The Justice Ministry and the Israeli military expanded the attorney general's authority to overturn the military advocate general's decisions last year, a move that would help the government contend with possible prosecutions by the International Criminal Court.
This change allows the attorney general to examine more appeals against the military advocate general's decisions not to criminally investigate complaints alleging a violation of the international rules of war.
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The original guideline from 2015 allowed the attorney general to overturn the military advocate general’s decisions in cases involving fatalities during military operations. The more recent change, enacted in May 2019, allows him to also deal with cases involving serious injuries, with cases of “special public importance,” or with cases in which there is damage to protected civilian sites such as hospitals, mosques or humanitarian institutions. The investigation of such incidents will be permitted even if they occur during routine military operations, if there are claims that these have seriously violated customary international law.
The attorney general’s guideline was published as part of the implementation of recommendations by the Turkel Commission, which investigated the incident in 2010 in which Israeli commandos stormed an aid flotilla bound for Gaza. The Commission dealt with the military advocate general's independent legal status and sought to regulate the relationship between the military and civilian legal systems. In 2016 a guideline was added on the possibility of questioning the military advocate general’s decisions, which established that complaints about military operations can be submitted to the attorney general if the army decides not to investigate an alleged violation of the rules of war. This addition came at the recommendation of a team charged with implementing the Turkel Commission's recommendations. These recommendations were approved by the security cabinet.
Legal sources told Haaretz that the guideline's update will bolster the government's claims that investigations in Israel meet international standards. They added that it will allow Israel to contest the authority of the ICC to investigate events that occurred during Operation Protective Edge or the demonstrations along the border with Gaza. These sources also noted that it would strengthen the military advocate general’s standing within the army, giving weight to his decisions relating to senior officers whose conduct he has to investigate. Last month, Attorney General Avichai Mendelblit said that the international court has no authority in the West Bank and Gaza, after the ICC’s prosecutor announced that she would start investigating Israel’s operations in the Palestinian territories.
The Justice Ministry commented: “Updating the guidelines came in the wake of two comments made in the state comptroller’s report on the international legal implications of Operation Protective Edge. The report also dealt with the implementation of the Turkel Commission’s recommendations. That decision and guideline 9.1002 were meant to bolster two important pillars referred to by the Turkel Commission: bolstering the independent legal standing of the military advocate general within the military system, and the effective monitoring by civilian echelons of the military, in appropriate cases.”