The McGowan Davis/Schabas Inquiry: The UN Legal Pogrom

The Facts from an Accountable Democratic Society:
IDF Military Advocate General (MAG)

The IDF Military Advocate General [MAG] Corps

"Operation Protective Edge: Examination and Investigation," September 10, 2014.

The IDF Chief of General Staff, Lieutenant General Benjamin (Benny) Gantz, has ordered that a General Staff Mechanism for Fact-Finding Assessments (the 'FFA Mechanism') will examine Exceptional Incidents that occurred during Operation 'Protective Edge'. The FFA Mechanism, headed by a Major General, was activated soon after the commencement of Operation 'Protective Edge', in the midst of the ongoing hostilities.

The FFA Mechanism was established as a permanent mechanism, as part of the process of implementation of the recommendations outlined by the Public Commission chaired by Supreme Court Justice (ret.) Jacob Turkel (the 'Turkel Commission'). The Commission had assessed the compliance of Israel's mechanisms of examining and investigating complaints and claims of violations of the law of armed conflict, with the requirements of international law. In its report, the Turkel Commission found that the examination and investigation mechanisms in Israel generally comply with the obligations of the State of Israel under the rules of international law, and also made a number of specific recommendations designed to further strengthen these mechanisms.

The establishment of the FFA Mechanism was fully coordinated with the Attorney General. It was also endorsed by Dr. Joseph Ciechanover who heads the inter-agency committee appointed by the Government of Israel in January 2014 in order to study the report and examine the implementation of the Turkel Commission recommendations.

The FFA Mechanism is currently headed by Major General Noam Tibon and is comprised of a number of fact-finding assessment teams. Each team is led by a senior IDF officer (in active service or in the IDF reserves), with a rank ranging from Colonel to Major General. The teams are comprised primarily of high-ranking IDF reservist officers, possessing operational expertise in a range of military areas (such as artillery, intelligence and aerial operations), as well as members possessing both legal qualifications and professional experience in the field of investigations. Each team is also provided with ongoing legal advice from legal officers in the IDF Military Advocate General's Corps, who have particular expertise and experience in international law. An additional senior officer from the IDF reserves, with expertise in international law, has also been appointed to assist the head of the FFA Mechanism. None of the fact-finding assessment teams' members served in the chain of command during Operation 'Protective Edge'.

The task of the FFA Mechanism is to collate information and relevant materials in order to determine the facts with respect to Exceptional Incidents that occurred during the Operation. These efforts are intended to provide the Military Advocate General (the 'MAG') with as much factual information as possible in order to enable the MAG to reach decisions regarding whether or not to open a criminal investigation, as well as for the purpose of a 'lessons-learned' process and the issuance of operational recommendations that will assist in preventing exceptional incidents in the future. Exceptional Incidents examined by the FFA Mechanism are those incidents where the MAG has decided that additional information is required in order to determine whether there exists reasonable grounds for suspicion of a violation of the law which would justify a criminal investigation. All information and materials collated by the fact-finding assessment teams, as well as their findings, will be provided to the MAG, who will decide, in a reasoned decision, on the appropriate action – whether to close the case, to recommend disciplinary measures or to order the opening of a criminal investigation to be conducted by the Military Police Criminal Investigation Division. Where necessary, the MAG may also order the fact-finding assessment teams to collate additional information in order to compile a fuller factual understanding of a particular incident.

The substance of the MAG's decisions will be publicized, subject to restrictions under the law and limits pertaining to the security of classified information. The MAG's decisions may be challenged before the Attorney General, and, as with all other decisions by state authorities, are subject to judicial review by the Supreme Court of Israel sitting as the High Court of Justice.

The fact-finding assessment teams were instructed to complete their assignments within a short timeframe in order to ensure prompt and effective examinations. To this end, and to ensure the thoroughness of the assessments, the teams have been provided with the requisite resources. Further, the teams have been invested with broad ranging powers to acquire the provision of materials from all branches of the IDF, and to collate materials from external persons, including civilian witness testimony. All IDF soldiers are required by law to cooperate with the fact-finding assessment teams, and to provide any relevant information they may possess. Statements provided to the fact-finding assessment teams, as well as any materials these teams may produce, are privileged under the law.

Thus far, 44 Exceptional Incidents have been referred to the FFA Mechanism for assessment, and over 50 additional incidents have so far been identified for referral to the FFA Mechanism in the near future. These incidents occurred both during aerial operations as well as during the ground operation. Such incidents include events allegedly resulting in significant and unanticipated civilian harm and events where military activity allegedly resulted in damage to medical or UN facilities. The FFA Mechanism has completed its work with regard to 12 incidents, which have been referred back to the MAG for decision. Following the MAG's examination of the information and materials collected by the FFA Mechanism, as well as its findings, the MAG decided to close the case with regard to seven of these incidents, and has ordered criminal investigations with regard to two of the incidents. The remaining incidents are pending decision.

Allegations, which prima facie, and without the need for additional examination, raise a reasonable suspicion of a violation of the law, are generally transferred upon the decision of the MAG directly for a criminal investigation, and are not examined by the FAA mechanism. As of the date of this release, the MAG has ordered the immediate opening of criminal investigations (without prior examination by the FFA Mechanism) with regard to three incidents.

Where individual complaints have been filed, updates regarding the MAG's decisions will be sent to the relevant persons. In addition, in order to ensure transparency, updates regarding the MAG's decisions will be publicized periodically.

The quick establishment of the FFA Mechanism, including its activation in the midst of the Operation 'Protective Edge' and the allocation to it of the requisite resources, attests to the IDF's continued commitment to the rule of law and to its commitment to international law obligations.

The IDF Military Advocate General [MAG] Corps

"Operation Protective Edge: Update re Individual Incidents" September 10, 2014.

In accordance with the IDF Military Advocate General's investigation policy, and further to the IDF MAG Corps Press Release from September 10, 2014, regarding the examination and investigation of Exceptional Incidents that occurred during Operation 'Protective Edge' (http://www.mag.idf.il/261-6858-en/Patzar.aspx), presented below is information regarding individual incidents which have been decided upon by the Military Advocate General as of the date of publication.

Select cases closed following review by the Fact-Finding Assessment Mechanism

Incident involving the alleged death of Kaware family members in Khan Yunis (8 July 2014) –


The MAG Corps received reports, as well as complaints from human rights organizations, regarding allegations that an aerial strike on a residential building in Khan Yunis on July 8, 2014, resulted in the death of eight civilians. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the Fact-Finding Assessment Mechanism (the 'FFA Mechanism').

The material collected by the FFA Mechanism, and its findings, which were reviewed by the MAG, indicated that the aerial strike was carried out against the building due to its use for military purposes by Hamas, as was the case with numerous other residential buildings in the Gaza Strip. Prior to the strike, the IDF provided precautions to the residents of the building to vacate the premises. These precautions included an individual phonecall and the firing of a non-explosive projective at the roof of the premises, as part of the 'knock on the roof' procedure. Following the provision of the precautions, the residents vacated the building. Subsequently, a number of people were identified as returning to the premises for unknown reasons. However, at this stage the bomb had already been released and could not be diverted from its target. It appears that it was these people who were killed as a result of the strike.

The MAG found that the strike process conformed with the requirements of Israeli law and international law, and despite the tragic outcome, that there was no deficiency in the actions of the IDF forces involved. As a result, the MAG ordered that the case be closed without further action against the IDF forces involved in the incident.

At the same time, the MAG recommended conducting an examination of the operational procedures involved in carrying out such strikes, in order to assess the potential for reducing the likelihood of such exceptional incidents in the future.

Incident involving an alleged aerial strike on a vehicle marked 'TV' in Gaza City (9 July 2014) –

The MAG Corps received reports, as well as complaints from human rights organizations, regarding allegations that an aerial strike was carried out in the Rimael neighborhood of Gaza City on July 9, 2014, against a vehicle marked 'TV', and which resulted in the death of one person alleged to be a journalist (Ahmed Abdullah Mahmoud Shabab). Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism.

The material collected by the FFA Mechanism, and its findings, which were reviewed by the MAG, indicated that the strike was carried out against a vehicle which intelligence information and direct evidence indicated was being used to transport weaponry, intended for use against IDF forces the same day.

It should be noted that at the time of the strike the IDF forces could not discern whether the vehicle was marked 'TV'. It appears that the vehicle was marked 'TV' in order to mask the military use made of the vehicle to transport weaponry. In any event, in light of the military use made of the vehicle for the purposes of transporting weaponry, the marking of the vehicle did not alter the lawfulness of the strike. In addition, the MAG found that the strike procedure was carried out with an effort to minimize incidental harm, and to that end, the strike on the vehicle was at one point delayed when the vehicle was suspected to be in the vicinity of civilians. The MAG found that the strike process conformed with the requirements of Israeli law and international law and that there was no deficiency in the actions of the IDF forces involved. As a result, the MAG ordered that the case be closed without further actions.

Criminal investigations opened following review by the Fact-Finding Assessment Mechanism

Incident involving the alleged death of four children on the Gaza Strip coast (16 July 2014) –

The MAG Corps received reports, as well as complaints from human rights organizations, regarding allegations that an IDF strike on July 16, 2014, resulted in the death of four children on the coastal strip next to Gaza City. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism.

The material collected by the FFA Mechanism, and its findings, which were reviewed by the MAG, indicated the existence of grounds for a reasonable suspicion that the strike was not carried out in accordance with IDF regulations. As a result, the MAG has ordered a criminal investigation into the incident.

Incident involving alleged civilian casualties resulting from a strike in the vicinity of an UNRWA school in Beit Hanoun (24 July 2014) –

The MAG Corps received reports, as well as complaints from UNRWA and from human rights organizations, regarding allegations that an IDF strike in the vicinity of an UNRWA school in Beit hanoun on July 24, 2014, resulted in the death of 15 civilians. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism.

The material collected by the FFA Mechanism, and its findings, which were reviewed by the MAG, indicated the existence of grounds for a reasonable suspicion that the incident involved a deviation from IDF regulations. As a result, and despite the fact that the actual number of civilian casualties is as yet unknown, the MAG has ordered a criminal investigation into the incident.

Criminal investigations opened without a prior Fact-Finding Assessment

Incident involving the alleged shooting of a woman in the area of Dahaniya (18 July 2014) –

The MAG Corps received an operational incident report indicating that on July 18, 2014, a Palestinian woman was shot by IDF forces in the area of Dahaniya, after her presence in the area was apparently previously coordinated with the IDF. Subsequently, the MAG ordered an immediate criminal investigation into the incident.

Incident involving alleged mistreatment of a 17-year old allegedly held by IDF forces in Khuzaa –

Following media reports alleging unlawful acts (including allegations of assault and threats) by IDF forces against Ahmed Jamal Abu Raida, who was allegedly held by IDF forces in the area of Khuzaa, the MAG ordered an immediate criminal investigation into the incident.

Incident involving alleged looting –

The MAG Corps received an operational incident report indicating a suspicion that an IDF soldier stole money while in the Gaza Strip. Subsequently, the MAG ordered an immediate criminal investigation into the incident.

The IDF Military Advocate General [MAG] Corps

"Decisions of the IDF Military Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 2," December 7, 2014

In accordance with the IDF Military Advocate General's (the 'MAG') policy to ensure transparency with regard to the examination and investigation of exceptional incidents that allegedly occurred during Operation 'Protective Edge' (8 July – 26 August 2014), and further to the first update on this issue provided in a Press Release dated 10 September 2014, additional information has been cleared for publication concerning decisions the MAG reached with regard to several individual incidents.

The MAG Corps continues to receive complaints regarding alleged exceptional incidents that occurred during the Operation. Many of these complaints are filed on behalf of Palestinian residents from the Gaza Strip or by non-governmental organizations ('NGO') – Israeli, Palestinian and international. In addition, the MAG Corps actively works to identify incidents warranting examination or investigation. Each complaint or piece of information suggesting a fault in conduct of IDF forces undergoes an initial examination in order to determine the credibility and concrete nature of the allegation. If the allegation is deemed credible prima facie, and is sufficiently concrete, it is referred to the MAG who shall decide whether a criminal investigation is warranted without further examination or whether a factual examination is required by the FFAM prior to such a decision.

As previously publicized, soon after the commencement of Operation 'Protective Edge', and whilst the hostilities were ongoing, the IDF Chief of General Staff ordered that a General Staff Mechanism for Fact-Finding Assessments (the 'FFAM'), headed by a Major General, examine exceptional incidents occurring during the operation. The FFAM was tasked with collating information and relevant materials in order to assess the facts of individual incidents. These efforts are intended to provide the MAG with as much factual information as possible in order to enable the MAG to reach decisions regarding whether or not to open a criminal investigation, as well as for the purpose of a 'lessons-learned' process and the issuance of operational recommendations that will assist in preventing exceptional incidents in the future. Thus, at the time of publication, the MAG Corps has conducted an initial examination with regard to over 100 incidents. Allegations regarding additional incidents are still undergoing initial examination.

Allegations with regard to approximately 100 incidents have been referred by the MAG for examination by the FFAM. Approximately 50 of these incidents have already been examined and referred to the MAG for decision. Of these incidents, five have been referred for criminal investigation by the MAG. With regard to an additional nine cases, the MAG decided to close the case without opening a criminal investigation, after the MAG reviewed the findings and materials collated by the FFAM and did not find that the forces' actions gave rise to reasonable grounds for suspicion of criminal behavior. However in some of these cases, the MAG recommended considering changes to operational methods. In few of the cases that were closed, the MAG found that no involvement of IDF forces was identified with regard to the incident. 11 incidents have been referred back to the FFAM for further examination. Tens of additional incidents are in various stages of examination by the FFAM, and their findings will be provided to the MAG in due course.

In addition, on the basis of allegations that indicated prima facie grounds for a reasonable suspicion of criminal misconduct without the need for prior examination by the FFAM, at the time of publication the MAG has ordered the opening of eight criminal investigations. When a complaint had been submitted in a written form, a reply has been sent to the complainant organization or individual.

Below is information which has been cleared for publication regarding decisions the MAG has reached with regard to specific incidents.

Incidents Concerning Cases Closed by the MAG Following a Fact-Finding Assessment by the FFAM

1. Allegation Concerning an Attack on a Senior Commander in the Palestinian Islamic Jihad, Hafet Hamed (8 July 2014) –

In reports received by the MAG Corps, and in correspondence from various NGOs, it was alleged that on 8 July 2014, six members of the Hamed family were killed as a result of an IDF strike on their home (later correspondence from NGOs alleges that seven people were killed). As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examinations by the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, the attack was directed against Hafet Hamed, a senior military commander (equivalent to a battalion commander) in the Palestinian Islamic Jihad terrorist organization, as well as against a number of other terrorist operatives present with Hamed outside his home, understood to be taking part in an operational briefing prior to conducting military operations against Israel. The attack was carried out using precise and relatively low-explosive munitions, in an effort to minimize the risk of harm to civilians who may have been in the vicinity of the targets. After the attack, from the seven people allegedly killed in the attack, it was found that at least three of them belonged to Palestinian terrorist organizations. It should be noted that at the time of the attack no additional persons were identified in the vicinity of the operatives' group, and on the basis of the factual findings, it is not completely clear how civilians were harmed during the attack. It cannot be ruled out that these civilians were present in a nearby area, not visible to IDF forces, and were harmed as indirect result of the attack.

After reviewing the factual findings and materials collated by the FFAM, the MAG found that the targeting process followed in this case accorded with Israeli domestic law and international law requirements. The attack was directed against military objectives, while adhering to the requirements of the principle of proportionality, and the decision to execute the attack was made by the authorities authorized to do so. The MAG further found that the attack was carried out together with significant efforts to minimize civilian harm.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

2. Allegation Concerning the Death of Kaware Family Members in Khan Yunis(8 July 2014) [published in a press release dated September 10th, 2014] –

In reports received by the MAG Corps, and in correspondence from various NGOs, allegations were raised that an aerial strike on a residential building in Khan Yunis on 8 July 2014, resulted in the death of eight civilians. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, the aerial strike was carried out against the building due to its use for military purposes by Hamas. Prior to the strike, the IDF provided a detailed advance warning to the residents of the building to vacate the premises. This warning included an individual phone call and the firing of a warning projectile at the roof of the premises, as part of the 'knock on the roof' procedure. The residents were identified as having vacated the building, and subsequently a bomb was dropped on the target. A short time after, a number of people were identified as returning to the premises; however, after the bomb had already been dropped, there was no technical possibility to divert the bomb or to cancel the attack. It should be further noted that visual evidence collated by the FFAM clearly showed that the roof of the targeted building was deserted from the moment of the bombs release till it acquired its target (in contrast to certain reports regarding the incident).

After examining the evidence collated by the FFAM, the MAG found that the targeting process accorded with Israeli domestic law and international law requirements. The attack was carried out against a military objective and the decision to carry out the attack was made by the authorities authorized to do so. The MAG found that the attack fulfilled the requirements of the principle of proportionality, as at the time of the attack, the operational authorities determined that the expected collateral damage resulting from the strike was not excessive in relation to the anticipated concrete and direct military advantage of the strike. The MAG further found that the attack was carried out after various precautionary measures were taken, with significant efforts to minimize the possibility of civilian harm. Specifically, individualized advance warning was provided to the residents of the building, which indeed resulted in their evacuation prior to the strike, and moreover, continuous real time aerial surveillance was employed to monitor evacuation. Under these circumstances, the professional assessment of the operational authorities that releasing the bomb would not result in harm to civilians was not unreasonable. It should also be noted, as mentioned above, that at the point when persons were identified as approaching or returning to the building, it was no longer technically possible to cancel the attack. As a result, the MAG found that there was no fault in the actions of the IDF forces involved, and that despite the fact that the attack resulted in a regrettable outcome, it does not affect its legality post facto.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident. At the same time, the MAG recommended conducting an examination of the operational procedures involved in carrying out such strikes, in order to assess the potential for reducing the likelihood of such exceptional incidents in the future.

3. Allegation Concerning an Aerial Strike on a Vehicle Marked 'TV' in Gaza City (9 July 2014) [published in a press release dated September 10th, 2014] –

The MAG Corps received reports, as well as correspondence from NGOs, alleging that an aerial strike was carried out in the Rimael neighborhood of Gaza City on 9 July 2014, against a vehicle marked 'TV', and which resulted in the death of one person alleged to be a journalist (Ahmed Abdullah Mahmoud Shahab) and in the injury of eight additional persons also alleged to be journalists. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, the strike was carried out against a vehicle, which intelligence information and direct evidence (specifically, real-time aerial surveillance) indicated was being used to transport weaponry intended to be used against IDF forces or the Israeli civilian population that same day, and whose passengers were involved in the hostilities. It appears that the vehicle was marked 'TV' in order to mask the military use made of the vehicle to transport weaponry.

The MAG found that the targeting process accorded with Israeli domestic law and international law requirements. The attack was carried out against a military objective, in accordance with the requirements of the principle of proportionality, and the decision to carry out the attack was made by the authorities authorized to do so. It should be noted that, according to the factual findings, at the time of the strike the IDF forces could not discern whether the vehicle was marked 'TV'. In any event, in light of the military use made of the vehicle for the purposes of transporting weaponry, the marking of the vehicle did not affect the lawfulness of the strike under international law. The MAG further found that the targeting process was carried out after undertaking various precautions with significant efforts to minimize the possibility of civilian harm. Such, the strike on the vehicle was at one point delayed, due to the concern that civilians in its vicinity could be harmed. Furthermore, no supporting evidence was found indicating harm caused to persons other than Shahab.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

4. Allegation Concerning a Strike on a Red Crescent Station in Jabalya and Harm Caused to Red Crescent Personnel (9 July 2014) –

The MAG Corps received allegations from a number of NGOs that in the nighttime hours of 9 July 2014, a number of persons working at a Red Crescent station were wounded (the various reports differ with regard to the number of wounded persons, with allegations starting from three wounded and varying up to 15 persons, and also differ with regard to the severity of their wounds, with some allegations of minor wounds caused and others claiming moderate wounds caused) and three ambulances were damaged, allegedly as a result of an IDF strike on agricultural property near the station. Subsequently, in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

According to the factual findings collated by the FFAM and presented to the MAG, Palestinian terrorist organizations had positioned rockets aimed at Israel in underground rocket launching sites a few tens of meters away from the Red Crescent station. The location of the station was known to the IDF forces and was marked in the IDF's operational systems as a "sensitive site", which receive special consideration. The rockets and the launchers that were hidden in the underground launch site next to the station were attacked by the IDF, together with an effort taken to avoid any harm to civilians and to the nearby Red Crescent station. This included selecting the time for attack (at nighttime) and employing appropriate munitions, in an effort to ensure that any damage caused to adjacent buildings, and persons potentially located inside them, would be minor, at most. In actuality, it appears that besides the destruction of the military target, incidental damage was caused to the Red Crescent station, workers inside the station were possibly injured, and ambulances at the location suffered indirect damage resulting from the attack – seemingly as a result of objects that were thrown by the force of the blast.

After reviewing the factual findings and the material collated by the FFAM, the MAG found that the targeting process accorded with Israeli domestic law and international law requirements, and included significant efforts to minimize harm to civilians. The MAG further found that the damage caused to the Red Crescent station was unavoidable considering the proximity of the rockets placed by the Palestinian terror organizations only a few tens of meters from the station.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

At the same time, the MAG recommended to the relevant IDF operational entities that they consider specific amendments to the target planning process, which may assist in further minimizing the potential collateral damage resulting from IDF strikes on military objectives located in close proximity to sensitive sites.

5. Allegation Concerning Two Female Casualties at the 'Alambra Association' in Bet Lehia (12 July 2014) –

According to correspondence and reports from various NGOs, on 12 July 2014, two women were killed and four others injured as a result of an IDF aerial strike on a care centre for the mentally and physically disabled, belonging to the 'Alambra Association', in Beit Lehia. As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examination by the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, the strike was directed at a weapons depot located inside the residential home of a senior Hamas commander, in a building comprising of four apartments. While the operating forces were aware of the existence of a kindergarten in the same building, close to the weapons depot, there was no information indicating the existence of a care center.

Prior to the attack a number of precautionary measures were undertaken in order to minimize potential civilian harm – including several attempts to telephone the residents of the building and the firing of two warning projectiles towards the structure (as part of the 'knock on the roof' procedure). No reaction was identified by the residents, and no presence of persons at the site was discerned prior to the attack. As an additional precaution, the attack was carried out late at night, in order to avoid any possible harm to children attending the kindergarten during the day.

The findings further indicated that at the time the attack was decided upon, the operational assessment concluded that, as none of the precautionary measures resulted in any response, no civilians were present and no civilians were expected to be harmed as a result of the attack.

In light of these factual findings, the MAG found that the targeting process followed in this case accorded with Israeli domestic law and international law requirements. The attack was directed against a military objective, while adhering to the requirements of the principle of proportionality, and the decision to attack was made by the authorities authorized to do so.

Further, the MAG found that the attack was carried out after a number of precautions were undertaken intended to minimize the potential for civilian harm, and that the professional assessment at the time of the attack – that civilians would not be harmed as a result of the attack – was not unreasonable under the circumstances. Although seemingly civilians were harmed as a result of the attack, this is indeed a regrettable result, but it does not affect its legality post facto.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

6. Allegation Concerning a Strike on an Ambulance in Bet Hanoun (22 July 2014) –

Correspondence from an NGO alleged that in the morning hours of 22 July 2014, the IDF "struck three ambulances that were involved in the evacuation of wounded persons east of the industrial area of Bet Hanoun. One of the wounded persons in an ambulance was killed and the three vehicles were seriously damaged". As a result, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

Following a thorough review conducted by the FFAM with all the forces identified as operating in the relevant area, such a strike by IDF forces operating in that area could not be identified. Likewise, and in contrast to other complaints concerning similar incidents, no report could be located from the time of the incident indicating that harm had been caused to a rescue crew. In turn, the FFAM did not dismiss the possibility that damage, insofar as such occurred, was the result of activity other than that of the IDF. Under these circumstances, considering the complaint could not be sufficiently substantiated and insufficient details existed in order to identify the incident, the MAG ordered that the case be closed. However, the MAG instructed that if additional information in the future allows for sufficient identification of the incident, a further examination of the incident will be considered.

7. Allegations Concerning Attacks on Al-Wafa Hospital (11-23 July 2014) –

In reports received by the MAG Corps, and in correspondence from various NGOs, it was alleged that the Al-Wafa Hospital was unlawfully attacked by IDF forces on a number of occasions between 11-23 July 2014. As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examination by the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, Palestinian terrorist organizations used the hospital compound for a range of varied and multiple military purposes throughout the period noted above, as well as beforehand. Such, it was found that Hamas used structures in the hospital for positioning surveillance devices so as to track IDF operational activity, that the hospital structures were used on multiple occasions as firing positions towards IDF forces, and that rockets were launched from the immediate vicinity of these structures. Further, according to materials presented to the MAG, reliable information indicated that the sole use that was made of the hospital, from a certain date onwards, was for the military purposes of Hamas, by Hamas' military operatives. At this point, the hospital had already been evacuated of all civilians – patients and staff.

According to the factual findings, on a number of occasions during this period IDF forces were forced to return immediate fire, in a discerning and precise manner, towards sources of attacking fire that posed a serious and immediate threat to those forces. The MAG is not aware of any civilian harm resulting from these incidents. At the same time, in light of the ongoing and widespread military use made of the hospital by Hamas, a number of warnings were provided by the IDF to official entities in the Gaza Strip and to the Palestinian Authority, as well as to international organizations, requiring that the military use of the hospital be ceased.

On 23 July 2014, after these warnings went unheeded and after fire was again directed at IDF forces from the hospital, it was decided to attack the hospital. The attack was only carried out after the IDF had ensured a number of times, that all civilians had evacuated the hospital and that the hospital was being used at that time solely for military purposes.

After reviewing the factual findings and the material collated by the FFAM with regard to each and every incident of attack, the MAG found that, with exception to one instance which will be discussed below, the attacks were conducted in accordance with Israeli domestic law and international law requirements. The attacks were directed against military objectives, while adhering to the requirements of the principle of proportionality. Likewise, the MAG found that the attack was executed only after various precautions were undertaken, with significant efforts to minimize civilian harm. With regard to the incidents where IDF forces were faced with a serious and immediate threat to their lives, the forces returned fire immediately towards the source of the attacking fire, in a precise and discerning manner, and without harming civilians. The structures in the hospital compound were attacked and destroyed only after advance warning had been provided as required under international law, and no civilians were present at the time. The decision to attack was made in a careful and reasoned manner by the authorized authorities, after Hamas disregarded advance warnings and continued in its military use of the hospital compound, thereby resulting in the loss of the special protection from attack provided to the hospital under international law.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

At the same time, the MAG found that one of the attacks, occurring on 11 July 2014, and directed against military surveillance equipment placed by Hamas on the roof and uppermost floor of one of the hospital's buildings, was seemingly carried out without advance warning. It should be noted that this attack was directed at a defined point on one of the buildings in the hospital compound, where it was known that no patients or medical staff were present at the time, and that the attack was planned and carried out in such a manner so as to strike only the surveillance equipment and its immediate vicinity, without causing any collateral damage to civilians or adjacent buildings. Since this incident did not establish a serious violation of the law of armed conflict which requires criminal investigation, and in light of the other circumstances of the incident, the MAG found that there were no grounds for a reasonable suspicion of criminal misconduct in this incident. However, the MAG recommended that the Chief of General Staff examine the reasons why the relevant authorities did not provide the required advance warning and to take measures where deemed appropriate. In addition, the MAG recommended that the Chief of General Staff provide a clarification in the relevant IDF regulations reflecting the requirement to advance warning prior to an attack against a medical facility being used for military purposes.

8. Allegation Concerning a Strike on the Al-Shifa Hospital and a Park in the Shati Refugee Camp in the Gaza Strip (28 July 2014) –

Various media reports alleged that on 28 July 2014, an incident occurred involving a strike on medical clinics belonging to the Al-Shifa Hospital, as well as a strike on a park where children were present in the Shati Refugee Camp, and as a result of which ten persons (including nine children) were killed and tens injured. Some of these reports alleged that the strikes were carried out by the IDF. As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examination by the FFAM.

Following a thorough review conducted by the FFAM, such a strike by IDF forces could not be identified. However, Israel's technical systems recorded in real-time the path of a salvo of missiles fired from within the Gaza Strip, seemingly by Hamas or Palestinian Islamic Jihad, which landed in the medical clinics and in the Shati Refugee Camp at the time of the alleged incident. Under these circumstances, and in light of the fact that the strike on the hospital was the result of rocket fire from Palestinian terrorist organizations, the MAG ordered the case to be closed.

9. Allegation Concerning a Strike on the UNSCO Headquarters in Gaza City (29 July 2014) –

In a report received by the MAG in real time, it was alleged that the UNSCO (United Nations Special Coordinator for the Middle East Peace Process) headquarters were damaged by IDF shelling. The report claimed that several shells fell in the headquarters compound, which caused damage to buildings in the compound and one of the organization's armored vehicles (it was not claimed that any persons were harmed in the incident). As a result, and in accordance with the MAG's investigation policy, it was decided to refer the incident for examination by the FFAM.

According to the factual findings and materials collated by the FFAM and presented to the MAG, no high-explosive shells were fired by IDF forces in that area during that time, rather only illumination shells, intended to illuminate the area as part of an effort to disrupt mortar and rocket fire towards IDF forces and Israeli territory. According to an assessment of the relevant operational authorities, it is possible that the UNSCO headquarters may have been damaged as a direct or indirect result of the ogive (casings) of such shells falling randomly within the compound. The FFAM found that at no time during the Operation were the UNSCO headquarters directly targeted.

The MAG found that the use of illumination shells in this incident was employed for a proper military objective and was conducted in accordance with Israeli domestic law and international law requirements. The incidental and unintended damage to the UNSCO headquarters is a regrettable though possible outcome, considering the fierce and intense fighting taking place in the Gaza Strip (insofar as the damage was indeed caused by the illumination shells). Nonetheless, such incidental damage does not affect the legality of the employment of the illumination shells.

In light of the above, the MAG did not find that the actions of the IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

Incidents into Which, Following an Assessment by the FFAM, the MAG has Ordered Criminal Investigations

1. Allegation Concerning the Death of Four Children on the Gaza Strip Coast (16 July 2014) [published in a press release dated September 10th, 2014] –

The MAG Corps received reports, as well as complaints from human rights organizations, regarding allegations that an IDF strike on July 16, 2014, resulted in the death of four children on the coastal strip next to Gaza City. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

The factual findings and materials collated by the FFAM and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the strike was not carried out in accordance with the rules and procedures applicable to IDF forces. As a result, the MAG has ordered a criminal investigation into the incident.

2. Allegation Concerning Civilian Casualties Resulting From a Strike in the Vicinity of an UNRWA School in Beit Hanoun (24 July 2014) [published in a press release dated September 10th, 2014] –

The MAG Corps received reports, as well as complaints from UNRWA and from human rights organizations, regarding allegations that an IDF strike in the vicinity of an UNRWA school in Beit Hanoun on July 24, 2014, resulted in the death of 15 civilians. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

The factual findings and materials collated by the FFAM and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the incident involved a deviation from the rules and procedures applicable to IDF forces. As a result, and despite the fact that the actual number of civilian casualties is as yet unknown, the MAG has ordered a criminal investigation into the incident.

3. Allegation Concerning the Death of an Ambulance Driver in the Khan Yunis Area (25 July 2014) –

Operational reports indicated a suspicion that on 25 July 2014, at approximately 23:45, an ambulance driver in the vicinity of Khan Yunis was fired upon by IDF forces, and killed as a result. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

The factual findings and the material collated by the FFAM and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the incident involved a deviation from the rules and procedures applicable to IDF forces. As a result, the MAG has ordered a criminal investigation into the incident.

4. Allegation Concerning the Death of an Ambulance Driver in the Vicinity of a Hospital in Beit Hanoun (25 July 2014) –

In reports received by the MAG Corps, and in correspondence from various NGOs, it was alleged that on 25 July 2014, at approximately 17:28, an IDF strike resulted in the death of an ambulance driver. As a result, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

The findings and the material collated by the FFAM did not provide sufficient information as to the allegations arising from the reports and the NGO's claims. As a result, the MAG has ordered a criminal investigation into the incident.

5. Allegation Concerning the Deaths of 27 Civilians in the Abu-Jama House in Khan Yunis (20 July 2014) –

In reports received by the MAG Corps, and in correspondence from various NGOs, it was alleged that on 20 July 2014, 27 civilians were killed as the result of an IDF strike on the house of the Abu-Jama family in Khan Yunis. As a result, and in accordance with the MAG's investigation policy, the incident was referred to the FFAM.

The factual findings and materials collated by the FFAM and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the incident involved a deviation from the rules and procedures applicable to IDF forces. As a result, the MAG has ordered a criminal investigation into the incident.

Incidents Regarding Which the MAG Ordered Criminal Investigations without Prior Fact-Finding Assessment

1. Allegation Concerning the Death of a Palestinian Woman in Dahaniya (18 July 2014) [published in a press release dated September 10th, 2014] –

The MAG Corps received an operational incident report indicating that on 18 July 2014, a Palestinian woman was shot by IDF forces in the area of Dahaniya, after her presence in the area was apparently prior coordinated with the IDF. Subsequently, the MAG ordered a criminal investigation into the incident.

2. Allegation Concerning Looting (20 July 2014) [published in a press release dated September 10th, 2014] –

The MAG Corps received an operational incident report indicating a suspicion that an IDF soldier looted (cash money) during the Operation. Subsequently, the MAG ordered a criminal investigation into the incident.

3. Allegation Concerning Mistreatment of a 17-year old Allegedly Held by IDF forces in Khirbeit Haza'a (23-27 July 2014) [published in a press release dated September 10th, 2014] –

Following media reports alleging unlawful acts (including allegations of assault and threats) by IDF forces against Ahmed Jamal Abu Raida, who was allegedly held by IDF forces in the area of Khirbeit Haza'a, the MAG ordered a criminal investigation into the incident.

4. Allegations Concerning the Death of a Person Carrying a White Flag and the Use of Human Shields (29 July 2014) –

In a complaint submitted by an NGO, it was alleged that on 29 July 2014 (in media reports it was alleged that the incident occurred on 25 July 2014), IDF forces operating in the area of Kuhza'a, fired at Mohammed Tawfik Mohammed Kadiach, while he was carrying a white flag, resulting in his death, and used the person's family members as "human shields". Subsequently, the MAG ordered a criminal investigation into the incident.

5. Allegations Concerning Four Incidents of Looting (second half of July 2014) –

On the basis of a complaint received from four Palestinians from Khuza'a and Khan Yunis (the Big Abbassan), alleging that IDF forces looted their property while the former had allegedly left their houses, during the second half of July, the MAG ordered the opening of four criminal investigations into the incidents.

The IDF Military Advocate General [MAG] Corps

"Decisions of the IDF Military Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 3," March 22, 2015

In accordance with the IDF Military Advocate General's (the 'MAG') policy to ensure transparency with regard to the examination and investigation of exceptional incidents that allegedly occurred during Operation 'Protective Edge' (8 July – 26 August 2014; the 'Operation'), and further to previous Press Releases dated September 10th and December 4th, additional information has been cleared for publication concerning decisions the MAG has reached with regard to several individual incidents.

The MAG Corps continues to receive complaints regarding exceptional incidents alleged to have occurred over the course of the Operation. Many of these complaints are filed on behalf of Palestinian residents from the Gaza Strip or by non-governmental organizations ('NGO') – Israeli, Palestinian and international. In addition, the MAG Corps actively works to identify incidents warranting examination or investigation. Each complaint or piece of information suggesting a fault in the conduct of IDF forces undergoes an initial examination, in order to determine the credibility and concrete nature of the allegation. If the allegation is deemed credible, prima facie, and is sufficiently concrete, it is referred to the MAG, who shall decide whether a criminal investigation is warranted without further examination or whether a factual examination is required by the General Staff Mechanism for Fact-Finding Assessments prior to such a decision.

As previously publicized, soon after the commencement of Operation 'Protective Edge', and whilst the hostilities were ongoing, the previous IDF Chief of General Staff, Lieutenant Colonel Benjamin (Benny) Gantz, ordered that a General Staff Mechanism for Fact Finding Assessments (the 'FFA Mechanism'), headed by a Major General, examine exceptional incidents allegedly occurring during the operation. The FFA Mechanism was tasked with collating information and relevant materials in order to assess the facts of individual incidents. These efforts are intended to provide the MAG with as much factual information as possible in order to enable the MAG to reach decisions regarding whether or not to open a criminal investigation, as well as for the purpose of a 'lessons-learned' process and the issuance of operational recommendations that will assist in preventing exceptional incidents in the future. Recently, Major General (Res.) Yitzhak Eitan was appointed to head the FFA Mechanism, replacing Major General Noam Tibon who had previously filled this position and who has retired from the IDF.

To date, allegations with regard to approximately 126 incidents have been referred by the MAG for examination by the FFA Mechanism. Sixty-five of these incidents have already been examined and referred to the MAG for decision. Of these incidents, six have been referred for criminal investigation by the MAG. With regard to an additional 17 incidents, the MAG decided to close the case without opening a criminal investigation, after the MAG reviewed the findings and materials collected by the FFA Mechanism and did not find that the force's actions gave rise to reasonable grounds for suspicion of criminal behavior. However, in relation to some of these cases, the MAG recommended changes to operational methods. In relation to a few of the cases that were closed, the MAG found that no involvement of IDF forces was indentified with regard to the incident. In regard to some of the incidents that were examined and referred to the MAG, the MAG considered that further information was needed in order to reach a decision, and accordingly these incidents were referred back to the FFA Mechanism for further examination. Tens of additional incidents are still in various stages of examination by the FFA Mechanism, and their findings will be provided to the MAG in due course.

In addition, on the basis of allegations that indicated prima facie grounds for a reasonable suspicion of criminal misconduct without the need for prior examination by the FFA Mechanism, at the time of publication, the MAG has ordered the opening of 13 criminal investigations. Of these criminal investigations, the MAG decided to close two without undertaking any criminal or disciplinary proceedings, as will be detailed herein. The remainder of the investigations are still ongoing, or have been completed and their findings are awaiting review by the MAG.

All criminal investigations are carried out in a thorough and prompt fashion by a special investigation team assembled by the Military Police's Criminal Investigation Division in order to investigate incidents alleged to have occurred during Operation 'Protective Edge'. This team has collected testimonies from many IDF soldiers and commanders, as well as from a substantial number of Palestinians who were witnesses to some of the incidents in question. The investigations undertaken by the MPCID are progressing at a rapid pace.

Where a complaint had been submitted in a written form, a reply has been sent to the complainant organization or individual.

Below is information which has been cleared for publication regarding decisions the MAG has reached with regard to specific incidents.

Cases Closed by the MAG Following a Fact-Finding Assessment by the FFA Mechanism

    1. Allegation Concerning the Deaths of Members of the Abu Itta Family in Tel Al-Za'atar (24 July 2014) –

    In media reports, as well as complaints received by the MAG Corps from NGOs, it was alleged that on 24 July 2014, as a result of an air strike on the house of the Al-Ajrami family in Tel Al-Za'atar, five members of the Abu Itta family who were in an adjoining building were killed. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

    According to the factual findings collated by the FFA Mechanism and presented to the MAG, at the time in question, a weapons cache was struck that was located in the house of a senior military operative in Hamas, Ahmad Al-Ajrami. Prior to the strike on the cache, the IDF issued a number of detailed warnings over the telephone, wherein the residents of the building in which the weapons cache was located, and the residents of a number of surrounding buildings that were expected to be damaged as a result of the strike, were asked to vacate the premises. Additionally, a warning strike was executed on the roof of the building in which the weapons cache was located, as well as on the roof of the adjoining building which was expected to be significantly impacted as a result of the strike, as part of the "knock on the roof" procedure. During this time, many people were seen leaving these buildings. The strike was carried out after it was assessed that it was possible to conclude that civilians were not expected to be harmed in the building targeted and the adjoining buildings, as a result of the strike.

    After the event, it appears that as a result of the strike, five civilians, members of the Abu Itta family, were killed, and others were injured. It was not fully determined whether those deceased had been present in an adjoining building whose evacuation was specifically asked for, or whether they were in another adjoining building that had been damaged more significantly than had been expected.

    After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities, and was aimed at a military objective – a weapons cache. The strike complied with the principle of proportionality, as at the time the decision was taken, it was considered that the collateral damage expected from the strike would not be excessive in relation to the military advantage anticipated from it, and it appears that this estimation was not unreasonable under the circumstances. Moreover, the strike was carried out while undertaking a series of precautionary measures which aimed to minimize civilian harm. Inter alia, a specific warning was provided to the residents of the buildings which were expected to be impacted as a result of the strike, and ongoing visual surveillance of the event was used to confirm their evacuation.

    In light of these findings, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

    2. Allegation Concerning Strikes on a School in Al-Bureij and an UNRWA School in Nusseirat (25 July 2014) –

    In an operational report received by the MAG Corps, it arose that on 25 July 2014, IDF forces struck a school in Al-Bureij and an UNRWA school in Nusseirat (in an initial report it was alleged that as a result of one of these strikes, five civilians were injured, however, from a later report it arose that there were no individuals harmed in this incident). Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

    According to the factual findings collated by the FFA Mechanism and presented to the MAG, the incident started with an attack carried out on 25 July 2014 against IDF forces in the Gaza Strip that were located in an area to the East of Al-Bureij, by means of mortar shells and anti-tank missiles. During this incident, first sergeant Guy Levi was killed, and another Israeli soldier was injured. Concurrently, high-trajectory fire was also being launched at other forces that were located within the same area of operations, including fire which resulted in a direct hit on a structure in which one of the brigade's companies was located. IDF technological systems identified the source of this fire in real-time as emanating from two sites – the mortar fire and anti-tank rockets from the area of Al-Bureij, very close to a school; and mortar fire from the area of Nusseirat close to an UNRWA school and next to (at a distance of a few meters away) an UNRWA center which provided sanitation, aid, welfare, food distribution and employment services. This area, which is normally a residential area, was known to the IDF forces as a hub of Hamas' and Palestinian Islamic Jihad's military activity over the course of the Operation.

    In an attempt to stop the attack and suppress the fire, IDF forces carried out targeted tank fire towards certain spots in the vicinity of the school in Al-Bureij, which were identified as the sources of the fire, all the while being careful to avoid hitting the school itself. Apparently, as a result of one of the projectiles fired, the wall surrounding the school was struck (though no shells landed within the school). As mentioned, a later report did not allege that any civilians were injured by this strike.

    At the same time, the IDF carried out targeted aerial strikes in Nusseirat against individuals who had been identified as directly participating in the aforementioned high-trajectory fire on IDF forces. Apparently, as a result of one of these strikes, carried out against a militant who was at a distance of a few tens of meters from the UNRWA school in Nusseirat, the wall surrounding the school was struck (though no fire hit the school itself). Again, a later report did not allege that any civilians were injured by this strike.

    After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decisions regarding the strikes were taken by the competent authorities. The strikes were aimed against lawful targets – militants who were directly participating in hostilities, and who fired on IDF troops. The strikes complied with the principle of proportionality, as at the time the decision was taken it was considered that the collateral damage expected from the strikes would not be excessive in relation to the military advantage anticipated from the strikes. Moreover, the strikes were carried out while undertaking precautionary measures which aimed to mitigate the risk of civilian harm and damage to UNRWA facilities, the existence of which were known to the forces, despite what appears to be an attempt by terror organizations to misuse these sites in order to fire upon IDF forces.

    In light of these findings, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

    3. Allegation Concerning the Deaths of 31 Individuals as a Result of Strikes on the House of the Al-Salak Family and Its Surroundings in Shuja'iyya (30 July 2014) –

    In reports published in various media sources, it was alleged that on 30 July 2014, IDF forces fired upon the marketplace in Shuja'iyya, at a time when a ceasefire was in place, and as a result of these strikes, between 15 to 17 people were killed, including children, emergency services personnel, and reporters. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

    After the incident was referred to the FFA Mechanism for examination, the MAG Corps received an additional complaint from an NGO, in which a different account of the event was provided. According to the account provided in the complaint, the incident described above actually took place in an area that was at a distance of around 150 meters from the market in Shuja'iyya, and not within the market itself. According to the allegations, the event commenced with a strike by a shell on a number of individuals from the Al-Salak family, who were up on the roof of their house, a fact which resulted in the death of seven members of the family. After the strike, a large number of people started to gather in the open area next to the family's house, including medical personnel, reporters, and others. While people were gathered there, another two shells struck the area, resulting in the deaths of 21 of those present. Additionally, it was alleged that as a result of additional shell strikes, an individual in an adjacent building was killed, along with two individuals part of Hamas' Civil Defence. All total, according to this account, 31 people were killed in the course of this incident. It was further alleged, that over the course of the incident, a total of 16 shells were fired at the area.

    According to the factual findings collated by the FFA Mechanism and presented to the MAG, the events associated with the incident started at approximately 16:10, when an anti-tank (AT) missile was fired at IDF forces operating in an open area on the outskirts of the Shuja'iyya neighborhood. Immediately after the anti-tank missile was fired, there commenced an intense and ongoing burst of mortar fire, emanating from a built-up area in the neighborhood, targeting the forces. As a result of this fire an IDF soldier was injured and the rest of the soldiers at the scene were placed in real danger. Further, in light of this use of fire, and the situation in which the forces found themselves (including a tank that could not move due to malfunction), the conclusion drawn by the commanders in the field was that this fire could provide cover for an attempt to abduct a soldier. During this episode of mortar fire, five sites in a built-up area were identified as points from which shells had been fired at IDF forces. Nevertheless, IDF forces did not return fire towards the sources of this fire, because of their proximity to "sensitive sites" (in the IDF, "sensitive sites" are civilian sites that receive special protection from attack under the law of armed conflict (such as medical facilities), as well as other civilian sites that warrant special consideration for policy reasons, even when there is no legal obligation (such as schools); such sites are identified in advance by the IDF and integrated into IDF's operational systems).

    At approximately 16:40, when the mortar fire had not yet ceased, IDF forces fired a number of rounds of smoke-screening shells, in order to screen the troops, and frustrate the enemy fire. At approximately 17:00, as the mortar fire upon the troops from the built-up area continued, and in light of the ongoing threat to the lives of the troops, the forces were able to identify two additional sources of fire, from which most of the fire towards them was originating at that time. After it was concluded that one of these points was sufficiently distant from sensitive sites, it was decided to return a limited amount of fire, of five mortar shells, with the aim of suppressing the fire targeted at IDF forces. The IDF fire was carried out using mortars, since there was no available alternative for carrying out the strike, including aerial alternatives, which would allow the necessary operational effect to be achieved. In this context, the possibility of using 155 mm high-explosive artillery shells was also considered, in order to address the danger faced by the forces. This possibility was dismissed for the reason that the collateral damage expected from mortar shells was more limited.

    Approximately 18 minutes after the initial mortar fire was carried out by the forces, towards the source of the fire, and after the fire emanating from that site had not ceased, it was decided to fire an additional ten mortars towards it. After this round of fire, the mortar fire on IDF forces ceased. Only around 40 minutes after the execution of the above-mentioned fire were reports received by the IDF regarding the hit on civilians in this area.

    The FFA Mechanism's findings further revealed that at the time of the incident, the forces had believed that the likelihood of civilians being harmed as a result of the fire was low. Before the start of the ground incursion in Shuja'iyya, a widespread warning to evacuate had been provided, which, according to the information in the force's possession, had resulted in the evacuation of the vast majority of the civilian population in the neighborhood. An additional warning to evacuate was made two days prior to the incident, on 28 July, in order to keep the civilian population at a distance from the area of hostilities. Moreover, during the ongoing aerial surveillance carried out in the area in the period leading up to the incident, no civilian presence was identified on the roads and in the open areas of the neighborhood – which are the areas in which the danger posed by mortar shells is generally greater than the danger to those inside a building. In real time, no aerial surveillance capabilities were available to the forces. Thus, even if the possibility of civilian presence in the area had not been entirely ruled out, in consideration of the assessment that most of the population had evacuated and that no civilian presence was identified in the area prior to the incident, the understanding was that the risk of harm as a result of the limited fire was low.

    After the event, by comparing the actions taken by IDF forces with the allegations contained in the complaint received by the MAG Corps, it can be concluded that one of the shells from the first round of fire carried out by IDF forces apparently struck the roof of the Al-Salak family, at a time when the family was on the roof, and killed seven family members; and that two shells from the second round of fire carried out by IDF forces apparently struck the crowd which had gathered next to the Al-Salak house in the wake of the first strike. At the same time, the possibility that the harm to civilians during this incident resulted from a misfire by a Palestinian terror organization has not been ruled out, in light of the extensive enemy mortar fire emanating from the area at the time.

    In addition to the above, intelligence information indicated that six of the deceased in this incident appear to have been militants, and thus the total civilian fatalities is lower than that alleged in the complaint.

    The FFA Mechanism's findings further concluded, that the incident in question did not take place during a ceasefire in Shuja'iyya. The IDF announced a unilateral humanitarian ceasefire between the hours of 15:00 and 19:00 on that day, but clarified that this would not apply in a number of specific areas in which IDF forces were operating at that time, including Shuja'iyya (along with a number of other areas). This was transmitted in the media and in messages that were passed to the Palestinian side.

    After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the fire was carried out in a manner that accorded with Israeli domestic law and international law requirements. The fire was aimed towards mortars and their operators, with the aim of neutralizing their capacity to continue carrying out ongoing and intensive fire on IDF forces, who found themselves in a situation of clear and present mortal danger. Prior to the execution of the fire, and during it, IDF forces acted in a restrained and calculated manner, and undertook a number of precautions which were intended to avoid, and in any event to minimize, harm to civilians. Initially the forces refrained entirely from returning fire, and thereafter they attempted to frustrate and cause the cessation of this fire by creating a smoke screen. After the fire did not cease, a number of alternatives were considered for returning fire to the sources of the fire, and out of the available and effective alternatives, they chose the means that was expected to result in the least collateral damage. Even then, the return fire was carried out in a measured and limited fashion.

    As regards the strike's compliance with the principle of proportionality, the MAG considered the reasonableness of the commander's decision, taking into account the information that he had at his disposal at that time, both as regards the imperative military necessity of stopping the fire and neutralizing the danger posed to the forces, as well as in regard to the harm expected to result to civilians as a result of the strike. The MAG found, that in the incident in question, there occurred a number of coincidences and series of events that a military commander should not be expected to predict – the shell that resulted in the first instance of extensive harm to civilians (members of the Al-Salak family) landed on a roof, at a time where there was a group of people on the roof (while the chance that the shell would penetrate the building and cause similar harm to persons inside, was lower); and the second instance of extensive harm was caused to a group who had gathered outside the house of the Al-Salak family, in the wake of the previous strike. At the time when the decision was made to carry out the second round of fire, IDF forces were not aware of the hit on the Al-Salak house as a result of the first round of fire, nor of the crowd which had gathered outside the Al-Salak house. In light of the above, the MAG found that the commander's assessment that the collateral damage expected from the strike would not be excessive in relation to the military advantage anticipated from it, was not unreasonable under the circumstances, in light of the information that was at his disposal at that time. As such the MAG found that there had been no misconduct on the part of IDF forces in regards to the incident in question, and that even though the ultimate outcome of the action was tragic, it does not affect the legality of the fire post facto.

    In light of these findings, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

    4. Allegation Concerning the Injury of 10 Individuals as a Result of a Strike on an UNRWA School in Jabalia (next to the Omar Ibn Al-Khattab Mosque) (31 July 2014) –

    According to various media reports, as well as a report from OCHA (United Nations Office for the Coordination of Humanitarian Affairs), it was alleged that on 31 July 2014, IDF forces shot a number of shells at the Omar Ibn Al-Khattab mosque in Jabalia. According to the reports, shrapnel from these shells hit an UNRWA school, and caused injury to 10 civilians who were using the school as a shelter (two of whom were severely injured). Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

    According to the factual findings collated by the FFA Mechanism and presented to the MAG, no such strikes were identified as having been carried out by IDF forces. However, the path of a rocket fired from inside the Gaza Strip, apparently by Hamas or Palestinian Islamic Jihad, was identified by the IDF in real time, and which struck in the immediate vicinity of the mosque at the exact time in question. In light of the fact that the injury to the individuals in the school resulted from rocket fire by Palestinian terror organizations, the MAG ordered the case to be closed.

    5. Allegation Concerning the Deaths of 10 Individuals During a Strike on the House of the Abu Najam Family in Jabalia (3 August 2014) –

    According to a report received by the MAG Corps from an NGO, it was alleged that on 3 August 2014 eight persons were killed as a result of an IDF strike on the home of the Abu Najam family. In other reports in the media, it was alleged that ten people were killed, including two who were Palestinian Islamic Jihad militants – Danian Mansour and Abd Al-Nasser Al-Ajouri. It was further claimed in these reports, that during this strike five civilians were killed (members of the Abu Najam family) who were staying in the house where the two aforementioned Palestinian Islamic Jihad militants were located, while in an adjacent house, three civilians were killed. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

    According to the factual findings collated by the FFA Mechanism and presented to the MAG, the strike in question was directed at Danian Mansour, a very senior commander in the Palestinian Islamic Jihad terror organization, with a rank equivalent to that of a brigade commander, responsible for the organization's operations in the northern Gaza Strip, and with overall responsibility for the organization's intelligence service. At the time of the strike, Mansour was staying in the home of Mohammad Abu Najam. During the planning stages of the strike, it was assessed that there might be civilians present in the building, but that the extent of the harm to those civilians would not be excessive in relation to the significant military advantage anticipated to be achieved as a result of the strike. In this context, it should be noted that the building in question was thought to consist of only one residential apartment – the apartment in which Mansour was staying. The strike on the building was planned for execution by means of a precise munition, and in a way in which would allow achieving the aim of the strike whilst minimizing harm to the surrounding buildings. Likewise, a number of different checks were conducted in order to assess the extent of expected harm to civilians in the surrounding buildings.

    After the event, it appears that as a result of the strike the target, Danian Mansour, was killed, along with Abd Al-Nasser Al-Ajouri, a senior Palestinian Islamic Jihad military operative. Immad Al-Masri, Danian Mansour's deputy, was injured, along with two additional terror operatives (Mohammad Al-Masri of Palestinian Islamic Jihad and Vaal Kassam of Hamas). Likewise, according to the above-mentioned reports, it appears that as a result of the strike an additional eight civilians were killed – five in the Abu Najam house that was struck, and three in the house adjacent to it.

    After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities and aimed at a lawful target – a very senior commander in Palestinian Islamic Jihad. The strike complied with the principle of proportionality, as at the time the decision was taken, it was considered that the collateral damage expected from the strike would not be excessive in relation to the military advantage anticipated from it. Moreover, the strike was carried out while undertaking precautionary measures which aimed to mitigate the risk of civilian harm, with an emphasis on those who were present in the surrounding buildings. Such measures included, inter alia, the choice of munition to be used, as well as the deployment of real-time visual coverage. Additionally, it was found that the provision of a specific warning prior to the attack, to the people present in the structure in which the target was located, or to those in adjacent buildings, was not required by law and was expected to result in the frustration of the strike's objective.

    In light of these findings, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

    6. Allegation Concerning the Deaths of Six Individuals During a Strike on the House of the Al-Bakri family in Gaza City (4 August 2014) –

    In media reports, as well as complaints received by the MAG Corps from NGOs, it was alleged that on 4 August 2014, five members of the Al-Bakri family were killed, along with one additional person who was staying at their home, as the result of an IDF strike on the house. According to some of the reports, two of the deceased – Ramadan Al-Bakri and Ibrahim Al-Masharawi – were militants in the Palestinian Islamic Jihad, while the remaining four deceased were civilians. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

    According to the factual findings collated by the FFA Mechanism and presented to the MAG, the strike in question was aimed at Omar Al-Rahim, a senior commander, at a rank equivalent to that of a deputy brigade commander, in the Palestinian Islamic Jihad terror organization. Al-Rahim was staying in the house of Ramadan Al-Bakri, a Palestinian Islamic Jihad militant. During the target planning process, it was assessed that there might be a number of civilians present in the building, but that the extent of the harm expected to these civilians would not be excessive in relation to the significant military advantage anticipated to result from the strike. It was planned that the strike on the building would be carried out using a precise munition, and in a way in which would allow achieving the aim of the strike whilst minimizing harm to the surrounding buildings.

    After the event, as a result of the strike, the target, Omar Al-Rahim, was severely injured, and Ibrahim Al-Masharawi, who was a senior commander at a rank equivalent to a battalion commander in the Palestinian Islamic Jihad, was killed, along with Ramadan Al-Bakri, a Palestinian Islamic Jihad militant, and four civilians.

    After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities and aimed at a lawful target – a senior commander in Palestinian Islamic Jihad. The strike complied with the principle of proportionality, as at the time the decision was taken, it was considered that the collateral damage expected from the strike would not be excessive in relation to the military advantage anticipated from it. Moreover, the strike was carried out while undertaking precautionary measures which aimed to mitigate the risk of civilian harm, with an emphasis on those who were present in the surrounding buildings. Such measures included, inter alia, the choice of munition to be used, as well as the deployment of real-time visual coverage. Additionally, it was found that the provision of a specific warning prior to the attack, to the people present in the structure in which the target was located, or to those in adjacent buildings, was not required by law and was expected to result in the frustration of the strike's objective.

    In light of these findings, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

    7. Allegation Concerning the Deaths of Members of the Abu Dahrouj Family in the Al-Zuwayda Village (23 August 2014) –

    In media reports, as well as complaints received by the MAG Corps from NGOs, it was alleged that on 23 August 2014, five members of the Abu Dahrouj family were killed in the Al-Zuwayda village, as a result of an air strike carried out by the IDF. In a report published by an NGO, it was mentioned that one of the deceased, Hayel Abu Dahrouj, was a militant with the Palestinian Islamic Jihad organization. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

    According to the factual findings collated by the FFA Mechanism and presented to the MAG, at the time in question, around midnight, an IDF fighter jet dropped a bomb which was aimed at a weapons cache located in an open area, at a distance of around 100 meters from the building in which the Abu Dahrouj family stayed. As part of the strike, a number of precautionary measures were taken in order to prevent any harm to civilians, such as the deployment of real-time visual coverage, and the utilization of a relatively small and precise munition. This notwithstanding, it appears that as the result of an unforeseen technical failure, during the course of the strike the bomb diverged from its intended trajectory and struck the home of the Abu Dahrouj family. A short time later, an additional bomb was dropped, which struck the weapons cache.

    As noted above, it was revealed, post facto, that one of the five deceased, Hayel Abu Dahrouj, was a military operative in the Palestinian Islamic Jihad organization; nonetheless, he was not the object of the strike.

    After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to carry out the strike was made by the competent authorities, and the strike was aimed at a military objective – a weapons cache. At the time that the decision was made, the strike was not, according to the assessment of the operational authorities, expected to result in any collateral damage to individuals or to property that was not the military objective (and was, as such, in accordance with the principle of proportionality). Several precautionary measures were undertaken as part of the strike in order to realize that expectation. Such measures included, inter alia, the choice of munition to be used, as well as the timing of the strike and real-time visual coverage on the weapons cache that was targeted.

    The fact that in practice there occurred an unforeseen failure, which resulted in it going off-trajectory and causing harm to civilians and to property, is regrettable, but does not affect the legality of the attack post facto.

    Consequently, and in light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

Incidents into Which the MAG has Ordered Criminal Investigations Following an Assessment by the FFA Mechanism

Allegation Concerning a Strike on an UNRWA School in Jabalia, which Resulted in the Deaths of Approximately 20 Individuals (30 July 2014) –

The MAG Corps received reports, as well as complaints from NGOs, wherein it was alleged that as the result of an IDF strike on 30 July 2014, approximately 20 people were killed, and tens more were injured in an UNRWA school located in Jabalia, which was serving as a shelter at the time of the incident. Subsequently, and in accordance with the MAG's investigation policy, it was decided to refer the incident to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the strike was not carried out in accordance with the rules and procedures applicable to IDF forces. As a result, the MAG has ordered the opening of a criminal investigation into the incident.

Incidents Regarding Which the MAG Ordered Criminal Investigations without Prior Fact-Finding Assessment

    1. Allegation Concerning an Abuse of a Resident of Khuza'a under Detention (23 July 2014) - The MAG Corps received a complaint, on behalf of a resident of Khuza'a, alleging that after his capture by IDF forces, he was struck by IDF soldiers without provocation, whilst he was handcuffed and blindfolded. In response to these reports, the MAG ordered the opening of a criminal investigation into the incident.

    2. Allegation Concerning an Abuse of a Resident of Khuza'a under Detention (23 July 2014) –

    The MAG Corps received a complaint, on behalf of another resident of Khuza'a, alleging that after his capture by IDF forces, he was struck by IDF soldiers, without provocation, whilst he was handcuffed and blindfolded. In response to these reports, the MAG ordered the opening of a criminal investigation into the incident.

    3. Allegation Concerning Looting in Deir Al-Balah (the second half of July 2014) –

    The MAG Corps received a complaint, on behalf of a resident of Deir Al-Balah, alleging that IDF soldiers looted his property, allegedly during the period in which he and his family had evacuated their home, during the second half of the month of July. Subsequently, the MAG ordered the opening of a criminal investigation into the incident.

    4. Allegation Concerning Looting in Khan Yunis (the second half of July
 2014) –

    The MAG Corps received a complaint, on behalf of a resident of Khan Yunis, alleging that IDF soldiers looted his property, allegedly during the period in which he and his family had evacuated their home, during the second half of the month of July. Subsequently, the MAG ordered the opening of a criminal investigation into the incident.

    5. Allegation Concerning Abuse of Detainees in Rafah (1 August 2014) –

    The MAG Corps received a complaint, on behalf of two residents of Rafah, alleging that after their arrest by IDF forces, they were struck by IDF soldiers, without provocation, and whilst they were handcuffed and blindfolded. Subsequently, the MAG ordered the opening of a criminal investigation into the incident.

Criminal Investigations which were Completed and in Regard to which the MAG has made a decision

    1. Allegations Concerning Looting in Khuza'a (the second half of July 2014) –

    The investigation file was closed after the complainant failed to appear to provide testimony before MPCID investigators. The complainant failed to appear despite the fact that in the wake of the complaint made by his legal representative, he was provided with a document guaranteeing him immunity from arrest at the time of his arrival to provide testimony. Under these circumstances, and in the absence of evidence to support his claim and thus provide a basis for a suspicion of criminal misconduct by IDF soldiers, it was decided to close the case.

    2. Allegations Concerning Looting in Khuza'a (the second half of July 2014) –

The investigation file was closed after the complainant failed to appear to provide testimony before MPCID investigators. The complainant failed to appear despite the fact that in the wake of the complaint made by his legal representative, he was provided with a document guaranteeing him immunity from arrest at the time of his arrival to provide testimony. The mother provided testimony to MPCID investigators, yet her testimony was essentially hearsay. Under these circumstances, and in the absence of evidence to support his claim and thus provide a basis for a suspicion of criminal misconduct by IDF soldiers, it was decided to close the case.

The IDF Military Advocate General [MAG] Corps

"Decisions of the IDF Military Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 4," June 11, 2015

In accordance with the IDF Military Advocate General's (the 'MAG') policy to ensure transparency with regard to the examination and investigation of exceptional incidents that allegedly occurred during Operation 'Protective Edge' (7 July – 26 August 2014; the 'Operation'), and pursuant to previous Press Releases, additional information has been cleared for publication concerning decisions the MAG has reached with regard to several individual incidents.

The MAG Corps continues to receive complaints regarding exceptional incidents alleged to have occurred over the course of the Operation. Many of these complaints are filed on behalf of Palestinian residents from the Gaza Strip or by non-governmental organizations ('NGOs') – Israeli, Palestinian and international. In addition, the MAG Corps actively works to identify incidents warranting examination or investigation. Each complaint or piece of information suggesting a fault in the conduct of IDF forces undergoes an initial examination, in order to determine the credibility and concrete nature of the allegation. If the allegation is deemed credible, prima facie, and is sufficiently concrete, it is referred to the MAG, who shall decide whether a criminal investigation is warranted without further examination or whether a factual examination is required by the General Staff Mechanism for Fact-Finding Assessments prior to such a decision.

As previously publicized, soon after the commencement of the Operation, and whilst the hostilities were ongoing, the previous IDF Chief of General Staff, Lieutenant General Benjamin (Benny) Gantz, ordered that a General Staff Mechanism for Fact Finding Assessments (the 'FFA Mechanism'), headed by a Major General, examine exceptional incidents alleged to have occurred during the Operation. The FFA Mechanism was tasked with collating information and relevant materials in order to assess the facts of individual incidents. These efforts are intended to provide the MAG with as much factual information as possible in order to enable the MAG to reach decisions regarding whether or not to open a criminal investigation, as well as for the purpose of a 'lessons-learned' process and the issuance of operational recommendations that will assist in mitigating the risk of exceptional incidents occurring in the future. At the head of the FFA Mechanism is Major General (Res.) Yitzhak Eitan, who did not serve in the chain of command during the Operation.

To date, allegations with regard to approximately 190 alleged exceptional incidents have been referred by the MAG for examination by the FFA Mechanism. 105 of these incidents have already been examined and referred to the MAG for decision. Of these incidents, it was decided by the MAG to refer seven for criminal investigation. Some of these investigations are still ongoing, while others have been completed with their findings having been submitted to the MAG for review, and a number have already been the subject of a decision by the MAG. With regard to an additional 19 incidents, the MAG decided to close the case without opening a criminal investigation, after reviewing the findings and materials collected by the FFA Mechanism and did not find that the circumstances of the incident gave rise to reasonable grounds for suspicion of criminal behavior. However, in relation to some of these incidents, the MAG recommended reviewing operational methods in order to assess whether any changes could be made. In relation to a few of the cases that were closed, the MAG found that no involvement of IDF forces was identified with regard to the incidents. In regard to some of the incidents that were examined and referred to the MAG, the MAG considered that further information was needed in order to reach a decision, and accordingly these incidents were referred back to the FFA Mechanism for further examination. Tens of additional incidents are still in various different stages of examination by the FFA Mechanism, and their findings will be submitted to the MAG in due course.

In addition, the MAG has ordered the opening of 15 criminal investigations without the need for prior examination by the FFA Mechanism on the basis of allegations that indicated prima facie grounds for a reasonable suspicion of criminal misconduct. Of these criminal investigations, the MAG decided to close two without undertaking any criminal or disciplinary proceedings. As the result of another criminal investigation, the MAG has decided to issue indictments against three IDF soldiers, as will be detailed herein. The remainder of the investigations are either still ongoing, or have been completed, with their findings having been submitted to the MAG for review.

All criminal investigations are carried out in a thorough and prompt fashion by a special investigation team assembled by the Military Police's Criminal Investigation Division (the 'MPCID') in order to investigate incidents alleged to have occurred during the Operation. This team has collected testimonies from many IDF soldiers and commanders, as well as from tens of Palestinians who were witnesses to some of the incidents in question. Where a complaint had been submitted in a written form, a reply has been sent to the complainant organization or individual, who are entitled to challenge the decision before the MAG. The MAG's decision in regard to such a challenge may then be challenged before Israel's Attorney General. This procedure, which has been in operation for a number of years, was recently set forth in a directive issued by the Attorney General.

Pursuant to previous updates, information which has been cleared for publication follows below, regarding decisions the MAG has reached with regard to specific incidents.

Cases Closed by the MAG Following Examination by the FFA Mechanism

1. Allegations Concerning the Death of 15 Individuals During an Attack on the Al-Salam Building in Gaza City (21 July 2014)–

In IDF operational reports, as well as in complaints received by the MAG Corps from NGOs, it was alleged that on 21 July 2014, 15 individuals were killed as a result of an IDF aerial attack on the Al-Salam building in Gaza City. In these complaints, it was alleged that the deceased had been staying in the building after they had been evacuated from their homes in areas in which fighting was ongoing. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination. According to the factual findings collated by the FFA Mechanism and presented to the MAG, on 21 July 2014, the IDF had conducted an aerial attack on Sha'aban Dachdouch, a senior commander in the Palestinian Islamic Jihad, at a rank equivalent to that of a Battalion Commander. The attack was carried out at a time when the target was present in an office in the Al-Salam building. The attack was carried out in the late evening hours, in light of the assessment, premised upon timely intelligence, that there would not be civilians present at that time in the building, which was known to be an office building.

Additionally, the attack was planned in such a way – from the type of munition selected, to the method according to which the attack was executed – that the damage would be limited to that part of the building where the target was located. The aim was to minimize, to the extent feasible, the collateral damage that would result from the attack, without frustrating its success. Regrettably, after the fact, there was an unforeseen collapse in the upper floors of the building approximately half an hour after the attack. As a result of the attack, the senior commander in question was killed, and it was alleged that a further 14 civilians were killed, most of them members of the Kilani and Derbas families, who had been staying, according to the complaints received by the MAG Corps, on the same floor in the building as the target of the attack. As a result of this incident, operational lessons-learned regarding the IDF's methods for carrying out aerial attacks in similar cases were drawn, and were implemented whilst the Operation was still underway.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to attack was taken by the competent authorities and aimed at a lawful target – a senior commander in Palestinian Islamic Jihad, who was indeed killed as a result of the attack. The attack complied with the principle of proportionality, as at the time the decision was taken, it was considered that the collateral damage expected from the attack would not be excessive in relation to the military advantage anticipated from it, and this assessment was not unreasonable under the circumstances. Moreover, the attack was carried out while undertaking a number of precautionary measures which aimed to minimize the risk of collateral damage. Such measures included, inter alia, the choice of munition to be used, and the method according to which the attack was carried out. The fact that, in practice, a number of civilians who were not involved in the hostilities were harmed, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

2. Allegation Concerning the Death of Members of the Al Najjar Family in Khan Younis (29 July 2014) –

In media reports, as well as in a complaint received by the MAG Corps from an NGO, it was alleged that on 29 July 2014, eight individuals were killed as the result of an IDF aerial attack on the house of the Al Najjar family. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination.

According to the factual findings collated by the FFA Mechanism and presented to the MAG, at the time in question the IDF had attacked a Hamas military command and control center located in a building in Khan Younis, as well as senior Hamas operatives who were manning the center at that time. During the attack planning process, it was assessed that there might be a number of civilians present in the building, but that the potential harm to them would not be excessive in relation to the significant military advantage anticipated to result from the attack. The attack on the building was planned for execution by means of a precise munition, and in a manner that would allow the operational purpose of the attack to be achieved, whilst minimizing the potential harm to the surrounding buildings. As a result of the attack, eight individuals were killed, among them two Hamas operatives, Asam Mohammad Ata Al Najjar and Ata Mohammad Ata Al Najjar.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to attack was taken by the competent authorities, and was aimed at lawful targets. The attack complied with the principle of proportionality, as at the time the decision to attack was made, it was considered that the collateral damage expected from the attack would not be excessive in relation to the military advantage anticipated from it, and this estimation was not unreasonable under the circumstances. Moreover, the attack was carried out after a number of precautionary measures had been undertaken, which aimed to minimize the potential for civilian harm, particularly with regard to any civilians present in adjoining buildings. It was also found that the provision of a specific warning prior to the attack, to the persons present in the structure, was not required by law and would have been expected to result in the frustration of the attack's objective.

In light of these findings, the MAG did not find that the actions of IDF forces gave rise to reasonable grounds for suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident. Nonetheless, the MAG found it appropriate to recommend to the command authorities that a number of aspects relating to the implementation of the relevant operational instructions be clarified, with an emphasis on improving the documentation of planning procedures for attacks on targets of this type.

An Incident into which the MAG has Ordered a Criminal Investigation Following an Examination by the FFA Mechanism

3. Allegations Concerning the Death of 9 Individuals as the Result of an Attack on a Cafι on the Khan Younis Coast (9 July 2014) –

The MAG Corps received reports, as well as complaints from NGOs, wherein it was alleged that as a result of an IDF aerial attack on 9 July 2014, nine individuals were killed in a beachside cafι on the Khan Younis coast. Subsequently, and in accordance with the MAG's investigation policy, it was decided to refer the incident to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the attack was not carried out in accordance with the rules and procedures applicable to IDF forces. As a result, the MAG has ordered the opening of a criminal investigation into the incident.

Incidents in Regards to which the MAG Ordered a Criminal Investigation Without Requiring Prior Examination by the FFA Mechanism

4. Allegation Concerning Abuse of a Detainee, Resident of Juhor ad-Dik (28 July 2014) –

The MAG Corps received a complaint, on behalf of a resident of Juhor ad-Dik, alleging that after his capture by IDF forces, he was physically struck without justification. In response to this complaint, the MAG ordered the opening of a criminal investigation into the incident.

5. Allegations Concerning Unlawful Fire on a Medical Clinic (23 July 2014) -

In the wake of media reports, wherein it was alleged that IDF forces had intentionally fired tank shells at a medical clinic from which there had emanated fire resulting in the death of an IDF officer on the day prior, the MAG ordered the opening of a criminal investigation into the incident.

An Incident which has been the subject of a Criminal Investigation and in Regard to which the MAG has Decided to Issue an Indictment

6. Incident Involving Looting in the Shuja'iyya Neighborhood (20 July 2014) -

As previously reported, in the wake of an IDF operational report giving rise to a suspicion that a solider had looted a sum of cash, the MAG ordered the opening of a criminal investigation, while the Operation was still under way. The MPCID investigation has been completed, and after the MAG reviewed its findings, he decided to issue three indictments against three soldiers who were involved in the incident. Two soldiers stand accused of having looted a sum of cash, totaling 2,420 NIS, from the house in which the forces were staying in the Shuja'iyya neighborhood. Another soldier stands accused of having been an accessory to the commission of the offence. Two of the accused are charged with involvement in an additional offence of obstruction of justice. Efforts were made over the course of the investigation to locate the home owner, both in order to collect his testimony, as well as in order to return the money, should the accused be convicted of the offences for which they have been charged. These efforts were unsuccessful; however, after a sufficient evidentiary basis had been established, the indictments were issued.

A Criminal Investigation which was Completed and in Regard to which the MAG has Decided to Close the Investigation File

7. Allegations Concerning the Death of Four Children on the Gaza Strip Coast (16 July 2014) -

As previously reported, the MAG Corps received reports, as well as complaints from NGOs, wherein it was alleged that as a result of an IDF attack on 16 July 2014, four children were killed (Ahed Atef Bakr, Zakariya Ahed Bakr, Mohammad Ramiz Bakr, and Ismail Mahmoud Bakr) on the beach, adjacent to the Gaza port. Subsequently, and in accordance with the MAG's investigation policy, the incident was referred to the FFA Mechanism for examination. The factual findings and materials collated by the FFA Mechanism, and which were presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the attack was not carried out in accordance with the rules and procedures applicable to IDF forces. As a result, the MAG ordered the opening of a criminal investigation into the incident. The MPCID investigation was recently completed, and after the MAG reviewed its findings, he decided to close the investigation file, in the absence of a suspicion regarding the commission of a criminal offence by IDF soldiers.

The investigation that was conducted was thorough and extensive. During the investigation process testimony was collected from a large number of IDF soldiers and officers who were involved in the planning and execution of the attack. Additionally, an extensive number of documents relating to the attack were reviewed, along with video footage documenting the attack in real time, as well as media images and video footage which documented parts of the incident. Moreover, MPCID investigators made efforts to collect the testimonies of Gaza Strip residents who were, allegedly, witnesses to the incident. In this context, the collection of testimony from three witnesses was coordinated. Regretfully, despite the prior coordination, the witnesses eventually declined to meet with the MPCID investigators, and instead provided affidavits in regard to the incident.

From the factual findings collected by MPCID investigators, it arose that the incident took place in an area that had long been known as a compound belonging to Hamas's Naval Police and Naval Force (naval commandos), and which was utilized exclusively by militants. The compound in question spans the length of the breakwater of the Gaza City seashore, closed off by a fence and clearly separated from the beach serving the civilian population. It further arose in the course of the investigation (including from the affidavits provided to the MPCID by Palestinian witnesses), that the compound was known to the residents of the Gaza Strip as a compound which was used exclusively by Hamas's Naval Police. The IDF carried out a number of attacks on the compound in the days prior to the incident. In the course of one such attack, which took place on the day prior to the incident (15 July 2014), a container located inside the compound, which was used to store military supplies, was attacked.

Shortly before the incident, an intelligence assessment was established which indicated that operatives from Hamas's Naval Forces would gather in the military compound in order to prepare for military activity against the IDF. On 16 July, aerial surveillance identified a number of figures entering the compound at a running pace. These figures entered a shed adjoining the container which had been attacked the day prior. Against the backdrop of the aforementioned intelligence assessment, these were believed to be militants from Hamas's Naval Forces, who had arrived at the compound in order to prepare to execute the aforementioned military activity against the IDF. It should be stressed that the figures were not identified at any point during the incident, as children.

In light of the above, it was decided to conduct an aerial attack against the figures which had been identified, after all the necessary authorizations for an attack had been obtained, and after a civilian presence in the area had been ruled out. When one of the identified figures entered into the remains of the container which had been attacked on the day prior to the incident, one missile was fired from the air towards the container and the adjoining shed. As a result of this attack, it appeared that one of the figures identified was hit. Following this attack, the rest of the figures began to run in the direction of the compound's exit. Shortly before their exit from the compound, an additional missile was fired from the air towards them, which hit the figures in question after they had exited the compound. Tragically, in the wake of the incident it became clear that the outcome of the attack was the death of four children, who had entered the military compound for reasons that remain unclear. It further arose from the investigation that, under the circumstances in question, it would not have been possible for the operational entities involved to have identified these figures, via aerial surveillance, as children. After reviewing the investigation's findings, the MAG found that the attack process in question accorded with Israeli domestic law and international law requirements. The decision to attack was taken by the competent authorities, and the attack was aimed at figures who were understood to be militants from Hamas's Naval Forces, who had gathered in order to prepare to carry out military activities against the IDF. At the time that the decision was made, the attack was not, according to the assessment of the operational entities, expected to result in any collateral damage to civilians or to civilian property. Moreover, the attack was carried out while undertaking several precautionary measures, which aimed to prevent any harm to civilians. Such measures included, inter alia, the choice of a munition which was not expected to cause any harm to civilians, and the deployment of real time visual surveillance. The MAG found that the professional discretion exercised by all the commanders involved in the incident had not been unreasonable under the circumstances. However, it became clear after the fact that the identification of the figures as militants from Hamas's Naval Forces, was in error. Nonetheless, the tragic outcome of the incident does not affect the legality of the attack ex post facto.

Accordingly, the MAG ordered that the investigation file be closed without any further legal proceedings – criminal or disciplinary – to be taken against those involved in the incident. Nonetheless, inter alia as a result of this incident, the IDF has been working to improve a number of its operational capabilities, including technological capabilities, in order to minimize the risk of the recurrence of tragic incidents of this kind.

The IDF Military Advocate General [MAG] Corps

"Decisions of the IDF Military Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 5," August 24, 2016

The MAG Corps continues to examine and investigate claims regarding allegations of exceptional incidents. Many of these claims arose out of complaints that were transmitted to the MAG Corps on behalf of Palestinian residents of the Gaza Strip as well as by non-governmental organizations ('NGOs') – Israeli, Palestinian, and others. Other allegations arose in media reports, or in the reports of international organizations and NGOs, as well as in internal IDF operational reports.

All in all, as of to date, the MAG Corps has received around 500 complaints and reports, relating to around 360 incidents alleged to have occurred over the course of the Operation. The number of complaints and reports that were received is higher than that of the corresponding incidents, since with respect to some of the incidents the MAG Corps received several complaints and reports.

Each complaint received by the MAG Corps, which suggests misconduct by IDF forces, undergoes an initial examination. If the allegation is deemed credible, prima facie, and is sufficiently concrete, it is referred to the MAG, for a decision, as to whether an immediate criminal investigation is warranted without further examination, or whether the incident should be referred to the General Staff Mechanism for Fact-Finding Assessments (the 'FFA Mechanism'), for a prior factual examination before making a decision on whether to open a criminal investigation.

To date, in the wake of allegations that indicated prima facie grounds for a reasonable suspicion of criminal misconduct, the MAG has ordered the opening of criminal investigations without the need for prior factual examination with regard to 24 exceptional incidents. Of these criminal investigations, the MAG decided to issue indictments against three IDF soldiers, accused of looting and of aiding and abetting looting, as reported in a previous update. The legal proceedings regarding these charges are underway at the present time. As regards 13 other criminal investigations, the MAG has closed the cases without undertaking any criminal or disciplinary proceedings, as detailed herein and in previous updates. The remainder of the investigations are still ongoing – some are still underway, and some have been completed with their findings having been submitted to the MAG for review.

Other allegations, which did not indicate prima facie grounds for a reasonable suspicion of criminal misconduct, were referred to the FFA Mechanism for examination. This mechanism, which was initiated while the Operation was still underway, collates information and relevant materials and undertakes enquiries, in order to assess the facts of exceptional incidents. These efforts are intended to provide the MAG with as much factual information as possible in order to reach decisions regarding whether or not to open a criminal investigation, as well as for the purpose of a 'lessons-learned' process and the issuance of operational recommendations that will assist in mitigating the risk of exceptional incidents occurring in the future. All in all, to date, around 360 complaints and reports relating to around 220 exceptional incidents alleged to have occurred over the course of the Operation, have been transmitted to the FFA Mechanism for examination, after undergoing an initial examination by the MAG Corps.

To date, after reviewing the factual findings and the material collated by the FFA Mechanism, the MAG has referred seven incidents for criminal investigation. One of these investigations has already been the subject of a decision by the MAG, as reported in a previous update. Other investigations have been completed and are awaiting review of their findings by the MAG, or are currently ongoing. With regard to around 80 additional incidents that were examined by the FFA Mechanism, the MAG decided to close the case without opening a criminal investigation, where the actions of the IDF forces involved did not give rise to reasonable grounds for suspicion of criminal behavior. However, in relation to some of these incidents, the MAG recommended reviewing operational methods in order to assess whether any changes should be made. In certain cases that were closed, the MAG found that no involvement of IDF forces could be identified in regard to the incident.

All criminal investigations are carried out in a thorough and prompt fashion by a special investigation team assembled by the Military Police's Criminal Investigation Division (the 'MPCID'). This team has collected testimonies from many IDF soldiers and commanders, as well as testimony from many Palestinian residents of the Gaza Strip as well as from other persons who were witnesses to some of the incidents in question.

Where a complaint had been submitted in written form, and a decision has been made in regard thereto, a response is forwarded to the complainant, who is entitled to challenge the MAG's decision before Israel's Attorney General. Additionally, a request may be made to the MAG for reconsideration of a decision, should new facts come to light that were not available at the time of the MAG's original decision.

Pursuant to previous updates, information regarding a selection of decisions reached by the MAG in relation to some of the remaining exceptional incidents, and which has been cleared for publication, is detailed below.

Cases Closed by the MAG Following Examination by the FFA Mechanism

1. Allegation Concerning Disturbance to the Functioning of the Hospital in Khan Younis (9-10 July 2014) –

In a report received by the MAG Corps from an NGO during the course of the Operation, it is alleged that attacks carried out by the IDF, apparently over the course of the period from 9-10 July 2014, in the area adjacent to the hospital in Khan Younis, known as the "European Hospital", impeded the day-to-day functioning of the hospital and resulted in patients suffering from anxiety. The incident was subsequently referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG indicate that the location of the hospital was known to IDF forces operating in the area, and was designated as a "sensitive site" on the relevant operational systems of the IDF. In accordance with the IDF's operational instructions, any military operation to be conducted in the vicinity of such sites requires the adoption of special precautions.

The findings further indicated that terror organizations had embedded numerous rocket launchers in the area surrounding the hospital, from which launches were carried out against the State of Israel, including on 9 July 2014. On that day, the IDF carried out aerial strikes on seven of the abovementioned rocket launchers (at a distance of around 120 meters or more from the hospital). On 10 July 2014, aerial strikes were carried out against an additional four launchers (at a distance of over a kilometer from the hospital).

All of the strikes in question were carried out after undergoing an orderly authorization process, and after the potential for collateral damage to civilian buildings in the vicinity had been taken into consideration in the strike planning process. Because of the considerable distance between the hospital and the targets that were struck, no damage was expected to result to the hospital. Indeed, no such damage is known to have occurred in regard to the hospital building as a result of the aforementioned strikes (and no claims have arisen regarding the occurrence of any such damage).

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that that the targeting processes accorded with Israeli domestic law and international law requirements.

The decisions to strike were taken by the competent authorities, and the objects of the attacks were military targets – launching pits and the weaponry stored therein. The attacks complied with the principle of proportionality, as at the time the decisions to attack were taken it was considered that no collateral damage to civilians or adjacent civilian structures was expected to occur as a result of the strikes. The location of the hospital was known at the time of the strikes' planning, but no damage was expected to be caused thereto, in light of the distance between the hospital building and the targets that were the objects of the strikes. As noted above, no damage is reported to have been caused to the hospital building as a result of these strikes.

Nonetheless, it may be the case that as a result of some of these strikes, the routine functioning of the hospital was impaired and patients suffered from anxiety, as alleged. However, to the extent that this did occur, it would be a regrettable but unavoidable consequence of the military necessity to neutralize the firing pits and rockets that terror organizations embedded in the area surrounding the hospital.

In light of these findings, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

2. Allegation Regarding the Death of Seven Individuals as the Result of a Strike on a Building in Al-Bureij (20 July 2014)

In media reports it was alleged that on 20 July 2014, at around 14:00, seven members of the Ziyadeh family were killed as the result of an IDF attack on a building in Al-Bureij. The incident was subsequently referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG indicate that on 20 July 2014, the IDF carried out an aerial strike on a structure that was being used as an active command and control center by the Hamas terror organization. The attack aimed to neutralize both the command and control center and the military operatives who were manning it, and who, according to information received in real-time, were involved in terror activity which threatened IDF forces operating in the area. It was further indicated, that the structure was also utilized by the military operative Mohammed Muqadama, a senior figure in Hamas' military observation force.

In the course of the strike planning process it was assessed that the extent of the harm expected to result to civilians as a result of the attack would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on the military command and control center and the military operatives who were manning it.

The strike was planned for execution by means of a precise munition, and in a way which would allow for the strike's objective to be achieved, whilst limiting the potential for collateral damage to surrounding buildings. It was further found, that it would not have been possible to provide a warning prior to the strike on the building, as such a warning was expected to frustrate the objective of the attack.

As noted above, it is alleged that as a result of the strike seven people were killed. Findings indicated that among the casualties were three military operatives in the Hamas and Palestinian Islamic Jihad terror organizations, who were members of the Ziyadeh family, as well as the senior military operative mentioned above, Mohammed Muqadama.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements.

The decision to strike was taken by the competent authorities, and the objects of the attack were military targets – an active command and control center and military operatives affiliated with the Hamas terror organization. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated to result from it. This estimation was not unreasonable under the circumstances.

Moreover, the attack was carried out in conjunction with various precautionary measures which aimed to mitigate the risk to civilians in the vicinity of the structure and minimize damage to adjacent structures. These measures included the selection of the munition used to carry out the strike, as well as the method by which the strike was carried out. It was also found that the provision of a warning to the residents of the building was not required by law, as such warning would have frustrated the objective of the attack. The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

3. Allegation Regarding the Death of 12 Members of the Siyam Family in Rafah (21 July 2014)

In media reports, as well as in a complaint and in reports of NGOs and international organizations, it was alleged that on 21 July 2014, 12 members of the Siyam family were killed as the result of an IDF aerial attack in Rafah. According to the principal allegation raised by the abovementioned complaint and reports, members of the Siyam family left their residence and went into the street after the family home was damaged as the result of an aerial strike on an adjoining building. It was alleged, that at the time that the family was evacuating their residence, and while they were in the road, aerial fire was carried out against a number of the family members, resulting in their deaths. The different sources were not consistent as regards the various details relating to the event, or in regards to the type of munition alleged to have struck the family members. The incident was subsequently referred to the FFA Mechanism for examination.

The factual findings and the material collated by the FFA Mechanism and presented to the MAG indicate that no attack – aerial or otherwise – that could have resulted in a strike on the family as alleged was carried out by IDF forces in the area in question and on the relevant date. The FFA Mechanism also ruled out the possibility that the types of munition described in a number of the reports had been utilized.

Nonetheless, it was found that at the relevant time, and in close proximity to the Siyam family's residence, terror organizations in the Gaza Strip fired a series of mortars, aimed at the territory of the State of Israel. A number of these launches were "failed launches", wherein the mortar shells that were aimed at Israeli territory, fell within the territory of the Gaza Strip. Images showing the points of impact of the munitions that struck the Siyam family and the surroundings of their residence, which were provided to Israel by one of the organizations and transferred to the FFA Mechanism for examination, also indicate that the strike in question was not caused as the result of an aerial attack as alleged in the majority of the reports. The FFA Mechanism and the MAG Corps made representations to the legal representative of the organization which had claimed that the strike on the Siyam family had been caused by IDF munitions, in order for them to present evidence that would support such an allegation. These representations did not receive a response.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found, that contrary to the allegations, it could be concluded, with reasonable certainty, that the members of the Siyam family were not harmed as a result of IDF activity. As such, and in the absence of a reasonable suspicion of criminal misconduct, the MAG ordered the case to be closed, without opening a criminal investigation.

4. Allegations Regarding Strikes on the Power Plant in Nusseirat (22-29 July 2014)

In media reports, in IDF operational reports, and in the reports of international and non-governmental organizations, it was alleged that over the course of the period from 22 – 29 July 2014, the Gaza Strip's power plant facilities, located in Nusseirat, were struck a number of times, as a result of IDF operations (the different sources refer to different events, and the allegations and figures contained therein are not consistent). It was further alleged, that as a result of the strike on the power plant on 29 July 2014, the plant ceased to function for a significant amount of time. Subsequently, the incident was referred to the FFA Mechanism for examination.

The factual findings, collated by the FFA Mechanism, and presented to the MAG, indicated that the power plant in Nusseirat was designated as a "sensitive site" on the relevant operational systems of the IDF. In accordance with the IDF's operational instructions, any military operation to be conducted in the vicinity of such sites requires the adoption of special precautions. The findings further indicated that, in the course of the military activity taking place in the area, the power plant was struck four times over the course of the period from 22-29 July 2014 (the difficulty in specifying the precise dates of the strikes results from differences between the various reports, which provide different dates for the same strikes).

In regard to the first three incidents of damage to the power plant, it was found that the damage did not occur as the result of any direct or intentional attack, aerial or otherwise, by IDF forces. The FFA Mechanism could not rule out the possibility that the power plant facilities may have been damaged by shrapnel, or artillery fire that went off course during the combat. This, in light of the considerable military activity that took place in the vicinity of the plant, between IDF forces and squads affiliated with terror organizations. As well as in light of the fact that terror organizations located a large number of terror assets adjacent to the power plant – at times at a distance of mere tens of meters (such assets included launching pits in which rockets and mortars were stored, medium range rocket launchers, the openings of combat tunnels, weapons caches and more). Evidence has also been obtained which indicates that a portion of the damage may have been caused as the result of rocket fire by Palestinian terror organizations.

After reviewing the factual findings and the material collated by the FFA Mechanism in regard to the three incidents of damage referred to above, the MAG found that the damage to the power plant in Nusseirat had not occurred as a result of a direct or intentional attack by IDF forces operating in the area. In light of the above, and since all avenues for the further examination of these incidents had been exhausted, the MAG ordered these cases to be closed without opening a criminal investigation, in the absence of a reasonable suspicion of criminal misconduct by IDF forces.

As regards the fourth incident of damage, which occurred on 29 July 2014, the FFA Mechanism found that on the day of the incident, an IDF armored force operating in the area identified a squad of terror operatives, bearing anti-tank weaponry ("anti-tank squad").

The anti-tank squad was identified while it was close to what would later turn out to be the fuel tanks of the power plant. In light of the imminent threat posed by the squad to the armored force, the force fired, in a measured and direct manner, at the anti-tank squad, using the most precise munition the force had at its disposal. It appears, that as a result of this fire, one of the power plant's fuel tanks was damaged (the power plant itself was not hit).It was further found, that the IDF force which carried out the fire, did not make the connection between the facilities, in proximity to which it identified the anti-tank squad, and the power plant, and was not aware that the structures in question contained flammable material.

After reviewing the factual findings and the material collated by the FFA Mechanism in regard to this incident, the MAG found that the targeting process carried out with regard to the anti-tank squad accorded with Israeli domestic law and international law requirements.

The fire which was carried out by the IDF force over the course of the incident was aimed at a military object – an anti-tank squad of the terror organizations, which posed an immediate threat to the force. The attack on the squad complied with the principle of proportionality, as at the time the decision to attack was taken, it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. This estimation was not unreasonable under the circumstances, when taking into consideration the immediacy of the threat posed to the force by the anti-tank squad, and in light of the fact that the force was not aware of the nature of the facilities in proximity to which they identified the squad.

Moreover, the attack was carried out in conjunction with various precautionary measures, including the selection of the munition used (taking into account the distance between the force and the anti-tank squad, and the weaponry that was at the force's disposal), and the way in which the fire was carried out. These measures were carried out in order to minimize, to the extent possible under the circumstances, the collateral damage expected to result to structures and facilities in the vicinity of the target. In light of the immediacy of the threat, and the danger which was posed to the IDF force, the force did not have any latency in which to enquire into the nature of the facilities in proximity to which it had identified the squad, and the potential consequences, immediate, or long term, of collateral damage thereto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation.

At the same time, the MAG made a recommendation to the relevant operational authorities that they review the processes for the integration of the operational instructions concerning operations carried out in proximity to "sensitive sites", as well as the ways in which IDF forces' ability to locate and identify such sites might be improved.

5. Allegation Regarding Failure to Provide Medical Treatment to a Resident of Khirbeit Khuza'a (23-26 July 2014)

In a complaint received by the MAG Corps from an NGO, it was alleged that on 23 July 2014, a resident of Khirbeit Khuza'a was wounded in her legs by shrapnel, as a result of the military activity that was taking place in that area. According to the complaint, IDF soldiers reached the building in which the injured woman and her husband were present, and refused, for four days, to allow the injured woman to receive medical assistance, and prevented her from leaving the house to receive assistance from the Palestinian Red Crescent. The incident was subsequently referred to the FFA Mechanism for examination, for the purpose of clarifying the allegations described above, regarding the failure to provide medical treatment.

The factual findings, collated by the FFA Mechanism and presented to the MAG, indicate that on July 23, 2014, IDF forces operating the area of Khirbeit Khuza'a identified an older man waving a white cloth next to a structure. Consequently, the commander of the force ordered his troops to hold their fire, and initiated contact with the individual in question, who informed the commander that he and his spouse had remained in the structure, which served as their home, and had been unable to evacuate due to his spouse's injury. In light of the above, the force entered the house, and in accordance with the orders given by the commander of the force, the force's medic provided the injured woman with medical treatment for the injuries on her legs.

It further arose, that after the provision of the medical treatment, when it became clear that the couple had access to a working mobile telephone, the commander of the force advised them to contact the Palestinian Red Crescent, in order to coordinate their evacuation from that location. Over the course of the period in which IDF forces were operating in Khirbeit Khuza'a, IDF forces coordinated, on a regular basis, a number of temporary cease-fires in order to allow for the evacuation of civilians from that area. The findings further indicated, that shortly after the conclusion of the provision of medical treatment to the injured woman, the IDF force left the house and continued onwards, such that the troops were present in the house for a short period of time only. No other IDF forces were present in the house from that point onwards.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that no evidence whatsoever could be found to support the allegation that the forces prevented the injured woman from receiving medical treatment, or evacuation by medical services, and as such the actions of the IDF forces did not give rise to grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation and without any further steps to be taken against those involved.

6. Allegation Concerning the Death of Approximately 15 Individuals During a Strike on the House of the Zouarob Family in Rafah (1 August 2014)

In media reports, in IDF operational reports received by the MAG Corps, and in complaints and reports received by the MAG Corps from NGOs, it was alleged that on 1 August 2014, at around 23.00, approximately 15 members of the Zouarob family were killed as the result of an aerial attack conducted by the IDF on the family's house (the precise number of fatalities varies from report to report), and others were injured. The incident was subsequently referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG, indicate that on August 1, 2014, the IDF carried out an aerial strike on a building, which was an active command and control center of the Hamas terror organization. The attack aimed to neutralize both the command and control center and the military operatives who, according to assessments, were manning it, with special regard to Nazmi Zouarob, a senior military operative in the Hamas, who was carrying out military operations from within the structure.

During the planning stages of the strike, it was assessed that the extent of the collateral damage expected to result from the attack would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on the command and control center and the military operatives manning it. The strike on the building was planned for execution by means of a precise munition and in a way which would allow for the attack's aim to be achieved whilst minimizing harm to an adjacent building. It was further found, that it would not have been possible to provide a warning prior to the strike on the building, as such a warning would have frustrated the objective of the attack.

In practice, it became clear in the wake of the strike that there had been discrepancies between the information on the basis of which the strike was carried out and the facts which were revealed in its wake. As such, it is alleged that as a result of the attack, around 15 individuals were killed (as mentioned above, the precise number of the fatalities varies from report to report). It appears that a number of the fatalities had been residents of the building, while others were visiting the premises. According to the FFA Mechanism's findings, among the deceased was the senior military operative, Nazmi Zouarob.

It was further found, that contrary to the claims made by various entities, the strike was not connected to the efforts to locate Captain Hadar Goldin, who was kidnapped and killed by Hamas forces on that morning, but rather constituted part of the ongoing military operations that were being undertaken in the Rafah area at that time.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements.

The decision to strike was taken by the competent authorities and the attack was aimed at military targets – an active command and control center of the Hamas terror organization and the military operatives who were manning it, among them a senior military operative of that organization. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. This assessment was not unreasonable under the circumstances, despite the discovery, in the wake of the strike, of discrepancies between the reality prevailing on the ground and the information available at the time when the decision to strike was made.

Additionally, the strike was carried out alongside precautionary measures, including inter alia, the choice of munitions, which aimed to minimize the potential for harm to civilians in the vicinity of the structure, or to an adjacent building. It was also found that the provision of a warning to the persons present in the building was not required by law, and would have been expected to frustrate the objective of the attack. The fact that, in practice, a number of civilians who were not involved in the hostilities were harmed, is a difficult and regrettable result, but does not affect the legality of the attack ex post facto.

In light of these findings, the MAG did not find that the actions of IDF forces gave rise to reasonable grounds for suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

7. Allegation Regarding the Death of Civilians as the Result of a Strike in the Vicinity of a School in Rafah (3 August 2014)

In media reports, as well as in the complaints and reports of NGOs and international organizations, it was alleged, that on August 3, 2014, at around 10:45, a number of civilians were killed and others injured, as the result of an IDF aerial strike in proximity to a Rafah school run by UNRWA. The number of fatalities varies from report to report, and ranges from seven to fifteen fatalities. According to the main allegation arising in the aforementioned complaints and reports, the strike took place a few meters from the gate of the school, which was at that time serving as a shelter for civilians who had evacuated their homes, at the exact moment when the gate was open, and was aimed at a motorbike that was passing through the area and its riders. The incident was subsequently referred to the FFA Mechanism for examination.

The factual findings, collated by the FFA Mechanism and presented to the MAG, indicate that the school was designated as a "sensitive site" on the relevant operational systems of the IDF. In accordance with the IDF's operational instructions, any military operation to be conducted in the vicinity of such sites requires the adoption of special precautions. The fact that the school was serving at the time as a shelter for civilians who had evacuated from their homes was also noted on the relevant systems.

It was further found, that on 3 August 2014, the IDF observed three people riding on a motorbike, who were identified, on the basis of up-to-date intelligence information, as military operatives. From the moment that the decision to strike the operatives was made, the IDF carried out aerial surveillance on the motorbike's path, and surveyed a wide radius of the estimated continued route of the motorbike, in order to minimize the potential for harm to civilians on the route or in proximity thereto. The final destination of the military operatives was not known to the operational authorities. The strike on the military operatives was planned for execution by means of a precise munition, with a reduced explosive load, in a way that would allow for the strike's objective to be achieved, whilst minimizing the potential for harm to civilians or passing vehicles.

It was further found, that a period of time after the munition had been fired, and mere seconds before it reached its target, the motorbike entered a traffic circle with a number of different exits, and left it via one of them. The FFA Mechanism's findings indicate that with the means that were at their disposal, and under the visibility conditions prevailing at that time, the operational authorities were not able to discern in real-time the group of civilians that were outside the school, in proximity to the route along which the aforementioned motorbike was travelling. It was further found that, in any case, at the moment upon which the motorbike exited the traffic circle and started to travel along the road bordering the wall which surrounded the school, it was no longer possible to divert the munition which had been fired at the motorbike.

The strike on the motorbike riders occurred immediately after the motorbike passed by the gate of the school. As mentioned above, it is alleged that as a result of the strike between seven and fifteen people in the vicinity of the school's gate were killed (as indicated above, the number of fatalities varies from report to report). According to the findings of the FFA Mechanism, three military operatives were among the fatalities.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements.

The decision to strike was taken by the competent authorities, and the object of the attack was lawful – military operatives. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated to result from it (essentially, it was considered in real-time that the strike would only harm the military operatives targeted).

This assessment was not unreasonable under the circumstances, in light of the fact that aerial surveillance of the routes which the motorbike was predicted to take, which had commenced when the decision to strike was taken, had not shown any civilian presence on those routes.

Moreover, the attack was carried out in conjunction with various precautionary measures, such as the selection of the munition used to carry out the strike, which aimed to mitigate the risk to civilians and passing vehicles. It was also found that under the circumstances, the operational authorities had not foreseen that that the strike on the motorbike would take place in the vicinity of the school, and that, in any case, at the time at which it became clear that the strike would occur in proximity to the school, they did not have the capacity to prevent the strike from taking place in that location. The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a tragic and regrettable result, but does not affect the legality of the attack ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

In the wake of the incident, a number of operational lessons-learned were implemented by the IDF, as regards the methods for carrying out aerial strikes in similar circumstances, with the aim of minimizing the risk of reoccurrence of similar incidents in the future.

The IDF Military Advocate General [MAG] Corps

"Decisions of the IDF Military Advocate General regarding Exceptional Incidents that Occurred during Operation 'Protective Edge' – Update No. 6," August 15, 2018

In accordance with the IDF Military Advocate General's (the 'MAG') policy to ensure transparency with regard to the examination and investigation of exceptional incidents that allegedly occurred during Operation 'Protective Edge' (7 July – 26 August 2014; the 'Operation'), and pursuant to previous updates, additional information has been cleared for publication concerning decisions the MAG has reached with regard to several individual incidents.

The MAG Corps is in the advanced stages of the examination and investigation process concerning allegations of exceptional incidents. Many of these allegations arose from complaints that were transmitted to the MAG Corps on behalf of Palestinian residents of the Gaza Strip as well as by non-governmental organizations ('NGOs') – Israeli, Palestinian, and others. Other allegations arose in media reports, or in the reports of international organizations and NGOs, as well as in internal IDF operational reports.

The MAG Corps received around 500 complaints and reports, relating to around 360 exceptional incidents alleged to have occurred over the course of the Operation (some of which consist of a number of smaller incidents). The number of complaints and reports that were received is higher than that of the corresponding incidents, since with respect to some of the incidents the MAG Corps received several complaints and reports.

Each complaint received by the MAG Corps, which suggests misconduct by IDF forces, undergoes an initial examination. If the allegation is deemed credible, prima facie, and is sufficiently concrete, it is referred to the MAG for a decision as to whether an immediate criminal investigation is warranted without further examination, or whether the incident should be referred to the General Staff Mechanism for Fact-Finding Assessments (the 'FFA Mechanism'), for a prior factual examination before making a decision on whether to open a criminal investigation.

With regard to allegations that indicated prima facie grounds for a reasonable suspicion of criminal misconduct, the MAG ordered the opening of criminal investigations without the need for prior factual examination with regard to 24 exceptional incidents. All of these investigations have been concluded and their findings provided to the MAG for his review. As published previously, following one of the investigations the MAG issued indictments against three IDF soldiers for looting and for aiding and abetting looting. The soldiers were convicted in a Military Court for theft and aiding and abetting theft, and sentenced accordingly. As regards the remaining criminal investigations, the MAG closed the cases without undertaking any criminal or disciplinary proceedings, as detailed herein and in previous updates.

With regard to some of these incidents, the MAG recommended command measures against those involved, as well as undertaking an operational lessons-learned process in order to assist with mitigating the risk of similar such incidents in the future.

Other allegations, which did not indicate prima facie grounds for a reasonable suspicion of criminal misconduct, were referred to the FFA Mechanism for examination. This mechanism, which was initiated while the Operation was still underway, collates information and relevant materials and undertakes enquiries, in order to assess the facts of exceptional incidents. These efforts are intended to provide the MAG with comprehensive and substantiated factual information, to the extent possible, in order to assist with making decisions regarding whether or not to open a criminal investigation, as well as for the purpose of a lessons-learned process and the issuance of operational recommendations that will assist in mitigating the risk of exceptional incidents occurring in the future. All in all, to date, complaints and reports relating to around 220 exceptional incidents alleged to have occurred over the course of the Operation (some of which, as noted, consist of a number of smaller incidents), were transmitted to the FFA Mechanism for examination after undergoing an initial examination by the MAG Corps.

To date, after reviewing the factual findings and the material collated by the FFA Mechanism, the MAG referred seven incidents for criminal investigation. The MAG has issued decisions regarding five of these incidents, and the processes regarding the investigations concerning the remaining two incidents have not been completed. With regard to some of the incidents, the MAG ordered a preliminary investigation by the IDF Military Police Criminal Investigative Division into certain aspects of the incidents. With regard to approximately 160 other incidents that were examined by the FFA Mechanism, the MAG decided to close the case without opening a criminal investigation, where the actions of the IDF forces involved did not give rise to reasonable grounds for suspicion of criminal behavior. In relation to some of these incidents, the MAG recommended that operational authorities undertake an operational lessons-learned process. In certain cases that were closed, the MAG found that no involvement of IDF forces could be identified in regard to the incident. The examination of the remaining exceptional incidents that were referred to the FFA Mechanism is still ongoing; some incidents have been referred back to the FFA Mechanism for additional examinations, and the findings of other incidents are currently being reviewed by the MAG Corps.

All criminal and preliminary investigations are carried out in a thorough and prompt fashion, initially by a special investigation team assembled by the Military Police Criminal Investigation Division, and as of January 2017, by the newly formed Military Police Criminal Investigative Unit for Operational Affairs ('CIUO'). Within these criminal and preliminary investigations, testimonies from many IDF soldiers and commanders were taken, as well as testimonies from many Palestinian residents of the Gaza Strip as well as from other persons who were witnesses to some of the incidents.

Where a complaint had been submitted in written form, and a decision has been made in regard thereto, a response is forwarded to the complainant, who is entitled to challenge the MAG's decision before Israel's Attorney General. Additionally, a request may be made to the MAG for reconsideration of a decision, should there be additional information that was not available at the time of the MAG's original decision.

Pursuant to previous updates, information regarding a selection of decisions reached by the MAG since the previous update, and which has been cleared for publication, is detailed below. This update includes the MAG's decision concerning alleged exceptional incidents that occurred during the fighting on 1 August 2014 in Rafah. For previous updates, see https://www.idf.il/en/minisites/wars-and- operations/operation-protective-edge-legal-updates/ and for further information regarding the examination and investigation process of claims regarding exceptional incidents alleged to have occurred over the course of the Operation, please refer to the Government of Israel's Report in regard to Operation 'Protective Edge' ('The 2014 Gaza Conflict: Legal and Factual Aspects', Chapter VII), available online at: www.protectiveedge.gov.il.

Cases Closed by the MAG Following Examination by the FFA Mechanism

1. 1. Allegations Concerning the Deaths of a Number of Civilians and Extensive Property Damage During the Fighting in Rafah on 1 August 2014 –

The fighting in Rafah refers to the hostilities that occurred in south-east Rafah on 1 August 2014, beginning at around 09:00 and ending at around 19:00, as part of Operation 'Protective Edge'. The hostilities followed Hamas' violation of the humanitarian ceasefire then in place, and the killing of Major Benaya Sarel (of blessed memory) and Staff Sergeant Liel Gidoni (of blessed memory), as well as the kidnapping of an IDF officer, Lieutenant Hadar Goldin (of blessed memory).

Over the course of 1 August 2014, a small number of forces from the Givati Brigade Task Force were engaged in a limited ground maneuver in the area of south-east Rafah. The area was sparsely populated, and IDF forces had operated intensively in the weeks prior to the incident in the area. The purpose of the maneuver was to locate and destroy cross-border assault tunnels found in the area, which constituted a clear danger to the Israel's civilian population. At 08:00 that morning, a humanitarian ceasefire –which had been coordinated through international channels, and which was scheduled to last for 72 hours – went into effect, and therefore from that time the continued search for cross- border assault tunnels was conducted under the strict instructions prohibiting the use of weapons, except in the case of clear and immediate mortal danger.

At around 09:00, approximately one hour after the ceasefire went into effect, the Forward Command Post of the Givati Brigade's Reconnaissance Company Commander came under fire from military operatives of one of the terror organizations operating in the area. Major Sarel, Staff Sergeant Gidoni, and Lieutenant Goldin were killed in the attack, and Lieutenant Goldin's body was kidnapped by the military operatives and taken into a tunnel. At that time, before it was understood that Lieutenant Goldin was killed, IDF forces assessed that he was still alive.

In light of the Palestinian terror organizations' violation of the cease fire, their killing of Major Sarel and Staff Sergeant Gidoni, and their kidnapping of Lieutenant Goldin, it was decided to renew the attacks against military operatives and military infrastructure in the Rafah area. At the same time, in light of the assessment that Lieutenant Goldin was kidnapped while still alive, a large number of IDF forces – including infantry, armored, and engineering forces – advanced in order to isolate the area, locate the shafts of the tunnel that was used for the kidnapping, and continue fighting enemy forces located in the area. Due to the ceasefire, most of the IDF forces were located in Israeli territory at the time of the kidnapping, and were therefore required to quickly advance into the hostile territory where the kidnapping took place while compromising the means of defense usually available to them. In concert with the ground operations, the IDF also employed mortar, artillery, and aerial strikes in order to protect and support the forces operating on the ground by attacking military operatives and military objectives in the area. The ground operations continued until around 19:00 of that day, at which time the ground forces were instructed to return to the locations they had convened in prior to the attack and kidnapping. Hostilities continued in the Rafah area after the ground maneuver had concluded, but this did not involve ground operations and rather focused on conducting aerial attacks.

In media reports and other reports received by the MAG Corps, as well as in complaints and reports of NGOs and international organizations, it was alleged that the IDF operated in an indiscriminate and disproportionate manner during the fighting, and that significant harm was caused to life and property. It was also alleged that the purpose of the IDF's actions in Rafah was to avenge the kidnapping of Lieutenant Goldin and the killing of Major Sarel and Staff Sergeant Gidoni. Finally, it was alleged that the aerial strikes undertaken in the Rafah area in the days after the fighting (from the evening of 1 August and until 4 August 2014), were also conducted in an indiscriminate and disproportionate manner, and were driven by a desire for revenge.

Subsequently, it was decided to refer all the incidents that allegedly occurred during the fighting – that is, the combat operations in the Rafah area on 1 August 2014 between 09:36 and the conclusion of ground operations at 19:00 – to the FFA Mechanism for examination. Exceptional incidents that allegedly occurred after the fighting were dealt with in accordance with the MAG's general investigation policy regarding allegations of exceptional incidents that occurred during Operation 'Protective Edge'. The MAG's decisions with respect to some of these incidents have already been published.

Due to the nature of the allegations regarding the IDF's conduct during the fighting – which included both general allegations about IDF policy concerning the use of force, as well as allegations concerning specific incidents – the investigation was conducted along two tracks. In one track, findings were collected regarding the fighting in general, in order to review the orders given to the forces, as well as the manner in which firepower was employed during the fighting in general. In the second track, a factual assessment was conducted with regard to all the specific incidents (tens of incidents) in which it was alleged that civilians were harmed in the Rafah area during the fighting, wherever sufficient information was available to allow for identifying and examining the particular incident. All of the above was undertaken for the purpose of conducting as comprehensive an examination as possible regarding the allegations of civilian casualties in specific incidents, as well as regarding the orders themselves given during the fighting (even without direct relation to specific incidents in which it was alleged that civilians were harmed).

Given the complexity of this examination – which considered the use of force by IDF forces using various means (armored, artillery, mortar, engineering and aerial strikes) – and because of the number of incidents that were required to be examined, the examination was conducted in parallel by three assessment teams. The teams were headed by reservist officers holding the rank of Brigadier General, and each team was staffed by senior active duty and reservist officers with relevant professional military expertise. All of the members of the assessment teams were outside the chain of command in Operation 'Protective Edge'. The teams exhibited great expertise and professionalism in their information gathering efforts and their examination of the fighting. In the course of the teams' work, they questioned tens of officers and soldiers, both active duty and reservists, who were involved in the fighting; collected hundreds of relevant documents and IDF materials (including videos, radio communications and intelligence materials), as well as documents from external sources; created aerial maps and other models` and took numerous other steps with the aim of achieving a full and thorough understanding of how the fighting unfolded and the circumstances of the events.

Despite the foregoing, it should be noted that as in any combat situation-and particularly in a prolonged and complex fighting located in enemy territory, as in this case – inherent difficulties exist in attempting to determine all of the facts regarding each and every incident that occurred. This is so, mainly, because a significant portion of the relevant information is not in the possession of the IDF – in particular, the scope of casualties resulting from the fighting and their identities. Accordingly, a central aspect of the assessment teams' activities was to identify the specific incidents in relation to which it was alleged, usually in a laconic manner and with insufficient detail, that civilians were harmed, and to cross reference them with the positions and actions of IDF forces operating in the area, in an attempt to achieve a full and complete factual understanding of the events, to the extent possible. In furtherance of their objective, numerous reports and publications by various NGOs and international organizations were comprehensively analyzed, and the details therein were assessed against the information in the IDF's possession. The factual picture that was presented to the MAG Corps by the FFA Mechanism, both with respect to the overall conduct of the fighting, as well as with respect to specific incidents that occurred in its course, was the product of a consolidation of all of the internal and external data collected with respect to these incidents.

The aforementioned activities of the FFA Mechanism produced a breadth of information which made it possible for the MAG Corps to gain a comprehensive factual understanding of how the fighting unfolded, the orders that were given, and the specific incidents where it was alleged that civilians were killed (to the extent that it was possible to identify such incidents and examine them), and to therefore perform a thorough legal analysis of the events.

A. General Background

The Area of South-East Rafah


The area of south-east Rafah, where the majority of the fighting took place (with the exception of the aerial strikes, which occurred throughout the city of Rafah, and a limited number of ground-based attacks that took place on the outskirts of the area), is a largely agricultural area, with a few small clusters of structures. The area is bordered by the fence that separates Israel from the Gaza Strip to the south; the Dahniya Airport to the west; the Salah a-Din corridor to the north; and agricultural fields to the east.

Enemy Forces Located in the Area

Soon before the fighting began, the intelligence assessment was that one of Hamas' battalions, numbering hundreds of military operatives, was operating in the area of south-east Rafah, alongside hundreds of additional military operatives from other terror organizations such as Palestinian Islamic Jihad. It was also assessed that the enemy forces in the area would make significant efforts to kidnap a soldier. This was in addition to the continued efforts – as occurred throughout Operation 'Protective Edge' – to harm IDF soldiers, using means including snipers, anti-tank missiles, small arms fire, tunnels, booby- trapped houses, explosive devices and ambushes.

Scope of Civilian Presence in the Area

Prior to Operation 'Protective Edge', it was assessed that the area of south-east Rafah, which constitutes a small portion of the city of Rafah and which is relatively sparsely populated. At the start of the Operation – on 10 July 2014 and 17 July 2014 – prior to the initiation of ground operations, the IDF engaged in widespread efforts to warn the civilian population in south-east Rafah in order to distance them from the area of the expected ground maneuver. These efforts involved the use of multiple forms of communication, including leaflets, recorded telephone messages, television and radio broadcasts, conversations with influential figures, and more.

On 18 July 2014, prior to the IDF's ground maneuver in the area, the intelligence assessment was that most of the civilian population had evacuated from the south-east Rafah area. Just before the date of the fighting, the intelligence and operational authorities assessed that nearly no civilians remained in the south-east Rafah area. It should be noted that from 18 July 2014 until the day of the fighting, the IDF repeatedly published messages, through television and radio broadcasts as well as through mass text messages, stating that those who had evacuated should not return to their homes until they receive explicit instructions from the IDF. These assessments regarding the sparse presence of civilians in the area matched reports received from the forces in real-time, as well as in retrospect, according to which nearly no civilian presence was observed in the area in the days prior to the fighting as well as during the fighting.

The Kidnapping Incident

As mentioned, on 1 August 2014, Givati Brigade forces were operating to locate and destroy cross-border assault tunnel infrastructure which, according to intelligence information, were located in the south-east Rafah area. At 08:00 that morning, the humanitarian ceasefire went into effect, and strict orders were given to all forces that continued operations, including the search for cross-border assault tunnels in the area, were to be conducted without the use of weapons, except in the case of clear and immediate mortal danger. At 09:06, reports came in of an explosion and fire in the area; at 09:10, it was understood that IDF forces had been attacked by enemy operatives; and at 09:12, it was understood that the force that had been attacked was the forward command squad of the Givati Brigade's reconnaissance company commander. At that stage, additional forces arrived at the location of the attack, and identified the bodies of Major Sarel and Staff Sergeant Gidoni. Minutes later,a tunnel opening, booby-trapped with explosives, was identified inside a nearby two-story civilian structure. The reinforcements that arrived at the location understood that Lieutenant Goldin was missing, and assessed that he had been kidnapped by the enemy operatives while still alive, and had been taken into the tunnel opening located in the two-story structure. At 09:36, the General Staff Directive for Contending with Kidnapping Attempts (also known as the "Hannibal" Directive) was initiated, meaning a number of actions necessary to locate and rescue kidnapped soldiers were put into effect. At the same time, due to the Palestinian terror organizations' violation of the ceasefire, it was decided to renew combat operations in the area, and the IDF returned to attacking military operatives and military targets in the area.

The Outcome of the Fighting

As mentioned, the fighting began with the incident in which three IDF soldiers were killed, and after the kidnapping of Lieutenant Goldin, who at the time was understood to be alive (his death only became apparent later). Additionally, a number of soldiers were injured during the incident, including one who suffered a critical injury.

On the Palestinian side, the IDF cannot determine with certainty the number of casualties, whether military operatives of the different terror organizations or civilians, that resulted from the fighting. This is due in large part to the inherent difficulty in fully confirming information regarding casualties that occur in territory that the IDF does not control. This difficulty was even more pronounced here, given the complexity of the fighting that occurred, and given the known practice of Palestinian terror organizations to conceal the identities of military operatives killed as well as the circumstances of their deaths. Reports published by NGOs and international organizations regarding this incident contain inconsistent information regarding the number and identities of the casualties on the Palestinian side.

After a thorough examination of the information available to the IDF, from both intelligence sources and public sources, the FFA Mechanism concluded that at least 42 military operatives of Palestinian terror organizations were killed during the fighting. Additionally, the FFA Mechanism found that, at most, 72 additional individuals were killed as a result of the fighting. For the purposes of the examination, a consservative assumption was adopted that these persons were civilians not taking direct part in the hostilities. However, for the reasons detailed above, there is a possibility that the actual number of civilians killed is lower, as it was not possible to determine that all those who were allegedly killed were in fact killed during these specific incidents. In addition, it is possible that some of those killed were actually military operatives.

After analyzing the allegations concerning the deaths of civilians, it was found that the majority were apparently killed as the result of targeted aerial strikes aimed at military targets and military operatives throughout the city of Rafah, including areas beyond south-east Rafah where the ground maneuver took place, and without direct connection to the operations that were undertaken to locate the kidnapped officer. Nevertheless, with respect to ten civilians at most, the possibility could not be ruled out that they were killed as the result of artillery fire directed by IDF forces towards the south-east area of Rafah. In addition, indications were found that five civilians at most were killed as a result of fire from ground forces (mostly tank fire) in south-east Rafah. Allegations that civilians were killed by small arms or mortar fire during the fighting were not confirmed. The FFA Mechanism located and examined the vast majority of incidents wherein it was alleged that civilians were killed, however, there were 16 alleged civilian deaths with respect to which the FFA Mechanism proved unable to unearth sufficient information to connect the deaths to any particular incident.

The General Staff Directive for Contending with Kidnapping Attempts

The General Staff Directive for Contending with Kidnapping Attempts (also known as the "Hannibal" Directive), which was in effect at the time of the fighting, was a Directive issued by the IDF General Staff and which intended to contend with incidents of kidnapping of soldiers or civilians in any arena (the Directive). This Directive listed, among other things, the series of initial actions that must be undertaken when a soldier or civilian is kidnapped, the rules of engagement with respect to the kidnappers in hold of the kidnapped soldier to the extent it is required in order to prevent the kidnapping, and the levels of authority for declaring a soldier kidnapped and in ordering the initiation of the various actions that stem from pursuing the kidnappers. The Directive does not address the rules of engagement (except with respect to the kidnappers in hold of the kidnapped soldier) or attacks on targets, both of which are addressed in other IDF Directives.

The examination of the findings collected by the FFA Mechanism found substantial gaps in the forces' comprehension of the Directive, particularly with respect to the actions that may be taken to prevent the kidnapping where such actions could endanger the safety of the kidnapped soldier. Additionally, it was found that there were substantial gaps between the General Staff Directive and the derivative directives of the Southern Command and the Gaza Division, whose purpose was to implement the General Staff Directive. Similar findings were made in the State Comptroller's report on "Operation 'Protective Edge' – IDF Activity from the Perspective of International Law, Particularly with Regard to Mechanisms of Examination and Oversight of Civilian and Military Echelons", of March 2018. These gaps, among others, led to the nullification of the Directive in 2017, and its replacement with a different directive.

As part of the allegations raised in the different reports and publications dealing with the fighting, it was alleged-using public comments by some IDF commanders regarding the essence of the Directive in an effort to support their allegations-that the Directive permitted disproportionate use of force against civilians, or that it "removed all limitations" with respect to the IDF's use of force. No factual basis was found for these allegations, neither in the language of the Directive (as well as the Southern Command or Gaza Division derivative directives), nor in the findings that were collected regarding the implementation of the Directive during the fighting. The Directive, as mentioned in the State Comptroller's report on the subject, did not explicitly refer to the principles of distinction and proportionality. However, as noted above, the Directive did not concern use of firepower or the attacking of targets except for with regards to the kidnappers during the kidnapping attempt. As a result, the Directive did not constitute a relevant source for normative guidance on the subject. The IDF Directives that do concern use of firepower include detailed explanations regarding the principles of distinction and proportionality in a clear and explicit manner, and they are binding on IDF commanders with regards to every attack. Moreover, all the findings collected by the FFA Mechanism, including from real-time documentation of the forces' conduct, as well from subsequent questioning of commanders who took part in the fighting-including commanders to whom the aforementioned comments about the Directive were attributed-clearly showed that the understanding among the forces was that even though the Directive permitted the use of substantial force against the kidnappers in hold of the kidnapped soldier in order to rescue the kidnapped soldier, it certainly did not permit causing intentional harm to civilians or civilian property or employing firepower in a disproportionate manner.

B. The Ground Maneuver

The Ground Maneuver Aimed at Locating and Rescuing Lieutenant Goldin


With the assessment that Lieutenant Goldin was kidnapped while still alive, the operational and intelligence authorities assessed, on the basis of intelligence information and the estimated route of the tunnel, that the kidnappers would try to take Lieutenant Goldin into the city of Rafah or deeper into the Gaza Strip. Given this assessment, it was decided to conduct a fast ground maneuver with ground forces, that would be accompanied by tanks and combat engineering forces, in order to block the access routes leading from south-east Rafah to the center of Rafah city and to the center of the Gaza Strip. In addition, it was decided to renew the attacks against military operatives and military infrastructures maintained by enemy forces in the area. As previously mentioned, due to the ceasefire, most of these IDF forces were located in Israeli territory prior to the start of the fighting, and as a result were required to advance immediately and quickly into the hostile territory where the kidnapping took place, without sufficient preparation, and compromising the means of defense typically available to them. Due to these factors, the forces required significant supporting fire in order to protect themselves against the large number of enemy forces present in the area.

The military necessity that formed the basis of the ground maneuver was conveyed to the forces in a clear manner – cutting off the kidnapping squad and locating Lieutenant Goldin, as well as attacking military operatives and military targets. This was to be accomplished by, among other means, a ground maneuver towards the points where shafts linking to the tunnel through which Lieutenant Goldin was kidnapped were assessed to be located-all of which were in the area of south-east Rafah, and at a distance of only a few hundred meters from where some of the IDF forces were located prior to the start of the fighting. From all of the materials collected, no basis was found to indicate that the ground operation deviated from the aforementioned military necessity.

In the course of the limited maneuver, which at its maximum extended to 1.5 kilometers from the location of the kidnapping, the forces came under attack from military operatives on a number of occasions, and were fired upon with anti-tank missiles, mortars shells, sniper fire, and small arms fire. After analyzing the intelligence information, the FFA Mechanism concluded that the area of fighting contained a significant presence of enemy military operatives, but that the operatives were challenged in their ability to operate against the maneuvering forces due to the scope and manner of the maneuver and the IDF's operations.

Combat Engineering Operations

In the course of the fighting, various combat engineering forces were employed to facilitate and secure the maneuver, as well as to locate and destroy cross-border assault tunnel infrastructure and combat tunnel infrastructure in the area. No civilian casualties were found to have been caused by these activities. With respect to allegations that the IDF partially or completely destroyed thousands of structures during the fighting, the examination of the fighting found that less than 200 structures, most of them structures that were provisional or agricultural in nature (greenhouses, storage, etc.), were destroyed as the result of the infantry and engineering activities or by aerial attacks. Additionally, the findings made clear that the vast majority of structures destroyed were either in the vicinity of the tunnel through which Lieutenant Goldin was kidnapped, or on the routes through which the ground forces advanced. Accordingly, these structures either constituted military objectives or there was an imperative military necessity in their destruction in order to locate the tunnel infrastructure or in order to protect the maneuvering forces. Furthermore, it was found that some of the destroyed or damaged structures in the area were destroyed out of imperative military necessity during hostilities that occurred in the days that preceded the fighting, or in the days that followed it.

The examination of the materials collected provided that the engineering operations were conducted out of imperative military necessity – clearing booby-trapped routes, constructing cover to protect the forces, and locating cross-border assault tunnels. There was no indication that civilian structures were destroyed where there was no military necessity, or that under the circumstances the forces had other reasonable alternatives entailing a lesser potential for harm in order to achieve their purposes (as detailed above), nor was there any indication that property was damaged in a disproportionate manner.

In light of these findings, the MAG found that there was no sufficent evidentiary basis to the allegations that the aforementioned combat engineering operations were motivated by illicit purposes, nor any indication of intentional destruction of property where there was no imperative military necessity to do so.

C. Use of Firepower

During the ground maneuver, the IDF employed fire from ground forces, as well as artillery and mortar fire, and aerial strikes. The purpose of the fire was to attack military infrastructure and operatives, and to support IDF forces operating in the area. Based on an examination of all the materials collected, including with respect to the individual incidents that were examined, no factual basis whatsoever was found that gave rise to a suspicion that the use of fire was done for the purpose of "revenge" or as a "price tag" on the residents of Rafah. It was found with respect to both the orders given during the fighting, and the individual incidents identified as occurring during the fighting, that the use of fire was done for clear military purposes. The following addresses the use of fire with respect to each type of fire that was employed during the fighting.

Tank Fire During the course of the ground maneuver the IDF employed ground fire (particularly light arms fire and tank shells). As no allegations regarding exceptional incidents involving the use of light arms could be corroborated, the FFA Mechanism was not required to expand the examination with regards to the manner in which light arms fire was used by infantry forces.

An examination of all the materials collected provided that around 140 tank shells were fired during the fighting in total, and that the shells were aimed where military operatives were suspected of being located, or directly at military operatives. Target selection was based on intelligence information, and on the assessments of commanders in the field regarding the location of military operatives in the area. According to the professional assessments of the FFA Mechanism's experts on the use of tank fire, the amount of fire was not unreasonable in relation to the scope of the threats facing the forces during the fighting, and the manner in which the armored forces operated aligned with the military purposes that the forces were seeking to achieve, and accorded with established military doctrine.

The MAG found, based on all the findings collected, that under the circumstances, the use of tank fire accorded with Israeli domestic law and international law requirements. It was found that the tank fire was employed for a military purpose – namely, attacking military operatives – and adhered to the operational directives in force at the time. Additionally, no basis was found to raise suspicion that any individual attack was carried out indiscriminately, lacked a military purpose, or directly targeted civilians. In this regard, it should be noted that the number of civilian casualties alleged to have resulted from tank fire is very low (at most five persons), which further provides indications regarding the purpose of the fire and that the fire was proportionate.

Artillery and Mortar Fire

As mentioned, prior to the IDF forces' entry into the Rafah area, there were intelligence warnings regarding the enemy's intention to kidnap soldiers in the area. Due to these warnings, the IDF prepared for such a situation prior to entering the area, and planned "blocking points" on access routes (i.e., coordinates where it was determined, on the basis of operational analysis of the territory, that consistent and persistent fire would prevent reinforcements from entering the area and reduce the possibility for kidnappers to escape the area). Accordingly, soon after the kidnapping incident was declared, the operational entities began firing artillery and mortars towards these "blocking points" that had been determined beforehand for contending with these types of incidents. The first round of fire was conducted at 09:47. Once the ground forces arrived near the Salah a-Din road, the artillery fire was reduced, until it completely ceased at around 13:30. Approximately 1,000 artillery shells were fired at 31 "blocking points" over the course of the fighting. Additionally, approximately 250 mortar shells were fired at ten other "blocking points".

Artillery and mortar fire was employed as at the time the forces understood that they are the most appropriate and effective means by which to both block access routes and prevent enemy forces from arriving in the area until ground forces could reach these routes, as well as to protect the ground forces, who, as mentioned, were required to deploy immediately and with great speed, without sufficient preparation and while compromising some of the means of defense that are normally at their disposal. That these were the purposes of the fire is evidenced by the fact that, as the forces advanced and arrived at Salah a-Din road, artillery and mortar fire was significantly reduced, until it was ultimately stopped at 13:30, as stated.

The coordinates at which the fire was directed were, as mentioned, located on central routes and intersections, and were selected for the purpose of "isolating the area" (i.e., preventing the arrival of enemy reinforcements into the area, hampering the ability of military operatives located inside the area to attack IDF forces, and preventing the kidnappers from retreating to other areas). They were also located in largely open areas where it was assessed that openings to the tunnel through which Lieutenant Goldin was kidnapped may be located. The findings collected further provided that, despite the military necessity for widespread use of artillery and mortar fire in order to achieve the stated aims, many actions were taken to ensure the accuracy of the fire, efforts were made to reduce possible damage to civilian structures and property, and particular effort was made to avoid firing in the vicinity of "sensitive sites" (i.e., those sites that, when operating in their vicinity, particular caution should be exercised, according to IDF directives).

According to the professional assessment of the FFA Mechanism's experts on the use of artillery and mortar fire, the amount of fire was not unreasonable in relation to the scope of the threats facing the forces during the fighting, and indeed was relatively limited when compared to the amount of fire used in similar situations in the past where an area of similar size had to be isolated. Moreover, the use of artillery and mortar fire itself to "isolate" an area and to protect ground forces, as well as the manner in which the fire was used in this instance, aligned with the military purposes that the forces were seeking to achieve, and accorded with established military doctrine. As mentioned above, an analysis of the casualties, relying both on the IDF's own examination as well as on various reports, provides that relatively few civilians-around ten, at most-were killed as the result of artillery fire in the area. This figure somewhat supports the notion that the forces' use of artillery fire was not indiscriminate nor was it disproportionate, and that it was mainly aimed at open, uninhabited areas, and that few civilians were present in the area in which the forces were operating.

It was further found that during the maneuver, at 11:10 and at 17:07, mass text messages were sent by the IDF to .the residents of south-east Rafah, which were intended to reduce harm to civilians on these routes (remaining inside a structure vastly reduces the likelihood of being injured by artillery fire). Similar voice messages were transmitted at 11:18 and at 17:21. A similar message was also broadcast on the radio in the area, and was conveyed in individual phonecalls to central figures in the city of Rafah, as well to representatives of different international organizations.

In the course of examining specific incidents that occurred during the fighting, a number of incidents of artillery fire were identified wherein, in addition to hitting military operatives, a number of civilians not directly participating in the hostilities may have been killed. It is possible that among those civilians killed were Musa and Yusra Jazar, Salameh and Amneh a-Zamli, Nuah and Ibrahim Ghneim, and Ihmidan Abu Breik. Though allegations were raised that these civilians were killed by aerial strikes or by ground fire, the FFA Mechanism's examination did not find any aerial attacks or tank fire that could have resulted in harm to these individuals. All of these individuals were located in an area where the number of civilians present was assessed to be very low, and were located in proximity to "blocking points" on central routes, towards which artillery fire was directed. On this basis, the FFA Mechanism determined that the possibility that these civilians were killed as a result of artillery fire could not be ruled out.

Based on the materials collected, both with respect to the overall use of artillery and mortars during the fighting, as well as with respect to the individual incidents mentioned above, the MAG found that in the circumstances, the use of artillery and mortar fire accorded with Israeli domestic law and international law requirements. Artillery and mortar fire was employed for a military purpose-namely, isolating the area and protecting IDF forces operating there-and it adhered to the operational directives that were in force at the time. No basis was found to raise suspicion that any individual attack was carried out indiscriminately, lacked a military purpose, or directly targeted civilians. It was also found that in light of the information available to the commanders at the time that few civilians remained in the area, their assessment that the collateral damage expected from the artillery and mortar fire would not be excessive in relation to the military advantage to be achieved was not unreasonable. It was also found that they were the most appropriate and effective means available to the forces in order to achieve these aims in the circumstances of the fighting. Furthermore, it was found that different precautionary measures were taken during the course of fire in order to increase accuracy and to reduce the likelihood of civilian harm.

Aerial Strikes

Aerial strikes were employed during the fighting for different purposes-to support the ground forces, to attack military operatives, and to attack military objectives. In this context, tunnel shafts and command and control centers manned by military operatives were attacked, as well as military operatives and the structures in which they hid. The strikes took place throughout the Rafah area, throughout the course of the fighting, and where based on up-to- date intelligence information.

The MAG found, based on all the materials collected, that the use of aerial strikes accorded with Israeli domestic law and international law requirements. It was found that the aerial strikes targeted military objectives (active command and control centers, military infrastructure hidden in structures of a civilian appearance, and underground military infrastructure), and military operatives, and were conducted after approval by the authorized authorities and after proportionality assessment procedures were conducted in order to ensure that the expected collateral damage from each strike would not be excessive in relation to the military advantage anticipated from it. It was further found that precautionary measures were undertaken which aimed to minimize the risk of collateral damage from the aerial strikes. For instance, where the operational authorities assessed it was possible from an operational standpoint, strikes were conducted after taking precautionary measures. As alleged, it appears that, regrettably, some of the attacks also resulted in harm to civilians, however this does not affect their legality ex post facto.

D. Individual Incidents that Occurred During the Fighting

From among the dozens of individual incidents that occurred during the fighting, and which were examined by the FFA Mechanism, the following is information that has been cleared for publication concerning decisions the MAG has reached with regard to some of these incidents. Where a written complaint was received with respect to an incident on which the MAG has reached a decision, a response has been sent to the organization or individual that filed the complaint.

1) Allegations Concerning the Deaths of 16 Individuals as the Result of an IDF Attack on Belbisi Junction (1 August 2014)

In media reports, as well as in a complaint and in a report by NGOs that were received by the MAG Corps, it was alleged that on 1 August 2014, during the fighting, at about 13:50, 16 individuals were killed as the result of an aerial attack on the Abu Shuarab family home in the area of Belbisi junction. It was alleged that, at the time of the strike, the individuals were located in the street adjacent to the home, and that they were hit while trying to flee the area of hostilities.

The factual findings and the material collated by the FFA Mechanism and presented to the MAG provide that, during the fighting and soon after the kidnapping, up-to-date intelligence information was received, according to which two structures located east of the Salah-a-Din road (in the area of south- east Rafah, where it was assessed that a low number of civilians were present) – which were already known to the intelligence authorities as structures used for military activities – contained military operatives connected with kidnapping of Lieutenant Goldin. On the basis of additional up-to-date information, it was assessed that the kidnapping squad was on route to these structures. During the planning stages of the strike, it was assessed that the possible harm to civilians that may be present in the structure or its vicinity would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on these structures and the military operatives inside them. This assessment was based, in part, on the information indicating the sparseness of the civilian presence in the area, as detailed above.

Due to the urgency in immediately attacking these targets so as to stop the kidnapping, the structures were attacked soon after receiving approval for the strike. It was found that there was no possibility for carrying out an advance warning of the attack, as such a warning was expected to frustrate the objective of the attack. During the strike, after the munitions had already been released, movement by a number of individuals was identified in the street adjacent to the structures. At that stage, the attack could not be stopped (the munitions that were released could not be diverted at that point) and the munitions hit the structures. It appears that the individuals observed in the street near the structures are those who it is alleged were harmed as a result of the attack.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities and the attack was aimed at military targets-military operatives that were involved in the kidnapping, located in a structure used for military activities, and where it was suspected Lieutenant Goldin would be brought by his kidnappers. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the possible collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. This assessment was not unreasonable under the circumstances, despite the understanding in retrospect there was a discrepancy between the facts as they appeared after the strike and the information available to the military commander at the time when the decision to strike was made (as the military commander was not aware of the civilian movements near the structures in real-time, prior to releasing the munitions). It was further found that the provision of a warning to the occupants of the structure was not required by law, as such warning would have frustrated the objective of the attack. The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

2) Allegations Concerning Damage Caused to Al-Najjar Hospital as the Result of an Attack by IDF Forces (1 August 2014)

In media reports, as well as in a complaint and in reports of an NGO and an international organization that were received by the MAG Corps, it was alleged that on 1 August 2014, during the fighting, the Al-Najjar Hospital in Rafah was damaged as the result of IDF actions. According to the allegations, amongst other things, shells fell at a distance of around 20 meters from the hospital, and that as a result of IDF actions, glass windows shattered, the roof was destroyed, and doors were damaged in the hospital.

The factual findings collated by the FFA Mechanism and presented to the MAG provide that the location of the hospital was known to IDF forces operating in the area, and that it was designated in the IDF's relevant operational systems as a "sensitive site", which, according to IDF directives, required forces operating in the area to take added precautions. It was further found that terrorist organizations had placed substantial underground military infrastructure near the hospital, and that during the fighting, four such underground military structures were attacked, at distances of around 90 to 200 meters from the hospital. Moreover, it was found that all of the strikes were carried out after undergoing an orderly authorization process, and that the potential for damage to civilian buildings in the vicinity of the targets had been taken into consideration in the strike planning process, including, among other things, taking steps to avoid harming the hospital. It was also found that, in the context of the fighting detailed above, artillery fire was directed at a point around 450 meters from the hospital. An examination by the relevant professionals from the Artillery Corps showed that the probability that the hospital could have been damaged by this fire was miniscule.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities and the attack was aimed at clear military targets-underground military infrastructure. The attacks complied with the principle of proportionality, as at the time the decisions to attack were taken it was assessed that no harm to civilians or adjacent civilian structures was expected to occur as a result of the strikes. The location of the hospital was known at the time of the planning of the strikes, however no damage was expected to result to the hospital given the distance between the hospital and the targets attacked. Though it is possible that, as alleged, some of the attacks caused disruptions to the hospital's activities, such incidents, if they occurred, were a regrettable but unavoidable result in light of the military necessity in attacking the military infrastructure that the terrorist organizations had located in the hospital's surroundings.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

3) Allegations Concerning the Death of Asil Abu Muhsin as the Result of an Attack by IDF Forces (1 August 2014)

In a report of an international organization and in a complaint and a report by NGOs received by the MAG Corps, it was alleged that on 1 August 2014, during the fighting, at around 11:00, Asil Abu Muhsin was killed as the result of IDF fire. According to the main allegation in the complaint and reports, Abu Muhsin and her family were fleeing their home, and at the moment they arrived at Rafah junction, she was hit by IDF fire. The different sources were not consistent as regards the details relating to the incident, or in regards to the type of munitions alleged to have struck Abu Muhsin.

The factual findings collated by the FFA Mechanism and presented to the MAG provide that, on 1 August 2014, at around 11:00, there was an exchange of fire between the IDF's armored forces and military operatives of the terrorist organizations, near where Abu Muhsin was killed, and that the IDF attacked military targets and operatives that were identified in the area in real- time. In the course of this fighting, an anti-tank missile was fired at IDF forces. It was further found that during the fighting the forces did not identify the presence of any civilians in the area-an area which, as previously noted, contained only a very sparse civilian presence at that point-and certainly no fire was aimed directly at civilians. Against this factual background, the FFA Mechanism determined that it could not rule out the possibility that Abu Muhsin was killed as the result of this exchange of fire.

The FFA Mechanism also examined the possibility that Abu Muhsin was hit by artillery fire directed at the relevant area approximately one hour before the alleged time of the incident. The FFA Mechanism determined that, though it could not rule out the possibility that artillery fire had caused Abu Muhsin's death, this possibility, especially in light of the descriptions of the incident in the complaint and reports, is less likely.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that, to the extent Abu Muhsin was killed by IDF tank fire, it was an inadvertent result of fire aimed at military operatives and military targets. The fact that, in practice, a civilian who was uninvolved in the hostilities was harmed, is a regrettable result, but does not affect the legality of the use of fire ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

4) Allegations Concerning the Deaths of Five Individuals as the Result of a Strike on the Madi Family Home (1 August 2014)

In a complaint from an NGO received by the MAG Corps, it was alleged that on 1 August 2014, during the fighting, at around 15:30, five individuals were killed, and others were injured, as the result of an IDF aerial attack on the Madi family home in Rafah (in other reports, it was alleged that an additional person later died of his wounds).

The factual findings collated by the FFA Mechanism and presented to the MAG provide that, on 1 August 2014, the IDF carried out an aerial strike on a structure that it was assessed was being used as an active command and control center by the Hamas terror organization. The attack aimed to target both the command and control center and the military operatives manning it. In the course of the strike planning process, it was assessed that the extent of the harm expected to result to civilians as a result of the attack would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on the military command and control center and the military operatives manning it. The strike was planned for execution by means of a precise munition suited for the purpose, and in a manner which would allow for the strike's objective to be achieved whilst minimizing the potential for collateral damage to nearby civilians and adjacent structures. It was further found that it would not have been possible to provide a warning prior to the strike on the structure, as such a warning was expected to frustrate the objective of the attack. As result of the strike, the structure was damaged but was not demolished.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities, and the objects of the attack were military targets – an active command and control center of the Hamas terror organization, and the military operatives assessed to be manning it at the time. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was assessed that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated to result from it. This assessment was not unreasonable under the circumstances.

Moreover, the attack was carried out employing different precautionary measures-including the selection of the munition used to carry out the strike, as well as the method by which the strike was carried out-which aimed to mitigate the risk to civilians in the vicinity of the structure and minimize damage to adjacent structures. It was also found that the provision of a warning to the residents of the building was not required by law, as such a warning would have frustrated the objective of the attack. The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

5) Allegations Concerning the Deaths of Five Individuals as the Result of a Strike on a Motorbike (1 August 2014)

In media reports, as well as in a complaint from an NGO, it was alleged that on 1 August 2014, during the fighting, at around 10:00, four people were killed as the result of an IDF aerial strike towards a group of individuals in the Jenina neighborhood of Rafah (in some reports it was alleged that the incident occurred at around 10:40). In some of the reports it was alleged that the strike was directed at a motorcycle carrying two persons, and that as a result of the strike, three persons were killed as the motorcycle passed near them.

The factual findings collated by the FFA Mechanism and presented to the MAG provide that on 1 August 2014, at around 12:00, the IDF identified two people riding on a motorbike, who were identified, according to up-to-date intelligence information, as military operatives of Hamas' military wing. On this basis, it was decided to attack them. The attack on the military operatives was planned for execution by means of a precise munition, in a manner that would allow for the strike's objective to be achieved whilst minimizing the potential for harm to civilians or passing vehicles.

An examination of the incident revealed that about one second before the motorbike was struck, it passed near a number of individuals. However, the FFA Mechanism's findings indicate that with the means that were at the forces' disposal, and under the visibility conditions prevailing at that time, the forces were not able to discern in real-time the group of persons. Even if the forces had identified such persons, it was found that it was no longer possible to divert the munition which had been fired at the motorbike.

As mentioned above, it is alleged that as a result of the strike, between four and five persons were killed. According to the findings of the FFA Mechanism, two of the deceased, the motorbike riders, were indeed military operatives.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities, and the object of the attack was lawful – military operatives. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated to result from it (in fact, the assessment in real-time was that the strike would only harm the military operatives targeted). This assessment was not unreasonable under the circumstances. Moreover, the attack was carried out employing precautionary measures, including the selection of the munition used to carry out the strike, which aimed to mitigate the risk to civilians and passing vehicles. The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

E. Conclusion

The fighting in Rafah was prolonged and complicated, in which thousands of soldiers took part, and in which different and varied means of fire were employed. Despite the length and complexity of the fighting, the breadth and quality of the information that the FFA Mechanism collected, both with respect to the overall conduct of the fighting and with respect to the specific incidents that occurred in its course, allowed the MAG Corps to view the overall picture of the fighting, including the orders given, as well as the specific incidents during the fighting where it was alleged that civilians were killed, and to perform a thorough legal analysis of them.

Ultimately, after reviewing all the factual findings and the material collated by the FFA Mechanism regarding the fighting overall and the individual incidents that occurred in its course, the MAG did not find that the actions of the IDF forces that were examined raised grounds for a reasonable suspicion of criminal misconduct.

As explained above, the MAG found that the IDF's policy with respect to the use of firepower during the fighting – whether by tanks, by artillery and mortars, or from the air – accorded with Israeli domestic law and international law requirements. The different attacks were conducted for clear and legitimate military purposes, after proportionality assessment processes were undertaken in order to ensure that the expected collateral damage from each attack would not be excessive in relation to the military advantage anticipated from each attack. It was further found that, during the course of fighting, precautionary measures were undertaken which aimed to minimize the risk of civilian harm from the various attacks. Additionally, with respect to the individual incidents that occurred during the fighting, no basis was found to raise suspicion that any attack was carried out indiscriminately, lacked a military purpose, or was directed towards civilians.

Against this background, the MAG ordered that the case be closed, without opening a criminal investigation, and without any further steps to be taken against those involved. Nevertheless, it was found that the operational conduct in some of the individual incidents examined in the course of the fighting and in the days following, required operational lessons-learned on both an institutional and operational level. This included lessons-learned regarding aspects of firepower and the operation of "Attack Cells", and expanding the documentation of operational activity. These recommendations for lessons- learned were provided to the command echelon throughout the examination process. As of this date, a substantial portion of these lessons-learned, as well as other related lessons raised in the State Comptroller's report, mentioned above, have already been implemented in the operational directives currently in effect.

F. Fire Policy in the Rafah Area in the Days Following the Fighting

As detailed above, allegations were raised in different sources according to which the IDF's strikes in the Rafah area in the aftermath of the fighting, that is from 19:00 on 1 August 2014 until 4 August 2014, implemented a less restrictive use of fire policy, and were conducted in an indiscriminate and disproportionate manner, out of a drive for "revenge" for the kidnapping of Lieutenant Goldin. Against this background, the FFA Mechanism examined the use of fire policy employed in the Rafah area during this time period as well.

This examination did not uncover any indication to suggest that the use of fire policy in the area was different, in any material or substantive respect, from the policy that was in place prior to the kidnapping, and no written or oral instruction was found that referred to a different or "permissive" policy. According to the FFA Mechanism's findings, in the days following the kidnapping, the intelligence gathering effort and combat operations were focused on Rafah, in order to continue attacking the military infrastructure in the area and to neutralize the threat facing Israel as a result of the operations of terror organizations in the area. As a result of these efforts, there was increased intelligence in the area regarding enemy activity, and as such, the number of aerial strikes increased in the area in the days following the fighting on 1 August 2014. It may be assumed that the alleged increase in the number of casualties in the area followed the increased intelligence gathering and operations efforts in the area, which led to an increase in the number of military targets attacked in the area. According to the findings, all of the strikes were undertaken for the purpose of achieving clear military objectives, and no factual basis was found for allegations regarding a "permissive" use of fire policy, or for allegations that strikes were undertaken for purposes of extracting "revenge". This understanding accords with the findings of the examinations that were conducted regarding approximately 15 exceptional incidents that occurred in the Rafah area from 19:00 on 1 August 2014 until 4 August 2014, which were reviewed, as noted above, by the FFA Mechanism.

Additional Cases Closed by the MAG Following Examination by the FFA Mechanism

2. Allegations Concerning the Deaths of Five Persons as a Result of a Strike on a Building in Beit Hanoun (19 July 2014)


In an NGO publication, as well as in a report and complaint received by the MAG Corps from NGOs, it was alleged that on 19 July 2014, at around 10:30, five members of the a-Zwiedi family were killed as a result of an IDF ground attack on a building in Beit Hanoun. According to the complaint, the a-Zwiedi house was hit by a shell that was fired at a fourth-floor apartment in the family's home. The incident was subsequently referred to the FFA Mechanism for examination.

According to the factual findings collated by the FFA Mechanism and presented to the MAG, IDF forces were engaged in extensive combat operations against numerous enemy forces operating in the area in which the a-Zwiedi house was located. The IDF's ground operations in the area began on 18 July 2014 – one day prior to the alleged attack, after efforts had been made to clear the area of civilians. Nevertheless, a comprehensive examination determined that IDF forces did not direct any aerial or ground attack towards the house around the time of the alleged attack. In the course of the examination, at the FFA Mechanism's request, it received additional materials and information from the representative of the NGO that submitted the complaint to the MAG Corps, including images of the damaged building. These additional materials did not give rise to any change in the FFA Mechanism's assessment with respect to the incident.

After reviewing the factual findings and the material collated by the FFA Mechanism, according to which no IDF attack on the building was identified, the MAG instructed to continue the factual assessment through a preliminary investigation by the Criminal Investigative Unit for Operational Affairs (the 'CIUO') of the IDF Military Police.

In the course of the CIUO investigation, testimony was collected from the owner of the apartment who allegedly was present on the floor of the building that was targeted at the time of the attack, and whose wife was allegedly killed in the incident. Testimony was also collected from various professionals and from the operational entities involved in the hostilities in the area. Moreover, the IDF's relevant systems were analyzed alongside additional documentation, together with the materials that were provided by the representative of the NGO that submitted the complaint.

The factual findings that were collated by the FFA Mechanism and the CIUO and presented to the MAG indicate that IDF forces did not conduct any aerial or ground strike against the house specified in the complaint and reports. Furthermore, according to the testimony of the professionals who analyzed the images submitted by the representative of the complainant and other sources of information, the damage caused to the house did not conform with the type of damage that could be caused by munitions that were in use by IDF forces. The professionals also testified that it was not possible to determine with certainty what kind of munition hit the house, nor its source. It was further determined that two of the alleged civilian casualties in the incident were military operatives in terrorist organizations operating in the Gaza Strip.

After reviewing the factual findings and the material collated by the FFA Mechanism and the CIUO, the MAG found that there was no basis to the allegation that members of the a-Zwiedi family were harmed as a result of a direct attack by IDF forces aimed at the family's home. The MAG further found that, in the event that the damage to the structure was caused as an indirect result of IDF operations in the area, such damage would have been the regrettable result of the active hostilities, which the operational authorities could not have foreseen prior to its occurrence. As a result, and as there were no reasonable grounds for suspicion of criminal misconduct, the MAG ordered the case to be closed, without opening a criminal investigation.

3. Allegation Concerning the Deaths of Nine Females as the Result of a Strike on a Building in Gaza City (21 July 2014)

In a report by an international organization, and in NGO reports and a complaint received by the MAG Corps, it was alleged that on 21 July 2014, at around 17:00, nine female members of the al-Qassas and Siyam families were killed, and others injured, as a result of an IDF aerial strike that hit the al- Qassas family's apartment in a building in Gaza City. According to the allegations, only this apartment, which was located on the top floor of the building, was hit in the strike. The incident was subsequently referred to the FFA Mechanism for examination.

According to the factual findings collated by the FFA Mechanism and presented to the MAG, it was determined, that the IDF did not conduct any aerial or ground strike against the structure referenced in the complaint, nor any other aerial or ground strike at the relevant time and place that could have resulted in the alleged damage to such structure. In the course of the FFA Mechanism's examination, the representative of the organization that submitted the complaint was requested to provide additional information and materials. The information and materials received included images of the apartment that was damaged, and they were also examined by the FFA Mechanism.

After reviewing the factual findings and the material collated by the FFA Mechanism, wherein, as previously mentioned, no IDF strike towards the family's home was identified, the MAG instructed to continue the factual assessment through a preliminary investigation by the Criminal Investigative Unit for Operational Affairs (the 'CIUO') of the IDF Military Police.

In the course of the CIUO investigation, testimony was collected from the owner of the apartment that was allegedly attacked. Testimony was also collected from professionals as well as the operational entities involved in the hostilities in the area. Moreover, the IDF's relevant military systems were analyzed alongside additional documentation, together with the materials that were provided by the representative of the NGO that submitted the complaint.

The factual findings collated by the FFA Mechanism and the CIUO and presented to the MAG indicate that IDF forces did not conduct any aerial or ground strike against the structure specified in the complaint and reports, nor did the IDF engage in any other aerial or ground strike at the relevant time and place that could have resulted in the alleged damage to such structure. Furthermore, according to the testimony of the professionals who analyzed the images submitted by the representative of the organization and other relevant documents, the explosion that occurred in the apartment did not reflect the damage caused by the munitions employed by IDF forces, and the alleged damage was not caused by an aerial strike. In their assessment, the factual findings likely indicate that a homemade explosive device detonated in the apartment.

After reviewing the factual findings and the material collated by the FFA Mechanism and the CIUO, the MAG found that there was no basis to the allegation that the female members of the al-Qassas and Siyam families were harmed as a result of IDF operations. Indeed, the examination's findings indicate, with a high level of probability, that the female members of the al- Qassas and Siyam families were harmed by an entity other than the IDF. As a result, the MAG ordered the case to be closed, without opening a criminal investigation.

4. Allegation Concerning the Deaths of 35 Persons as a Result of a Strike on a Building in Khan Younis (29 July 2014)

In media reports, as well as in NGO reports and complaints received by the MAG Corps, it was alleged that on the morning of 29 July 2014, approximately 35 persons were killed as a result of an aerial strike conducted by the IDF on a building in Khan Younis. According to some of these sources, some of the casualties were renting apartments in the building, and others were present in the building after having evacuated their homes. The incident was subsequently referred to the FFA Mechanism for examination.

According to the factual findings collated by the FFA Mechanism and presented to the MAG, on 29 July 2014, the IDF carried out an aerial strike against a senior commander in the Palestinian Islamic Jihad terror organization, who according to real-time intelligence was involved in commanding military activities against Israel and who was present in the building at the time. It was further assessed that at least one additional military operative was in the building at the time.

During the planning stages of the strike it was assessed that in order to attack the senior commander, the strike must be carried out against the entire structure, and could not be limited to a particular portion of the building. Accordingly, the strike on the structure was planned for execution in a manner that would allow for the attack's aim to be achieved whilst minimizing the potential harm to nearby structures and those present therein. It was further found that it would not have been possible to provide a warning prior to the strike on the building, as such a warning would have frustrated the objective of the attack.

During the planning stages of the strike it was assessed, on the basis of intelligence and other checks that were undertaken in real time, that no civilians were present in the structure. Nevertheless, as the structure was a residential building, for the purposes of assessing the proportionality of the planned attack the forces worked according to the assumption – despite the aforementioned intelligence information – that civilians were present in the building. This stringency was presented to an IDF senior commander, who assessed that even when taking this assumption into account, the extent of the civilian harm expected to result from the attack would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on the senior commander.

As mentioned, it is alleged that 35 persons were killed and 27 injured as a result of the strike. This figure is substantially higher than the number of civilians that were assumed to be in the building according to the stringency adopted by the forces. According to the findings, at least three military operatives of terrorist organizations were among those killed in the attack. There has been no confirmation that the senior commander was also hit in the strike. It was also found that the strike destroyed military infrastructure in the building. As a result of this incident, operational lessons were learned and implemented in various fields.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities and the attack was aimed at a military objective – a senior military commander in the Palestinian Islamic Jihad and at least one other military operative. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. With respect to the proportionality assessment, it was found that the requisite procedures – intelligence and others – to determine whether the structure contained civilians were followed, and the professional assessment of the operational authorities with respect to the number of civilians that could be harmed from the attack was not unreasonable. This is so, despite the fact that after the strike it was understood that there was a discrepancy between the facts which led to the outcome of the attack and the information available to the commander at the time the decision to strike was made. Additionally, the strike was carried out using precautionary measures aimed to minimize the potential for harm to nearby structures and the civilians inside them. It was further found that the provision of a warning to the persons present in the targeted building was not required by law, as such a warning would have frustrated the objective of the attack.

The fact that in practice, civilians that were uninvolved in the hostilities were harmed, and to an extent that was not expected, despite the checks that were conducted, is a difficult and regrettable result, but it does not affect the legality of the attack ex post facto.

In light of the findings, the MAG did not find that the actions of IDF forces gave rise to reasonable grounds for suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed without opening a criminal investigation. In addition, the MAG recommended undertaking an operational lessons-learned process in order to mitigate the risk of similar such incidents in the future.

5. Allegations Concerning the Deaths of 19 Persons Resulting from a Strike on a Building in Al-Bureij (29 July 2014)

In reports by international organizations, in NGO reports and in a complaint received by the MAG Corps, it was alleged that on 29 July 2014, at around 00:30, 19 persons were killed as a result of an aerial attack conducted by the IDF on the Abu Jaber family's house in Al-Bureij. According to some reports, three structures were hit in the course of the strike, and according to one of the reports, 20 persons were killed in the strike. The incident was subsequently referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG indicate that on 29 July 2014, the IDF carried out an aerial strike on a building that served as an active command and control center of the Hamas terror organization. The attack aimed to strike both the command and control center and the military operatives manning it, who – according to information received in real-time – were involved in military activities that endangered IDF forces operating in the area at the time. As such, it was assessed that a significant military advantage would be achieved by attacking the target at the time of the strike.

During the planning stages of the strike, it was assessed that civilians were likely to be present in the building, but that the extent of the collateral damage expected to result from the attack would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on the command and control center and the military operatives manning it. The strike on the structure was planned for execution by means of a precise munition suited to the attack, and in a manner that would allow for the attack's aim to be achieved whilst minimizing the potential harm to nearby civilians and adjacent structures. It was further found, that it would not have been possible to provide a warning prior to the strike on the building, as such a warning would have frustrated the objective of the attack.

After the fact, it became clear that there was a discrepancy between the information regarding the presence of civilians in the building, on the basis of which the strike was carried out, and the facts which were understood afterwards. As mentioned, it is alleged that 19 persons were killed as a result of the attack (and as mentioned above, one of the reports alleged that 20 persons were killed). This figure is substantially higher than the number of civilians that were assessed to be present in the building. It appears that most were killed inside the building, while it is possible that some were in adjacent buildings. According to the FFA Mechanism's findings, among the deceased were at least four military operatives belonging to terror organizations.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities and the attack was aimed at military targets – an active command and control center of the Hamas terror organization and the military operatives who were manning it. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. This assessment was not unreasonable under the circumstances, despite the understanding, after the fact, of the discrepancy between the prevailing facts on the ground – which, in the circumstances, could not have been foreseen through use of reasonable means in real time – and the information available to the operational authorities at the time the decision to strike was made.

Additionally, the strike was carried out using precautionary measures, including inter alia, the choice of munitions, and the method of the attack, all of which aimed to mitigate the risk of harm to civilians in the vicinity of the targeted structure, as well as to nearby structures and those present within them. It was also found that the provision of a warning to the individuals present in the targeted structure was not required by law, as it was expected to frustrate the objective of the attack. The extent of civilian casualties which actually occurred, which was not expected despite the checks that were undertaken, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of these findings, the MAG did not find that the actions of IDF forces gave rise to reasonable grounds for suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

6. Allegation Concerning the Deaths of Five Persons Resulting from a Strike on a Building in Rafah (1 August 2014)

In a complaint and in a report by NGOs received by the MAG Corps, it was alleged that on 1 August 2014, at around 07:00, five members of the Amran family were killed as the result of an IDF aerial attack on their home in the area of "Tobat Zara", in Rafah. Subsequently, the incident was referred to the FFA Mechanism for examination.

The factual findings and the material collated by the FFA Mechanism and presented to the MAG indicate that, on 1 August 2014, at 07:00, prior to the humanitarian ceasefire entering into effect, the IDF carried out an aerial strike on a structure that was being used as an active Hamas command and control center. The strike aimed to attack both the command and control center and the military operatives manning it. During the strike planning process, it was assessed that the extent of the harm expected to result to civilians as a result of the attack would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on the military command and control center and the military operatives who were manning it. It was further found, that it would not have been possible to provide a warning prior to the strike on the building, as such a warning was expected to frustrate the objective of the attack.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities, and the objects of the attack were military targets – an active command and control center of the Hamas terror organization, and the military operatives assessed to be manning it at the time. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated to result from it. This estimation was not unreasonable under the circumstances. It was also found that the provision of a warning to the residents of the building was not required by law, as such warning would have frustrated the objective of the attack. The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of the above, the MAG did not find that the actions of IDF forces raised grounds for a reasonable suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation, and without any further steps to be taken against those involved.

7. Allegation Concerning the Deaths of Six Persons Resulting from a Strike on a Building in Nusseirat (2 August 2014)

In a report by an international organization, and in NGO reports and a complaint received by the MAG Corps, it was alleged that on 2 August 2014, at around 14:20, six persons were killed and others injured as a result of an aerial attack conducted by the IDF on the Abu Madi family's house in Nusseirat. The incident was subsequently referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG indicate that on 2 August 2014, the IDF carried out an aerial strike on a building that served as an active command and control center of the Hamas terror organization. The building was located in proximity to a forested area wherein terrorist organizations had embedded rocket launchers that had been used to fire rockets towards Israel, including on the day of the attack. The aerial strike aimed to attack both the command and control center and the military operatives manning it, who – according to real-time intelligence – were involved in military activities that endangered IDF forces.

In the course of the strike planning process, it was assessed that the extent of the collateral damage expected to result from the attack would not be excessive in relation to the significant military advantage that was anticipated to result from a strike on the command and control center and the military operatives manning it. The strike on the building was planned for execution by means of a precise munition with a relatively low explosive load, and in a manner that would allow for the attack's aim to be achieved whilst minimizing the potential harm to civilians and civilian property outside of the targeted building or the adjacent building. It was further found, that it would not have been possible to provide a warning prior to the strike on the building, as such a warning would have frustrated the objective of the attack.

As mentioned, it was alleged that six persons were killed as a result of the strike. According to the findings, two military operatives were hit in the strike. It was further determined that the building adjacent to the targeted building was not significantly damaged as a result of the strike.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting processes in question accorded with Israeli domestic law and international law requirements. The decision to strike was taken by the competent authorities and the attack was aimed at military targets – an active command and control center of the Hamas terror organization and the military operatives who were manning it. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. This assessment was not unreasonable under the circumstances.

Additionally, the strike was carried out using precautionary measures, including the choice of munitions and the method of the attack, which aimed to minimize the potential for harm to civilians in the vicinity of the targeted structure, as well as to nearby structures and those present within them. It was also found that the provision of a warning to the individuals present in the targeted structure was not required by law, as such warning would have frustrated the objective of the attack. The fact that, in practice, a number of civilians who were not involved in the hostilities were harmed, is a regrettable result, but does not affect the legality of the attack ex post facto.

In light of these findings, the MAG did not find that the actions of IDF forces gave rise to reasonable grounds for suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering further action against those involved in the incident.

8. Allegation Concerning an Attack on the "Italian Tower" in Gaza City (26 August 2014)

In media reports, in a report by an international organization, and in a report and complaint from NGOs received by the MAG Corps, it was alleged that near midnight between 25 and 26 August 2014, three out of four wings of a multi-story building known as the 'Italian Tower', as well as an adjacent commercial center known as the 'Italian Mall', located in the Nasser neighborhood of Gaza City, were destroyed as a result of an aerial strike carried out by the IDF. It was not alleged that any civilians were killed due to the attack. It was further alleged, that prior to the strike, which was carried out using a number of munitions, those present in the tower received warnings from the IDF that they must evacuate and distance themselves from the tower. According to one of the aforementioned reports, no military activity was conducted in the tower, and civilians were injured as a result of the strike. Subsequently, the incident was referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG indicated that at around midnight on 25 August 2014, the IDF carried out an aerial strike on a multi-story building, multiple parts of which were used by senior commanders of Hamas' military wing for military operations, and which housed a concentration of military infrastructure, including for command and control purposes. During the planning stages of the strike, it was assessed that no civilians would be harmed, and that the expected damage to property would not be excessive in relation to the significant military advantage that was anticipated to result from neutralizing the center for military operations and the military infrastructure found within the structure. The strike was planned for execution late at night, by means of precise munitions, and in a manner that would allow for the attack's aim to be achieved whilst minimizing the potential harm to nearby civilians and adjacent structures. It was further found that, prior to the strike, a number of measures were employed to ensure the evacuation of persons from the structure and its vicinity, including providing advance warning to residents of the structure by means of individual telephone calls, as well as the execution of a warning strike on the building's roof. As mentioned, no civilians were alleged to have been killed as a result of the strike. According to the findings, the majority of the structure's wings collapsed due to the strike, and damage was caused to an adjacent commercial structure.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that the targeting process in question accorded with Israeli domestic law and international law requirements. The decision to carry out the strike was made by the competent authorities, and the strike was aimed at a military objective – a concentration of military infrastructure used by the Hamas terror organization for military operations. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was considered that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. This assessment was not unreasonable under the circumstances.

Additionally, the strike was carried out using precautionary measures, including inter alia, the choice of munitions, and the timing and method of the attack, which included the provision of advance warning and the use of a warning strike on the roof of the building, all of which aimed to minimize the potential for harm to civilians in the targeted structure and its vicinity. As mentioned, no civilian deaths are alleged to have resulted from the strike.

In light of these findings, the MAG did not find that the actions of IDF forces gave rise to reasonable grounds for suspicion of criminal misconduct. As a result, the MAG ordered the case to be closed, without opening a criminal investigation or ordering action against those involved in the incident.

Incidents in Regard to which the MAG Ordered a Preliminary Investigation by the Military Police Criminal Investigative Unit for Operational Affairs in order to Supplement the Factual Examination

9. Allegation Concerning Attacks on Civilians in Khirbet Khuza'a (22-24 July 2014)


In the report from an international organization, as well as in NGO reports and a complaint received by the MAG Corps, it was alleged that between 22 and 24 July 2014, several civilians were intentionally killed by IDF fire while they were evacuating from the area of hostilities in Khirbet Khuza'a.

The various sources referred to different incidents, and some of the allegations in the different reports were inconsistent. The allegations concern three separate incidents. The first incident concerned a minor, from the Qdeih family, who according to the complaint was killed by fire directed at civilians while they were evacuating the area (according to some of the reports, the minor was hit by shrapnel and died as a result of delays in evacuating him to receive medical treatment); the complaint and reports are inconsistent with respect to the date of this incident. The second incident, mentioned in only one report, concerned the death of Muhammad a-Najar, who was allegedly killed as a result of direct fire while he was amidst a group of civilians evacuating the area (no concrete complaint was received with respect to this alleged incident). The third incident concerned the death of three members of the a- Najar and Qdeih families, who, according to a number of reports, were shot while evacuating the area and while holding a white flag (no concrete complaint was received with respect to this alleged incident either). Subsequently, the incidents were referred to the FFA Mechanism for examination.

According to the factual findings collated by the FFA Mechanism and presented to the MAG, starting on 21 July 2014, and during the following several days, IDF forces were engaged in widespread hostilities in the area of Khirbet Khuza'a, the purpose of which was to target the large number of enemy forces concentrated in the area, to locate cross-border assault tunnels, and to destroy explosive devices, military infrastructure and weaponry that the terror organizations had embedded in the area. While fighting in the area, IDF forces encountered booby-trapped structures, and came under fire, including by mortars. On a number of occasions, IDF forces encountered military operatives making use of civilian cover in an attempt to advance towards and harm the forces.

As the enemy forces operated deep within built-up areas, whilst using the civilian population as cover, the hostilities occasionally occurred in the vicinity of civilians present in the area. In light of these circumstances, the fighting was planned and conducted in a manner that allowed for providing many suspensions in the hostilities for the purpose of allowing civilians and the injured to be evacuated from the area. The IDF also coordinated individual medical evacuations during the course of the maneuver.

With respect to the first incident, following the FFA Mechanism's comprehensive examination – which included questioning the command authorities that operated in the area, as well as cross-examining witness accounts as presented in the complaint and reports as against information available to the IDF concerning the operations in the area and the actions taken to evacuate the civilian population from the area – nothing was found that could shed light on the circumstances of the alleged incident. The FFA Mechanism's request to schedule a meeting with a resident of the Gaza Strip who allegedly witnessed the incident was declined, and its request that the representative of the organization that submitted the complaint to the MAG provide any relevant information in his possession went unanswered.

With respect to the second and third incidents, following a thorough investigation-which included determining the potentially relevant sectors and time periods to be examined on the basis of information from the NGO reports and information received from their representatives, and then questioning the commanders of the forces that operated in the relevant sectors during the relevant time periods-no information was found to corroborate the allegations of direct fire upon evacuating civilians. Moreover, the FFA Mechanism expanded the scope of its examination, and questioned commanders of forces operating in additional sectors, and still nothing was found regarding direct or intentional fire by IDF forces on groups of evacuating civilians or on individual civilians. Because no concrete complaints were received concerning these incidents, it was not possible for the FFA Mechanism to turn to a complainant or to their representative and request information in their possession that could shed additional light on the alleged incidents. It should be noted that during the questionings that took place in the course of the examination, it was found that Palestinian terror organizations had fired at civilians trying to evacuate from the area.

After reviewing the factual findings and the material collated by the FFA Mechanism, the MAG found that there was no indication that IDF forces directly or intentionally fired upon groups of civilians evacuating the area, nor upon individuals evacuating the area, in Khirbet Khuza'a. Nevertheless, due to the substance of the allegations, the MAG ordered further factual examinations through a preliminary investigation by the Criminal Investigation Unit for Operational Affairs (the 'CIUO') of the IDF Military Police. This preliminary investigation has not yet been completed.

Criminal Investigations which were Completed and in Regard to which the MAG has Decided to Close the Case

10. Allegations Concerning the Death of Nine Persons as a Result of an Attack on a Structure on the Khan Younis Coast (9 July 2014)

As previously reported, the MAG Corps received reports, as well as complaints from NGOs, wherein it was alleged that as a result of an IDF aerial attack on 9 July 2014, nine persons were killed in a cafι on the coast of Khan Younis. Subsequently, the incident was referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG gave rise to reasonable grounds for suspicion that the attack was not carried out in accordance with the rules and procedures applicable to IDF forces. As a result, the MAG ordered the opening of a criminal investigation into the incident.

The investigation that was conducted was thorough and comprehensive. Testimony was collected from ten IDF soldiers and officers who were involved in the attack. Investigators also collected the testimonies of Gaza Strip residents who were allegedly witnesses to the incident and present in the vicinity of the attack. Additionally, a large number of documents relating to the attack were reviewed, along with materials from the IDF's relevant operational systems.

The findings of the investigation provide that on 9 July 2014, IDF forces carried out an aerial strike on a structure on the coast in Khan Younis that served as a weapons depot for Hamas' Naval Forces. During the planning stages of the strike, it was assessed that no civilians would be harmed as a result of the attack. As a result of the investigation it was understood that a cafι was also operating within the structure, but that this information was not available to the IDF forces at the time of the attack, and that during the attack process, no information arose that indicated that the structure operated as a cafι or that there was civilian presence in the structure at the time of the attack.

Nevertheless, because prior to the strike the possibility of civilian presence in the structure could not be completely ruled out, the IDF forces planned the strike to occur during the night, in order to minimize the possibility of harm to civilians, with the understanding that people were not expected to be inside the building at night. Furthermore, real time visual surveillance was deployed during the strike to verify that there were no civilians in the vicinity of the structure, and a precise munition was used, designed to hit the target without damaging nearby structures. As mentioned above, it is alleged that the strike resulted in the death of nine persons. According to the findings, at least two of those killed were military operatives.

After reviewing the investigation's findings, the MAG found that the attack process in question accorded with Israeli domestic law and international law requirements. The decision to attack was taken by the competent authorities, and the attack was aimed at a military objective – a weapons depot belonging to Hamas' Naval Forces. The fact that, in retrospect, it was determined that the structure also served as a cafι, does not affect the legality of the attack ex post facto. The attack complied with the principle of proportionality, as at the time the decision to attack was taken the operational authorities assessed that no harm to civilians was expected to occur as a result of the strike. This assessment was not unreasonable under the circumstances.

Moreover, the attack was carried out while undertaking several precautionary measures, which aimed to prevent any harm to civilians. Such measures included the choice of a munition which was not expected to cause harm to nearby structures or civilians near the target, the deployment of real time visual surveillance, and the timing of the strike during nighttime. The MAG found that the professional discretion exercised by all the commanders involved in the incident had not been unreasonable under the circumstances.

The fact that, in practice, civilians who were uninvolved in the hostilities were harmed, is a regrettable result, and was not foreseen at the time the decision to strike was made, but it does not affect the legality of the attack ex post facto.

Accordingly, the MAG ordered that the case be closed without any further legal proceedings – criminal or disciplinary – to be taken against those involved in the incident.

11. Allegation Concerning the Abuse of a Resident of Khirbet Khuza'a while Being Detained and Looting of his Property (17 July 2014)

As previously reported, in a report by an international organization it was alleged that a resident of Khirbet Khuza'a (who remains anonymous in the report) was detained by IDF soldiers and questioned, and that during the questioning he was physically struck. Additionally, it was alleged that the soldiers took a cash sum from his pocket, which was not returned to him on his release. In response to these reports, the MAG ordered the opening of a criminal investigation into the incident.

The investigation found that IDF forces were not located at all in the area of the municipality of Khuza'a at the time of the alleged incident, and rather only entered the area five days after the date of the alleged incident. It was also found that no Palestinians were detained in the Gaza Strip at all on the date of the alleged incident.

Nevertheless, for the sake of completeness, the files of all the detainees detained during Operation 'Protective Edge' were reviewed, and no detainee could be identified matching the description of the person referenced in the report (with respect to place of residence, date of detention, and length of time in detention).

The investigators also attempted to locate the Palestinian man whose house the complainant was detained and questioned in, but he also could not be found.

Under these circumstances, and in the absence of evidence to support the allegation and thus provide a basis for a suspicion of criminal misconduct by IDF soldiers, it was decided to close the case.

12. Allegation Concerning the Deaths of 27 Persons as a Result of a Strike on a Structure in Khan Younis (20 July 2014)

In media reports and in complaints from NGOs, it was alleged that on 20 July 2014, 27 persons were killed as the result of an IDF strike on the house of the Abu Jame` family in Khan Younis, and others were injured. Subsequently, the incident was referred to the FFA Mechanism for examination.

The factual findings and materials collated by the FFA Mechanism and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the incident involved a deviation from the rules and procedures applicable to IDF forces. As a result, the MAG ordered a criminal investigation into the incident.

The investigation was thorough and comprehensive. Testimony was collected from one of the individuals injured in the attack, as well as 16 officers who were involved in the approval and carrying out of the attack. Additionally, an extensive number of documents were retrieved, including materials found in the IDF's relevant operational systems, death certificates, and more.

The investigation's findings provide that on 20 July 2014, IDF forces carried out an aerial strike on a structure in use by Palestinian terrorist organizations for military activities against IDF forces maneuvering in the area. The strike intended to target the military infrastructure in the structure as well as a command level military operative, who according to real-time intelligence was commanding military operations against IDF forces from within the structure. During the planning and execution stages of the strike, which took approximately 24 hours, additional information about the structure was received, which corroborated the understanding that the structure contained military infrastructure that presented clear and immediate danger to IDF forces maneuvering in the area.

During the planning stages of the strike it was assessed, on the basis of intelligence information and other checks that were undertaken, that civilians were likely to be present in the structure, but that the expected civilian harm resulting from the strike would not be excessive in relation to the significant anticipated military advantage that would result from striking the military infrastructure and the command level military operative manning it.

Among the precautions taken, including in order to conduct an assessment of how many civilians were present in the structure, it was decided to undertake a process of gathering additional intelligence on the target; a process which continued for approximately 24 hours. Additionally, surveillance conducted on the structure for a number of hours revealed no civilian movement, except for a single unidentified man who entered the structure prior to the attack.

Contrary to the allegation, it was found that a number of warnings were issued in the area of the strike, using various means, which called on civilians to evacuate from the area. It was further found that it would not have been possible to provide a specific warning to those present in the structure prior to the strike, as such a warning was expected to frustrate the objective of the attack. Moreover, it was also found that because the precise location of the military activity in the structure was not known, the strike could not be limited to a particular portion of the building.

As mentioned, it was alleged that 27 persons were killed as a result of the strike, a number far higher than the number of civilians that was assessed to possibly be in the structure. According to the findings, the targeted military operative was among those killed, together with additional military operatives that were apparently killed in the attack.

After reviewing the investigation's findings, the MAG found that the attack process in question accorded with Israeli domestic law and international law requirements. The decision to attack was taken by the competent authorities, and the attack was aimed at a military objective – a structure used by Palestinian terrorist organizations for military activities against IDF forces maneuvering in the area, and a command level military operative present therein. The attack complied with the principle of proportionality, as at the time the decision to attack was taken it was assessed that the collateral damage expected to arise as a result of the attack would not be excessive in relation to the military advantage anticipated from it. This assessment was not unreasonable under the circumstances. Additionally, the strike was carried out using precautionary measures aimed at minimizing the potential for harm to civilians, including a lengthy intelligence gathering process which included the use of surveillance prior to the attack, in order to assess the presence of civilians in the structure and in its vicinity. It was further found that the provision of a specific warning prior to the attack to those present in the structure was not required by law as it was expected to result in the frustration of the strike's objective.

The MAG found that the professional discretion exercised by all the commanders involved in the incident had not been unreasonable under the circumstances. The extent of harm, in practice, to civilians who were uninvolved in the hostilities is a regrettable result, and which was not expected at the time the decision to strike was made, but it does not affect the legality of the attack ex post facto.

Accordingly, the MAG ordered that the case be closed without any further legal proceedings – criminal or disciplinary – to be taken against those involved in the incident.

13. Allegation Concerning the Abuse of a Resident of Khuza'a under Detention (23 July 2014)


As previously reported, the MAG Corps received a complaint on behalf of a resident of Khuza'a alleging that after his capture by IDF forces, he was struck without provocation by IDF soldiers during his questioning. In response to these reports, the MAG ordered the opening of a criminal investigation into the incident.

The case was closed after the complainant failed to meet with investigators to provide testimony. The complainant declined to give testimony despite the fact that, after a request of his representative, he was provided with a guarantee that he would not be arrested while providing his testimony. Under these circumstances, and in the absence of evidence to support the allegation and thus provide a basis for a suspicion of criminal misconduct by IDF soldiers, it was decided to close the case.

14. Allegation Concerning Mistreatment and Endangering of a 17-year old Palestinian in Khirbet Khuza'a (23-27 July 2014)

As previously reported in media reports and in a report by an international organization, which alleged unlawful acts (including allegations of assault and threats) by IDF forces against A., who was 17 at the time of the incident, and who was allegedly held by IDF forces in the area of Khirbet Khuza'a, the MAG ordered a criminal investigation into the incident.

The investigation was thorough and comprehensive. Testimony was collected from numerous IDF soldiers and commanders who were involved in A.'s detention. Additionally, numerous relevant documents were obtained, including written orders, daily reports, operational procedures, sketches, and operational logs. Moreover, multiple attempts were made to obtain testimony from A., however his father – an official in Hamas' political wing – delivered an affidavit to the investigators stating that he refuses to permit his son to meet to give to testimony.

Accordingly, the investigation focused on examining the allegations raised by A. in media reports. In these reports, it was alleged, among other things, that during his detention by IDF forces, he was subjected to continued abuse, including physical violence. In one report, it was alleged that the complainant was also threatened in a sexual manner. Furthermore, it was alleged that IDF forces used A. as a "human shield", was forced to carry out actions that put him at risk, and to dig in order to locate tunnel openings.

Placing the alleged incident in context, starting on 21 July 2014, and during the following several days, IDF forces were engaged in widespread hostilities in the area of Khirbet Khuza'a.

As the enemy forces operated deep within built-up areas, whilst using the civilian population as cover, the hostilities occasionally occurred in the vicinity of civilians present in the area. In light of these circumstances, the fighting was planned and conducted in a manner that allowed for providing suspensions in the hostilities for the purpose of allowing civilians and the injured to be evacuated from the area.

The investigation's findings provide that A. was held by IDF forces, as during an attempt by IDF forces to facilitate the evacuation of civilians, he was identified acting in a suspicious manner. After initial questioning, it was understood that A. had links to Hamas, and it was assessed that he possessed intelligence with respect to the location of Hamas combat tunnels in the area – information which would directly affect the safety of the forces and other forces in the area, and their ability to carry out their mission (it was later discovered that A. also possessed intelligence regarding the location of rocket launchers). In light of the military necessity, it was decided to continue to hold A. temporarily in order to obtain the crucial intelligence that he possessed, which was relevant to the forces' operations. Accordingly, A. was detained by the force for four days.

The reported allegations of violence, abuse, and threats directed towards A. were thoroughly examined during the course of the investigation, and no support was found for them.

Similarly, no support was found for the allegation that A. was held in unfit conditions. The investigation found that A. was held in appropriate and reasonable conditions given the circumstances, similar to the living conditions of the soldiers by whom he was being held. A. was provided with food and water on a continuous basis out of the force's own supply. A. slept in the same place and conditions as the soldiers, while fully clothed. Additionally, A. was permitted to pray when he asked to do so. Though A. was handcuffed for a significant portion of the time that he was held, this was done out of concern that he would seek to escape or harm the soldiers.

Finally, no support was found for the allegation that the forces used A. as a 'human shield', or that he was compelled to perform physical activities that placed him in danger. A. was placed with a platoon that walked in the middle of the company, and did not walk at the head of the force as alleged. The areas and structures that he entered were cleared by IDF forces prior to his entry, in order to prevent any harm to the platoon he was accompanying.

According to the testimony of the soldiers and their conduct, it was found that the only reason A. was detained was in order to retrieve the intelligence in his possession, and no indication was found to suggest there was any intention to purposefully endanger A., or to use his presence in order to shield the soldiers from hostile military activities. Moreover, it was found that A. was not compelled or otherwise requested to perform any physical activities. It was found that in the course of searching through the structures they had entered, the soldiers moved various physical objects, and there were instances in which A. willingly, and of his own initiative, helped them (apparently, in order to ingratiate himself with them and gain their trust). As previously mentioned, all of the places A. entered with the soldiers were first cleared of enemy presence.

According to the findings, in a sole incident A. may have tried to engage in digging. In this incident, one of the soldiers attempted to dig at a spot where A. claimed there was an opening to a tunnel. After the soldier failed to locate an opening, A. insisted that the opening existed. In order to prove that there was an opening where he said it was, he apparently tried to begin digging but stopped after a few moments. A. was not compelled to dig, and in any event, the understanding of the forces at this point was that no tunnel existed in the location and that A.'s actions did not entail any risk of harm to him.

Nevertheless, the investigation materials raised a number of deficiencies in the conduct of the forces. Among them are that A. was held for a prolonged period without the forces reporting and receiving authorization from the competent authorities in contravention of IDF procedures, and without the detention being documented in accordance with IDF procedures. It would also have been more proper to have better prevented A. from entirely engaging in some of the aforementioned activities, even if his conduct was of his own initiative and without being compelled to engage in such activities. Accordingly, the MAG recommended taking command measures against the relevant persons, as well as clarifying the relevant instructions in the IDF in order to prevent the occurrence of similar incidents in the future.

Accordingly, and considering that A. failed to give testimony to the investigators, the MAG ordered that the case be closed without any further legal proceedings – criminal or disciplinary – to be taken against those involved in the incident.

15. Allegation Concerning the Death of Approximately 15 Persons as a Result of a Strike in the Vicinity of an UNRWA School in Beit Hanoun (24 July 2014)

As previously reported in media reports, in reports and complaints from an international organization and from NGOs received by the MAG Corps, it was alleged that an IDF strike in the vicinity of an UNRWA school in Beit Hanoun on 24 July 2014, at around 1500, resulted in the deaths of 15 persons, as well as injuries to others. Subsequently, the incident was referred to the FFA Mechanism for examination.

The factual findings collated by the FFA Mechanism and presented to the MAG, indicated the existence of grounds for a reasonable suspicion that the incident involved a deviation from the rules and procedures applicable to IDF forces. As a result, the MAG ordered a criminal investigation into the incident.

The investigation that was conducted was thorough and comprehensive. Testimony was obtained from numerous IDF soldiers and officers, as well as from seven Palestinians. Moreover, the investigation reviewed materials from the IDF's relevant operational systems, witness affidavits received from Palestinians, and more. Additionally, video clips, radio communications and pictures were obtained, some of which was given to the investigating authorities by UNRWA and an NGO.

Documents reviewed in the course of the investigation showed that on 10, 17, and 20 July 2014, mass messaging was directed at the residents of Beit Hanoun through leaflets, radio and television broadcasts, telephone calls and voice messages, all calling on the residents to evacuate from the area. The evacuation was called for due to the IDF's intention to enter the area for the purpose of locating and neutralizing a cross-border assault tunnel that, according to the information available to the IDF, originated in the Beit Hanoun area and ran into Israeli territory.

According to the testimony of commanders and soldiers, the civilian population did indeed evacuate from the area, and no civilians were identified during the ensuing fighting – with the exception of the civilians taking shelter in the UNRWA school, which was known to the IDF to be operating as a shelter for civilians who had evacuated their homes. It was also found that the commanders of the force tried to bring about the evacuation of the school, in order to avoid harm to those therein in light of the fighting that was occurring in the area, and that many attempts were made to try and coordinate the evacuation of the school and the transfer of civilians to a different shelter in a more remote area.

On the day of the incident, in the early morning hours, the IDF began advancing in order to clear enemy forces from the area. IDF forces came under heavy attack from enemy forces, who fired anti-tank missiles, small arms fire, and sniper fire against IDF forces. During the maneuver, IDF forces identified explosive devices embedded in the area next to the school. While the forces were engaged in neutralizing the explosive devices, they were fired upon from a number of structures, resulting in injuries to an officer and to a soldier. A short time later, another unit was fired upon from the same area.

Following the combat, IDF forces evacuated the injured and moved back to defensive positions. Shortly thereafter, an order was given to fire towards the area of combat, in order to prevent the persistent enemy fire on IDF forces, and to facilitate the forces' re-entry into the area.

The investigation's findings provide that the commanders who ordered the fire assessed that, with the exception of the school, the area was devoid of civilians. Accordingly, the precautions taken during the firing were mainly aimed at preventing harm to the school, and at reducing the risk of civilian casualties. The findings also provide that the forces were instructed to avoid any possible harm to the school and the civilians therein, and that the central consideration in choosing the impact point for the fire was ensuring strict compliance with safety margins from the school.

The forces directed mortar fire at an impact point located approximately 130 meters away from the school's boundary (a distance significantly greater than the relevant safety margin). The firing was conducted using a single mortar so as to increase accuracy, and while employing visual surveillance and shells with the lowest possible potential to cause damage.

In retrospect, it turned out that three of the shells landed within the school grounds and hit persons located therein. The investigation materials showed that this outcome was not foreseen in real-time by the IDF forces, and was caused due to an unintentional and unexpected deviation of the shells from the intended impact point.

When it was discovered that the school had been hit, all forces in the area were instructed to cease fire immediately, and coordination efforts were undertaken to facilitate the passage of supply and medical vehicles into and out of the school.

As a result of this event, the IDF implemented operational lessons-learned, which were intended to reduce the risk of such incidents occurring in the future.

It should be noted that, in the course of the investigation, allegations were raised by various sources that a mortar shell or rocket fired by a Palestinian terror organization hit the school. No evidence was found to corroborate these allegations.

After reviewing the investigation's findings, the MAG found that the firing procedures in question accorded with Israeli domestic law and international law requirements. The decision to fire was taken by the competent authorities, for a clear military purpose, and the fire was aimed towards a source of persistent enemy fire emanating from a number of different locations in the area, which put the forces in clear danger. The attack complied with the principle of proportionality, as despite the outcome of the attack, which was only discovered in retrospect, at the time the decision to attack was taken it was estimated that no collateral damage to civilians was expected to result, and certainly no excessive collateral damage was expected. This estimation was not unreasonable under the circumstances. In addition, the attack was carried out while undertaking several precautionary measures aimed at preventing harm to civilians, including the use of the most precise munitions available to the forces, and the use of visual surveillance. The MAG found that the professional discretion exercised by all the commanders involved in the incident was not unreasonable in the circumstances. The fact that civilians uninvolved in the hostilities were harmed as a result of the attack, which was not expected at the time the decision to attack was made, is a regrettable result, but does not affect the legality of the attack ex post facto.

Accordingly, the MAG ordered that the case be closed without any further legal proceedings – criminal or disciplinary – to be taken against those involved in the incident.

16. Allegation Concerning the Death of an Ambulance Driver in Beit Hanoun (25 July 2014)

As previously reported in a report by an international organization, and in a complaint and in reports received from NGOs, it was alleged that on 25 July 2014, at approximately 16:15, an ambulance driver was killed by IDF fire. Subsequently, the incident was referred to the FFA Mechanism.

The findings of the FFA Mechanism did not provide sufficient information as to these allegations. As a result, the MAG ordered a criminal investigation into the incident.

The investigation that was conducted was thorough and comprehensive. Testimony was obtained from three Palestinians who witnessed the incident, as well as from tens of IDF soldiers and officers of different ranks who were involved in various aspects of the incident. Additionally, numerous documents and exhibits were reviewed, including materials from the IDF's relevant operational systems, medical files, and more.

The investigation's findings provide that IDF forces were operating in the Beit Hanoun area in order to locate a cross-border assault tunnel that originated in Beit Hanoun and ran into Israeli territory.

Prior to the IDF forces' entry into the area, mass warnings were provided to the population, and many of the civilians evacuated the area. As such, the forces encountered very few civilians during the fighting. During their advance, IDF forces were engaged in fighting with military operatives of various terrorist organizations, during which IDF soldiers were injured.

Prior to the incident, a warning from intelligence was received regarding a plan to carry out an attack using a vehicle-borne explosive device, and specifically that an ambulance may be used for this purpose.

The investigation findings provide that in the late afternoon of 25 July 2014, an ambulance approached an area where IDF forces were present, without prior coordination and without an apparent need for medical assistance to civilians in the area. This was counter to the accepted procedure, according to which the entry of ambulances into areas of active hostilities are coordinated with the forces.

The ambulance approached the IDF forces at speed, while making sharp turns on the narrow road which led to the IDF forces, and all in the course of a few seconds. Given all these circumstances, the forces believed that the ambulance was carrying out an attack against them, and that it constituted a clear and immediate threat to their lives. The forces quickly inquired up the command chain whether the entry of an ambulance to the area had been coordinated, and were informed that it had not been. At this point, when the ambulance was at a distance of only about 100 meters from the forces, and continuing at speed towards them, the commander of the force decided to fire one tank shell which hit the ambulance. As a result, one of the passengers in the ambulance was killed.

Shortly after the incident, additional ambulances arrived at the scene, and one of them also drove towards the forces. The forces suspected that this vehicle, which at the time was a few hundred meters away from them, also presented a clear danger, and warning fire was conducted in front of the ambulance. The warning fire, it appears, hit the driver of the ambulance. In retrospect, it was understood that the entry of the ambulances was coordinated in order to evacuate the injured from the first ambulance, but that due to gaps in communication between the forces, this information did not reach the forces in the field.

As a result of this incident, operational lessons-learned were implemented, including with respect to coordinating the entry of ambulances into an area of active hostilities, and which were intended to reduce the risk of such incidents occurring in the future.

After reviewing the investigation's findings, the MAG found that the fire accorded with Israeli domestic law and international law requirements. The decision to fire in both cases was taken after an assessment was made that the vehicles intended to carry out attacks against the forces, and that they therefore presented a clear danger. In both cases, the assessment was based on the fact that the ambulances had entered an area of active hostilities, without the forces in the field being aware of any prior coordination (in the first instance, no coordination was conducted at all); the high speed at which the ambulances were advancing; the direction of the ambulances towards the forces; and the intelligence warning regarding a possible attack using ambulance-borne explosive devices. The speed with which the events unfolded did not permit the forces sufficient time to warn the ambulances prior to opening fire. The MAG found that the professional discretion exercised by all the commanders involved in the incident had not been unreasonable under the circumstances. The harm, in practice, to medical personnel and to the ambulances, is a regrettable result, but it does not affect the legality of the attack ex post facto.

Accordingly, the MAG ordered that the case be closed without any further legal proceedings – criminal or disciplinary – to be taken against those involved in the incident.

17. Allegation Concerning the Death of a Person Resulting from IDF Fire and the Use of Civilians as 'Human Shields' in Khirbet Khuza'a (25 or 29 July 2014)

In a report by an international organization and in a complaint from an NGO that was received by the MAG Corps, it was alleged that on 29 July 2014 between approximately 13:00 and 14:00, Mr. Muhammad Tawfiq Muhammad Qdeih was killed by IDF fire in Khirbet Khuza'a while carrying a white flag (in some media reports it was alleged that the incident occurred on 25 July 2014). It was also alleged that the deceased's family members were used as 'human shields'. Subsequently, the MAG ordered a criminal investigation into the incident.

The investigation was thorough and comprehensive. Over 60 testimonies from soldiers and commanders were collected, as well as testimonies from five Palestinians who were witnesses to the incident (a number of additional Palestinian witnesses refused to provide testimony to the Military Police). In addition, hundreds of documents were collected, including affidavits and materials from relevant IDF systems.

The investigation's findings provided that on 25 July 2014, the IDF began operations in the central area of Khirbet Khuza'a targeting military operatives, destroying military infrastructure and locating cross-border assault tunnels. This was done further to extensive and comprehensive intelligence information, which indicated that numerous military operatives, booby-trapped buildings, tunnels and additional infrastructure were located in the area, serving Palestinian terror organizations in the hostilities against Israel.

On 10 July 2014 and 20 July 2014, prior to the initiation of a ground maneuver, the IDF undertook widespread measures to provide advance warning to the local population, with the aim of distancing them from the intended maneuvering area. These measures included utilizing various means, including voice messages to telephones, television and radio messaging, individual phonecalls with key figures and more.

Following these measures, and prior to the maneuver, intelligence authorities assessed that the majority of the civilian population had evacuated the area.

Soon after the maneuver began, IDF forces identified civilians in the area, and their operations were halted in order to allow these civilians to evacuate. Subsequently, no additional civilians were identified in the area during the hostilities.

Prior to the hostilities in the area, IDF forces received intelligence information that military operatives of the terror organizations were using the cover of the civilian population in order to advance towards IDF forces and attack them. It was also found that there was intelligence information regarding the use of white flags by military operatives for this purpose.

During the hostilities in the area, IDF forces operated to locate military operatives and military equipment that was located in many cases in civilian buildings – operations which required thorough searching many buildings in the area of the hostilities. The forces uncovered large amounts of weaponry (including RPG launchers), maps, communication equipment and more. At the same time the forces encountered, among other things, booby-trapped buildings and were fired upon (including by mortars). In a number of incidents, the forces encountered military operatives who disguised themselves as civilians in order to advance towards and attack them.

On the day of the alleged incident, and during the operations to locate military operatives in the area, an IDF force entered a private home with two levels and a basement. Afterwards it was understood that the basement was used as a shelter for civilians in the area, but at the time the forces were unaware of this fact. At a certain point, the forces breached an internal door which led to a stairwell. After breaching the door, the soldiers identified a man down the stairs carrying pieces of white clothing, apparently in an attempt to wave a "white flag". The man began to climb the stairs while trying to communicate with the soldiers in a number of languages, while the soldiers ordered him in Arabic to stop and raise his hands.

The man did not respond to the soldier's orders, and continued to move towards them. The investigation's findings provide that at this point, as the soldiers believed that the man constituted a threat, the soldiers fired two bullets into the stairwell above the man's head, in order to warn him. Despite this, the man continued to move towards the soldiers. When the man was almost within reach of the soldiers, believing that the man presented an clear and immediate danger to the forces, one of the soldiers fired one bullet at the man, which caused the man to fall backwards.

The investigation's findings provide that the force intended to provide medical assistance to the man, but were unable to do so before ensuring that there was no danger from the surroundings. When the soldiers identified civilians nearby, they asked them in Arabic to bring the man towards them so they could provide medical assistance. Afterwards, a military paramedic tried to provide medical assistance in order to save the man's life, but was unsuccessful. After it became apparent that the man was deceased, the forces covered him with a blanket. Afterwards it was understood that the man was the deceased referred to in the complaint referenced above.

During the testimonies of the Palestinian witnesses, there arose an allegation that civilians were used as 'human shields' in order to provide covering fire from the windows of the building, and that civilians were physically struck by IDF forces inside the building.

The investigation's findings that the testimonies in this regard were inconsistent, included contradictions and were lacking in details. In this regard testimonies were collected from tens of soldiers, who denied the allegations in their entirety, and claimed that they treated the civilians that were in the building with respect.

After reviewing the investigation's findings, the MAG found that they do not indicate criminal misconduct by those involved in the incident. The decision to fire was not unreasonable in the context of the complicated circumstances of the hostilities in which the forces were engaged – in an area with a high concentration of military operatives, the fast progression of the incident, the failure of the deceased to heed the forces' orders, and the underlying awareness of intelligence information regarding the misuse of civilian symbols, including "white flags", by enemy forces.

The MAG also found that the forces' request for assistance from the civilians to bring the man who had been shot towards the forces for medical assistance, when the belief that the man presented a threat had not yet been disproved, constituted unprofessional conduct, but did not constitute an offence warranting criminal measures. This is due to the exceptional circumstances of the incident, and specifically the motivation of the act, which was to provide life-saving medical assistance, the life-threatening and strenuous operational activity, and the fact that no harm was caused as a result to the other civilians. Therefore, the MAG recommended command measures with regard to the incident, and the relevant procedures were clarified in order to prevent such incidents from occurring in the future.

With regard to the additional allegations concerning the use of civilians as shields for conducting covering fire, and concerning striking civilians physically, the MAG did not find an evidentiary basis for these allegations.

Accordingly, the MAG ordered that the case be closed without any further legal proceedings – criminal or disciplinary – to be taken against those involved in the incident.

Court Decisions Following Indictments by the MAG Corps

18. Judgments Concerning Incidents of Looting in Shuja'iyya (20 July 2014)


As reported previously, on 20 April 2015, the MAG Corps filed indictments to the Military Court against three soldiers, who were accused of the offence of looting, which allegedly occurred during Operation 'Protective Edge'. Additionally, two of the soldiers were also indicted for the offence of obstruction of a criminal investigation.

According to the facts alleged in the indictments, two soldiers were accused of looting 2,420 ILS from a house they were positioned in, in the neighborhood of Shuja'iyya, while another soldier was accused of aiding and abetting the offence.

The investigation conducted by the IDF Military Police Criminal Investigative Division into the circumstances of the incident was opened while Operation 'Protective Edge' was still ongoing, in response to the soldiers' Battalion Commander's reporting of the incident to the Military Police Criminal Investigative Division shortly after its occurrence.

At the conclusion of the proceedings, the three soldiers were convicted of different offences in accordance with their involvement in the incident.

In November 2015, one of the soldiers, holding the rank of first sergeant, was convicted of receiving stolen property and conduct unbecoming. The soldier was sentenced to 60 days imprisonment, to be served through military duties, in addition to a suspended sentence and a demotion to the rank of private.

In September 2016, the second soldier, holding the rank of first sergeant, was convicted of aiding and abetting theft, obstruction of justice, and conduct unbecoming. This soldier was sentenced to two and a half months imprisonment, to be served through military duties, in addition to a suspended sentence and a demotion to the rank of private.

The third soldier, also holding the rank of first sergeant, was convicted for theft, obstruction of justice and conduct unbecoming, and was sentenced to four months imprisonment, to be served through military duties, in addition to a suspended sentence and a demotion to the rank of private. An appeal was filed by both sides. In July 2017 the appeals were rejected by the Military Court of Appeals and the conviction and sentence remained in force.
Incidents in Regard to which the MAG Ordered a Criminal Investigation Without Requiring Prior Examination by the FFA Mechanism – Updates

1. Allegation Concerning Abuse of a Resident of Khirbeit Khuza'a under Detention and Looting of his Property (17 July 2014)

In a report released by an international organization it was alleged that a resident of Khirbeit Khuza'a (who remains anonymous in the report) was detained by IDF soldiers and questioned, and that during the course of said questioning, he was physically struck. Additionally, it was alleged that the soldiers took a cash sum from his pocket, which was not returned to him after his release. In response to these reports, the MAG ordered the opening of a criminal investigation into the incident.

2. Allegations Concerning the Intentional Discharge of a Weapon; Harm to Civilians; and Intentional Damage to Property, in Breach of the IDF's Operational Instructions

In a report released by an NGO, anonymous allegations were made regarding tens of exceptional incidents that were alleged to have occurred over the course of the Operation. Examination of the report revealed that the allegations regarding the majority of the alleged exceptional incidents were insufficiently concrete, and did not, in any event, raise grounds for a reasonable suspicion of criminal misconduct by IDF forces.

Nonetheless, in regard to eight of the allegations, which relate to six alleged incidents, additional information was found which gave rise to a suspicion that IDF forces had acted in a manner that was not in accordance with the rules and instructions applicable to IDF forces. These incidents include: fire aimed at civilian buildings and cars in violation of IDF's operational instructions; harm to civilians in violation of IDF's operational instructions; damage intentionally inflicted to property in violation of IDF's operational instructions; and looting. Subsequently, the MAG ordered the opening of criminal investigations into these incidents.

Criminal Investigations which were Completed and in Regard to which the MAG has Decided to Close the Investigation File

1. Allegation Concerning the Abuse of a Resident of Khirbeit Khuza'a under Detention (23 July 2014)

As reported in a previous update, subsequent to a complaint received by the MAG Corps from a resident of Khirbeit Khuza'a, via his legal representative, in which it was claimed that after his capture by IDF forces he had been struck by IDF soldiers, on a number of occasions, the MAG ordered the opening of a criminal investigation into the incident.

Over the course of the investigation, testimony was collected from the complainant, as well as from numerous soldiers and officers who were involved in the various stages of the complainants detention and in his questioning (nonetheless, the investigation team was unable to identify the soldiers who had escorted the complainant from the detention facility in Israeli territory back to the Gaza Strip). The investigation also reviewed numerous documents pertaining to the complainant's detention, including forms that documented the medical examinations that he had undergone, and the statement that he had made during the course of his questioning.

From the factual findings collected by the criminal investigation, no support whatsoever could be found for the claims of the complainant. This includes the medical examination forms, from which it arose that no injuries or bruising were found on the body of the complainant during his examination that would be consistent with the complainant's claims. It also includes the documentation of the complainant's questioning, according to which, the complainant did not allege that any violence had been used against him.

The criminal investigation recently concluded, and after the MAG had reviewed its findings, he ordered the closing of the investigation file, in the absence of a sufficient evidentiary basis to establish the commission of a crime by IDF soldiers. An update regarding this decision has been sent to the legal representative of the complainant.

2. Allegation Concerning Unlawful Fire towards a Structure which included a Medical Clinic in Shuja'iyya (23 July 2014)

As previously reported, in the wake of media reports alleging that IDF forces intentionally and without operational justification fired tank shells towards a structure which included a medical clinic, from which there had emanated fire resulting in the death of an IDF officer the day prior, the MAG ordered the opening of a criminal investigation into the incident. The MAG Corps did not receive any complaints concerning this incident or other reports concerning harm to civilians or damage to a medical clinic.

The criminal investigation has recently been concluded. During the investigation, testimonies were taken from a number of soldiers and officers involved in the incident, as well as expert testimonies from senior officers. A large amount of material concerning the incident was also reviewed, including intelligence material, information from the IDF's operational systems and aerial photography.

From the factual findings collected by the MPCID investigators it arose that on the day of the incident and the days prior to the incident, on the basis of intelligence information, an armored force was operating in a part of Shuja'iyya in which the said structure was located, in order to locate a combat tunnel. According to information obtained in the past, the structure included a medical clinic within it. On this basis, the structure was designated as a "sensitive site" on the relevant operational systems of the IDF. In accordance with the IDF's operational instructions, any military operation to be conducted in the vicinity of such sites requires the adoption of special precautions.

The day prior to the incident, fire was executed from the structure towards the IDF force, which caused the death of an IDF officer from the force. It arose from the investigation that on the day of the incident, the force's commander, a Lieutenant Colonel, ordered the firing of tank shells towards the structure. Prior to ordering the fire, while talking to his subordinates over the communications channel, the commander presented the fire as "in memoriam" for the officer who was killed the previous day by fire emanating from that structure. This statement was made without also clarifying the operational rationale in ordering the fire.

The main question in the investigation was whether the fire was ordered solely "in memoriam" for the officer killed, or whether it served an operational rationale and was conducted in accordance with the law of armed conflict. According to the commander, he concluded that the structure constituted a lawful military objective, on the basis of up-to-date intelligence information on the enemy's movement in the area, the military use that had been made of the structure in order to conduct fire against IDF forces, and the risk that the commander perceived as emanating from the structure in real time. In addition, the commander's assessment was that the attack was not expected to cause harm to civilians, as there was no civilian population in the area at the time due to the intensive hostilities. According to the commander, his words over the communications channel were intended to raise the spirits of his subordinates for the continuing hostilities, after an officer from the force was killed the previous day – and did not reflect the operational rationale for ordering the fire.

Additional testimonies gathered as part of the investigation supported the commander's version of events, and the evidence as a whole did not refute his explanations. Further, senior officers who provided expert testimony during the investigation, concluded after examining the incident that under the operational circumstances extant at the time of the incident, the decision to conduct the fire was reasonable. The investigation did not lead to any findings as to whether the structure towards which the fire was executed actually included a medical clinic, and if it was damaged as a result of the fire. As previously noted, the MAG Corps did not receive any complaints concerning this incident or other reports concerning harm to civilians or damage to a medical clinic.

After reviewing the investigation's findings, the MAG found that insufficient evidence existed that would justify legal action – criminal or disciplinary – against the commander as a result of the fire towards the structure.

At the same time, the MAG found that the commander's remarks to his subordinates on the communications channel prior to executing the fire were inappropriate, as they imply that executing fire "in memoriam" or as an act of revenge is legitimate. Such a message might blur the boundaries between permitted and forbidden, and induce failure in soldiers and commanders exposed to such message, especially during combat. Such a message does not accord with IDF values and the remarks constitute a failure in command. As a result, the MAG recommended to the Deputy Chief of Staff that he conduct a reprimand procedure against the commander. The MAG also recommended that the results of this procedure be taken into consideration when considering any future deployment and promotion of the commander. These recommenders were adopted by the Deputy Chief of General Staff, and the reprimand procedure was carried out.

3. Allegation Concerning the Abuse of a Child in Khirbeit Khuza'a (24 July 2014)

In a report released by an international organization it was alleged, that after IDF soldiers entered the house of a resident of Khirbeit Khuza'a (who remains anonymous in the report), they handcuffed his son, who suffers from a mental illness, covered his eyes, hit him, and fired shots between his feet. Subsequently, the MAG ordered the opening of a criminal investigation into the incident.

Although the report provides only partial details regarding the identity of the family, by virtue of the considerable efforts of the investigation team, the relevant family in Khirbeit Khuza'a was identified, with what is considered to be a high degree of certainty, and testimony was collected from the family members who were present in the house at the time when it was entered by IDF forces, during the course of the Operation. Additionally, testimony was collected from the commanders who were present at the time at which, according to the allegation, the incident occurred. All of the interviewees, including the father of the family, testified that no violence had been used by IDF forces against the young family member.

The criminal investigation recently concluded, and after the MAG had reviewed its findings, he ordered the closing of the investigation file, in the absence of a sufficient evidentiary basis to establish the commission of a crime by IDF soldiers.

4. Allegation Concerning Looting in Khan Younis (the second half of July 2014)

As reported in a previous update, subsequent to a complaint received by the MAG Corps from a resident of (Greater) Abbasan in Khan Younis, via his legal representative, in which it was claimed that IDF soldiers had looted his property (a cash sum of around 60,000 NIS), during a time in which the complainant had vacated his home, the MAG ordered the opening of a criminal investigation into the incident.

Over the course of the investigation, testimony was collected from the complainant as well as from a number of commanders who had been in command of the forces which had been operating in the neighbourhood in which the complainant's house is located. The investigation team also gathered information from the IDF's operational systems. From the factual findings collected by the investigation team it was found that IDF forces did not enter the house in question at any point.

The criminal investigation recently concluded, and after the MAG had reviewed its findings, he ordered the closing of the investigation file, in the absence of a sufficient evidentiary basis to establish the commission of a crime by IDF soldiers. An update regarding this decision has been sent to the legal representative of the complainant.

5. Allegation Concerning Looting in Deir Al-Balah (the second half of July 2014)

As reported in a previous update, subsequent to a complaint received by the MAG Corps from a resident of Deir Al-Balah, via his legal representative, in which it was claimed that IDF soldiers had looted his property (a cash sum of around 85,000 NIS), during a time in which the complainant had vacated his home, the MAG ordered the opening of a criminal investigation into the incident.

Over the course of the investigation, testimony was collected from the complainant as well as from all of the relevant soldiers and commanders, who had been present in the structure referred to in the complaint over the course of the Operation. From the factual findings collected by the investigative team it arose, that an IDF force had found a sum of cash in the structure (a sum of around 2,500 NIS, rather than as alleged in the complaint). This sum was transferred to the commander of the force, who safeguarded it until the force vacated the property. Upon the force's departure, the commander concealed the cash sum in a discreet location in the structure, in order to prevent its theft. The testimony of the soldiers in this regard was substantiated by a number of objective findings.

The criminal investigation recently concluded, and after the MAG had reviewed its findings, he ordered the closing of the investigation file, in the absence of a sufficient evidentiary basis to establish the commission of a crime by IDF soldiers. An update regarding this decision has been sent to the legal representative of the complainant.

The IDF Military Advocate General [MAG] Corps
"Aerial Strikes against Terrorists: Some Legal Aspects"

The State of Israel is committed to the rule of law and places great emphasis on conducting its military operations in accordance with international law, including in the context of its armed conflicts with terrorist organizations.

Against the backdrop of recent discourse regarding the legal regulation of aerial strikes against terrorists, below is a brief review of the legal rules generally applicable to such attacks and their implementation in the context of Israel's armed conflict with terrorist organizations operating against it.

Modern Challenges Encountered in Counter-Terrorism Warfare

In recent decades, aerial strikes against terrorists have been conducted within highly complex circumstances, arising from the cynical practices of terrorist organizations operating from within and behind the cover of civilian areas. Terrorist organizations, such as Hamas and Hezbollah for example, embed their military infrastructure within civilian areas – in or next to residential buildings, schools and mosques – and carry out armed attacks against Israel from those areas. This reality places states like Israel in the regrettable position of having to conduct military operations in densely populated urban environments.

A salient example is Operation Pillar of Defense conducted in November 2012 against terrorist organizations in the Gaza Strip. Not only were multiple military facilities and infrastructure located by these groups in heavily populated civilian areas, during the operation Palestinian terrorist organizations fired some 1,500 missiles against Israeli civilian population centres with the intention of inflicting as much harm as possible on civilian life, in grave violation of the Laws of Armed Conflict ('LOAC').

In such circumstances, a wide variety of complex challenges are encountered in conducting aerial strikes against terrorists, including with respect to both the identification and pin-pointing of attacks against terrorists. Such challenges are not mere happenstance; they are deliberately created by those terrorist organizations in order to exploit and abuse the commitment of law-abiding states, such as Israel, to comply with international law.

Legal Framework Applicable to Aerial Strikes against Terrorists

As part of Israel's general commitment to international law, aerial strikes against terrorists are conducted in strict compliance with LOAC.

In accordance with LOAC, it is permissible to attack combatants as well as civilians taking a direct part in hostilities. The State of Israel directs its attacks only against lawful targets. More particularly, Israel views Article 51(3) of the First Additional Protocol to the Geneva Conventions as reflecting customary international law. Accordingly, Israel's position is that it is permissible to attack civilians during such time as they take a direct part in hostilities. Furthermore, Israel adheres to the principle of proportionality, which forbids attacks expected to cause damage to civilians or civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated, and takes the precautionary measures necessary to minimize any expected collateral damage to the extent possible.

Oftentimes, when conducting aerial attacks, Israel applies rules that are more stringent than those required by international law. Thus, in parallel with Israel's commitment to the rules of international law, certain aspects of its operational activities are bound by additional restrictions, derived from the jurisprudence of its Supreme Court or internal policy considerations.

An example of restrictions deriving from decisions of the Israeli Supreme Court sitting in its capacity as the High Court of Justice ('HCJ') - which rely inter alia on Israeli constitutional and administrative law – may be found in the HCJ's judgment from 2006 in the 'targeted killings' case (HCJ 769/02). In the course of examining the legality of 'targeted killings' - i.e. the practice of conducting attacks against persons approved in advance as targets for attack due to their status as civilians taking a direct part in hostilities – in areas where Israel applied the laws of belligerent occupation, the Court imposed a duty to examine an alternative of arrest prior to conducting a 'targeted killing', and ordered the establishment of a special inquiry committee that will retrospectively examine allegations concerning harm caused to uninvolved civilians. These restrictions do not derive from and are not required by LOAC.

An example of restrictions applied to aerial strikes which do not derive from international or domestic legal considerations, but rather from policy considerations (ethics, legitimacy etc.), may be found in the fact that oftentimes the IDF applies restrictions that go beyond those required by the principle of proportionality, sometimes even aborting pre-planned attacks in order to minimize the collateral damage to uninvolved civilians. Many of the precautions taken by the IDF reflect policy considerations and exceed that which is legally required. Since such policy practices are not legally obligated, they may change from time-to-time and from one front to another. For example, Israel's use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets, prior to conducting aerial strikes (part of a precautionary procedure known as "knocking on the roof"), is not legally obligated and derives from the unique characteristics of this front, which are not applicable in other fronts.

The Decision-Making Process Regarding Aerial Strikes

Given the complexity, sensitivity and potential consequences of aerial strikes against terrorists, decisions in this regard are made through highly regulated operational processes. These operational processes are set out in clear orders and procedures, which are classified by nature. Among other things, these orders and procedures define the various stages of the process of planning an aerial strike, thus identifying the entities whose input the military commander must receive before conducting the attack.

The process whereby decisions on aerial strikes are made reflects the full implementation of relevant aspects of international law. First and foremost, the decision to strike is subject to criteria and conditions specified in the orders and procedures, which are designed to ensure that the attack will be consistent with international law. These criteria and conditions have been formulated on the basis of preliminary legal advice and they are implemented by the commanders in each and every aerial strike. Furthermore, although not legally required, in certain cases advice is provided in respect of the legality of a specific target. Obviously this type of advice is generally unfeasible during "real time" aerial strikes conducted in response to immediate threats, when the decision to attack a target is required to be reached in fractions of a second.

The implementation of principles of international law in procedures surrounding aerial strikes is also reflected in the intensive training that those involved in the decision-making process undergo. As an inseparable part of these training programmes, the relevant operational entities - from intelligence officers to operational commanders - learn and internalize the laws of armed conflict that apply to attacks, under the guidance of skilled legal advisers with expertise in the subject.

Within the decision-making process, significant emphasis is placed on the input from intelligence officers, which factor in all the relevant information available about the target, the anticipated military advantage and the collateral damage expected. For example, the intelligence input considers factors that may establish the legality of the target and the anticipated military advantage, such as the nature of the terrorist activity in which the terrorist target is involved (for example, participating in rocket attacks directed at Israeli civilians) and their role within the enemy's military operations. The intelligence insight will also consider, to the extent possible in the given circumstances, information that can be used to assess the extent of the anticipated collateral damage to civilians or civilian objects.

Based on this information, along with the insight of additional professionals such as damage assessment experts, the military commander may properly apply the principles of distinction, proportionality and the obligation to undertake precautionary measures – both in deciding on the attack itself and the manner in which it will be conducted (for example, the timing of the attack, the type of munitions to be used, etc.).

Retrospective Inquiry of Aerial Strikes

Examination and investigation mechanisms applicable to aerial strikes against terrorists

As part of its commitment to the rule of law, the State of Israel applies in full those LOAC rules which regulate the examination and investigation of claims of LOAC violations. The examination and investigation mechanisms that Israel applies were recently examined by a public committee lead by a former Israeli Supreme Court Judge and included academic experts and former officials of the Israeli public service, as well as two international observers (the 'Turkel Commission'). The Turkel Commission found that "the examination and investigation mechanisms in Israel for complaints and claims of violations of international humanitarian law and the methods they practice, generally comply with the obligations of the State of Israel under the rules of international law." Furthermore, the Commission recommended amendments in the existing mechanisms and changes in the accepted practices. These recommendations are currently being studied by an inter-agency committee specially designated for the task by the Israeli government.

In accordance with existing policy, whenever the IDF Military Advocate General's Corps becomes aware of any information, complaint or allegation – irrespective of its source – giving rise to reasonable grounds for suspicion that a certain attack carried out by the IDF constitutes a war crime, that suspicion will be investigated by means of a criminal investigation. In the event that the existing information does not give rise to such a suspicion (for example, where the information received is partial or circumstantial) a preliminary inquiry will be conducted to decide whether additional legal measures should be taken. Where such examination establishes reasonable grounds for suspicion that a war crime was committed, a criminal investigation will be conducted.

In this context, it is important to note that during combat, the fact that harm was caused to a civilian in the course of an aerial strike does not in itself raise a suspicion of a LOAC violation. Harm caused to a civilian in the course of an aerial strike against a terrorist is not unlawful as long as it complies with the principle of proportionality. Such harm, unfortunately, is an inherent part of warfare, especially when it takes place against terrorist organizations that operate from civilian population centres. Furthermore, it is not rare that allegations are made regarding the death of civilians in the course of aerial attacks, whereas the preliminary inquiry – which relies, among other things, on intelligence information – indicates that those harmed were not in fact civilians, but rather lawful targets in accordance with LOAC. These cases, therefore, do not raise reasonable grounds to suspect a LOAC violation (certainly not a war crime) and there is no reason to conduct a criminal investigation regarding the matter. In most cases, it is not possible to publish detailed findings, due to the classified nature of intelligence information and operational capabilities.

Examination mechanism applicable to 'targeted killings'

Apart from the general examination and investigation mechanisms described above, a separate designated mechanism was established in accordance with the HCJ's decision in the 'targeted killings' case. This mechanism to examine the legality of targeted killings consists of an examination committee external to the military – the establishment and mandate of which exceed the requirements of international law.

The committee's staffing reflects the need for its members to be both independent and to possess legal and operational expertise.

The committee's mandate is limited to the sort of military strikes that were the subject of the petition to the HCJ. Thus, for example, the committee does not examine the legality of other military attacks, such as 'real time' strikes that were not planned and approved in advance, but were carried out in order to prevent an immediate threat (such as rocket firing into Israeli territory). Similarly, the committee's mandate is limited to those strikes which gave rise to doubts as to whether a target was correctly identified, or which resulted in the death of civilians who did not take part in hostilities (in line with the Supreme Court's ruling in HCJ 8794/03).

To the extent that the examination conducted by the committee raises reasonable grounds to suspect that a war crime was committed, a criminal investigation is commenced (as declared by the State to the Supreme Court in the aforementioned HCJ 8794/03).

Current Discourse on Aerial Strikes against Terrorists

There has been spirited debate in recent years regarding the legal rules which regulate aerial strikes against terrorists. In the framework of that discussion calls have been made to establish even more rules and additional obligations on states fighting terrorism. It is important that this discussion not be held in the abstract, and that it takes into account the complex reality in which aerial strikes take place (that is, the unfortunate reality in which terrorist organizations operate from populated civilian areas); while balancing between the appropriate humanitarian considerations and military necessities of states fighting terrorism.

While carrying out that balancing exercise, it is also important to take into account the asymmetry which exists between states and terrorist organizations, from the perspective of the evident lack of any commitment to the rules of international law by the latter. Thus, many states like Israel are committed to the rule of law and operate in accordance with international law rules, even at the cost of impeding the effectiveness of military operations and prolonging military campaigns. By contrast, terrorist organizations violate international law rules, due in part to their lack of accountability, the absence of effective compliance mechanisms with respect to non-state actors (NSAs) and the fact that there are nearly no reputation costs for such groups when committing LOAC violations.

Given this prevailing state of affairs, it is necessary to take into account the already complex reality and asymmetry which law-abiding states are compelled to deal with and to beware in particular of imposing additional legal and operational burdens which serve only to exacerbate the asymmetry and make it more difficult to deal with terrorist organizations.

The IDF Military Advocate General [MAG] Corps

"Human Shields"

Legal Framework

The use of civilians as human shields is a direct violation of the laws of war, violating the basic principle of distinction between combatants and non-combatants. Article 51 of the 1977 First Additional Protocol to the 1949 Geneva Conventions, for instance, specifically prohibits the use of human shields:

The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular attempts to shield military objects from attacks or to shield, favor or impede military operations.

In addition, according to Article 8(2)(xxiii) of the Rome Statute of the International Criminal Court, "[u]tilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations," constitutes a war crime.

Despite the fact that this tactic has been explicitly prohibited by international law, it is a practice commonly and extensively used by terrorist organizations, including Hamas during the recent armed hostilities in the Gaza Strip, as well as by Hezbollah during the Second Lebanon War (2006). Such blatantly illegal and exploitative conduct has been increasingly used in recent years, as the terrorist organizations are aware that the IDF is reticent to attack legitimate military targets where civilians are present.

Examples

The Palestinian terrorist organizations' use of civilians as human shields is widespread in the Gaza Strip, and is manifested in the following ways:
  • Palestinian rocket fire from densely populated areas such as Jabaliya and Beit Hanoun.
  • Palestinian terrorist organizations locating their terrorist infrastructure within Palestinian civilian areas and civilian infrastructure. The storage of weapons and rockets, terrorist headquarters, and tunnels for smuggling weapons are routinely located inside civilian areas, including civilian homes or infrastructure.
  • Encouraging and enlisting Palestinian civilians, including women and children, to congregate in sites which are expected to be attacked by the IDF in order to serve as human shields. In November 2006 during an IDF operation against Palestinian terrorist organizations in the Gaza Strip, dozens of terrorist operatives using the Al-Nasr mosque in Beit Hanoun barricaded themselves in the mosque and exchanged fire with IDF forces. Upon the arrival of approximately 200 women who were apparently sent there by the terrorist organization to serve as human shields, the terrorists were able to flee the scene as the media covered the event. Here, the terrorist operatives exploited the fact that they knew that the soldiers would not fire indiscriminately at women, and therefore escaped unharmed. On February 29, 2008, Hamas MP Fathi Hammad delivered a speech broadcast on Al-Aqsa television stating, "[The enemies of Allah] do not know that the Palestinian people has developed its [methods] of death and death-seeking. For the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine. It is as if they were saying to the Zionist enemy: "We desire death like you desire life." Unfortunately, Palestinian terrorist organizations appear to have absolutely no qualms about endangering Palestinian civilians in order to facilitate their attacks; additionally, there seems to be a large number of Palestinians ready and willing to volunteer themselves as human shields. The motivation for this tactic is twofold: (1) to take advantage of the known sensitivity of the IDF to civilian casualties on the Palestinian side in the hope that the IDF will refrain from attacking legitimate military targets where civilians are present; and (2) in cases where the IDF does attack, Palestinian casualties serve as an excellent propaganda weapon to be used against Israel. Thus, the use of human shields essentially creates a cynical win-win situation for Palestinian terrorist organizations. Notably, in March 2008 and in response to this tactic, the U.S. House of Representatives passed House Resolution 951 strongly condemning "the use of innocent Palestinian civilians as human shields by those who carry out rocket and other attacks." Palestinian terrorist organizations' use of civilians as human shields is a blatant violation of international law. Indeed, this cynical exploitation of civilians is indicative of the underlying asymmetry between Israel, a democratic state committed to moral conduct and to upholding legal norms, and terrorist organizations operating in direct contravention of international law, which cynically exploit the protections provided by those laws.

The IDF Military Advocate General [MAG] Corps

"Targeted Killings"

Summary

The legality of Israel's "targeted killings" mode of operation, i.e., the direct attack of persons who plan, launch or commit terrorist acts against both Israeli civilians and soldiers, was reviewed by the Israeli Supreme Court in its judgment of December 2006. The Court rendered unanimously a decision enabling Israeli security forces to target terrorist operatives, subject to the following requirements:
  • Existence of reliable information that the targeted person is a civilian taking direct part in hostilities;
  • Absence of less harmful alternatives by which the civilian taking part in hostilities can be thwarted;
  • If the attack caused civilian casualties (except for civilians taking a direct part in hostilities) – the conduct of an independent investigation (ex-post facto), regarding the precision of the identification of the target and the circumstances of the attack;
  • The collateral damage expected to be caused by the attack is not excessive in relation to the military advantage anticipated (i.e., the attack must meet the principle of proportionality).
Background

In September 2000, Palestinian terrorist organizations launched a massive terror campaign against the State of Israel. Palestinian terrorist organizations such as Hamas and Islamic Jihad deliberately attacked innocent Israeli civilians, targeting, inter alia, people sitting in cafes with their families, students riding the bus home from school, and teenagers going for a night out at dance-clubs. In a defensive response to these cruel and unremitting attacks, Israeli security forces began implementing the "targeted killings" mode of operation. Under this mode of operation, the Israeli security forces endeavor to preemptively strike those terrorists involved in the planning, launching or execution of terrorist attacks against Israel, in an effort to combat the terrorism plaguing Israeli society. This mode of operation proved to be a success – as a result its implementation, terrorist activity was reduced significantly, and the mean proved to be an effective tool for Israeli Security forces to thwart Palestinian terrorism directed against Israel's citizens.

Legal Analysis

In December 2006, the Israeli Supreme Court, headed by former Chief Justice Aharon Barak, was faced with evaluating the legality of this policy, and ultimately rendered a decision which in principle enabled Israeli security forces to continue the practice of targeted killings of terrorist operatives, subject to certain requirements (HCJ 769/02). In its ruling, the Court unanimously rejected the petitioners' position that the practice of targeted killings was illegal, stating that "it cannot be determined in advance that every targeted killing is prohibited according to customary international law," nor can it be determined in advance that every targeted killing is so permissible. Thus, the court did not issue a blanket ban on targeted killings but instead ruled that each specific case must be examined on its merits, a practice which was already being carried out at the time by the Israeli security forces.

Applicable Law

In its ruling, the court determined that the law applicable to the armed conflict between Israel and the Palestinian terrorist organizations is the international law governing armed conflicts of an international nature. Accordingly, the court rejected the petitioners' claim that the conflict should be subjected to law enforcement rules. More specifically, the Court held that the laws applicable to the conflict were the 1907 Hague Regulations, the humanitarian provisions of the Fourth Geneva Convention of 1949, and those provisions of the First Additional Protocol to the Geneva Conventions (1977) which constitute customary law.

The Law of Armed Conflict (International Humanitarian Law) is premised on a balance between humanitarian considerations on the one hand and military considerations on the other, a balancing act primarily dictated by the principles of distinction and proportionality. The principle of distinction demands that both parties to a conflict distinguish between combatants and military objectives, as opposed to civilians not taking part in hostilities and civilian objects. Combatants are, in principle, legitimate targets for direct attacks. Civilians, on the other hand, are immune from attack, unless and for such time as they take a direct part in hostilities. The principle of proportionality demands that an attack shall be cancelled if it becomes apparent that the attack may be expected to cause collateral damage to civilians and civilian objects, which would be excessive in relation to the military advantage anticipated.

While terrorist operatives participate in combat, they do not comply with the laws of war, because, inter alia: (1) by directing their attacks against the Israeli civilian population, they fail to conduct their operations in accordance with the principle of distinction; (2) terrorist operatives are not members of a State's armed forces, nor do they belong to units to which international law grants privileges similar to that of combatants; and (3) terrorist operatives refrain from distinguishing themselves from the civilian population, wearing civilian dress and operating from within civilian areas. In light of the aforementioned, the Court determined that terrorist operatives should be deemed in effect "unlawful combatants", stripped of the privileges of lawful combatants (for example, they can be tried for their participation in hostilities, judged, and punished). However, as far as targeting is concerned, the Court deemed these terrorists to be civilians who, as a result of their participation in terrorist activity, lose the protections to which civilians not engaged in hostilities are entitled.

While Israel is not a party to the First Protocol Additional to the Geneva Convention, the Court determined that the principle according to which civilians lose protection afforded to them under the Protocol for such time as they take a direct part in hostilities represent customary international law, and therefore applies to the case at hand. Thus, the Court determined that terrorist operatives who participate in combat meet the criteria of "civilian taking direct part in hostilities", and thus lose all protection afforded to civilians, and become exposed to the risks faced by combatants, without being afforded the protections to which combatants are entitled.

Taking "Direct Part in Hostilities"

The Court noted that "participating in hostilities" does not necessarily require the use of arms, and includes hostile acts against both the State and the civilian population. Thus, the Court interpreted "direct" participation in hostilities to mean, inter alia, "[terrorist-operatives] who decide on terrorist acts or plan them, and those who enlist others, guide them and send them to commit terrorist acts", "a person who collects intelligence on the army", and "a person who operates weapons which unlawful combatants use, or supervises their operations, or provides service to them". However, the court concluded that individuals who sell food or medicine to unlawful combatants, engage in general strategic analysis, supply general logistical support or distribute propaganda, are not considered to be taking direct part in hostilities.

The Court also noted that there lacked a general agreement as to the significance, duration-wise, of the qualification "for such time" as a civilian takes direct part in hostilities, and therefore determined that each case must be examined on its own merits. Regardless, the Court did note that a civilian taking direct part in hostilities once, or even sporadically, should be treated as a civilian (and therefore be immune from attack) during such time that he has detached himself from such activity. In contrast, a civilian who joins a terrorist organization and consistently participates in terrorist activity and commits hostilities, with short breaks between them ("the revolving door" phenomenon), loses immunity from attack for the entire scope of his activity. As the Supreme Court reasoned, for such a "civilian" terrorist, any rest between terrorist activities is nothing other than preparation for the next act of hostilities. Were the terrorist to be immune from attack so long as he was not directly participating in hostilities, in practice this would grant such terrorist civilian immunity so long as he was not on his way to carry out an attack with bombs strapped to his waist. Clearly, this would be an insufficient result, granting terrorists civilian protections up until the time of the planned attack, while at the same time preventing the State from effectively protecting its citizens.

Thus, the Court's decision rendered the policy of targeted killings subject to individual case-by-case examinations into its legality, based on the following requirements, inter alia: (a) the existence of reliable information on which there is a basis to believe the targeted person is a civilian taking direct part in hostilities; (b) the absence of less reasonable harmful means, such as detention and trial, by which the civilian taking direct part in hostilities can be thwarted (here, the additional danger presented to IDF soldiers' lives through arrest operations in Palestinian controlled territories might be legitimate factor in determining the reasonableness of the less harmful mean); (c) a thorough ex-post facto investigation regarding the identity of the target and the circumstances of the attack; (d) whether or not the principle of proportionality is met, meaning that the expected harm to civilians and civilian objects must be proportional in relation to the expected military advantage resulting from the attack.

Thus, determined the Court, the legality of targeted killings requires that the principles of necessity, distinction and proportionality be upheld. The decision necessitates striking a balance between the State's duty to protect its own civilians' lives from terrorism on the one hand and its duty to protect the lives of innocent civilians from being harmed in an attack against terrorist(s), on the other hand. Accordingly, the legality of targeted killings must be examined on a case-by-case basis with regard to the circumstances of the attack and the identity of the target. The Court recognized that the decision did not necessarily make Israel's fight against terror easier, but noted that a democracy such as Israel must fight terror with one hand tied behind its back; while in the short-run it may make the fight against terrorism more difficult, in the end, democracy and respect for the law will triumph over terrorism.

The Formation of Armed Forces in the Gaza Strip

By June 2007, the Hamas terrorist organization violently took over the Gaza Strip (which, until then, was under the control of the Palestinian Authority). Since then, Hamas' military wing (the Izzedine al-Qassam Brigades) and security forces underwent a massive military buildup, in preparation for a military confrontation with the IDF. Hamas substantially increased the size of these forces, which at the outset of Operation "Cast Lead" were estimated to comprise of approximately 20,000 armed operatives, organized in semi-military formations throughout the Gaza Strip and deployed in the form of territorial brigades and designated units. They regularly conduct large-scale training operations and are supplied with various kinds of weaponry, including military-grade rockets and advanced anti-tank weapons.

According to the Laws of Armed Conflict, persons who belong to the armed forces of a State party to an armed conflict (i.e., its regular army) are considered to be legitimate military objectives, and may thus be directly attacked at any time regardless of their function within the armed forces. Similarly, where an armed conflict exists between a State and an Non-State Actor (such as the conflict between Israel and Hamas, in the Gaza Strip), persons who belong to the armed forces of the Non-State party to the conflict are also ought to be considered as legitimate military objectives, based solely on their membership in the armed forces, for as long as they are still, in fact, members thereof. That is, members of such armed forces are not considered to be civilians who, as explained above, may be attacked directly only if, and for such time as, they are taking a direct part in hostilities.

Operation "Pillar of Defense", November 14-21, 2012, Report of the IDF Military Advocate General [MAG] Corps

Operation "Cast Lead", December 2008-January 2009, Report of the IDF Military Advocate General [MAG] Corps