Analysis: New policy could improve human rights, save resources, avoid ICC

While IDF hopes program will improve safety, Palestinian rights, its hard to imagine that military institutionally believes program will work.

February 18, 2014 11:41
4 minute read.
International Criminal Court in The Hague

ICC 370. (photo credit: REUTERS)


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Lt.-Col. Maurice Hirsch, the IDF’s head West Bank prosecutor, told The Jerusalem Post late Monday night that the state would soon initiate a summons-process pilot program that could end the long-standing practice of night arrests for certain Palestinians.

This announcement is the equivalent of a legal earthquake in the area.

The IDF has taken increasingly hard-hitting criticism for its arrest practices since an October 2013 report by UNICEF and a recent Australian TV program on the issue.

But with all due respect to these events, there have been over a dozen similar reports and numerous similar TV programs before. In other words, none of the criticism was anything new in and of itself.

In addition, it is an issue on which, until now, the IDF has defended itself to the hilt with unambiguous certainty of being justified.

Observers who have closely followed debates between the IDF and human rights groups over the military justice system’s treatment of Palestinians can easily tell where the IDF has claimed it was justified yet showed willingness to change its methods – even though it said international law allowed its actions – versus where the IDF had a redline and stood firm.

An example of IDF flexibility can be seen in its 2009 establishment of juvenile courts – within existing West Bank courts – as well as shortened detention times for Palestinians. However, the night-arrest issue has been a redline for the highest echelons of the IDF.

Whatever the criticisms of the validity of night arrests, of which there are plenty, many have viewed the IDF’s arguments – that such arrests were still better and less violent for Palestinians and Israelis than daytime arrests – as having potency.

Also, many have said that it is unclear whether Palestinians would willingly show up for a police summons the way some Israeli citizens do, especially since many suspects’ alleged crimes indicate that they reject Israel’s authority in Palestinian areas.

Critics had trouble convincing the IDF that there was a real alternative. They sometimes put forth the summons process as an option, but the IDF viewed it skeptically, seeing it as unworkable in the unique framework of the Israeli-Palestinian conflict.

Hirsch genuinely and adamantly emphasized that the IDF has an open mind and hopes the summons pilot program will succeed in improving safety, protecting Palestinian rights and saving IDF resources.

If that happens, the new policy will be a win-win for all sides.

At the same time, the suspicions that a summons process wouldn’t work may be valid, and the pilot program may fail.

That said, even if the program does not pan out, the attempt could still benefit the IDF.

The international legal environment has undergone two major changes that impact not only the IDF but the Prime Minister’s Office’s willingness to negotiate with the Palestinians.

The Boycott, Divestment and Sanctions campaign is the one getting the most press now. There are almost daily stories from new boycotters and from top ministers – like Yair Lapid and Tzipi Livni – on the disaster that could befall the country under a wave of European boycotts.

But the more serious and probably more dangerous threat from an Israeli perspective – one that has been only slightly out of the news for some time – is the International Criminal Court.

The terminology that some of Israel’s accusers have used is direct phraseology from Article 7 of the Rome Statute, which governs the International Criminal Court regarding “crimes against humanity.”

In the fall of 2012, the Palestinians were voted into the UN General Assembly, albeit without full membership (they were blocked at the UN Security Council), and since then, the Palestinians have repeatedly threatened to unleash a wave of requests for the ICC to investigate Israeli officials for war crimes.

The massive legal efforts by a relatively new division of the Israeli Justice Ministry, and the current peace process, appear to have put a brake on the actualization of these threats, for now – but they are still just beneath the surface.

Many of the worst accusations against the IDF focused on the period when certain Palestinian minors were in detention as part of their night arrests.

If, despite the IDF’s best efforts, the pilot program fails, some might view the IDF as having a stronger argument in any future ICC proceeding – that it tried the alternative of summons, as suggested by human rights groups.

Hirsch said that there had even been sporadic summons attempts in the past, but he emphasized that this time the IDF would keep careful statistics.

Thus, from an Israeli perspective, the IDF can also confront accusations against it on a public relations level.

But again, if the summons process works, there is the win-win scenario.

Human rights are improved, danger to both sides is averted, IDF resources are saved, and the ICC is avoided.

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