The Israel Defense Forces on Tuesday closed an investigation into a 2009 shelling of a house in Gaza that killed 21 members of a Palestinian family, saying this did not constitute a war crime and that the civilians had not been targeted purposefully.
The incident occurred during Operation Cast Lead, the three-week war between Israel and Hamas in the Gaza Strip.
Three and a half years after Operation Cast Lead, Military Advocate-General Brig. Gen. Danny Efroni announced that he would not indict officers involved in the incident, meaning that no legal action would be taken against Col. Ilan Malka, who was then commander of the Givati Brigade.
Israel launched the offensive in late 2008 with the declared aim of ending cross-border rocket fire that continuously struck southern Israeli towns. Much of the fighting took place in densely populated areas of the small coastal territory. More than 1,400 Palestinians and 13 Israelis were killed in the conflict.
Witnesses said that on Jan. 4, 2009, Israeli troops had ordered about 100 civilians in the Zeitun district of Gaza to enter the house and stay there, out of their way. But the following day the house was hit by Israeli shells and collapsed, killing many members of the extended Samouni family.
After an investigation into the shelling and allegations of war crimes, Military Advocate-General Efroni "found the accusations groundless," the military said in a statement. "The military advocate-general also found that none of the involved soldiers or officers acted in a negligent manner." However, the military said it was making changes to "ensure that such events will not happen again."
Reporting on Tuesday on the decision not to take legal action, Israel's Channel 10 television described the shelling as "the most serious operational mishap" of the Gaza war.
In early 2010, then Military Advocate-General Maj. Gen. Avichai Mendelblit began investigating Col. Malka for allegedly ordering an air strike on a Gaza building despite being aware that only civilians were inside.
During a police interrogation under caution, Malka confirmed his order to bomb the building, but denied that he knew civilians were inside. Malka said he ordered the strike because aerial images had shown terrorists armed with rocket-propelled grenades in the area.
Due to the investigation, then Chief of General Staff Lt. Gen. Gabi Ashkenazi denied him a promotion. Malka currently holds the position of Central Command operations officer. Now that the case against him has been closed, after a delay of two years, he is expected to be promoted to the rank of brigadier-general. However, Chief of General Staff Lt. Gen. Benny Gantz has decided that Malka will not be promoted to a command position, according to Israel Radio.
Mendelblit said on Tuesday that facts discovered during the investigation refuted accusations of war crimes against Malka and that others involved in the incident were also found innocent of wrong-doing. Mendelblit added that Malka's decision did not deviate from the decisions that any "reasonable officer" would make.
Lt. Col. (res.) Sammy Asraf, who was Givati Brigade chief of staff at the time, told Israel Radio that had Malka not ordered the strike, Givati soldiers "would no doubt have been wounded." He emphasized that the shelling was aimed at a house from which heavy fire was being aimed at the Israeli troops.
The army statement said, "The Military Advocate-General, Brig. Gen. Danny Efroni, has stated his opinion regarding alleged ...war crimes in Gaza's (Zeitun) neighborhood. According to the findings, the investigation found the accusations groundless."
"In conclusion ... Efroni decided that legal action should not be taken, and ordered for the investigation to be terminated immediately," the statement said. “The military advocate-general emphasized that lessons should be learned from this incident to prevent similar ones from happening in the future. Toward this end, the military advocate-general made several recommendations to the chief of general staff that have already been raised with general staff officers."
A U.N. commission that investigated the offensive in Gaza put the toll of members of the Samouni family killed in the strike at 29. The commission's chairman, South African judge Richard Goldstone, said it was one of the most serious incidents his team had investigated. Israel refused to cooperate with the inquiry and strongly criticized Goldstone's conclusions, which said Israel and Hamas were both guilty of war crimes, as biased.
The military's move outraged relatives of the killed Palestinians and the Israeli human rights group that had pressed for the investigation. They said the findings proved the army is not capable of investigating the conduct of its soldiers.
"We are talking about a crime against civilians," said Salah Samouni, 34, whose 2-year-old daughter was killed when Israeli shells slammed into the Gaza City house where the family had gathered.
"We know that God above will punish the killers. If they escaped trial, they can't escape God's punishment," said Samouni, who survived the shelling.
The Israeli group B'Tselem, one of the human rights groups that had submitted a complaint about the incident, said the response it received from the military did not detail the findings of the shelling investigation or provide reasons behind the decision to close the file.
"It is unacceptable that no one is found responsible for an action of the army that led to the killing of 21 uninvolved civilians, inside the building they entered under soldiers' orders, even if this was not done deliberately," Yael Stein, B'Tselem's head of research, said in a statement.
