Closing of ‘Black Friday’ war crimes probe will accelerate ICC’s proscecution decision
So much action happened and so many Palestinian civilians died tragically on what has come to be known as ‘Black Friday,’ August 1, 2014, that it is hard to distill the issues.
While there are many specific challenges, this distilling challenge may be the greatest one that the International Criminal Court Prosecution may face when it addresses the incident.
Up to 70 civilians were “unintentionally killed as a result of attacks directed at military targets and military operatives” according to the IDF’s investigation into the assault in Rafah, in southern Gaza, which has launched after the kidnapping of Israeli Lieutenant Hadar Goldin.
The conclusions that the ICC draws about the IDF’s investigation of the incident, which was released on Wednesday, may be the most important in the ICC Prosecution’s process of deciding whether to delve deeper into the Israeli-Palestinian conflict. The IDF closed the probe without recommending any criminal charges, although it said it had learned lessons on how to reduce harm to civilians in the future.
What are the top issues the ICC will look at?
1. Did the nature or the troop’s understanding of the Hannibal Protocol (unleashing massive firepower to prevent Hamas kidnappers from escaping with a live IDF soldier) lead to more deaths of Palestinian civilians and war crimes
2. Did the wider part of Black Friday battles between the IDF and Hamas depart from Israel’s broader policy of giving civilians specific evacuation?
3. Can a battle which led to up to the death of 70 Palestinian civilians in a small area in one day lead to no indictments without harming the IDF legal division’s credibility?
The IDF’s report confirmed a March report by the state comptroller that there was a more aggressive understanding of the Hannibal Protocol in the field than at headquarters.
Further, a September 2014 interview by officers and soldiers involved in carrying out the Hannibal Protocol indicated a potentially problematic understanding of the kind of use of force that it permitted.
But The Jerusalem Post has learned that the IDF view is that the main question is not whether the IDF forces in the field misunderstood how much force they could use. Rather, the main question is did they act on those incorrect understandings in a way that violated the laws of war.
The world is a place where critics connect separate data without checking their connection. Immediately after the operation, critics connected the problems surrounding the Hannibal Protocol with the large number of Palestinian civilians dead – and with a limited picture, it seemed like a reasonable connection.
According to the IDF view, the Post has learned that the problem with this is that the massive firepower used in the Hannibal Protocol at most led to 10 of the 70 killed Palestinian civilians. The other 60 were killed in separate, chaotic skirmishes between IDF and Hamas forces.
Moving away from questions surrounding the Hannibal Protocol and carefully combing through the six central specific incidents in which most of those 60 were killed, it turns out that the biggest questions for the IDF were not a disproportionate use of force.
The central question is about sufficiency of warnings.
Here, the report does itself a disservice. In breaking down the many incidents relating to Black Friday, it only mentions attacks where it did not give specific warnings to civilians to leave a structure – each time citing the need for surprise against the Hamas targets.
However, the Post has learned that even during the Black Friday incident there were numerous times where civilians were given specific warnings. In fact, these incidents may not be in the report as they succeeded in getting the civilians out of harm’s way.
Since there is no rule obligating issuing a warning even at the cost of tipping off a target, critics would need to produce information about specific incidents rebutting the IDF’s claim that a warning would have tipped off a Hamas target.
There is little in the report with which to base any specific charges against specific soldiers or commanders.
The question then for the ICC Prosecution will be will it hook onto the IDF’s reluctance, the lack of a single war crimes indictment and the large number of civilian deaths as a basis to declare the IDF investigations flawed, as the UN Human Rights Council report essentially did in 2015.
Alternatively, it could recognize that the IDF’s methods of investigation, though even top IDF officials recognize they are imperfect, are within the spectrum of methods used by other Western armed forces engaged in combat.
A third path would be not to either directly attack or clear the IDF but rather to work with it on clarifying problematic incidents to see if the army might share more information in a targeted fashion, and possibly to get the IDF to improve in certain areas on a cooperative basis.
The good news for Israel is the ICC Prosecution is not rushing to conclusions like the UNHRC. The bad news for Israel is that in November the ICC Prosecution went aggressively after the US for alleged war crimes, rather than take a middle path.
What is for sure is that now that Black Friday has been reviewed, the countdown for the ICC Prosecution’s decision will likely accelerate.