On August 19, the Israel Defense Forces (IDF) announced decisions regarding five Gaza-conflict incidents reviewed by its General Staff Fact-Finding and Assessment Mechanism (FFAM), which examines exceptional operational incidents. The five cases involved casualties among personnel from World Central Kitchen, the Palestine Red Crescent Society, the United Nations Relief and Works Agency for Palestine Refugees in the Near East, and Médecins Sans Frontières, as well as individual Palestinian civilians, including a young child. The incidents accordingly drew, and continue to draw, global attention.
In two cases, the Military Prosecution referred the matters to the Military Police Criminal Investigation Division (MPCID) for criminal investigation. In the remaining three, it concluded that the findings did not give rise to reasonable suspicion of criminal misconduct required to open an investigation. “Command measures” (see below) had nevertheless been imposed in one of those cases, and, in a second, the relevant commanders were directed to consider whether such measures were warranted.
To grasp the nature of those decisions and their practical significance, it is essential to understand the organizational architecture and processes in which they arise. Accordingly, in this explainer, I describe how the Israeli military justice system is structured to address potentially unlawful battlefield conduct (see the IDF brief description here). This explanation draws in part on prior research and writing (see here and here), including a field study in Israel with Colonel (ret’d) John Merriam, as well as more recent interactions with Israeli lawyers, including those in the IDF (see also the IDF explanation in the context of the War in Gaza and Ch. VII of Israel’s 2014 report).
The IDF decisions have drawn harsh criticism, including from governments (e.g., joint statement from Australia, Canada, and the United Kingdom). Therefore, I caution readers that I take no position on any of the five determinations or on Israel’s overall performance in investigating possible law of armed conflict (LOAC) violations and war crimes by its forces during this conflict. The purpose here is narrow and descriptive—to enable Just Security readers to place criticism or justification of Israeli responses to these and other concerning incidents within their structural context.
What International Law Requires
LOAC violations must be distinguished from war crimes, as different obligations attach to each. The former entail State responsibility when attributable to a State. In contrast, war crimes involve the individual criminal responsibility of those who commit, order, or are otherwise responsible for them. The same conduct may engage both forms of responsibility, for although many LOAC violations do not constitute war crimes, conduct constituting a war crime generally violates an underlying LOAC rule.
States have a clear obligation to enforce compliance with LOAC. Common Article 1 of the 1949 Geneva Conventions requires States to “respect and ensure respect” for the instruments internally among their armed forces (see my discussion with Watts), while each of the Geneva Conventions separately requires States to take the measures necessary to “suppress” acts contrary to its provisions (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146). The ICRC’s Geneva Conventions Commentary explains that suppression can occur through judicial or disciplinary proceedings, administrative and regulatory measures, orders to subordinates, and other internal steps designed to stop violations and prevent recurrence among a State’s own armed forces, with the appropriate response depending on the violation’s gravity and circumstances (e.g., GC I Commentary, ¶¶ 2894-98). As with every other State in the world today, Israel is a Party to the Conventions and accordingly bound by these requirements.
Additional Protocol I (AP I) to the Geneva Conventions, Article 87, similarly requires commanders to prevent, suppress, and report breaches, and “where appropriate” to initiate disciplinary or penal action. Although Israel is not a Party to the Protocol, the article’s duties are widely reflected in State practice and military doctrine. For instance, the United States, likewise not a Party, imposes these very requirements on its commanders (DoD Law of War Manual § 18.4; DoD Directive 2311.01, § 4). Because war crimes committed by members of a State’s armed forces will generally also constitute LOAC violations attributable to that State (ASRIWA, art. 4), these obligations are relevant when war crimes are alleged.
The Geneva Conventions identify certain LOAC violations as “grave breaches,” and therefore as war crimes, committed by those who engage in them. Their grave breaches provisions, applicable only in international armed conflict, require States to enact effective penal sanctions, search for persons alleged to have committed or ordered grave breaches (i.e., to investigate), and either try them or hand them over for trial (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146). AP I, also applicable only in international armed conflict, sets forth additional grave breaches and confirms the obligation to “repress” them (arts. 11, 85-90). However, as noted, Israel is not a Party.
War crimes can also be customary in character. Article 8 of the Rome Statute is often referenced when identifying customary law war crimes in both international and non-international armed conflict. However, caution is warranted, because particular provisions may exceed, fall short of, or differ somewhat from those enjoying that status of customary international law.
As I have explained elsewhere, a sufficiently credible allegation of a war crime triggers the duties to investigate and, if appropriate, prosecute (see also my analysis with Milanovic). The alleged offender need not be identified at the outset, and an allegation may come from any source. But whether this obligation applies to war crimes committed during a non-international armed conflict is less than fully settled, in part because the treaty obligations are expressly applicable only in international armed conflict. The issue is significant as the classification of particular phases and relationships in the Gaza hostilities remains contested (my own view is that the conflict is non-international).
Rule 158 of the ICRC’s Customary International Humanitarian Law study asserts that the obligations to “investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects,” apply in both international and non-international armed conflict. In my view, the ICRC’s assertion is correct (see my analysis). In this regard, I note that the United States likewise treats national investigation of alleged violations, and discipline of individuals for them, as general obligations rather than strictly tied to the grave breaches provisions (DoD Law of War Manual, §§ 18.9, 18.13, 18.19). It should also be noted that Israel’s Turkel Commission, for which I served as a legal consultant, concluded that “the obligation to examine and investigate alleged violations of international humanitarian law is an established and recognized obligation in international law.” The Commission also stated, “there is no longer a difference between the law of international and non–international armed conflicts with regard to the existence of an obligation to examine and investigate imposed on the territorial State and the State of nationality of the suspect.”
Human rights law may impose additional investigative obligations where it applies. Its requirements of independence, effectiveness, promptness, and impartiality are broadly compatible with LOAC, but their application during hostilities must account for the governing LOAC rules and operational circumstances.
Institutional Independence
At the pinnacle of the IDF military justice system sits the Military Advocate General (MAG, the “TJAG” equivalent), a general officer appointed by the civilian Minister of Defense on the Chief of the General Staff’s recommendation. The MAG serves as the senior legal adviser to the Chief and other senior military authorities. Although militarily subordinate to the Chief, the MAG is, under Israeli law, subject to “none but the authority of law” (Military Justice Law, §§ 177-78; IDF Order 2.0613; Shamir-Borer). In legal matters, the MAG is subject to the professional guidance and oversight of the Attorney General (Shamir-Borer, citing HCJ 4723/96, Atiya v. Attorney General and AG Directive 9.1002).
This has important consequences. First, the MAG has the final say on operational law questions, including targeting. It is not advice a commander may weigh and reject. A commander who disagrees with an IDF lawyer’s legal determination may elevate the question up the legal chain of command, but, subject to the Attorney General’s oversight, the MAG’s decision on the matter is final. That is a dramatic difference from U.S. practice, in which a judge advocate’s opinion is advice and only that. In effect, MAG Corps lawyers hold a red card over individual military operations.
The second consequence is that MAG Corps lawyers report to MAG Corps commanders, who in turn report to the MAG. Even when an IDF lawyer is embedded in a unit or operation, no commander outside the MAG Corps is in that lawyer’s chain of command. Professionally, they answer to other IDF lawyers, not to the commander receiving the advice.
In my estimation, this system has tangible benefits vis-à-vis compliance with LOAC. Because IDF lawyers answer through the legal chain of command, there is less temptation to tell the commander what they want to hear. And the structure incentivizes, rather than discourages, disclosure of questionable incidents to higher authorities. But there is a downside. In the U.S. system, judge advocates, because they belong to the unit, can build close relationships with the commanders and the operators they advise because they are part of the team, and, so to speak, they are the commander’s lawyer. This relationship can foster rather than obstruct operational law objectives. The Israeli structure trades some of this relationship for independence.
Additionally, within the IDF’s MAG Corps structure, operational law and military justice functions and organizations are distinct, converging only in the person of the MAG. The International Law Division bears primary responsibility for LOAC, and its lawyers serve with field units and advise commanders during operations. In contrast, Military Prosecution handles military justice. Its Office of the Military Advocate for Operational Affairs, a unit of a few dozen officers, oversees all investigations and conducts all prosecutions of alleged misconduct arising from operational activity. Thus, IDF lawyers involved in an incident, even if only as members of the unit that provided operational legal advice, have no input into decisions about how the incident is to be handled.
Handling Allegations
In Israel, IDF members have a duty to act when there are reasonable grounds to believe another member is about to commit a serious offense, to prevent it, and to report it (Military Justice Law, §§ 134, 226). Allegations can also come from other sources, such as victims, family members, witnesses, Israeli and international NGOs, attorneys, the press, and international organizations.
In the Military Prosecution, IDF lawyers screen allegations brought to the Military Prosecution’s attention to determine whether they are sufficiently credible on their face to warrant further review. If the facts indicate that the alleged conduct meets this condition and could be criminal (because it cannot be explained as lawful combat, as in cases of looting or detainee abuse, for example), the case is referred to the MPCID for criminal investigation. In some situations, such as the death of a detainee in IDF custody, a criminal investigation is automatically triggered.
The harder cases involve targeting and other combat-related incidents because they may involve lawful incidental injury or collateral damage, or result from a reasonable mistake. There are four possible courses of action—close the file for lack of grounds to suspect criminal conduct; order a criminal investigation; refer the matter to the relevant commanders for “command measures;” or, where a violation might have occurred but the situation needed clarification, refer the incident to the Fact-Finding and Assessment Mechanism (FFAM), as was the case in the five incidents cited at the outset of this article.
The FFAM’s task is not to conduct a criminal investigation. Rather, it conducts a factual examination that is meant to be both sufficient to allow the MAG to decide whether a criminal investigation is needed and expeditious. It is a General Staff body (in other words, separate from operational units), headed by a Major General, with officers and civilian employees assigned who have expertise in fields such as intelligence, targeting, and weapons. This expertise is essential, for an investigation lacking an understanding of matters such as weapons effects, command-and-control, collateral damage estimation, or enemy tactics will struggle to reliably determine what actually occurred. A legal officer advises the FFAM.
Soldiers are required to cooperate with the FFAM, which has also developed digital tools to support its work. Findings and materials gathered during the fact-finding process are privileged under Israeli law, much as certain administrative investigations are privileged in other militaries, including the United States. The privilege is intended to secure the cooperation of all involved in an incident, typically to identify systemic shortcomings in tactics, techniques, and procedures (TTP) that led to the incident; indeed, one purpose of the FFAM is to generate lessons learned. The privilege does not render independently obtainable evidence inadmissible or prevent investigators from obtaining the same information through criminal-investigative channels.
Once the assessment is complete, the findings and materials go to the MAG Corps for a decision. Before that decision, a supplementary examination can be ordered. Complainants are notified of the results, subject to legal and security limitations, and the decision is sometimes published, as occurred in the five incidents.
To date, the FFAM has completed some 150 fact-finding assessments related to the Gaza conflict. These assessments have included, for instance, incidents involving allegations of significant harm to aid organization infrastructure and workers, shelters, critical infrastructure, medical facilities and personnel, and other civilian structures and civilians. Hence, it can be inferred that additional decisions, though not made public, were made regarding at least some of those incidents.
Criminal Investigation
If there is reasonable suspicion of criminal misconduct, the MAG will direct the MPCID, a unit separate from both the MAG and the operational chain of command, to conduct a criminal investigation. Within the MPCID, the National Unit for Operational Affairs specializes in alleged offenses committed during operations; its investigators receive additional training in international law, battlefield reconstruction, and the collection of evidence from non-Israeli witnesses and victims. The Military Prosecution supervises the investigation legally and provides legal advice, but MPCID investigators, who are not subordinate to the MAG or operational commanders, conduct it. They deliver their final report to the Office of the Military Advocate for Operational Affairs, which may request further investigation.
An additional option the MAG may exercise is to refer the FFAM materials to an Investigating Officer, an operational commander who is outside the chain of command that was allegedly responsible for the incident. That officer enjoys the same investigatory powers as the MPCID. A U.S. Army analog is the command-directed investigation under Army Regulation 15-6 (Commander’s Handbook on the Law of Land Warfare, FM 6-27, ¶ 8-4).
An IDF publication from August 2024 reported that since the start of the conflict, the MAG has ordered 74 criminal investigations into potential offenses, including detainee mistreatment, property destruction, and illegal use of force. Given the time that has passed since then, it is reasonable to assume that many more have been ordered.
Criminal Proceedings
Upon receipt of the completed investigation, the MAG decides whether criminal or disciplinary proceedings are warranted. If the decision is to proceed to trial, military prosecutors will file an indictment in military courts, which requires evidence establishing a reasonable prospect of conviction.
The military courts are independent of both the MAG and the operational chain of command. They comprise first-instance regional military courts and a Military Court of Appeals and hear cases under the Military Justice Law (analogous to the Uniform Code of Military Justice, UCMJ). Further appeal is to the Supreme Court, but, as in the United States, only if it accepts the case as one of particular importance.
First-instance trials are ordinarily heard by a three-judge panel rather than a jury (Military Justice Law, §§ 201-202). The panel includes at least one professional military judge and may include non-lawyer IDF officers unconnected to the case. An independent commission appoints professional military judges. The Military Court of Appeals also typically comprises three officers, a majority of whom must be professional military judges (§§ 214, 216). Its President, who also serves as the chief of the military courts system, is a Major General appointed by Israel’s President after nomination by the Military Judges Selection Committee, which is chaired by the Defense Minister (§ 185).
Proceedings follow the rules of evidence used in civilian criminal court. They are generally public, and many judgments are published. Military Defense represents the accused (Military Justice Law, § 182). Although part of the MAG Corps, it enjoys professional independence and, as in U.S. military courts-martial, must act solely in the defendant’s interest. Unlike U.S. military trial-level decisions, the prosecution may, as in some civil law jurisdictions, appeal an acquittal or sentence to the Military Court of Appeals or even the Supreme Court.
So far in this conflict, ten IDF soldiers have been indicted, and two have been convicted in cases that have gone to trial. This July, for instance, three IDF reservists were indicted for beating a handcuffed detainee. In February, an IDF reserve soldier was convicted of theft in Gaza, and in February 2025, a reserve soldier was convicted of mistreating detainees.
As in the United States, misconduct or deficient performance may be addressed through measures other than criminal prosecution at trial. Disciplinary proceedings before a commander, similar to non-judicial punishment in the United States under Article 15 of the UCMJ, can result in reprimands, fines, demotion, or, within certain limits, confinement (Military Justice Law, Part 3). A commander may also take “command measures,” such as counseling, reprimands, and dismissal from a position, unit, or combat function. No finding of criminal conduct is required for command measures, but they may run concurrently with disciplinary or criminal proceedings, as they did in one of the five cases in the April 19 announcement. An investigation can also lead to “institutional learning,” which involves changes to procedures, TTP, rules of engagement, and other processes and practices.
Civilian Oversight
The Attorney General may issue professional directives on legal matters that bind all State authorities, including the armed forces, and exercises a degree of supervision over the military justice system. Moreover, the Attorney General may review MAG decisions deemed to be of special public interest, and a complainant or NGO may challenge a MAG decision before the Attorney General and the Israeli Supreme Court, sitting as the High Court of Justice, regarding whether to open a criminal investigation or file an indictment.
Civilian judicial review of military operations is especially robust in Israel compared with other States. In most, including the United States, judicial oversight of ongoing military operations during an armed conflict is exceptionally rare. When it occurs, it usually happens after the fact. Seldom does it affect commanders’ operational calculations. By contrast, Israel’s Supreme Court, sitting as the High Court of Justice, exercises original jurisdiction over challenges to IDF (or government more broadly) actions and may rule directly on the lawfulness of particular tactics. It has unusually liberal standing rules compared to the United States, and public-interest petitions by civil society organizations such as the Association for Civil Rights in Israel and B’Tselem are not uncommon. Indeed, any party, including persons who are neither citizens nor residents, affected or potentially affected by the action may petition the Court directly on the ground that an IDF action exceeded its authority under the law, was otherwise unlawful, or was highly unreasonable.
The Court’s docket illustrates its broad reach. It has ruled, inter alia, on detention; the use of neighbors to warn residents of homes where arrests were about to be made; the use of flechettes and white phosphorus; and the demolition of homes of suspected terrorists. In the watershed Targeted Killing case in 2006, it set out guidelines for individualized anti-personnel operations. The Court has ruled against the government in some noteworthy cases. For instance, in the 2005 Adalah Legal Center for Arab Minority Rights in Israel v. IDF Central Commander judgment, it held that the “advance warning” procedure violated international law.
The Supreme Court has handled a significant number of petitions during the current conflict in Gaza. In some cases, it required the Government to provide recurring updates or supervised policy changes over an extended period while the case was pending, as in petitions concerning the supply of electricity, food, water, and medical supplies to Gaza, or the petition regarding detention conditions in the “Sde-Teiman” detention facility (see, e.g., Shany and Cohen). It has ruled against the Government at times, including in a petition regarding the ban on ICRC visits to detention facilities, where the Court directed a policy change. Other cases the Court has been adjudicating concerned, inter alia, evacuation of the wounded, amendments to domestic detention laws, and journalists’ access to the Gaza Strip. The Court even addressed specific tactical operations when it required the State to urgently respond to a petition filed by an NGO that suspected the IDF was planning action against one of Gaza’s hospitals.
And the government may establish an independent public commission of inquiry to examine a major operation or incident (see Shany and Cohen). In a particularly noteworthy case, it did so in 2010 after Israeli forces intercepted the Gaza Freedom Flotilla, an attempt to challenge Israel’s naval blockade and deliver humanitarian supplies to Gaza; nine individuals aboard the Mavi Marmara died as the IDF took control of the ship. The resulting Turkel Commission examined both the flotilla operation and Israel’s system for investigating alleged LOAC violations. Following the Turkel Commission’s recommendations, the IDF established the FFAM discussed above.
Concluding Thoughts
The decisions announced on August 19 cannot be properly understood without understanding the system and processes within which they were made. In my estimation, the Israeli military justice system is, in its basic and overall architecture, sound. In important respects, it will be familiar to U.S. military lawyers, including features such as sometimes conducting fact-finding prior to a criminal investigation, employing specialized military investigators outside the chain of command (e.g., AFOSI, CID, NCIS), having defense counsel operate outside the chain of command, and the availability of numerous options other than criminal prosecution for responding to an incident.
But the degree of institutional independence built into the Israeli structure is striking, especially the “stove-piped” legal and operational chains of command. Such institutional independence can be a powerful tool for responding appropriately to LOAC violations and war crimes, especially in the face of pressure to look the other way. I have watched a number of MAGs commendably refuse to do so despite considerable pressure.
Of course, such independence is but one measure of adequacy. Promptness, thoroughness, transparency, and the effectiveness of resulting accountability measures must also be assessed when evaluating the system’s actual effectiveness. The question, therefore, is whether Israel’s sound institutional framework also operates effectively in practice. As the intensity of the conflict in Gaza winds down, it is an opportune time to step back and take a close, objective look at whether that framework has operated as planned.
– Michael Schmitt, Published courtesy of Just Security.
