Top Israeli war policy-makers and IDF commanders are closer to criminal investigation by the International Criminal Court than ever before.
Last Friday, ICC Prosecutor Fatou Bensouda announced two dramatic decisions.
One was to start a preliminary probe into IDF conduct during the summer Gaza war, in which 2,200 Palestinians died – between 50 and 80 percent of them civilians.
The second was to recognize Palestine as a state for ICC purposes, ending a legal war on the issue which Israel has waged since 2009.
That said, Israel has many robust jurisdictional defenses which could still throw any war-crime-allegations train off the tracks even before it leaves the station.
Likely the most important of these defenses is that the IDF itself investigates its own personnel for such allegations.
The ICC follows a “complimentarity” principle, a fancy phrase which essentially means the ICC cannot initiate a full criminal investigation, as opposed to its current preliminary probe, if a country has already “reasonably” self-investigated itself for war crimes allegations.
Many, including former IDF international law division head Col. Pnina Sharvit-Baruch in a recent article, say this could be Israel’s golden shield to block intervention.
How Israel has implemented 18 recommendations made by its own quasi-government Turkel Commission (named for its lead member, former Supreme Court justice Jacob Turkel) in the commission’s February 2013 second report, may be decisive in whether the ICC views Israel’s investigative apparatus as “reasonable.”
The commission may hold particular weight since it included an observer who had been an ICC official. The ICC, wanting to be seen as apolitical, may hesitate to intervene if Israel implemented the recommendations, since that would at least square Israel with other Western militaries mentioned in the report.
The ICC may want to avoid worrying other Western militaries about investigations to a point where it could lose political and financial support in the West.
Turkel’s first report was on the 2010 Mavi Marmara flotilla incident.
But its second report, which parts of the government did not even want at first, evaluated Israel’s entire self-investigating apparatus regarding whether it met international law standards.
This report clearly found that Israel’s investigative apparatus did in fact meet international law standards.
Still, it issued 18 recommendations for improvement, with the distinct implication that – without trying to give ammunition to delegitimization campaigns – there were significant shortcomings in the apparatus.
Regarding the recommendations, some were implemented before the report’s issuing, some after, while others were hotly debated, modified or rejected. At the start of 2014, the Ciechanover Commission (named for its head, former Foreign Ministry legal adviser Joseph Ciechanover), an interministerial body of legal experts was formed to explore the 18 recommendations.
Its job was also to formulate how to implement certain recommendations, and to formulate how to change – or why to reject – others.
It was implied that the government would accept only some of the recommendations, and another commission would help make adjustments. Initially, it was said that the state would issue a report with its final view on the 18 recommendations by October 2014; yet October came and went. Government officials then said that by the end of December, close to two years after the recommendations were issued, there would be an announcement.
Granted, 2014 has been a horrendously busy year for the IDF – but there has been no report or announcement.
Officials did not deny that they had intended to produce a report by the end of 2014, but none were prepared to commit to a “next deadline” specific date. It is unclear now if there will even be one before the elections on March 17, or if it will wait until a newly formed government gets to weigh in. The Foreign Ministry referred all questions about the recommendations to the Justice Ministry and the IDF.
The IDF noted that, as one body within the Ciechanover Commission, it “would finish its work and present recommendations to the Israeli government in the near future.”
It added that it “places great importance on implementing the recommendations specified in the Turkel Report,” and that the recommendations have “required changes in policies” and “significant investment of resources.”
The Justice Ministry in turn said that “the work of the staff on implementation is near the end. Upon completion of its work, recommendations will be sent to the prime minister.”
Whether continued delay of this report will hinder Israel’s defense before the ICC is also up for debate.The Jerusalem Post
contacted and reviewed materials from a range of current and former officials and human rights groups, both on and off the record, as to where the 18 recommendations stand. Not all recommendations are equally important, with recommendation 5 viewed as most important and 6, 7, 10, 11 and 12 viewed as the next most important.
Below is an overall view on those conversations:
• Recommendations 1 and 2: Passing legislation to define war crimes; command and civilian responsibility for war crimes
Israel can already prosecute war crimes but currently, if it does so, it is under terms like “murder” or “manslaughter.”
Critics of Recommendation 1 say war crimes must be legally named as such, because there are areas where war crimes differ from regular murder or manslaughter, to properly stigmatize them and remove any cloud of international doubt on the issue.
Some critics say that this has been completely ignored, noting than no such legislation has been officially proposed, let alone passed. Others say that while it has not yet been implemented, there has been tremendous progress and that there are proposals nearly ready for the Knesset on the issue, while recognizing that at the end of the day, the political echelon decides legislation.
Similar issues exist regarding prosecuting top IDF commanders or top civilians officials, with a concern that the absence of special war crimes laws could lead to more passive law enforcement.
• Recommendation 3: Fulfilling reporting obligations according to the 2005 IDF chief of staff rules on war crimes allegations
Critics say this has not been implemented and there was no counter-response on this issue, but it is also not considered one of the more crucial recommendations.
• Recommendation 4: Standardizing the review of civilian casualty incidents and fast-tracking certain categories of such incidents for more serious IDF investigations
This recommendation has been implemented completely and on an impressive level, despite adding significant administrative cost due to needing far more investigative resources for complaints, many of which do not turn out to be valid.
• Recommendation 5: Replacing, or placing in parallel, operational debriefings with fact-finding assessments
This may be the heart of the 18 recommendations, and is the most crucial in regard to whether the ICC views Israel’s self-investigations as reasonable enough to eliminate its potential to intervene.
Operational debriefings are a regular part of every military mission; they are performed by IDF officers who are not lawyers and are focused on what went right or wrong militarily, with a forward-looking focus on self-improvement in achieving military objectives.
The suggested fact-finding assessments (FFAs) were proposed as a way to inject lawyers into the earliest stages of reviewing an incident in which IDF personnel may have committed a war crime, to quickly provide information to IDF Magistrate Advocate-General Maj.-Gen. Danny Efroni.
The goal was to provide Efroni with an initial legal picture, so he can quickly decide whether to criminally investigate or leave the incident for less severe disciplinary proceedings.
Those criticizing operational debriefings say they skew later criminal investigations, by allowing IDF personnel to coordinate their stories in a way which promotes cover- ups of war crimes – particularly since statements made in debriefings cannot be used in later legal proceedings.
Others say that pushing aside or even setting up a parallel process to operational debriefings will over-legalize the IDF’s culture, to a point where soldiers will hesitate in battle and no longer own up honestly to mistakes for fear of legal prosecution.
Some say that initially the magistrate advocate-general (MAG), along with most of the IDF high command, was against some recommendations – this one in particular.
Some even say that internal government pressure was placed on Efroni to accept the FFAs and sell the change to the IDF high command.
Regardless of Efroni’s original position (and others would dispute the last assertion), the final result has been Efroni’s emphatic adoption of the FFAs and fierce defense of IDF criminal investigations – surprising some of those who did not expect his support at the start.
This has resulted in the significant, though not total, defraying of complications from operational debriefings, and Efroni’s announcement of eight criminal investigations within weeks of the end of the summer war, and another five within three months.
It would be hard for the ICC to attack Israeli investigations as unreasonable, at least in this area – which may be the most important objective sign of improvement.
• Recommendation 6: Improving the speed and pace of opening investigations, to happen within weeks
Although technically the IDF has not fully complied with the suggestion to decide whether to criminally investigate within weeks, the MAG did make many decisions within weeks and others within three months.
Some also say that the three months could qualify as “within weeks.”
If all the other decisions are made soon, it would be considered a huge, objective, game-changing improvement.
On the other hand, if decisions on whether to criminally investigate the Hannibal Protocol incident and the Shejaiya battle, probably the two worst incidents of the war, take months more, it could still be viewed by the ICC as a failure.
• Recommendation 7: Strengthening the independence of the MAG from outside pressures
This specifies that the MAG’s appointment should be more like the process for that of the A-G – outside the chain of command; the defense minister’s choice for MAG should be based on recommendations from a public committee of top legal professionals.
It also recommended giving the MAG a set six-year term and rank so there would be no perception he was acting to ingratiate himself with the defense minister or IDF chief of staff.
Critics say this has not been properly implemented.
Others say it is mostly being implemented, with the key being changing how the MAG is appointed; they see the nuance of whether the MAG is appointed to a six-year or three-year term as less important – as long as the term is set. This way, the MAG need not curry favor to extend his term.
If the ICC finds this has not been addressed, it could be a serious issue internationally, because some already say the MAG’s “two hats” – approving attacks and investigating attacks – are inherently a conflict of interest.
The IDF argues, and the Turkel Commission approved, that the MAG can both approve targeting decisions in war as well as investigations of war crimes post-war.
This is possible by placing a hard separation between the lawyers under him, who perform most of the legwork involved in approving targeting and investigating war crimes.
The MAG’s independence is a particularly hot issue, and may be watched carefully by the ICC, due to the public pressure exerted by Defense Minister Moshe Ya’alon and various IDF commanders such as Col. Ofer Winter on Efroni to refrain from ordering a criminal prosecution into the Hannibal Protocol incident – in which between 30-plus to 150 Palestinian civilians were killed.
Efroni, the attorney-general and Supreme Court Justice Uri Shoham, a former MAG himself, have all pushed back hard against the pressure.
• Recommendation 8: Strengthening the independence of the IDF head prosecutor (one of the MAG’s top deputies)
The recommendations and issues here are similar to that of recommendation 7, though part of increasing the top IDF prosecutor’s independence includes making him more independent of the MAG.
• Recommendation 9: Create a special new war crimes police unit, but include more accessible offices to receive complaints in areas both north and south of the West Bank
Critics say none of this has been implemented. Others say the new crimes unit has been implemented, but no information has been provided to indicate whether the more accessible offices are being established or why that recommendation might be rejected.
• Recommendation 10: Set maximum time periods between decisions to criminally investigate, and decisions to indict or close an investigation. Additionally, issue a full public report every year on the issue
Some say this has not been implemented, and will be one of the most seriously criticized issues by the ICC. Others say there has been major progress on this issue, but descriptions of the progress were vague. This may be Israel’s weakest point.
Some say that even if Israel initiates investigations quickly using FFAs instead of operational debriefings, if at the same time, decisions on indictments take too long or there are no indictments except for low-grade theft allegations, the ICC may still decide that Israel’s investigations are not sufficiently reasonable.
The typical Israeli response is that real lawyers know that statistics on how many indictments are filed have no legal meaning, and that each case must be considered separately according to its own facts.
But some, including some among the pro-Israeli side, believe that if there are no indictments for killing Palestinian civilians, the ICC could feel politically compelled to intervene.
• Recommendation 11: Transparency in investigative processes
Critics say this has only been partially done, with selective details being provided to the public from the investigations, and little or no primary documentation. But others say the MAG’s openness on this issue is unprecedented. They note Efroni’s lengthy explanations, including operational details that no other military has ever shared before in such depth, regarding a number of decisions to open and close reviews into the summer war.
• Recommendation 12: New Justice Ministry oversight of the MAG’s legal advice and policy units
This has been fully implemented, even before the report was issued, with the establishment of top official Roy Schondorf’s international law department.
However, the public debate between Defense Minister Ya’alon, the attorney-general and Efroni leaves up in the air whether the ICC will believe the ministry can help preserve the MAG’s independence from political pressure, despite his “answer” to Ya’alon.
• Recommendation 13: Critical internal review of MAG prosecutorial decisions by new Justice Ministry inspector Hila Gristol
There is little information on this, but Gristol’s department has taken on very little of the controversy thus far and there are no indications this has been implemented, though it is unclear what may be in the works.
• Recommendation 14: The MAG should take over complaints against Border Police who work within the IDF chain of command
Critics say this has not been implemented. No official information has been provided against that statement, positive or negative.
• Recommendation 15: A new Justice Ministry review of complaints against the Shin Bet (Israel Security Agency) for torture, as well as the videotaping of Shin Bet interrogations
A new Justice Ministry office was established in June 2013 and its new head is highly respected, but it has slowly been opening and appears under-resourced, having missed its own end-of-2014 deadline for major progress.
Videotaping has been vehemently rejected by the Shin Bet, despite former head Yuval Diskin’s recommendation to agree to it. Its rejection, while sustained by the High Court of Justice, has led to significant international criticism.
This is not directly connected to the summer war, but it could impact the ICC’s overall view of Israel’s investigative apparatus.
• Recommendations 16, 17 and 18: Improve the handling of Prisons Service complaints and investigations of civilian officials. The MAG should publish special guidance for war crimes investigations
There is no significant information out on these recommendations, but critics say the MAG has not published any special guidance and have pointed out continued criticism of Prisons Service incidents, post the report’s publishing.
The recommendation regarding handling of civilian official investigations is considered minor, and has received little attention.
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