A bill granting broad legal immunities to IDF soldiers and security forces during operations was delayed a week after Attorney-General Gali Baharav-Miara warned on Sunday that the law would make security forces vulnerable to international court petitions.
Deliberations on the Security Forces Legal Immunization Law would be postponed a week in order to make alterations and additions. A source in the Likud said that the changes were likely to address the issue of IDF soldiers being susceptible to criminal proceedings abroad. The government intends to have an international law expert give their assessment.
The delay came through negotiations between the Likud and Otzma Yehudit, which had submitted the bill. Initial reports indicated that there would be a month-long delay, but this was dismissed by Otzma Yehudit.
The announcement came hours before the bill was set to be discussed in the Ministerial Committee for Legal Affairs, and after the Attorney-General's opinion was issued in the morning.
"The bill exposes state operatives to the possibility of legal proceedings -- criminal and civil, both in international courts such as the International Criminal Court (ICC) and in foreign countries," wrote Baharav-Miara. "Contrary to its purpose, the proposal may actually harm the security force personnel by exposing them to criminal or civil proceedings abroad."
International legal forums operate on a principle called complementarity. The principle requires that these international bodies defer to the local courts and legal system if it is deemed independent and responsible.
Baharav-Miara expressed concern that groups like the ICC would claim jurisdiction over Israeli security personnel because the legal system would no longer adequately address international humanitarian law. Under the law of war and associated treaties Israel was required to investigate suspected violations.
"This proposal significantly impairs the duty to investigate suspicions of illegal or improper use of force, a duty which is part of the protection of the rule of law and human rights in the State of Israel," said the Attorney-General’s Office.
The Attorney-General also argued that the bill would create inequality under the law by giving a group legal protections not afforded to others. Security forces should exist in a culture of commitment and compliance with the rule of law and human rights, her office argued.
"Criminal law also applies to public employees, including the security forces, as well as to other public servants whose work involves actions in stressful or emergency situations," said the opinion.
The bill proposes to grant immunity to security forces, including IDF, Police and Shin Bet personnel, during operational activity countering terrorism. A panel consisting of the Defense Minister and military and police officials would determine if immunity applied, but would not include "theft, looting, vandalism, taking bribery, abuse, humiliation and violence towards uninvolved bystanders."
The Attorney-General argued that the terms of the law were too broad. "Operational activity" could entail training, regular police activity, police investigations and any other act committed to counter-terrorism. Further, while immunity wouldn't be provided to actions conducted out of malice, without an investigation this couldn't be reliably determined.
The bill, introduced by Otzma Yehudit MK Zvika Fogel, contends that the law is needed to protect soldiers operating in complicated situations under the fog of war. Soldiers may be hesitant to take necessary security actions when faced with security dilemmas if they fear legal prosecution.
The Attorney-General argued that the difficult situation of security forces was already taken into account in prosecution and court rulings. Further, the law already provides many protections to soldiers.
In response to the Attorney-General, the coalition reportedly delayed deliberations on the bill by a month. However, this was disputed by Otzma Yehudit.
Otzma Yehudit first denied that there would be a month-long delay, saying in a statement that it was negotiating with the Likud over the extent of the delay after the Likud wished to insert changes.
A source in the Likud said that the changes were likely to address the issue of IDF soldiers being susceptible to criminal proceedings abroad. The source also said that the delay would likely only be for a week.
Otzma Yehudit chairman MK Itamar Ben-Gvir attacked Baharav-Miara for her comments on the bill.
"As expected, the attorney-general automatically opposes the soldier's immunity law, and as usual with her – we receive her opinion in the press. This is another initiative that favors IDF soldiers and is against our enemies, that the attorney-general's office opposes," Ben-Gvir said in a statement.
Contrary to Ben-Gvir's claim, the attorney-general's office sends its legal opinions directly to the justice minister, who is the committee chairman. It does not send the opinion to the MK that initiated the law, nor to that MK's party chairman. It also does not publish the opinion. Opinions that are made public are usually published by the justice minister's office.
"As to the issue itself," Ben-Gvir continued, "as opposed to what the opinion suggests, the law does not protect war crimes or crimes committed intentionally. There are many jurists who have the opposite opinion than her. By the way, in civil law there is an immunity law for soldiers and police officers, and there is no reason not to enable this in criminal law."
"Her opposition will not sway us from legislating this law, which is a moral imperative for our soldiers, which we send to the field of battle to fight for us and defend the lives of all of us," the national security minister concluded.
Opposite to Ben-Gvir, Knesset Constitution, Law and Justice Committee chairman MK Simcha Rothman, praised the delay, arguing that it was important that the Complementarity Principle continue to apply to Israel's legal system.
The issue has political ramifications, as the coalition agreement between the Likud and Otzma Yehudit says that the law must pass ahead of the passing of the national budget.