Israel and International Law: The Bullet-Proof Vest Has Been Confiscated

Attorney Michael Sfard, who works with numerous Israeli human rights groups, published this op-ed in Hebrew in Yediot Ahoronot last week. To the best of my knowledge, it hasn’t been translated on the web, so here it is.

Israel and International Law: The Bullet-Proof Vest Has Been Confiscated

Yedioth Ahronoth – November 5, 2009 – Michael Sfard (op-ed)

The author is legal counsel for the Yesh Din human rights organization.

When the first soldier, officer or Israeli leader is arrested for involvement in the attack on Gaza, Judge Richard Goldstone will not be the only one who can take credit. There are two others who have made a greater legal contribution than he to the process of allowing for judicial procedures against Israelis abroad: Judge Advocate General Brig. Gen. Avi Mandelblit and Attorney General Meni Mazuz.

The Goldstone report is not the first international document that determines that Israel broke international law. Preceding it were dozens of reports, resolutions, statements legal opinions by the UN, investigative committees and committees of international experts, and even by the International Court of Justice at The Hague. Israel ignored all of them, and the statement “It will be all right” proved itself. For now.

So why is there a feeling that the Goldstone report, unlike its predecessors, could really lead to arrests of Israelis? What does it contain that its predecessors did not, and causes hysteria in the corridors of Israeli power? The answer to these questions is hidden in chapter 26 of the report—the chapter that is responsible for the fact that the legal situation of the conflict is measured, and will be measured in future years, in terms of before and after the Goldstone report.

Chapter 26 deals with the procedures of law enforcement, and mainly with the quality of the Israeli investigations, in cases where there is suspicion that soldiers broke the law in their treatment of Palestinians. In recent years, Israeli human rights organizations published extremely bad reports on this subject, but there was not yet any significant criticism by an international professional legal organization of the investigation procedures in Israel. Until today.

It is important to realize that serious and professional local law enforcement, in addition to being a moral and ethical duty, serves as a bullet-proof vest against international law-enforcement procedures. International law recognizes the supremacy of local legal systems and gives them preference over foreign or international investigations and jurisdiction. Over the years, Israel’s law enforcement system has won great admiration and a professional and independent image, sometimes much more than it deserves, and as a result, Israelis enjoyed immunity from prosecution abroad. Seminal events such as the establishment of a state commission of inquiry after the massacre at Sabra and Shatila, which caused the defense minister to leave office, the publicized court-martials of soldiers during the first Intifada and the fact that the Investigative Military Police investigated every case in which a Palestinian had been killed strengthened this image.

When the second Intifada broke out, everything changed. The judge advocate general at the time, Menahem Finkelstein, set a new policy according to which the Investigative Military Police would not begin an investigation of harm done to Palestinians in the territories unless an operational inquiry (which is conducted mostly by officers in the chain of command of the unit involved) had raised suspicion of criminal activity, and the judge advocate general, after consulting with a general, concluded that there was reason to begin an investigation.

Thus the professional investigation was replaced by amateur inquiries that lacked credibility, blocked true clarification, and sabotaged the few judicial procedures that were begun. The incumbent judge advocate general continued this policy, and the attorney general defended it in the Supreme Court. The results were terrible: according to statistics of Yesh Din, only two percent of complaints by Palestinians against soldiers led to criminal charges, most of the inquiries did not reveal what had occurred during the incident, and in the few cases in which it is decided to hold investigations by the Investigative Military Police, the investigations are begun months and even years later, which does not allow for an effective investigation. This bleak truth was exposed by chapter 26 of the Goldstone report, according to which the Israeli investigations do not meet a single one of the criteria that international law has set for a proper investigation: that it be independent, external, immediate and effective. Goldstone has confiscated our bullet-proof vest.

Mazuz, who in the past rejected demands by Israeli human rights organizations to conduct an external investigation of the events in Gaza, supports doing so today. He evidently understands the mistake that he made. The judge advocate general, the chief of staff and the defense minister who oppose it are pushing the IDF troops and themselves into the arms of the foreign legal systems.