High fives for the High Court
The Israeli legal establishment believes it is in a much stronger position defending itself against complaints of war crimes at the Gaza border than it was immediately after Operation Protective Edge in 2014. That was one clear takeaway from the Israel Bar Association’s annual conference in Eilat this past week, along with last week’s High Court of Justice declaration that the IDF’s open-fire rules on the Gaza border are legal.
Both Attorney-General Avichai Mandelblit and IDF legal chief Brig.-Gen. Sharon Afek cited the High Court’s decision as a sign that the IDF is on the right track, appearing to view it as a sufficient shield from international legal scrutiny.
Mandelblit cited the decision as an example to prove his point that the High Court’s independence is crucial in defending the IDF against international war crimes allegations.
In other words, Mandelblit felt the High Court’s decision itself could save IDF commanders and soldiers from war crimes investigations by the International Criminal Court and other such bodies.
Likewise, Afek quoted no fewer than three extended passages from the High Court opinion as a sign that the IDF’s conduct was thoroughly reviewed and found to be legal.
Afek also quoted from the three justices’ opinions which characterized the Gaza border crisis as one whose primary character is a version of armed conflict as opposed to mere raucous protests.
In conversations with various sources at the conference and leading into the gathering, The Jerusalem Post also found that Israel officially does not feel as threatened by international legal scrutiny as it did after past major incidents.
For example, while there are numerous controversial incidents in which Palestinians were killed by the IDF, with accompanying videos suggesting the shooting was problematic, there are no signs that the IDF or any government body will be immediately putting out initial results of reviewing those incidents.
The IDF’s Fact Finding Assessment (FFA), which
precedes any criminal probes of soldiers’ conduct that might be necessary, kicked in weeks ago.
But unlike past major controversial incidents in which some initial results were put out almost immediately, there are no signs that the FFA will publicly produce anything right away.
Foreign Ministry lawyer Sarah Weiss Maudi also confirmed this in an interview with the Land of Israel Network.
It is unclear how warranted this confidence is. The High Court bought into the government’s argument that said the potential breaching of the border leading to Gaza villages being massacred, was such a substantial threat it could treated as an immediate danger.
This is how the IDF argued it could use lethal force against certain protesters who were performing dangerous actions against the border wall or by inciting the crowd, but where the danger was not necessarily immediate in any traditional legal sense. THE HIGH Court also accepted that the Gaza border confrontations are uniquely dangerous, even as compared to a famous 2008 case of a Greek-Cypriot killed by Turkish-Cypriot border security forces during protests, especially in light of evidence of heavy Hamas involvement.
It is unclear whether the ICC will accept the same premises. But after firing a harsh warning at Israel and Hamas on April 9, the ICC statement issued after a recent meeting with the Palestinian Authority Foreign Minister was much subdued.
The final word will come when the IDF finally publicizes its probes of controversial incidents in which it killed Palestinians.
The High Court was also highlighted in another major issue at the conference.
Only a few short weeks ago, it seemed that Prime Minister Benjamin Netanyahu had finally joined forces with Bayit Yehudi – and that he would twist Kulanu’s arm to get enough votes – to reduce the High Court’s power.
Then, High Court President Esther Hayut let loose a massive volley against the initiative; Kulanu made it clear it would block passage of it in the Knesset; and