Israeli defense establishment officials are warning about problems they could expect from far-right lawmaker Itamar Ben-Gvir, who is working to advance legislation that would grant immunity to IDF soldiers and the Israel Police from investigations or trials for their actions during security incidents. Defense officials are concerned that such a move would make Israeli soldiers susceptible to prosecution by the International Criminal Court in The Hague.
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Officials in the Israeli defense establishment have also been increasingly critical of IDF Chief of Staff Aviv Kochavi, now in the final few weeks of his term, for failing to make his feelings loud and clear about the harm to the army’s independence.
As part of the coalition agreements between Likud and its extreme-right partners, Otzma Yehudit is demanding legislation be passed that grants legal immunity to soldiers and police officers for actions taken during operations.
“We are insisting on a law giving immunity to soldiers and police and on changes to open-fire rules,” Chanamel Dorfman, head of the party’s coalition-negotiations team and Ben-Gvir’s likely bureau chief in the ministry, told Israel Hayom in an interview two weeks ago. “Without a change in the open-fire regulations and an immunity law for soldiers and police, there’s nothing we want from the government. We won’t join the government without them.”
The defense establishment knows little about the incoming government’s plans apart from what they see in the media and hear from officials inside the government, but the immunity issue is causing great worry in the IDF.
They note that although there have been objectionable actions by soldiers and police during security operations, to this day not a single soldier has been brought before an international court. The sources told Haaretz that this is due to the efforts of the IDF, the Justice Ministry and Israel’s prime ministers over the past decades. But, they warn, this is not an irreversible situation – a law granting immunity may create a situation that could “change faster than you can imagine,” in the words of one.
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Defense officials have recently expressed concern in private conversations about passage of an immunity law. They warn that such a law will cause Israel to lose the legal status it has enjoyed in the international community when it conducts military operations. The fact that no Israeli has been brought before the International Criminal Court for war crimes or other offenses is due to the military and civilian justice system in Israel, which is regarded by the international community as independent and trustworthy.
No intervention necessary
The ICC is mandated to act in cases where crimes go unpunished by the country where the alleged perpetrators live. The international community’s assumption is that a properly governed country is capable of bringing to justice its citizens if they violate the law and therefore intervention by the ICC isn’t necessary. The court operates on the principle of “complementarity,” in other words that every country has the right to exhaust all procedures against its civilians, soldiers and police before any foreign legal entity may act. If a country fails to investigate crimes and suspicious incidents attributed to its nationals and prevents them from being prosecuted at home, the ICC may intervene even if the country where the offense was committed refuses to cooperate with it.
Israel is well aware of the advantages conferred upon it by the principle of “complementarity.”
In 2002, during the targeted assassination operation against Salah Shehadeh, the commander of Hamas’ military arm, 15 civilians inside the building attacked by Israel Air Force fighter jets were killed. Spain’s high court became involved following an appeal to open a criminal investigation against those responsible. But the Spanish National Court ultimately rejected the appeal on the grounds that an investigation conducted by the IDF and steps taken by the Israeli legal system had been thorough and professional, so there was no reason to intervene.
Likewise, an incident that occurred during Operation Cast Lead of 2008-2009 was looked into by international legal officials. A UN investigative committee headed by renowned South African Judge Richard Goldstone alleged that during the operation, Israel had attacked government buildings, mosques, schools, hospitals and other civilian installations that are protected under international law. Mary McGowan Davis, who later took over as committee chair, determined that Israel had invested considerable resources and made a great effort to investigate hundreds of incidents where improper action by the forces during the operation.
None of this would have happened without a strong, independent military and civilian judicial system.
Defense officials are concerned that the debate in Israel over immunity for soldiers and police is being conducted too quickly, without consulting legal experts, and that this may lead the ICC to put Israel higher on its list of investigation targets. As one source noted, the court’s main preoccupations right now are the war in Ukraine and Africa. But he warned that the debate underway in Israel, together with the risk of a series of shocking incidents, increases the odds that Israel will become a top concern of the court.
Officials warned that anyone who thinks Israel can ignore the ICC without consequences does not understand reality. Such a policy would have serious consequences for the people Israel sends to carry out missions abroad for Israel’s security.
In these recent private discussions, defense officials have also expressed worry that the immunity law will not only harm the military and civilian justice systems’ standing internationally, but domestically as well. Soldiers and police officers may use the law to evade prosecution on the grounds that alleged offenses occurred during an operation. They may even demand immunity when they violated orders.
The burden of trying to understand the consequences of the immunity law – and another proposed law giving Bezalel Smotrich, Religious Zionism leader and finance minister-designate, control of the IDF’s Civil Administration and the Coordinator of Government Activities in the Territories (COGAT) – will fall on Chief Military Prosecutor Brig. Gen. Yifat Tomer-Yerushalmi.
She will have to deal with a new predicament that no one thought could ever arise in Israel – in which senior Civil Administration attorneys will be appointed by politicians based on ideological considerations and not subject to the military prosecutor’s office, which adheres to international law and the laws of war.
Defense sources said Smotrich planned to hold weekly meetings with the entire senior command of the Civil Administration and COGAT to determine the policy and operations. He doesn’t intend to be a bystander, they said.