file indictments. We will not put soldiers on trial only in order to satisfy the media, which is disturbed by the large number of civilians killed in the war. I am not investigating in order to satisfy anyone. I will not file indictments in order to arrange the statistics of B’Tselem,” he adds, referring to The Israeli Information Center for Human Rights in the Occupied Territories, which criticized the small number of indictments in the past relative to the number of investigations that were opened.

Efroni rejects the suggestion that the prosecutions’ work is being carried out in light of the possibility that the International Criminal Court in The Hague might file indictments against IDF officers following the Palestinians’ acceptance to membership in the organization. “If we do our work properly, I am not worried,” he says. “The ICC will not take action to replace the prosecution in a place where the legal system of the country is unbiased and does its work.”

In the same breath, he adds, “The explanation I sometimes hear, to the effect that everything we do is aimed only at protecting the soldiers from the court in The Hague, is a miserable statement. A Military Police probe is not an insurance policy for the IDF. If the probe is a whitewash and not a true investigation, nothing will stop the ICC.”

Chief prosecutor Col. Ben Eliezer was the chief military defense attorney after Operation Cast Lead in 2008-09. Inter alia, he represented the commander of the Givati Brigade at the time, Col. Ilan Malka, in an investigation into the killing of 21 members of the Samouni family from Zeitoun, Gaza. [The IDF probe decided in 2012 there was no criminal case to answer.]

“I am not eager to bring commanders in for investigation if there really isn’t a need. We send people to fight, and I’m going to bring them in for investigation only when it is truly justified,” Ben Eliezer tells Haaretz. “If the circumstances indicate a sharp deviation from the expected norms, or from the orders – then yes, there will be certain cases, which must be chosen carefully, that will get a criminal investigation. The mere fact that it’s a matter of operational activity does not provide immunity from criminal investigation.”

MAG Efroni lectures in courses for division and brigade commanders to explain the prosecution’s position. “When you are talking with commanders, they will all say to you, ‘We are a country of law and we need to abide by it.’ But how do you translate this into deeds? I know it’s not fun for a commander to be questioned by Military Police investigators, but since we’re the army of a country of law, there is no escape from that.”

The decision in the Rafah affair will be made several weeks from now at the earliest. Ben Eliezer, who retires from active service in the IDF this coming summer, sounds completely in sync with his commander on the matter. “We need to be faithful to our roles,” he says. “The decision will not be taken in order to answer to caprices on any side. Not every error of judgment, mistake or deviation would justify turning to criminal tools. The flagrant cases – those are the cases that will go to a criminal investigation.”

The homes front

One of the most controversial measures implemented by the IDF during the war was a systematic attack on the homes of Hamas and Islamic Jihad commanders, on the grounds that the residences were used for “command and control purposes” because the commanders turned their homes into operations rooms of a sort. Thus, scores of houses were demolished and, in a number of cases, many civilians were killed as a result of hitches in the “knock on the roof” procedure aimed at evacuating civilians from the building before bombing it.

Efroni confirms that the prosecution “is examining the attack policy in Operation Protective Edge. Under the rules of international law, it is permissible to attack a target if it is a military target. A home does not become a target because of a telephone line that is used for operational communications by the enemy. But if the commander is directing the battalion’s fighting from there, and his subordinates are coming to his house to consult with him, it is a military target. We didn’t decide to bomb all the commanders’ homes. There were homes we didn’t approve for attack.”

The MAG adds that, sometimes, an attack that gains relatively high legitimacy does not conform to the rules of war. “Suppose you made sure no one was in the house and then you destroyed the commander’s home, without casualties. The international community will not protest, but from the legal point of view you must not bomb it unless military use of the home has been proven.” According to Efroni, the demolition of multistory buildings was legally approved only because it was proved that those buildings were serving as Hamas operations rooms. “We did not permit punitive actions against buildings unless there was an operational context for that,” he adds.

Unlike the Americans, the IDF does not station legal advisers inside the attack cell that is controlling deployment of aircraft for assassinations. “We present the relevant information to the commander before the attack. At the moment, I prefer that my people are not there at the time of the attack, but this is an open question from our perspective,” notes Efroni. In the recent wars, just as in previous operations in Gaza, the IDF posted lawyers in the division command centers. At the moment, there is no intention of also moving them to one level lower – at the brigade level.

About six months ago, two human-rights organizations, B’Tselem and Yesh Din – Volunteers for Human Rights, claimed that the investigation system in the IDF is a failure and that Israel “is not interested and not capable of investigating violations of Palestinians’ human rights by the security forces.” B’Tselem, which the military prosecution often turned to for help in reaching Palestinian witnesses and evidence, is refusing to help, on the grounds that the investigations aren’t arriving at the truth. Thus, for example, B’Tselem staff have reported that, out of 52 Military Police probes opened after Operation Cast Lead, only three culminated in the filing of indictments – and the severest punishment was for a soldier who stole a credit card.

‘Demagoguery’

Ben Eliezer rejects these claims outright, saying he doesn’t accept “populist claims and the use of statistics. It’s not relevant to show the number of indictments that were filed or the people who were tried. In the end, it’s a detailed examination of the evidentiary material and a concrete decision. Statistics are meaningless in this matter. It’s demagoguery,” he says.

He does, however, agree with one claim by the human-rights organizations. The IDF investigatory system, says Ben Eliezer, should work faster. The prolonging of probes has often meant that soldiers who were key suspects in cases of Palestinian deaths were demobilized, and after half a year were outside the jurisdiction of military law, which can cause the case to take even longer. “In the end, because of the complexity, things take time,” he explains.

Apart from investigations into the army’s operational activity, most of the investigations in the IDF deal with drug offenses, property offenses and traffic accidents. According to army data, the extent of investigations of sex offenses in the IDF is decreasing, but the number of indictments filed in the wake of such investigations is increasing. Ben Eliezer says the army “no longer accepts the culture in which the battalion commander can do whatever he wants – and yet there are still cases when that happens” – an oblique reference to the plea bargain with the Givati Brigade commander Lt. Col. Liran Hajbi, who was dismissed last December.

According to Ben Eliezer, commanders sometimes know of officers behaving inappropriately and choose to look the other way. “Sometimes we know that there are commanders whose flirting is out of bounds, or who talk in a vulgar way – I expect the commander to put a person who acts this way in his place. Sometimes, there are commanders who say this is uncomfortable for them,” says Ben Eliezer, who defines this behavior as “turning a blind eye.”