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Operation 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 Public Report IDF Activity from the Perspective of International Law | 3 Summary General Background 1. The modern battlefield presents many operational challenges, some of which are affected by the fact that civilians who do not take a direct part in hostilities 1 (hereinafter - uninvolved civilians) in the combat zones and therefore could be harmed due to IDF combat operations in these sectors. International law regulating the use of force consists two sets of laws: jus ad bellum ('law of war'), which determine when a state may use force, and jus in bello, ('law in war') also referred to as "the Law of Armed Conflict" or "international humanitarian law" which determine the international legal regime governing the use of force during an armed conflict, and regulate the duties, rights and defenses of states and individuals involved in or affected by an armed conflict. In addition to international humanitarian law, there are other branches of law that relate to the obligation to examine and investigate violations of international humanitarian law principles (see more below2). One of them is international criminal law, which states that the domestic judicial system has precedence over an extraterritorial judicial system in adjudicating international law violations. This is based on two principles: the "principle of complementarity"3, according to which the authority of an international jurisdiction will be exercised as a last resort when states are unwilling or unable to exercise their duty to investigate and prosecute; and the "principle of subsidiarity", according to which a jurisdiction with territorial or national affiliation has precedence over an international jurisdiction, which has subsidiary responsibility. In accordance with the principle of complementarity and the principle of subsidiarity, investigative and judicial systems in the State of Israel which function properly will help prevent the intervention of external courts and tribunals in the sovereign affairs of the State of Israel. The State of Israel deals with a difficult and ongoing struggle against terrorism and enemies that rise up against it. However, as a Jewish 1 HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (published in the computerized database, 14 December 2006). 2 The Turkel II Report and the implementation of its recommendations - The normative basis. 3 The principle of complementarity is anchored in Article 17 of the Rome Statute. 4 | Operation "Protective Edge" and democratic state, it is obligated to preserve the values of democracy, primarily the rule of law and individual rights. This obligation is based first and foremost on the internal fabric of its laws, according to which every government authority is obligated to respect the basic rights protected, inter alia, under the Basic Law: Human Dignity and Liberty. This duty is also reflected in those provisions of international law that relate to armed conflict, which obligate the security forces of the State of Israel. Respect for the rule of law and human rights is an essential component of Israel's national security and the shaping of its identity. In this context, the Supreme Court noted:4 "That is the fate of democracy, in whose eyes not all means are permitted, and to whom not all the methods used by her enemies are open. At times democracy fights with one hand tied behind her back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of her security stance. At the end of the day, they strengthen her and her spirit, and allow her to overcome her difficulties". Following the May 2010 "Marmara incident" 5 , in June 2010 6 the government of Israel appointed an Independent Public Commission headed by Supreme Court Justice (Ret.) Yaakov Turkel (hereinafter - "the Turkel Commission" or "the Commission") to examine, among other things, "whether the mechanism for examining and investigating complaints and claims raised in relation to violations of the laws of armed conflict, as conducted in Israel generally, and as implemented with regard to the present incident, [the maritime incident of 31 May 2010], conforms with the obligations of the State of Israel under the rules of international law". In January 2011, the Turkel Commission submitted to the government the first part of its report7, and in February 2013 it submitted to the 4 HCJ 5100/94 the Public Committee against Torture in Israel v. the Government of Israel Supreme Court Rulings 53[4], 817, 845 (1999). 5 A flotilla of six ships that left in May 2010 from the Turkish coast to reach the port of Gaza. Navy fighters took over five ships and encountered resistance, mostly passive. On the sixth ship, the "Mavi Marmara", violent incidents took place, resulting in the injury of nine IDF soldiers, the killing of ten passengers and the injury of 55 of its passengers. One of the ship's passengers died after the event. 6 In Government Resolution No. 1796 dated June 14 2010 it was decided to establish an independent public committee and in accordance with Government Resolution No. 1895 dated July 4, 2010, its powers were extended and certain powers were granted to it under the Commissions of Inquiry Law, 5729 - 1968. 7 The first part of the Turkel Commission Report - The Public Committee for Examining the Maritime Incident, dated May 31 2010, Report - Part One (January 2011). IDF Activity from the Perspective of International Law | 5 government the second part, titled "Israel’s Mechanisms for Examining and Investigating Complaints and Claims of Violations of the Laws of Armed Conflict According to International Law" (hereinafter – "the Turkel Report" or "the Turkel II Report"). On January 5 2014, the government decided to appoint a team headed by Adv. Dr. Joseph Ciechanover to examine and implement the Turkel Report (hereinafter – "the Ciechanover Team" or "the Implementation Team") and instructed it to present its recommendations to the Prime Minister by October 2014. On September 20 2015, approximately one year after the scheduled date, the Ciechanover Team presented its recommendations to the Prime Minister. On July 3 2016, about three years and five months after the Turkel Commission submitted its recommendations (the Turkel II Report), the government discussed the Ciechanover Team's recommendations and approved them in Resolution No. 125/B of the Ministerial Committee on National Security Affairs. 2. On July 7, 2014, following the increase in rocket fire from the Gaza Strip towards the State of Israel, Operation "Protective Edge" ("Tzuk Eitan") began 8 . During the operation, 68 IDF soldiers were killed – including two soldiers, Lieutenant Hadar Goldin and Staff Sergeant Oron Shaul, who have not yet been returned to Israel – as well as five Israeli civilians and a foreign national, and thousands of Israeli civilians and soldiers were injured. According to data published by the Ministry of Foreign Affairs9, 2,125 Palestinians were killed in the Gaza Strip10, and according to data compiled by the Coordinator of Government Activities in the Territories (hereinafter – "the Coordinator") according to information received from Palestinian sources and international organizations, approximately 11,000 Palestinians were injured, and approximately 10,300 houses were destroyed and another 5,800 were damaged in a manner that makes them unsuited for habitation11. After Operation "Protective Edge", various bodies, including human rights organizations, supplied the Military Attorney General's Office with 8 The decision regarding the offensive phase of Operation "Protective Edge" was made on July 7, 2014, and the air strikes in the Gaza Strip began on July 8, 2014. 9 The Ministry of Foreign Affairs, The Conflict with the Gaza Strip in 2014 (2015). 10 According to the Ministry of Foreign Affairs report, as of April 2015, at least 44% of all Palestinian fatalities were identified as military operatives of Hamas or other terrorist organizations in the Gaza Strip. 11 The data appear in a document of the Coordinator of Government Activities in the Territories (COGAT) dated December 2014 on the subject of "COGAT Summary" of Operation "Protective Edge". 6 | Operation "Protective Edge" information on 464 exceptional incidents12, meaning, incidents in which uninvolved civilians were allegedly harmed and damage to civilian property was caused. The Audit Actions From November 2012 to December 2013, the State Comptroller's Office examined, intermittently, the preparations within the political echelon and the IDF for dealing with the issue of reducing the harm to uninvolved civilians and the treatment of civilian population in combat zones (hereinafter - the "Civilian Component of Combat"). A draft of the audit report on the topic of the Civilian Component of Combat (hereinafter – the "Civilian Component Report") was distributed to the relevant authorities13 in February 2014, and following their comments, some of the data was updated in May 2014. The audit report regarding the Civilian Component was not published due to Operation "Protective Edge", and the current audit on the topic of international law began after the operation, as detailed below. In September 2014, the State Comptroller informed, inter alia, the Prime Minister, the Ministers of the Ministerial
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