Under the September 2015 government Ciechanover Commission recommendations (named for the late former foreign ministry director-general Joseph Ciechanover), the IDF Military Advocate General must make at least initial legal decisions about whether to indict or close a case even in the most complex alleged war crime cases by 21 months after an incident.
The current war started 15 months ago and not a single wide-ranging report has come out to address even the specific incidents which occurred at the start of the war.
It is against this backdrop that Sunday’s disastrous news regarding a rank and file IDF soldier in Brazil needing to flee arrest must be understood.
Under the International Criminal Court’s Rome Statute, the ICC cannot get involved in cases which are being probed by the country in question.
It is for this reason that the ICC to date has “only” issued arrest warrants against Prime Minister Benjamin Netanyahu and former defense minister Yoav Gallant.
However, when ICC Prosecutor Karim Khan issued the arrests on November 21, he also warned Israel that if its probes dragged out for too long, he could start going after soldiers as well.
Top Israeli lawyers have known since the start that individual countries could jump the gun on the ICC itself, especially if Jerusalem left a vacuum.
In fact, this happened in a number of countries on a smaller scale against select IDF commanders like: Benny Gantz, Eliezer “Chiny” Marom, Doron Almog, and others dating back as early as 2002, and with brief spikes after the 2008-9 and 2014 Gaza conflicts.
In order to avoid this, the IDF should have been putting out periodic legal reports probably 6 months into the war, or certainly since the March-July period, which was “relatively” quiet and when the IDF carried out most of its operational and October 7 probes.
This would have given the IDF a chance at keeping up with the Ciechanover recommendations.
Historical attitudes
Following the 2014 Gaza conflict in which the IDf killed around 2,100 Palestinians, about 50% civilians, the iDF legal division had issued five reports by August 2016, a bunch of them before the 21 month deadline, and some around the deadline.
There was one exception, the IDF report on the worst incident of killing dozens of Palestinian civilians on “Black Friday” of the 2014 Gaza conflict, which was issued four years after the episode. But this was the exception to the rule.
Mostly, the IDF complied with the Israeli policy.
This time, it appears that the IDF legal division will be nowhere near complying with Israel’s own stated 19-month policy, given that even the first major report with specifics has not yet been issued.
It is not that the IDF legal division is not carrying out serious work.
Already in May, it had opened around 70 criminal probes and more recently this number was up to over 85 criminal probes with hundreds of disciplinary probes, and possibly closing in on 2,000 initial reviews of alleged war crime incidents.
In November, IDF Military Advocate General Maj. Gen. Yifat Tomer Yerushalmi even held pre-indictment hearings for defendants in the Sdei Teiman alleged torture of Palestinian detainees’ cases, with implications that indictments would be filed in November.
But no indictments have been filed, nor have the cases been closed.
No reports have been issued about any of the more than 85 criminal probes and the hundreds of other disciplinary probes.
To the best of knowledge of the Jerusalem Post, the last IDF soldiers convicted for killing a Palestinian unlawfully occurred in 2019 and 2020 for two Palestinians killed during the 2018 Gaza border riots.
Those two soldiers were sentenced to a mere 30 days in 45 days in military prison respectively based on the idea that they killed Palestinians who were violating the IDF’s security zone, but did not present an actual imminent danger of any kind, such that their killing of the Palestinians was only a violation of open fire rules, and not even negligent manslaughter, full fledged manslaughter, or murder.
Before that, there were other cases like Elor Azaria, who served nine months in prison in 2017 after illegally killing a neutralized Palestinian terrorist in 2016, and Ben Deri, a border policeman sentenced to 18 months in prison for illegally killing a Palestinian in 2014 under complex circumstances.
But the fact is it has been a while since the IDF convicted, or even indicted, or even presented public data on closing a case relating to the killing of Palestinians.
Dozens of individual countries are reportedly at different stages of being ready to go after individual IDF soldiers for alleged war crimes.
The fact that the vast majority of these arrests and cases do not satisfy the requirements of the laws of war matters, but is besides the point.
No average Israeli is going to be happy spending months in a foreign country under arrest or at trial to prove their innocence.
In some countries, such cases will be unavoidable because their systems are blatantly anti-Israel.
The Brazil case, from the little details put out so far, seems exceedingly superficial even on the spectrum of potentially weak charges.
There has been no specific information about the soldier killing or harming anyone. Only that he fought in Gaza and possibly that he participated in demolitioning empty buildings.
In general war crimes cases have focused on illegal killings, not property damage.
And Israel has plenty of strong claims for defending property damage, given Hamas’s extensive boobytrapping of civilian residences and that a very large number of IDF casualties have come about due to such boobytraps or ambushes relating to such residences.
This does not mean that the IDF may not have to defend the immensity of its destruction of housing in Gaza at some point.
But this is not the starting point for war crimes cases.
So Israel may face problems in Brazil and some other countries no matter what.
But there are many other countries who will think twice about issuing arrest warrants if they start seeing the IDF roll out periodic reports on its investigations.
As is, there were some Western countries who gave mixed reviews of the ICC decision against Netanyahu and Gallant – who Israel has not proved at all – such that these countries can be expected to generally support Israelis in the IDF who have been investigated.
Until now, it has seemed that there has been heavy domestic political pressure against publishing results of the probes against soldiers. There was even heavy pressure against the IDF legal division probing the Sdei Teiman prison guards who were caught pretty red-handed on video carrying out improper actions against a Palestinian detainee.
Maybe this Brazil case will finally break the dam of resistance to publishing IDF probe specifics.
If it does not, the floodgates of arrest warrants against Israelis are likely to burst open and this Brazil case will be forgotten in an ocean of cases further isolating Israelis from being able to travel the world and maintain their bridge with the West.
Jesus Christ is King
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