November 17, 2022 | Flash Brief

Abu Akleh Investigation Conflicts With Prior Assessment, Increases Risk for U.S. Military

November 17, 2022 | Flash Brief

Abu Akleh Investigation Conflicts With Prior Assessment, Increases Risk for U.S. Military

Latest Developments

Israeli officials this week confirmed that the U.S. Department of Justice launched an investigation into the death of Al Jazeera reporter Shireen Abu Akleh. The Palestinian-American journalist tragically died last May during an Israeli military counter-terror operation targeting Iran-sponsored Palestinian Islamic Jihad terrorists in the West Bank city of Jenin. Israel has increased counter-terror operations in the West Bank in response to Tehran’s attempt to stoke violence. The Justice Department investigation, which appears to conflict with a previous U.S. government assessment that Israeli forces likely struck Abu Akleh unintentionally, could put U.S. and Israeli troops and other officials at increased risk for international investigations.

Expert Analysis

“It should be an expectation of every American that our government will press democratic allies for expedited and transparent investigations when U.S. citizens die in any circumstance — and that’s what already happened in this case. The top U.S. security official in the area oversaw an independent forensic analysis and concluded that Abu Akleh’s tragic death was not intentional. Terrorists and their sponsors are responsible for civilian deaths — not democracies that respond to defend civilians. DOJ’s decision to launch an investigation just days after the Israeli election may embolden America’s enemies to press for investigations of the U.S. military, too.” Richard Goldberg, FDD Senior Advisor

Unprecedented Investigation Contradicts U.S. Security Coordinator

On July 4, 2022, the State Department released a statement noting that independent, third-party examiners — in a process overseen by Lieutenant General Michael R. Fenzel, the U.S. security coordinator (USSC) for Israel and the Palestinian Authority — “could not reach a definitive conclusion” regarding the origin of the bullet that killed Abu Akleh. “Ballistic experts determined the bullet was badly damaged, which prevented a clear conclusion,” the statement read.

However, the USSC received full access to the Israel Defense Forces’ (IDF) own investigation and concluded that gunfire from IDF positions was likely responsible. Notably, said the State Department, the USSC “found no reason to believe that this was intentional but rather the result of tragic circumstances during an IDF-led military operation against factions of Palestinian Islamic Jihad,” a U.S.-designated foreign terrorist organization.

All of this ignores the larger question of why Israel was in Jenin in the first place — to counter Tehran-sponsored terrorists following a wave of attacks that killed 14 Israelis — and the importance of holding terrorists and their sponsors responsible for civilian deaths in situations like these. 

U.S. Military at Risk?

The International Criminal Court’s (ICC) governing treaty authorizes it to investigate only alleged crimes by persons whose national justice systems are “unwilling or unable” to investigate. That is why, in 2020, the ICC closed a preliminary investigation of alleged U.K. war crimes in Iraq, noting there was insufficient evidence that Britain had been “unwilling genuinely” to investigate and prosecute its own alleged crimes.

While America and Israel are not ICC members, the court has insisted that it maintains jurisdiction over both countries. The ICC is undertaking an investigation of U.S. troops and CIA officers for alleged crimes – relating to the war in Afghanistan — which occurred in Afghanistan, Lithuania, Poland, and Romania. It is separately undertaking an investigation of Israeli officials for alleged crimes in the disputed territories. The Justice Department’s investigation may supply new fodder for those investigations, providing evidence that the U.S. government lacks confidence in the ability of democracies to investigate themselves willingly and ably.

Related Analysis

What the U.S. Should Say About the Death of Shireen Abu Akleh,” by Mark Dubowitz and Jonathan Schanzer

Hezbollah and Iran Are Destabilizing the West Bank,” FDD Flash Brief


Israel Palestinian Politics