As threatened ICC prosecution looms, IDF strives to prove independence of military justice

Givati soldiers have made a series of statements on and off the record against IDF lawyers investigating them.

By YONAH JEREMY BOB
International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014 (photo credit: REUTERS)
International Criminal Court prosecutor Fatou Bensouda speaks with her deputy, James Stewart, at an ICC hearing in March 2014
(photo credit: REUTERS)
Commanders and soldiers from the IDF’s Givati Brigade struck first.
The objective was not Rafah, Shejaiya, or Khan Yunis, but determining the line where IDF operational commanders end and IDF lawyers’ authority becomes dominant.
With International Criminal Court prosecutor Fatou Bensouda’s Friday decision to open a preliminary probe into war crimes allegations from the summer Gaza war and to recognize “Palestine” as a state, every aspect of the internal IDF probe and political debate over how Israeli war crimes investigations should be conducted is being examined under a microscope.
The Givati Brigade soldiers were involved in the August 1 Hannibal Protocol incident, in which Hamas’s attempted capture of an IDF soldier was thwarted by the deaths of the soldier, the Hamas operatives, and a disputed number of civilians. The protocol, initiated in 1986, allows commanders to take whatever action is necessary, including endangering the life of a soldier being captured, to foil the capture. However, it does not allow for a soldier to be killed in order to prevent his capture.
The Givati soldiers have made a series of statements on and off the record against the IDF lawyers investigating them.
These statements were made with the full knowledge that IDF Advocate- General Maj. Gen. Danny Efroni is in the process of deciding whether to order a criminal investigation into the incident.
Next, they or one of their supporters (who is being separately investigated) leaked classified audio and video footage of the August 1 incident to boost their argument that all they did was their duty.
The final and most powerful salvo came from Defense Minister Moshe Ya’alon, who said emphatically that the August 1 incident should not be criminally investigated and that most of the alleged war crimes should be handled by military discipline, not criminal charges.
Initially, there was silence, but the Israeli legal establishment has now struck back with a vengeance. A few days after Ya’alon’s comments, Attorney-General Yehuda Weinstein last Monday published an unprecedented public opinion that the IDF indeed employed the Hannibal Protocol, that the rules do not violate the laws of war, and that Efroni’s decision about whether to criminally investigate the August 1 incident is entirely his to make and not subject to the chain of command.
Friday brought heated comments from both Efroni and Supreme Court Justice Uri Shoham, himself a former military advocate-general.
Efroni left no doubts that he would not be pressured, remarking that he could even criminally investigate the IDF chief-of-staff if he believed the law demanded it.
Shoham went beyond the usual low-key commenting status of judges and openly bashed political officials for pressuring Efroni.
When the ICC decides whether it will move from a preliminary probe to its own full criminal investigation into IDF actions, all of these statements and whether the ICC believes Efroni is acting independently or under pressure will be Exhibit A.
Another noteworthy comment Efroni made, but which was not heavily analyzed in the media, was a remark that 80 percent of the time criminal investigations are not necessary, implying that only the remaining 20% would be investigated.
Efroni was saying this to reassure IDF operational personnel that most of them would not be investigated criminally.
But 20% is not a low number and such a high rate of investigations may be exactly the proof of IDF lawyers’ independence that will keep the ICC out and compel it to recognize the IDF investigations as reasonable.
There have been 100 complaints filed with the military prosecution and only 13 criminal investigations publicly announced, which could mean that there are another seven or so criminal investigations on the way – investigations that may include some of the most controversial incidents, such as the August 1 Hannibal Protocol incident.