TEL AVIV — Leaks from last summer's Gaza war dramatize the forces at play here when democracy and commitment to international law appear to clash with obligations to those fighting on the fog-laden front lines.
Israeli combat recordings from a particularly fierce battle initiated by Hamas during one of the many short-lived cease fires of the war highlight complex operational, social and legal questions that extend far beyond the terror tunnels of southern Gaza where it all began.
Questions dramatized in the clips have become campaign fodder in the run-up to March 17 elections, while the substance of the leaked recordings may be used to support criminal probes here and possibly the Hague-based International Criminal Court.
They involve issues of command responsibility; rules of engagement; and the rights of individuals who make up Israel's so-called People's Army when measured against the collective benefit of the public at large.
They also involve limitations of military censorship in a country that celebrates free press.
And finally, actions taken in the aftermath of that Aug. 1 battle call into question the independence of the military advocate general (MAG) (JAC), a general officer appointed by the defense minister, yet subordinate only to Israel's attorney general.
Known here as Bloody Friday, the Aug. 1 battle began with an ambush that killed two Israeli infantrymen and caused one to go missing. Troops Warfighters at the scene pursued Hamas operatives into the tunnels built by the organization as subterranean staging grounds.
In parallel, the Israel Defense Forces (IDF) activated its so-called Hannibal protocol, allowing massive force to thwart an abduction in progress, even at the risk to the life of the soldier they sought seek to save.
The mission failed to retrieve the missing comrade, but evidence recovered from the mission allowed forensics experts to subsequently conclude that the soldier, 2nd Second Lt. Hadar Golden, had been killed in the initial attack.
But scores of innocent Palestinians were also killed in Hannibal-driven airstrikes, artillery barrages and ground attacks aimed at retrieving Golden or otherwise preventing him being used his use as a tool for extortion in future prisoner swaps.
'Stop Firing! You're Firing Like Morons'
In tapes first published by Israel's Ynet online news service, the extent of the counter-attack on possible escape routes and sites suspected of supporting the underground labyrinth was clearly evident.
At one point, alarmed by fire delivered too close to friendly forces, the tactical commander at the scene, a lieutenant colonel, barked orders to halt fire: "I repeat: stop firing!... You're firing like morons. You're going to kill each other. Enough! I've got [soldiers] already dead. Morons! Hold it for a second."
At another point, following sustained attack on a mosque, another voice reported: "The entire mosque is full of holes. There's nothing left of it."
Lt. Gen. Benny Gantz, IDF chief of staff, condemned the media leaks, even though Ynet had cleared the clips through military censor prior to publication. "This is an investigation that involves bereaved families…. It is unacceptable in my eyes that recordings went public in such ways," Gantz said of the Ynet-published clips.
In a Jan. 14 interview, a military censor officer said only those parts of the official radio transmissions with direct bearing "on issues of security" were excised prior to publication by Ynet. As for the rest, "It certainly wasn't pleasant; perhaps even in poor taste. But after all, we're still a democracy here."
The Black Friday battle is one of dozens from the 50-day Protective Edge campaign investigated by teams appointed Gantz to learn for purposes of learning operational lessons from failings in the field.
It is also one of a handful of "exceptional events" that Maj. Gen. Danny Efroni, the IDF MAG, is now considering for possible criminal investigation.
In a Jan. 12 letter to the Association for Civil Rights in Israel (ACRI), a Tel Aviv-based non-governmental organization, NGO, a senior Justice Ministry official said probes conducted on behalf of the General Staff would help Efroni determine whether actions taken under the Hannibal protocol warranted criminal investigation.
"A decision on the matter has not yet been taken," wrote Oren Pono, senior legal aide to Israeli Attorney-General Yehuda Weinstein.
In response to ACRI's concerns of political or military interference in a potential MAG-led probe, Pono insisted Efroni answered only to Weinstein and the tenets of international law.
"Under military jurisprudence, the MAG operates independently, immune from the chain of command and guided solely by considerations relevant to upholding the law — and nothing else — in performance of his duties," Pono wrote.
Classified Rules of Engagement
The Justice Ministry official disputed ACRI claims that the controversial Hannibal protocol is patently illegal due to the approval greenlight it gives for indiscriminate fire on populated areas.
However, due to its classification as secret, the ministry could not honor ACRI's request for details concerning the extent to which the IDF can endanger the life of an abducted soldier or civilian populations of the enemy in efforts to prevent him from falling into enemy hands.
While Hannibal rules of engagement remain classified, the Justice Ministry official said, "The operational order prohibits fire whose objective is the death of the kidnap victim."
In an obvious reference to the grossly disproportionate ratio of Palestinian prisoners Israel has traded in the past for a single soldier — or, in some cases, the corpses of IDF soldiers, Pono wrote:
"The operational order prohibits fire whose objective is the death of the kidnap victim." Pono told ACRI that actions allowed under Hannibal "reflect, in our opinion, the proper balance between the various considerations involved."
"Allow us to add that a military action to foil a kidnapping after it has occurred (for example, an action to release hostages) almost always poses a risk to the life of the kidnap victim. Despite this, we don't believe there is anything in Israeli or international law that forbids taking action to foil a kidnapping, even under circumstances in which such actions could endanger the life of the kidnap victim."
Vehement opposition to MAG-led criminal probes by Israeli Defense Minister Moshe Ya'alon casts doubt here on Justice Ministry claims of military judicial independence.
In Jan. 8 remarks distributed as a press release by Ya'alon's office, the defense minister insisted events in southern Gaza on Aug.ust 1 are an operational matter and must not be probed for potential criminality.
"I hope no one will decide to insert this matter into the hands of the military police," Ya'alon said.
According to Ya'alon, a clear distinction must be made between operational debriefs and criminal investigations, the former of which strengthens trust among combat echelons and the latter of which aims to hold violators to account.
"The question has arisen regarding matters of debriefs and investigations. One of the tests of a commander is the extent to which he backs his people… The correct way to investigate operational events in a manner that strengthens trust — even if professional mistakes were made — is through operational debriefings," Ya'alon said.
Citing the inevitable fog of war that accompanies all battles, Ya'alon said operational bedebriefs should be forward-looking in terms of applying lessons to future battles.
In contrast, Ya'alon said criminal probes that scour the past for purposes of affixing blame must be reserved only for clear violations of the law.
"Investigations are searching for the guilty … and there are cases when this is essential. If someone, during battle, committed criminal acts such as looting, rape, wanton fire on a woman, a child or someone who is waiving a white flag, these are clear violations of the rules. The place for these criminal cases is with the military police," he said.
Ya'alon reiterated his position Jan. 13, a day after the Justice Ministry publicized its position on the free rein granted to the MAG under law.
With Efroni just weeks or even days away from determining whether or not to investigate events of Black Friday, Ya'alon's repeated public comments have been widely perceived as pre-election attempts to curry public favor at the expense of judicial independence.
"Defense Minister Moshe Ya'alon seems to be exploiting his final days as defense minister to bolster his position both before the election and afterwards when ministerial portfolios are distributed," wrote Ha'aretz wrote in its editorial of Jan. 11 editorial.
Assailing Ya'alon's remarks as improper, the newspaper urged that suspected misuse of "massive and disproportionate" force should be investigated for the good of the IDF and the State of Israel. "Such a probe has the power to prevent international investigations, which will entangle Israel and the IDF in an 'adventure' in international justice, the outcome of which is unpredictable," according to Ha'aretz.
Ya'alon, Ha'aretz added, "must understand that his concern should be the good of the IDF and the country, rather than his own personal welfare, which he is trying to boost through his attempts to draw favor with IDF commanders and ride the right-wing sentiments of the public."