Analysis: Israel on thin ice with the ICC

Not indicting Lt.-Col. Neria Yeshurun for Gaza war crimes is a hard decision to explain to the world.

By
June 16, 2016 00:20
Operation Protective Edge

Operation Protective Edge.. (photo credit: ANNA GOLIKOV)

The IDF legal division’s decision to clear Lt.-Col. Neria Yeshurun of criminal charges of illegally ordering the revenge shelling of a pharmacy in Gaza during the 2014 war, without having filed an indictment, puts Israel on thin ice with the International Criminal Court.


Military Advocate-General Brig.-Gen. Sharon Afek decided to clear Yeshurun late Tuesday, despite his being recorded in July 2014 telling his soldiers on the radio that they were shelling the pharmacy (or residential building, according to recent information received byThe Jerusalem Post) as revenge for the killing of one of their comrades the day before.


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That is no easy decision to explain to the world.


Afek said that Yeshurun’s actions were unethical and censured him, but that available evidence did not meet the high standard for filing a criminal case.


In January 2015 ICC Chief Prosecutor Fatou Bensouda started a preliminary probe of alleged war crimes in the 2014 Gaza conflict in which 73 Israelis and around 2,000 Palestinians were killed (50-80 percent civilians) and may still decide to launch a full criminal investigation.


Such a probe could have massive negative legal and diplomatic consequences for Israel.


The thin ice metaphor is especially apt following the April closing of the case also without an indictment against Col. Yisrael Shomer for shooting in the back a Palestinian who was fleeing after having shattered Shomer’s windshield.




It is true that the IDF indicted and is currently trying Sgt. Elor Azaria for manslaughter for shooting a Palestinian terrorist after he had been neutralized despite protests supporting Azaria.


But Bensouda has shown in her probe of war crimes in Colombia that she is ready to even grill countries who are prosecuting their own soldiers, if they do not prosecute senior officers as well.


Will the ICC view the IDF as creating a higher evidentiary standard than usual for indicting its officers? Recently, the Post confirmed that “initial reviews” have essentially replaced criminal investigations of Shin Bet (Israel Security Agency) agents regarding torture complaints, implying only the blackest of cases would lead to indictment.


But the ICC is not as focused and concerned on cases of alleged torture of detainees spread over time as it is over alleged widespread war crimes by the IDF during the 2014 Gaza war.


The first twist in clarifying the higher standard issue is that it appears that Afek reached a conclusion different from the one his predecessor in the position, Maj.-Gen. (res.) Danny Efroni, might have reached.


Technically, Efroni never made a decision and, crucially, Afek had additional evidence that Efroni had not seen when he left office in October.


But in an interview a few months after leaving office, Efroni made it clear that he viewed the incident as “grave” and appeared to lean toward a criminal indictment, including violations of international law (though one could interpret Efroni as merely discussing the standard for opening a criminal investigation.) The ICC could question Afek’s decision in comparing it to Efroni’s initial statements.


The second twist is the facts themselves and the scarcity of the facts released by Afek regarding his decision.


During the Efroni era, the IDF issued several unprecedentedly detailed reports regarding decisions to close alleged war crimes cases relating to the 2014 Gaza war.


In Afek’s two recent decisions, the explanations were a mere two to three paragraphs long and left out some obvious issues. They left out the censure of Shomer for leaving the Palestinian without medical attention and the issue of whether there was a Hamas tunnel under the building Yeshurun attacked.


If there was a tunnel, as Yeshurun’s lawyer claimed, the purpose of the shelling could have been to hit the tunnel under the building, which would qualify as a military target and might meet the necessity test.


Neither the public nor the ICC knows from the decision whether there was a tunnel, and any information on the tunnel’s importance could be crucial to convincing the ICC that the IDF made the right call.


A completely different perspective on this could be that this case may not standout as much to the ICC since no one was killed or even injured and that the IDF’s reprimand of Yeshurun seriously harmed his career despite no one being hurt.


There is also the “red-face test.” Not remotely scientific or particularly legal sounding, it says that even in criminal proceedings, any explanation that reasonable people would laugh at can be given short shrift.


Yeshurun’s lawyer had said that he did not really mean it when he told his troops they were shelling the building as revenge, and that he had only said it to improve morale. It would help to know and might completely reframe the issue, if the IDF published specific information that there were a range of other witnesses who confirmed Yeshurun’s story. The Post has learned that the IDF expended substantial resources in the probe and questioned no less than 12 witnesses in the field to study Yeshurun’s account of what occurred.


It might have helped had this fact been in the original public press release and any additional information that comes out about the accounts of these witnesses will only help the IDF’s case to the ICC that it took the issue seriously, even though a senior officer was involved.


Absent that, the ICC may think Afek concluded that Yeshurun’s explanation, however unlikely, passes the red-face test and might create enough doubt for an acquittal in court.


This the ICC may find hard to swallow.


By saying that the evidence was enough to censure Yeshurun but not enough to indict him, and without disclosing other evidence and witnesses, the ICC may think that the IDF is ready to accept far-fetched explanations by its commanders in deciding against indictments.


Ex-IDF international law division head Col. (res.) Liron Libman said, overall, the decision could go either way, depending on a full review of the evidence.


And he disputed the idea that the IDF does not go after senior officers, citing, among others, a 2008 incident in which Lt.- Col. Omri Borenberg was tried and convicted over an incident where a rubber bullet was fired at a Palestinian activist who was already handcuffed and blindfolded, and the case of Lt.-Col. Shalom Eisner, who was tried and convicted of striking an activist in 2013.


But Libman would like to have seen greater public disclosure, including a discussion of why warnings were not necessary to attack a specially protected building.


Without greater disclosure and without a campaign presenting examples where IDF officers were indicted in the past, the ICC may be left with the simple impression that IDF officers can attack uninhabited pharmacies for revenge without real consequences.







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