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Tuesday, January 05, 2010

Complying with Goldstone's demands would lower Israel's standards

Justice Richard Goldstone has demanded that Israel establish a special review committee to examine the IDF's conduct during Operation Cast Lead. But, argues David Benjamin, establishing such a committee would actually lower the standards to which the IDF is already subject.
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.
Benjamin, a former legal adviser to the IDF, wonders whether Goldstone ignored the IDF investigatory process, or whether he was simply unaware of it. As you may recall, at the Jerusalem Center for Public Affairs' session for bloggers two weeks ago, I asked Dore Gold how much Goldstone had previously seen of the material that Dore presented during his debate with Goldstone in November. Dore said that it had all been sent to Goldstone last summer, but Goldstone had obviously not seen it. Dore speculated that Goldstone's staff may have kept the material away from him.

This is also likely the case with respect to the IDF's investigatory process. It's doubtful that Goldstone's staff knew or bothered to ask what the IDF's investigatory process is. Goldstone was likely too lazy or apathetic to care. After all, he knew what his conclusions had to be in order to advance his career, and was likely not interested in any evidence that would conflict with those conclusions.


At 4:03 AM, Blogger NormanF said...

Goldstone could have acknowledged Israel's legal system offers protections for minorities that don't exist elsewhere in the region. But that would have undermined the entire point of his report.


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