When I first read the headline in Haaretz, Panel to Look into Civilian Deaths in 2002 IAF Attack on Shehadeh I was pleased and surprised that one of the bloodiest civilian massacres of recent IDF history would finally be investigated. But I quickly realized that there is probably less here than meets the eye:
The State Prosecution has agreed to establish an independent commission to investigate the circumstances surrounding the targeted assassination of Hamas’ former military leader in the Gaza Strip, Salah Shehadeh, in June 2002.
Shehadeh died when the Israel Air Force dropped a one-ton bomb on a Gaza City neighborhood, killing 14 innocent people – mostly women and children – in the process.
The panel will establish whether a criminal investigation should be opened against those involved in the decision to bomb the neighborhood. The State Prosecution told the High Court of Justice of its decision during a hearing on a petition filed the peace organization “Yesh Gvul.”
The organization filed the petition in September 2003 against then-military prosecutor Menachem Finkelstein, who refused to order a criminal investigation into the deaths of the 14 civilians.
This incident is the source of the famous comment by Dan Halutz, then IAF commander, when asked if he felt anything when he dropped a bomb on a Palestinian target. “Just a slight tremble of the wings [of the plane] is all,” was his mordant reply. Any number of famous Israeli commanders are well known for similarly cold boasts, and this one stuck with Halutz. The IDF commander at the time of the raid was Doron Almog, who was nearly arrested at a London airport under an international warrant for his role in the massacre.
Which takes us to the issue of why there may be less here than meets the eye. Yesh Gvul, the Israeli group, sued the IDF for this incident, taking the case all the way to the Israeli Supreme Court. The Court was put in what for it was a terrible bind. Clearly, the IDF had engaged in a horrible massacre which in the normal course of legal events should be reviewed. But also clearly, the Court was loathe to second guess military commanders even when they stepped over a moral-legal line (as they certainly did here). The justices knew they should review the case, but detested the idea of doing so. They held off for years on hearing it.
When Israeli human rights lawyers began pursuing the case outside Israel under the jurisdiction of international law, then the Supreme Court’s inaction made it look witless. Then they finally devised a way out of their predicament that preserved a fig leaf of judicial probity. They heard a separate case about targeted assassinations and ruled (don’t ask me how they reached this conclusion) that they were legal under international law in limited circumstances.
This allowed them at least to ratify the commanders’ original decision to kill Shehadeh. But they still had to deal with the other deaths. Which brings us to the independent commission concept:
Three months ago, the High Court ordered the state to declare whether or not it would agree to the establishment of an independent panel. When the court ruled in December 2006 that targeted assassinations are not illegal under international law, it also determined that the state is obligated to “objectively” investigate decisions taken by the Israel Defense Forces in cases where innocent civilians have been killed.
“Despite the fact that the regulations determined by the High Court’s verdict on the policy of targeted assassinations are not applicable to the incident in question,” wrote deputy State Prosecutor Shai Nitzan, “the state agrees that the circumstances under which innocent civilians were hurt [!!] in the course of the action against Shehadeh will be examined by an objective investigative committee that will be appointed for this purpose by state authorities.”
The attack in July 2002 leveled an entire residential building in Gaza City. High Court justices repeatedly delayed the hearing on the petition, deciding it would be heard only after ruling on the targeted assassinations policy.
My guess is that the Supreme Court has just engaged in a bit of a nod and a wink to the state prosecutor which allows both of them to say that they dealt with the issue without dirtying their hands with it. There will be an independent commission which will find that despite the terrible loss the judgment of the commanders was sound and the civilians were an unfortunate casualty of a nasty but necessary war on terror.
Cynical? Perhaps. But if you don’t become cynical watching how Israel operates regarding matters like these then you’re either a flag-waving true believer or Pollyana. And I’m neither. That being said, one always preserves the hope that some justice will be done in this case and some officer’s judgment will be questioned if not excoriated.