The secret investigation report on the killing of four Palestinian children on the Gaza beach in 2014, part of which was published on the website The Intercept and whose essentials were reported in Monday’s Haaretz, raises a lot of questions. The confidential Israeli military police report reveals that the attack on July 16, 2014, during Operation Protective Edge, was carried out by a drone and stemmed from an intelligence failure.
No one disputes that Ismail Bakr, 9, Ahad and Zakaria Bakr, both 10, and Mohammed Bakr, 11, were not involved in hostile actions against Israel. Therefore, there was no justification for firing at them twice with a drone and certainly not to kill them. The report also shows that those involved in the decisions and actions that led to the boys’ killing thought that the four were Hamas operatives and were not aware that they were children.
Despite signs pointing to negligence, at the very least, the previous military advocate-general, Maj. Gen. (res.) Danny Efroni, closed the case without taking any legal or disciplinary steps against those involved. This decision stood even after Adalah, the Legal Center for Arab Minority Rights in Israel, petitioned the attorney general, who has yet to respond.
The central question is whether the error that was the basis for the Israel Defense Force’s actions was reasonable or not. Based on the answer to this question, one can determine whether the military advocate-general’s decision was justified or mistaken and negligent. We cannot pass judgment on Efroni’s decision without access to the investigation file and its full conclusions. However, questions arise that require a response.
1. Was the investigation effective and thorough? For example, shouldn’t testimony have been taken from the journalists who saw the incident from the beach? An external perspective could have been critical in assessing the nature of the compound in which the children were seen, and the issue of the firing itself.
2. The army acted on the assumption that the jetty on which the children were seen had previously served Hamas’ naval commandos. The day before the firing incident, the compound had been bombed by the IDF. Didn’t the bombing require a reevaluation about the nature of the place and the identity of anyone found there? After the structure was bombed, there were no secondary explosions heard, casting doubt on the initial conclusion that it had been used as a weapons depot. According to witnesses, after the bombing a new situation existed. There were no guards stationed at the entrance to the compound, it’s possible that the gate that surrounded it had been destroyed, and it was clear to Hamas that the site was an IDF target. All this indicates that a reevaluation would have pointed to a reasonable possibility that those the IDF had identified on the day the drone fired weren’t Hamas operatives but civilians (not necessarily children). If this possibility wasn’t raised, wasn’t that a negligent blunder? According to the testimonies, the question if the compound was open only to Hamas operatives or whether civilians also had access was raised with intelligence in real time. It isn’t clear what happened to that question. If this possibility was not discounted, it would have been correct to examine the responsibility of the soldiers involved in the killing.
3. After the first shooting, the drone operators who fired asked for clarification as to the borders of the compound. But around half a minute afterward, before the question was answered, there was a second round of fire that killed three of the boys. Shouldn’t the operators have waited for an answer?
4. All those involved declared that they could not identify the figures seen in the compound as children. The conclusion of the investigation was that it was impossible to discern that these were children, although the incident occurred in broad daylight. Two days earlier, however, the IDF Spokesperson’s Office had praised the ability of drone operators to identify potential targets under surveillance as children and thus avoid attacking them at the last moment. This is puzzling. If it’s not possible to distinguish the age of those being shot at, that is, it’s possible to shoot at children without being aware of it, were those involved in the shooting being overly reliant on the means at their disposal? Would it not have been appropriate to use additional means of observation? Was the possibility that the figures were civilians, or even children, not enough of a reason to refrain from firing? Under international law, in cases of doubt one is required to assume that the people are civilians. It should be noted that the soldiers did not claim that the figures had been identified as carrying weapons or as posing a significant threat to our forces.
5. How is it possible to reconcile the testimony of the air force officer who coordinated the attacks, who said this is a highly unusual case in which the intelligence information was completely different from the facts on the ground, and the legal conclusion that there was no fault in the actions of those involved? If the intelligence presented was inaccurate, isn’t there a flaw in the structure of the division of responsibility between different parties such that it is impossible to hold anyone personally responsible? Do the accepted standards of skill, responsibility and caution not apply to Military Intelligence? Has chalking things up to an “intelligence mistake” become a way to whitewash prohibited and unjustified killings?
6. Have all the operational and intelligence lessons, as well as the cognitive and moral ones, been learned so as to prevent similar incidents in the future?
7. Doesn’t this incident offer support for the concerns raised regarding the use of drones, which can dull human sensitivity?
8. Did the legal decision-makers use the reversal test – what would we say if it had been our children and the enemy had been the one to make the decisions and carry out those actions?
9. Were the minimal humane steps taken, like an apology and compensation, steps that even an army that was not the most moral in the world would take?
10. Does not the thesis that anyone suspected of being a Hamas operative is a legitimate target, even when he is not carrying a weapon and does not pose a risk to our forces, border on extrajudicial execution, which is prohibited by international law? Does it not create an unreasonable risk to the lives of civilians who must be protected, a risk that was actualized in the case of these four children?
