Israeli army investigating dozens of suspected violations of international law by its soldiers in Gaza

Footage of the tunnel from which the bodies of Sherman, Beizer and Toledano were extracted.

Yaniv Kubovich reports in Haaretz on 6 February 2024:

The Israeli army have begun investigating dozens of incidents in the current war with Hamas in the Gaza Strip that have raised suspicions that orders were disobeyed, in which commanders on the ground exceeded their authority or where it is suspected that the international laws of war were violated.

IDF Military Advocate General Yifat Tomer-Yerushalmi gave her consent to have teams of investigators from the IDF General Staff headquarters, appointed by Chief of Staff Herzl Halevi, pursue the investigations, some of which have produced findings involving serious cases of harm to individuals and property.

Key cases to be investigated

• Blowing up of the building housing the University of Palestine near Gaza City in January.
• Fatal shooting by IDF soldiers of three Israeli hostages.
• The deaths of dozens of civilians in a strike aimed at killing Ibrahim Biari, the Hamas Jabalya battalion commander.
• The deaths of 21 IDF reservist soldiers in the Gaza Strip following a missile strike and explosion of explosive material in the building they were stationed in.

The investigation is being carried out against the backdrop of South Africa’s application to the International Court of Justice in The Hague accusing Israel of committing genocide against the Palestinians in Gaza. Israel denies the charge. In less than a month, Israel is required to submit a report to the court on its operations in Gaza and to detail how Israel and the IDF react when suspicions arise of actions that are contrary to international law.

IDF Chief of Staff Halevi recently appointed Maj. Gen. (res.) Yoav Har-Even to head the General Staff investigation, and he has put together a team of investigators that will work with the military advocate general and that will not be subordinate to Halevi.

The team members recently held a series of meetings, along with senior members of the Military Advocate General’s Office, in which they surveyed the incidents that have already been reported or that are known to have occurred in the war. They have ranked them based on the need for an in-depth investigation of the conduct of the army and its commanders.

When it concludes its work, the team will submit a professional opinion to the military advocate general with recommendations as to whether the IDF’s Military Police Criminal Investigation Division should investigate the incidents. The final decision in the cases will be made by Military Advocate General Tomer-Yerushalmi, but the opinion of the head of the investigation team will also carry major weight.

Jabalya, a fortified refugee camp in Gaza City, after an attack in October 2023

Most of the incidents that have been surveyed involve the death of large numbers of innocent people or substantial damage to sensitive facilities such as hospitals, schools or government institutions in Gaza. The goal is to determine whether the acts were carried out in accordance with IDF procedure and international law.

Senior IDF officials understand the need for the investigations even if it results in criminal proceedings against soldiers. At a recent meeting, the IDF expressed the stance that investigating such incidents was critical to the continuation of the war.

The war erupted on October 7 after Hamas’ assault on a string of Israeli border communities where 1,200 people were killed and well over 200 abducted into Gaza. In response to the attack, the Israeli government has vowed to remove Hamas from power in Gaza, remove the military threat that Hamas has posed to Israel and to return the hostages.

IDF officials understand that the current war is different from previous ones Israel has fought – in its intensity, duration and in the prominence that international law discourse has had in the fighting.

The fact that adherence to international law consistently comes up in every conversation with American officials, along with International Criminal Court Prosecutor Karim Khan’s regular visits to Rafah in southern Gaza since in the second week of the war has reinforced an understanding within the IDF that there needs to be a particularly high commitment to compliance and to avoiding injury to noncombatants.

Halevi and other IDF brass have been trying to make the issue clear at every opportunity with commanders on the ground, but those claim that it isn’t possible to monitor the actions of every commander or soldier who decides to act on their own in violation of orders.

At the beginning of the war, Halevi believed that in-depth investigations when large numbers of forces were in Gaza would be a mistake and could distract commanders from their operational responsibilities. But with the decrease in the intensity of the fighting, IDF officials understand that more in-depth investigations can now be carried out and that commanders can be summoned to provide testimony without harming their ability to function.

One of the incidents that the Military Advocate General’s Office is expected to examine is the blowing up of the building housing the University of Palestine near Gaza City last month by Combat Engineering Corps troops.

The bombing of educational institutions, including universities, schools and kindergartens requires both the approval of the Chief of Staff and a legal opinion in support of targeting the institution, if there is an operational necessity to destroy it.

Officials in Halevi’s office, in the Military Advocate General’s Office and at the IDF Southern Command were taken by surprise last month by media reports of the destruction of the University of Palestine’s building without the necessary approvals.  Maj. Gen. Yaron Finkelman, who heads the Southern Command, ordered an investigation following that incident and the findings were presented to Halevi, confirming that the explosion was carried out without approval. Disciplinary steps were ordered against the commanders of the engineering corps force that was involved. The Military Advocate General’s Office will examine the steps that have been taken and decide whether a criminal investigation by the military police should be opened.

The advocate general might ask Har-Even’s team to investigate further and to consider the international legal aspects of the case. IDF officials said, however, that “Hamas had been using the building and its surroundings for military operations against our forces, but causing the building’s collapse was done without the necessary approvals.”

Another incident that Har-Even’s staff will investigate is the fatal shooting by IDF soldiers of three Israeli hostages – Yotam Haim, Alon Shamriz and Samer el-Talalka – while they were holding a white flag and had their hands up.  The findings from inquiry at the command level following the incident were presented to the hostages’ families and the media. They were also sent to Military Advocate General’s Office for further investigation. The MAG has requested that the General Staff investigative team conduct additional work on legal issues that had not been addressed by the command-level investigation. After that, the MAG will consider whether to open a military police criminal case and whether the conduct of the soldiers involved justify indictments.

Another incident that is to be investigated involves the targeted killing of Hamas Jabalya battalion commander Ibrahim Biari, who was killed by an Israeli airstrike on a building in the Jabalya refugee camp in northern Gaza. Sources in Gaza reported that dozens of civilians were killed in the attack.

Several weeks ago, MAG staff contacted commanders of forces on the ground regarding the issue of Israeli troops torching Palestinian homes in Gaza – a practice that was reported by Haaretz last week.

Chief of Staff Halevi also discussed this issue with commanders on the ground and made it clear that these actions are severe and illegal, and damage Israel’s legitimacy in fighting the war.  Sources who spoke to Haaretz said that Halevi’s admonitions have only been partially successful in stopping the problem. IDF staff understand that, despite the many incidents in which operational need arose to destroy buildings in Gaza that have been used for terrorist purposes, many homes have been set on fire in violation of the law and contrary to orders. Har-Even’s team will investigate several of these incidents.

Last month’s incident in which 21 combat reservists were killed in the eastern Gaza Strip just over the border from Kibbutz Kissufim will be investigated by the team and is considered a high-priority case. The soldiers were killed when explosives in the building that they were in ignited after the building was hit by anti-tank fire.

One incident that at this point will not be examined by Har-Even’s team is the death of three other hostages – Ron Sherman, Nik Beizer and Elia Toledano. They were killed in a tunnel near the site where Ahmed Randor, the commander of Hamas’ northern brigade in the Strip, was killed in an IDF attack.  A command-level investigation found that “it can neither be ruled out nor confirmed that they died as a result of suffocation, strangulation, poisoning or the consequences of an IDF attack or action by Hamas,” as a statement from the IDF spokesman put it.

Ron Sherman’s mother, Maayan, accused the army of killing her son by introducing poison gas at the site where her son was being held. Her son’s death, she said, “wasn’t errant gunfire, wasn’t friendly fire but rather premeditated murder, bombardments with poison gas.”

The stance of the Military Advocate General’s Office is that the command-level investigation was thorough and that its findings were provided to the hostages’ families with complete transparency. In response to the families’ claims that controversial material such a poison gas was used, senior IDF officials told the families that the army hasn’t been making use of poisonous materials or chemicals at any stage in the fighting and that the means that the IDF does use are subject to approval by the IDF’s international law department with regard to their legality and the conditions under which they can be used.  The families were told that the Israeli forces did not have information that there were Israeli hostages in the tunnel at the time of the attack, and it was therefore carried out in accordance with the rules.

In response for this article, the IDF said that the General Staff investigative team is working to “examine reports and complaints of the violation of Israeli and international law in the course of the fighting” and that it has begun collecting the data regarding the various events, and is in the initial stages of examination.

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