Confessing to a crime we didn't commit: Investigating the Gaza War
by David Benjamin
The Jerusalem Post, January 3, 2010

The initiative reportedly under discussion to establish a judicial investigative committee to review the IDF's investigations relating to Operation Cast Lead would amount to confessing under duress to a crime we didn't commit.

One of the aims of this initiative is to deflect the criticism leveled in the Goldstone report at Israel's investigation process. The word Goldstone used in an interview to describe the investigation process was "pusillanimous" ("lacking courage or resolution" - Webster).

However, the establishment of a special review committee would only serve to vindicate Goldstone's disparaging comments about our legal system.

Goldstone says our investigations should be conducted in conformity with "international standards." We shouldn't have a problem with this demand, since it means, in effect, that we can drop our standards. The fact is that Israel probably has the highest level of accountability of the military under the law in the world.

Let’s take a look at the investigation process as stipulated by Israeli law: Firstly, the IDF is required to investigate every complaint into misconduct by its troops, from the severe to the trivial. The IDF will also launch investigations even when no complaint has been filed, such as when alleged misconduct is brought to light in the media. Generally, the initial investigation may take one of two forms: either a criminal investigation by the Military Police or an operational enquiry by senior officers.

The former is appropriate when the criminality of the alleged misconduct is clear, e.g. looting, assault of detainees. The latter is employed where the circumstances do not necessarily point to a criminal act, e.g. civilian casualties as a result of a bombing raid. There is nothing to preclude the military advocate general (MAG) from ordering a criminal investigation at the outset in any case, including in cases concerning operational activity (note that Goldstone erroneously claims that this is not so) and the MAG has in fact done so on a number of occasions.

The MAG is authorized to review the findings of all operational enquiries for the purpose of deciding whether or not to order a criminal investigation. Moreover, the civilian attorney-general is authorized to review and overturn the decisions of the MAG in this regard. Most significantly, the Supreme Court can review and overturn any such decision.

Also, the MAG's decision whether to press charges - and if so, what charges - is also reviewable and can be overturned both by the attorney-general and by the Supreme Court.

The point is that all decisions by the military and civil authorities in relation to investigations and prosecutions, including questions of "pusillanimity," are ultimately reviewable by the highest court in the land.

The likelihood of such review taking place is far from hypothetical. Anyone with a legitimate interest can petition the High Court to review any decision by any Israeli authority, civilian or military. It has been long established that Palestinian residents of Gaza and the West Bank as well as Israeli human rights organizations have the right of standing in the High Court.

The thousands of petitions brought annually against the IDF are testimony to the routine nature of such proceedings. It is important to note that unlike the US Supreme Court, which can select the cases it wishes to adjudicate, the High Court has no such luxury and is obliged to give its attention to every petition. The bottom line is that anybody who is unhappy with the Cast Lead investigation process in general, or with any individual investigation in particular, has a clear path to the High Court once they have exhausted other remedies.

There is a recent, well-publicized example of this type of judicial review: Battalion commander Lt.-Col. Omri Borberg was indicted by the MAG for "conduct unbecoming an officer" for an incident, captured on film, in which a soldier in Borberg's battalion shot a bound Palestinian suspect in the foot with a rubber bullet. This happened while Borberg was standing next to the suspect. Following a petition by Israeli human rights groups, the High Court overturned the MAG's decision and ordered him to ratchet up the charges against Borberg.

One would think that the near certainty of having to explain one's actions to the High Court at the end of the day would provide a reasonable deterrent to the "pusillanimous" against whitewashing investigations. Moreover, if this deterrence doesn't work, it doesn't matter, since in any event, the High Court will have the last word.

The High Court is the only court in the world that routinely hears petitions regarding military operations, including those carried out beyond the borders of the state and including in real time. Every IDF commander performs his duties in the knowledge that he may be called to account for his decisions in the High Court at any time. There is no parallel to this anywhere. This goes far beyond what are considered to be "international standards" of accountability.

Whether Goldstone chose to ignore these features of Israel's legal system or whether he was simply unaware of them, his criticism and derogatory remarks are blatantly unjustified. Setting up a judicial review committee would be seen as a tacit acknowledgement that Israel's legal institutions somehow don't make the cut. It would be akin to an innocent person confessing to a crime.

The writer, a reserve lieutenant-colonel, is a former senior legal adviser to the IDF, an advocate, consultant and lecturer in international law, the law of armed conflicts and counterterrorism.

Facts and Logic About the Middle East
P.O. Box 590359
San Francisco, CA 94159

Gerardo Joffe, President

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