Attorney General Gali Baharav-Miara on Sunday issued an opinion regarding a government-sponsored bill extending immunity to Israel’s security forces regarding events that take place during operational activities.
The Likud responded to the AG’s opinion with a request to push off the immunity legislation by one month – which is a lot of lipstick on a pig, since the current Knesset session will be over in 15 days, and things that don’t get passed by the end of a session have a habit of disappearing from the agenda.
Meanwhile, Otzma Yehudit, which initiated the bill, issued a defiant statement, saying: “Contrary to publications, a decision has not yet been made on whether to postpone the soldiers’ immunity law for a month. Likud asked to postpone the law to make a number of changes to it, and negotiations are currently underway between the parties. We will continue to protect and defend IDF soldiers and police officers and pass the law, this is our commitment.”
According to the bill, members of the security forces, including soldiers, Shin Bet employees, policemen, the Knesset guard, national service volunteers, or volunteers in another security capacity will not be criminally liable, not be investigated as a suspect, and be immune from any legal action (i.e., civil lawsuits), concerning any action performed or order given in the fulfillment of their duties, to include operational activity (including training), or activity against an act of terrorism.
The bill establishes a committee consisting of retired security officers, some of whom would be lawyers, appointed by the defense minister, that would be authorized to remove the immunity. The chief military attorney may contact the committee to request the removal of the immunity. The committee has the discretion to remove the immunity only if it is found that the action or command was malicious or not in good faith. The decision can be appealed to an appeals committee.
In her opinion, the AG argued that the bill would “substantially harm Israel’s ability to deal with legal proceedings in the international arena against the security forces,” because it “significantly impairs the duty to investigate suspicions of illegal or improper use of force, which is a duty that is part of the protection of the rule of law and human rights in Israel.”
According to Baharev-Miara, “the bill deviates from the position of the Israeli government which adopted the recommendations of the Turkel Commission.”
The Turkel Commission (a.k.a. The Public Commission to Examine the Maritime Incident of 31 May 2010), led by Israeli retired Supreme Court Judge Jacob Turkel, was an inquiry set up by the Israeli Government to investigate the Gaza flotilla raid and the Blockade on Gaza. The Commission examined 133 incidents in which force was used during the raid. The majority of the uses of force involved warning or deterring fire and less use of lethal weapons. The commission found that overall, the IDF personnel acted professionally in the face of extensive and unanticipated violence.
Regarding the use of force, the commission concluded:
- The participants in the flotilla were predominantly an international group of civilians whose main goal was to bring publicity to the humanitarian situation in Gaza by attempting to breach the blockade.
- A group of the Turkish NGO IHH (Humanitarian Relief Foundation) and affiliated activists on board the Mavi Marmara and the other flotilla vessels violently opposed the Israeli boarding. The IHH activists who participated in that violence were civilians taking a direct part in hostilities.
- The force used against civilians on board the flotilla was governed by the principles of “necessity” and the use of “proportionate force” associated with human rights-based law enforcement norms. The IHH activists lost the protection of their civilian status when they directly participated in the hostilities.
- The Rules of Engagement for the operation provided an authority to use force that reflected the nature of a law-enforcement operation.
- The IHH activists carried out the violence on board the Mavi Marmara by arming themselves with a wide array of weapons, including iron bars, axes, clubs, slingshots, knives, and metal objects. These were weapons capable of causing death or serious injury. Further, the hostilities were conducted in an organized manner with IHH activists, among others, operating in groups when violently assaulting the IDF soldiers.
- The IHH activists used firearms against the IDF soldiers during the hostilities.
As to the future prosecution of security forces by Israel’s judiciary system, the Turkel Commission was asked to “examine the question of whether the inspection and investigation mechanism concerning complaints and claims raised regarding violations of the laws of war, the practice in Israel in general, and as it is applied concerning the current incident, is compatible with the obligations of the State of Israel in accordance with international law.”
The commission rejected a recommendation to create a civilian mechanism to oversee military prosecution activities. The commission believed that the Attorney General’s oversight mechanism should be strengthened to increase civilian oversight of military investigations. Accordingly, the committee recommended basing the right of appeal to the Attorney General regarding prosecution decisions to close investigation cases, and establishing a special department in the Attorney General’s office to oversee the military prosecution.
On the topic of transparency in investigations, the committee recommended giving Gaza and PA Arab complainants the right to receive information about the progress of investigations and their results. Regarding Shin Bet investigations, the committee recommended visual documentation (video recordings) of interrogations and moving the investigation of complaints against the Shin Bet from the Shin Bet to the Justice Ministry.
Now, there’s a revolutionary idea!