Under Ciechanover Commission recommendations from 2015, 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-crimes cases, within 21 months after an incident.
The Israel-Hamas War started 15 months ago, and not a single wide-ranging report has come out to address even the specific incidents that occurred at the start of the war.
It is against this backdrop that Sunday’s disastrous news regarding a rank-and-file 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 that 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.
When ICC Prosecutor Karim Khan issued the arrests on November 21, however, 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 from the beginning 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 such as Benny Gantz, Eliezer “Chiny” Marom, and Doron Almog, dating back as early as 2002, and with brief spikes after the 2008-09 and 2014 Gaza conflicts.
To avoid this, the IDF should have been issuing periodic legal reports probably six 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 massacre probes.
Historial Attitudes
This would have given the IDF a chance to keep up with the Ciechanover recommendations.
Following Operation Protective Edge in 2014, in which the IDF killed around 2,100 Palestinians – about 50% of them civilians – the IDF Legal Division issued five reports by August 2016; several of them were before the 21-month deadline and others around the deadline itself.
There was one exception: the report on the worst incident, in which dozens of Palestinians were killed on “Black Friday.” This report was issued four years after the episode; it was an exception to the rule.The IDF mostly complied with Israel’s stated policy.
This time, it appears that the IDF Legal Division will be nowhere near complying with Israel’s own stated 21-month policy, given that even the first major report with specifics has not yet been issued.
This doesn’t mean the Legal Division isn’t carrying out serious work. Already in May, it had opened about 70 criminal probes. More recently, this number was up to more than 85 criminal probes, with hundreds of disciplinary probes, and possibly closing in on 2,000 initial reviews of alleged war-crimes incidents.
In November, Military Advocate-General Maj.-Gen. Yifat Tomer-Yerushalmi held pre-indictment hearings for defendants over allegations of torture of Palestinian detainees in Sde Teiman, with implications that indictments would be filed in November. The Jerusalem Post understands that a revised expected deadline for filing the indictments could be later in January or February.
But no indictments have been filed, nor have the cases been closed. As well, no reports have been issued about any of the more than 85 criminal probes and the hundreds of other disciplinary probes.
As far as the Post can ascertain, the last soldiers convicted for unlawfully killing a Palestinian occurred in 2019 and 2020 after two Palestinians were killed during the 2018 Gaza border riots.
Those two soldiers were sentenced to a mere 30 days and 45 days, respectively, in military prison, based on the idea that they had killed Palestinians who were violating the IDF’s security zone but did not present an imminent danger of any kind. This meant that the act of killing was only a violation of open-fire rules – not negligent manslaughter, full-fledged manslaughter, or murder.
Before that, there were other cases, such as 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.
In fact, it has been a while since the IDF convicted, 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 soldiers for alleged war crimes.
That the vast majority of these arrests and cases do not satisfy the requirements of the laws of war matters, but it is beside 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. According to informed sources, the notion that issuing additional IDF probe reports would make much of a difference in such an atmosphere is likely naive.
The Brazil case, from the few details made public 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 participated in demolishing empty buildings.
In general, war-crimes cases have focused on illegal killings, not property damage.
Israel has plenty of strong claims for defending property damage, given Hamas’s extensive booby-trapping of civilian residences, and that a very large number of IDF casualties have come about due to such booby traps or ambushes relating to such residences.
This does not mean 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. Israel may face problems no matter what.
However, many other countries will think twice about issuing arrest warrants if they start seeing the IDF roll out periodic reports on its investigations.
Nevertheless, some Western countries have given mixed reviews of the ICC decision against Netanyahu and Gallant – who Israel has not probed at all – and these countries can be expected to generally support Israelis in the IDF who have been investigated.
Until now, it seemed that there has been heavy domestic political pressure against publishing the results of the probes against soldiers. There was even heavy pressure against the IDF Legal Division probing the Sde Teiman prison guards who were caught red-handed on video carrying out improper actions against a Palestinian detainee.
Perhaps 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.