Will demoting army's top legal officer hurt Israel's position at ICC?

Many think the IDF is playing with fire on the issue.

By
September 4, 2015 02:26
3 minute read.
SHARON AFEK

SHARON AFEK. (photo credit: COURTESY IDF SPOKESMAN'S OFFICE)

 
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Has the IDF just shot itself in the foot in its battle for legitimacy before the International Criminal Court as the sides proceed toward a showdown over alleged IDF war crimes during the 2014 Gaza war?

Many in Israel did not even blink or notice when the IDF decided as part of a wider range of reducing ranks to help make large-scale needed budget cuts to reduce the standing rank of incoming Magistrate Advocate General  Sharon Afek from Major General to Brigadier General.

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But did that decision have massive potential unintended or ignored negative consequences in the ongoing war crimes debate?

These questions can only be answered by answering another question: is a rank just a rank?

Maybe in other workplaces, but in armies like the IDF, ranks are extremely important – as argued over the last week by two former heads of the IDF’s international law division.

Add on to their arguments the 2013 Turkel Commission conclusion that the MAG’s rank should be permanently set (and at the time the rank was Major General.)

Further add on the IDF’s assurances in 2011 of the MAG’s independence in no small part because the MAG’s rank of Major General, making him equal to other top IDF commanders, was supposedly canonized within the IDF’s budget.

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After all of that, the IDF finds itself having to defend against allegations that it is in an unprincipled manner dropping reforms and commitments to the law because it believes it has avoided the worst of the war crimes criticism after this summer’s negative UNHRC report on the Gaza war failed to generate much global interest.

There is another side.

The Jerusalem Post has learned that the IDF would likely argue that, regardless of rank, Afek will be as effective, if not more effective, than his predecessors, because he spent a decade in the international law department and is universally revered in both the IDF and the legal community.

It might say that when potential rivals like the ICC and the UNHRC or allies like the US hear Afek talk with the full support of the IDF Chief-of-Staff and see him make independent decisions disregarding Israeli societal criticism that often accompanies decisions to prosecute IDF soldiers for war crimes, they will not care what is on his shoulder.

Like in court, where a junior lawyer can beat a 30-year veteran if he is forceful and better prepared, the prediction could be that Afek’s expertise and force of personality will outweigh any concerns of rank.

They might also point out that Afek’s predecessor, Danny Efroni, had not been promoted to the rank of Major General when he successfully pushed Attorney-General Yehuda Weinstein to criminally investigate former IDF chief-of-staff Lt. Gen. (res.) Gabi Ashkenazi.

In other words, if a Brigadier General, Afek’s rank, had the guts and independent power to go after the IDF’s chief himself, there need not be any worries that Afek will prevail over IDF Major Generals to allow him to investigate even their closest aides and sub-commanders.

The IDF could also argue that one of the IDF’s most dominant officers, the IDF Spokesman, also only holds the rank of Brigadier General.

Clearly many think the IDF is playing with fire on the issue, but ultimately the real test then will be whether Afek goes after IDF officers even when that decision is unpopular within the IDF and Israeli society.

If he does not, the ICC and others will likely hone in on and trumpet his lower rank. If he does, they may ignore “rank-gate” as the IDF likely hopes.

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