Rule of law: Efroni's wars

By
October 31, 2015 14:01

How the outgoing military advocate-general became the dominant figure shaping Israel’s recent battles and legitimacy fights




Maj. Gen. Danny Efroni, the IDF military advocate-general

Maj. Gen. Danny Efroni, the IDF military advocate-general. (photo credit:IDF SPOKESMAN’S UNIT)

Historians years from now may wonder how the guy who accidentally became the military advocate-general ended up being the most dominant figure of his era in Israel’s wars and in the legitimacy battles with the International Criminal Court.

Prime Minister Benjamin Netanyahu and then-IDF chief-of-staff Lt.-Gen. Benny Gantz were technically in command during the wars where Maj.-Gen. Danny Efroni was the military advocate- general.

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But Efroni, especially after the pressure put on Israel following the UN 2009 Goldstone Report on alleged war crimes from the 2008-2009 Gaza war, had outsized power in determining how far the IDF could go in targeting, and in investigating the wars afterward.

Ironically, Efroni, who just stepped down as the military advocate-general last week, was never supposed to hold the post.


If not for political battles around 2010 between defense minister Ehud Barak and IDF chief-of-staff Lt.-Gen. Gabi Ashkenazi, Efroni’s successor, Brig.-Gen. Sharon Afek, likely would have entered the post back in 2012. But Barak saw Afek as too close to Ashkenazi’s military advocate-general, Maj.-Gen. Avichai Mandelblit, and therefore too close to his rival Ashkenazi.

Other major candidates were viewed by Ashkenazi and his supporters in the IDF as too close to Barak.

Efroni was a compromise candidate who originally had not been on anyone’s short list.

But that was where the accidental nature of his part in the country’s drama ended.

As early as August 2012, Efroni showed unparalleled daring (some say arrogance) in essentially twisting Attorney- General Yehuda Weinstein’s arm into continuing to investigate Ashkenazi in the Harpaz Affair, though Weinstein thought the matter could be closed.

This was bold in that it challenged both a former IDF chief and the attorney- general.

Whatever one thinks of Efroni’s call on the Harpaz Affair – in which it appears that Weinstein will still ultimately close the Ashkenazi file without indictment after two more years of investigating – it set him on a path of being ready to criminally investigate anyone, regardless of the political pressure.

Having known Efroni for over 20 years, a senior legal official who served with him noted that Efroni showed he was extremely professional, a person of integrity unwilling to compromise on his values, and who knew how to be critical of the IDF but also understood the needs of the IDF and was a friend of truth.

This has played a key role in setting the stage for how he has addressed the alleged war crimes controversies from the over 2,100 Palestinians killed by the IDF during the summer 2014 Gaza war.

Under Efroni, as of June (and there have been no public updates since), the IDF had initiated 190 initial incident reviews and started 22 full criminal investigations based on the complaints from the war.

That is a large number by any measure and certainly in comparison to the number of investigations ordered by Mandelblit following the 2008-9 Gaza war.

Part of the change was put in motion following the Turkel Commission’s 2013 suggestions of where the IDF could improve its investigations, and might have happened no matter who was the military advocate-general.

Efroni declined to be interviewed for this article.

But Deputy Attorney-General for International Affairs Roy Schondorf said Efroni “carried out his job in a time of many challenges to the military system.

He advised the IDF during two substantial operations (Pillar of Defense and Protective Edge). In parallel, he brought about significant changes in the apparatus for reviewing and investigating military operations pursuant to the Turkel Report.”

The aforementioned senior legal official concurred regarding Efroni having made substantial key changes to the way the military advocate-general operates.

In other words, without Efroni’s support and active involvement, some of the changes suggested by the Turkel Commission may not have happened or might have been watered down.

Also, Efroni took massive hits from the IDF’s operations officers, with a litany of anti-Efroni leaks, for raising the possibility of investigating Brig.-Gen. Ofer Winter for his role in the 2014 Gaza war’s most famous incident, the Hannibal Protocol event, and investigating other high-ranking officers.

In the Hannibal Protocol incident, somewhere between 29 and 150 Palestinian civilians were killed by the IDF as it tried to thwart the kidnapping of IDF Lt. Hadar Goldin.

Defense Minister Moshe Ya’alon broke all protocols of staying out of the military advocate- general’s professional legal decisions, publicly pressuring Efroni multiple times to close the Hannibal Protocol incident review and others without opening full criminal investigations.

So a source of Efroni’s support in the legal community and of opposition to him among IDF officers and much of the Right in Israel has been his willingness to criminally investigate IDF officers relating to alleged war crimes.

But this is only one side of the coin. After all of the criticism from the Right, we have not discussed criticism of Efroni from the Left.

Although none of them would go on record attacking him personally, human rights groups have slammed the IDF’s targeting decisions during the 2014 Gaza war as broadly illegal.

This is an implicit harsh criticism of Efroni, who approved the controversial targeting of Hamas members and weaponry in civilian locations and the wide use of artillery in urban settings, even if Efroni’s department put limits on those attacks, which it says conformed with the laws of war.

Furthermore, nearly 14 months after the Hannibal Protocol incident, for all of his public defense of his discretion, Efroni made no decision whatsoever about how to treat the issue, leaving it to his successor, Afek.

This despite the fact that, as reported exclusively in The Jerusalem Post, even in June the IDF seriously considered deciding and publicizing its decision regarding the Hannibal Protocol incident.

Even if Efroni thinks no criminal investigation is necessary, his passing on deciding the issue and allowing it to drag out are a source of consternation for his critics on the Left.

Also, the delay in deciding on the Hannibal Protocol incident embodies the delay in deciding several other complex incidents, including some of the worst alleged war crimes in the eastern Gaza City neighborhood of Shejaia.

Moreover, Efroni’s criminal investigations to date have not led to a single war crime related indictment (only indictments for theft so far).

This includes the Gaza beach incident, where several Palestinian minors were accidentally killed by the IDF on a beach. Efroni closed the criminal investigation without an indictment, earning him scathing criticism from the UNHRC’s McGowan-Davis Report.

Supporters credit Efroni for openness in explaining the rationale for closing cases like the Gaza Beach incident, including revealing substantial operational detail, such as an IDF intelligence failure.

His critics say he has revealed too little and that his explanations are superficial, without allowing a comprehensive independent review of the IDF personnel involved in incidents like the Gaza beach.

Whether the IDF is perceived as open enough or too closed as a result of Efroni’s decisions may determine whether the International Criminal Court respects Israel’s investigations and does not try to prosecute IDF personnel.

The direction the ICC chooses will massively impact Israel’s legitimacy and slow or elevate the Boycott, Divestment and Sanctions movement.

Often overlooked in all of this were the high compliments for, and relatively low criticism of, Efroni regarding the IDF’s targeting conduct in the 2012 Gaza war. There was neither a major UN investigation nor an ICC preliminary investigation, as there are now.

Some of that may be due to Netanyahu’s decision not to use ground forces and the resulting overall lower Palestinian casualties, as well as the Palestinian Authority’s delay in declaring statehood until just after the 2012 war.

Yet part of it was likely Efroni’s ability to restrain and limit IDF targeting during the war, a war that was around a seventh as long as the 2014 Gaza war.

This is overlooked because, as Efroni predicted in an article between the 2012 and 2014 Gaza wars, it was unlikely that the IDF could repeat the low level of casualties from the 2012 war in the future.

In other words, the 2014 Palestinian casualties wiped out any international credit Efroni might have accumulated in 2012 (and there were critics in 2012 as well).

Some of Efroni’s legacy may lie in Afek’s hands.

Still, whether one supports or criticizes Efroni, from the Right or the Left, there is no question that this accidental appointee impacted and will fatefully impact the future of the state for years to come.

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