Following the three-week Israeli military operation in Gaza that commenced in December 2008, the Israel Defense Forces conducted numerous investigations into allegations of misconduct and violations of the Law of Armed Conflict by forces during the Operation. Some investigations have led to the initiation of criminal proceedings against individual IDF soldiers in Military Courts, conducted in accordance with the principles of criminal law and the rules of evidence.


During the course of these investigations, information arose regarding an incident of civilian deaths resulting from IDF fire, and the Military Advocate General ordered a criminal investigation into the incident to be conducted by the Military Police Criminal Investigation Unit. The findings of the investigation implicated a combat soldier, Staff Sergeant S., in the incident, and on this basis the Military Advocate General ordered an indictment against S. on the charge of manslaughter of an unidentified civilian.


It was suspected that this incident related to the deaths of Majda and Rayya Hajaj, reported by a number of non-governmental organizations and subsequently the subject of a separate criminal investigation. However, due to a lack of sufficient evidence and a number of inconsistencies between the findings of the two investigations, a correlation between the two incidents could not be verified. The investigation into the incident involving the deaths of Majda and Rayya Hajaj was ultimately closed having failed to ascertain the circumstances surrounding the incident.


In the course of the criminal proceedings on the manslaughter charge against Staff Sergeant S., substantial hurdles arose. One evidentiary obstacle was the serious difficulty in proving beyond a reasonable doubt the causal connection between the shooting incident and the death of a civilian. An additional concern was the potential harm to the due process rights of the accused, as a result of the defense’s inability to introduce potentially exculpatory evidence, since the source of this evidence was a military command investigation of the incident, the findings of which are confidential under law.


These circumstances ultimately led the military prosecution to revise the indictment to a lesser charge. As such, the charges were amended to the illegal use of a weapon under Article 85 of the Military Code of Justice, and conduct unbecoming under Article 130, resulting from the unauthorized use of a weapon, and the discharge of a weapon without taking proper safety precautions during combat. The amended indictment was agreed upon by the defense in the context of a plea bargain, following a separate mediation process that was suggested by the Court and conducted by the President of the Military District Court, who was not on the bench hearing the proceedings.


Given the significant amendment to the charges, prior to considering the plea bargain itself the Court determined it appropriate to carefully review the facts and circumstances that had led to the amended indictment. After hearing submissions from both parties, the Court concluded in its decision of August 12, 2012, that “the amended indictment was a result of an appropriate and reasonable examination of the evidentiary and factual difficulties faced by the prosecution”.


Turning to the plea bargain itself, the Court considered the prosecution’s reasoning for the suggested sentence provided in the plea bargain. Particularly, the prosecution recognized that the incident occurred in the midst of an intensive armed conflict in Gaza – an operation which involved close quarter combat in populated areas, against an adversary that deliberately blended in with, and exploited, the civilian population. Further, the prosecution also acknowledged that at the time of the incident, IDF forces in the area possessed concrete intelligence indicating planned attempts by terrorists to attack their position through feigning civilian status and waving white flags.  


In its decision to approve the plea bargain, the Court accepted that although the defendant’s actions constituted “a severe deviation from proper precautions and from the boundaries of authority given to a soldier in the course of combat,” the prosecution’s consideration of the extenuating circumstances in determining the sentence was appropriate. In addition to these circumstances, the Court also took into account the fact that the defendant was removed from his position as a combat solider and discharged from the army, pleaded guilty to the amended charges and waived any additional legal and factual claims.


As such, in accordance with the plea bargain submitted to the Court, Staff Sergeant S. was sentenced to incarceration for 45 days with an additional six-month suspended sentence, and was demoted to the rank of private. As mentioned above, in the aftermath of the incident, S. was also removed from his position as a combat soldier and subsequently discharged from military service in the IDF.