In 2002, after a smaller bomb failed to murder Salah Shehadeh, then Hamas military commander in Gaza, the IAF dropped a 2,000 pound bomb on a residential apartment building killing him and his entire family: 13 civilians in all along with tens of seriously wounded.
The Israeli NGO Yesh Gvul charged the IDF officers who planned and executed the attack with violations of Israeli and international law and filed a case with the Israeli Supreme Court. In response, the Court asked the government to create a public commission to examine the charges. The case languished for several years while various governments dithered about naming members of the commission. Yesh Gvul went back to court and it finally commanded the government to create the board, which Ehud Olmert did in 2008. He originally appointed Brig. Gen. Tzvi Inbar to chair the body, to whom he added Gen. Yitzhak Eitan and senior Shabak officer, Yitzhak Dar. After Inbar’s death, Bibi Netanyahu appointed retired Judge Tovah Sternberg-Cahan to head the board. I’ll leave it to you to judge whether this was a truly independent and fair investigation.
It’s only taken three years, but the group has finally figured out how to successfully white-wash the crime (English version) in its final report. The thinking is so perverse, the language so bureaucratically chilling and morally vacuous, that it’s worth quoting extensively from the Walla artcle (which also quotes the lanugage of the report):
Nine years after the assassination of Salah Shehadeh, a special commission found it unnecessary to take personal action against those [IDF officers] involved in the operation. With that, the commission found that the murder of 13 civilians was “disproportionate and derived from an intelligence failure.”
The commission…determined that there was no legitimate suspicion of commission of a criminal act connected with the operation…It found the operation was a “legitimate preventive attack” and that killing Shehadeh was an “urgent and meaningful.”
It attributed the intelligence “failure” to ‘errors of evaluation’ and ‘mistakes of judgment’ in gathering information and distributing it to various elements involved in the operation.
Those IDF officers charged with involvement in the incident explained the “gap” by noting the need for urgent action once it was determined that Shehadeh was vulnerable to attack. The commission responded that such reasoning “explained the failure but didn’t justify it,” whatever that means:
The intelligence failure emanated from various reasons which attached more important to killing the target and less weight to ‘endangering’ civilians as a result of this attack…This accompanying result [killing civilians] was unintentional and unexpected. It did not derived from a disrespect for human life or [depraved] indifference to human life. Those involved displayed a sensitivity to the issue of [harm] to those uninvolved. Those engaged in the operation testified to the commission that had they known the severity of the outcome beforehand and with enough time to do so, they would’ve cancelled it.
The board specifically commended then deputy chief of staff , Gabi Ashkenazi, for opposing the killing using the operational plan that had been approved. Even those who opposed the operation acceded to their superiors and participated in the killing.
The commission advised the IDF how to proceed in future when devising similar plans:
Proportionality is an important principle from which one derives that an attack of this sort is not legitimate if the danger of excessive harm to civilians exceeds the military value of the target.
However, it even permitted a loophole from this protocol by admitting that there may be instances in which pressures of time, place and opportunity which apply to pre-emptive strikes:
In such instances it is permitted to deviate or restrict adherence to such principles except insofar as they might damage principles of law and the precedents of the Supreme Court.
The board’s report approved the continuation of the IDF’s policy of targeted killing:
Despite the result in this case, pre-emptive attacks are a legitimate tool in the war against murderous terror as long as they adhere to the principles of justice and the ethical-moral values that serve as the foundation of Israeli and international justice.
Yesh Gvul has announced that it will appeal to the Supreme Court and ask for the appointment of an official government commission of inquiry.
A few comments on the passages above: any IDF officer who testified that army intelligence didn’t know civilians were in that apartment building or didn’t know civilians would be killed in the attack was lying. The bomb dropped was specifically designed to destroy the entire building (as it did). The IDF knew of Shehadeh’s every movement, and certainly monitored his stay in his own home along with the presence of any resident in the building. To say they didn’t know who was there is simply preposterous. I expect the military to lie. But I don’t expect judges to accept such lies wholeheartedly. But unfortunately this is customary in many national security cases.
But why should we be surprised? Israel’s Occupation itself is built on a lie. A lie which many Israelis willingly accept and benefit from in their everyday lives. Should it surprise us that Israeli officers would lie in order to protect the honor of the IDF and the state it defends?
It’s also important to note that at the time of the assassination the leading Fatah and Hamas figures, Marwan Barghouti and Sheikh Yassine, had agreed to a formal unilateral ceasefire with Israel. The latter’s agreement to the declaration came only two hours before the assassination of Shehadeh. Israel’s claim all along was that militants controlled the PA and any agreement that omitted them wouldn’t be worth the paper on which it was written. To that, the Palestinians responded by enlisting the very “terror” groups needed to ensure the success of the ceasefire. Their declaration was unilateral and unequivocal. Newspaper articles were being prepared for publication in the Washington Post and Haaretz to herald this constructive development.
Israel’s answer was a 2,000 pound bomb on Salah Shehadeh’s home, thus destroying one of the most promising attempts of the era to negotiate peaceful terms between Israel and the Palestinians. This is how the military-intelligence apparatus deals with opportunities for peace. It wrecks them. Deliberately. And then takes whatever small amount of heat may come its way. The heat is worth the danger of serious peace negotiations, which would rock the status quo the IDF finds so comfortable.
International law is predicated on giving an opportunity to nation states to first adjudicate violations that occur on their territory or at the hands of their representatives. Israel’s attempt to do so has failed. This leaves the International Criminal Court and other international bodies with no recourse but to agree to accept jurisdiction over this matter. Israel engaged in a shameful whitewash that has excused all military personnel of any culpability. But the world community must not let Israel’s military to escape with impunity.
This article first appeared at Tikun Olam