Beinisch: IDF’s investigations, Supreme Court’s oversight of Gaza war can save IDF from ICC

Supreme Court's rulings on IDF legal division’s decisions would be a significant additional shield from “IDF commanders finding themselves in foreign jurisdictions,” former court president says.

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February 1, 2015 14:05
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ISRAEL SUPREME Court justices at a hearing. The court has invalidated the infiltrators law.

ISRAEL SUPREME Court justices at a hearing. The court has invalidated the infiltrators law.. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)

 
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Former Supreme Court president Dorit Beinisch said on Sunday that the IDF’s internal investigations of alleged war crimes from this summer’s war as well as the Supreme Court’s oversight can save soldiers from such cases at the International Criminal Court.

Beinisch, speaking at the IDC Conference in Herzliya on Sunday, quoted the ICC’s Rome Statute that limits it from investigating war crime allegations in a country that has already self-investigated them.

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But a new side that she added was the role that the Supreme Court might play in the future, based on the role it played in the past, such as during her reign.

The former chief justice explained that some might question the IDF legal division’s decisions about whether to criminally investigate or file indictments for different allegations.

In that case, human rights groups might petition to the Supreme Court to second-guess the IDF legal division.

Beinisch said that such petitions, the court’s decisions and its explanations and review of the IDF legal division’s decisions would be a significant additional shield from “IDF commanders finding themselves in foreign jurisdictions,” such as the ICC.

She recounted the court’s past rulings, telling the IDF or the government that it was prohibited from using Palestinians as human shields to enter possibly booby-trapped areas, from cutting off water and electricity, even if those resources indirectly helped Hamas and other issues.



Beinisch recalled “a dialogue between the court and the IDF legal division head” over difficult issues relating to balancing fighting asymmetric wars against terrorist groups that abused the laws of armed conflict along with democratic values.

She said that in the past, and she hoped in the future, this dialogue usually led to the IDF self-correcting problems before the court had to rule, and that where the court had to rule, such decisions had and could protect the military from international criticism.

Former Supreme Court Justice Aharon Barak, Prof. Moshe Halbertal, former Maj.-Gen. (res.) Yishai Beer and war college head Maj.-Gen. Yossi Baidatz were among those who addressed the conference.

Recently, State Comptroller Joseph Shapira announced that Halbertal will be one of three major advisers for his report on the state’s compliance with international law during the summer’s Gaza war.

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