One of the questions that came up during the recent sessions of the Knesset Constitution, Law and Justice Committee was how the dramatic changes to the judicial system proposed by the coalition would affect the risk of criminal proceedings abroad against IDF commanders or other senior Israeli officials.
A close look at this issue, based on precedents involving Israel and other countries, leads to the conclusion that these changes could indeed increase the risk of such proceedings and make it more difficult for Israel to fend them off.
International criminal law defines a series of offenses as international crimes and allows suspects to be prosecuted by the International Criminal Court (ICC) in The Hague or by the courts of foreign countries that adhere to the principle of universal jurisdiction. But the ICC’s jurisdiction is limited by the principle of complementarity, which means that it will not take action when another country – usually that of the suspect – is investigating the charges and is considering whether to prosecute him or her.
A similar principle of subsidiarity is applied by foreign courts when they decide whether to exercise their jurisdiction over events that took place outside their country’s borders. Among other things, complementarity includes the requirement that the investigation and prosecution by the state be open and independent and not a sham process aimed merely at shielding the suspect from international jurisdiction.
International bodies have been involved in the past in several initiatives that could have led to the indictment or prosecution of IDF commanders and senior Israeli officials in foreign courts or in the ICC. In 2009, for example, the Goldstone Commission called on the ICC to launch a criminal inquiry into IDF actions in the Gaza Strip during Operation Cast Lead – the ICC declined to do so on grounds related to the limits on its jurisdiction.
Especially worrisome for Israel was the statement in the Goldstone Report that investigations conducted by the IDF itself are not sufficiently independent, implying that they do not meet the standard of complementarity.
SINCE THEN, Israel has invested major effort in refuting this charge. In the wake of the second Turkel Commission report on the Turkish flotilla incident (2013), the military investigations system was reformed and subjected to stronger civilian oversight. In addition, in its contacts with other countries and international bodies, Israel emphasized the independence of the various arms of its judicial system that are involved in investigating suspected war crimes, as well as the monitoring of compliance with relevant norms.
If to judge by the outcome, Israel’s efforts have borne fruit. Even though a relatively large number of allegations and complaints against Israel have been raised, not a single IDF commander or senior Israeli official has been tried on suspicion of war crimes by the ICC or foreign court. This result can be perhaps attributed in part to certain improvements in the Israeli investigation process but also and perhaps mainly, to the image that the Israel courts enjoy as independent and professional.
For example, the Spanish Supreme Court, explaining its decision in 2010 to close the file against a number of senior Israeli officials who were said to have been involved in the 2002 killing of Salah Shehade, the commander of the Hamas military wing, stated explicitly both that the incident had been the subject of an independent inquiry in Israel and that Israel is a democratic country that complies with the rule of law in which investigators and prosecutors are independent of the executive branch.
We see that it was the democratic halo – the image of Israel as a democratic country with an independent legal system – that led the Spanish court to apply the principle of complementarity/subsidiarity.
It was arguably the same halo that prompted the ICC, in 2020, to recognize the British inquiry into actions by forces of the United Kingdom in Iraq as satisfying the requirement of complementarity, despite the court’s own criticism of the excessive duration of the domestic proceedings.
There are several reasons why the proposed changes to the Israeli judicial system could affect the risk of application of international criminal jurisdiction to IDF commanders or senior Israeli officials.
First, the anticipated weakening of the status of the legal advisers and the Supreme Court and the politicization of appointments to them is liable to harm their perception by international bodies as independent institutions that provide effective oversight and review of military investigations and balance the criticism of investigations of suspected offenses by the IDF itself.
Investigating war crimes
Here we should note that in many countries the military is not authorized to investigate suspected war crimes in which its personnel are involved; this power is often reserved for the civilian legal system. Of course, undermining the independence of the military advocate-general or limiting his or her legal powers would further reduce the odds that Israel could effectively assert complementarity before international bodies.
Second, the way in which the planned legal changes are perceived by the world would tarnish Israel’s international image as a democratic country that respects the rule of law. It would deprive Israel of much of the democratic halo that encourages its perception as a member of the club of democratic nations and gives it a line of credit that bolsters the willingness to see its legal system as satisfying the principle of complementarity.
Finally, in recent decades the attorney-general and High Court of Justice have functioned as a sort of legal flak jacket that scrutinizes the extent to which decisions by the professional and political echelons are consistent with international standards. In doing so, they have served the dual function vis-à-vis the outside world of providing a professional reputation to these institutions and reducing, to some degree, concerns of friendly countries that Israel is violating international law.
Domestically, oversight by the attorney-general and the High Court serves as a restraint on hasty or populist government decisions and Knesset laws that might get Israel into hot water in the international arena, as well. Weakening these institutions might make it easier for the government and the Knesset to take measures of this nature that would place Israel squarely on the path to a swift and serious confrontation with international criminal law, precisely when its ability to assert complementarity has been weakened.
Accordingly, we may cautiously estimate that the proposed changes in the judicial system – both their substance and how they will be perceived abroad – are liable to deal a serious blow to the ability of Israel and that of the jurists who represent it in international forums, to claim complementarity and subsidiarity. This could have a devastating effect on the legal exposure of IDF commanders and senior Israeli officials to international and foreign tribunals.
The writer is a senior fellow at the Israel Democracy Institute and a professor of law at the Hebrew University of Jerusalem.