The Military Justice System in Israel

Transcription

1 The Military Justice System in Israel COL(R) Liron A. Libman Researcher at The Israel Democracy Institute Former Chief Military Prosecutor and Head of International Law Department May 2017

2 2 War & law Presentation structure Israel and the IDF background Israel s military justice system The Turkel Report - Investigating Alleged Violations of Laws of War Illustration the Azaria case

3 3 War & the Law Inter arma enim silent leges" )For among [times of] arms the laws fall mute) Cicero ( BC)

4 4 Laws of War in the Bible When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof by wielding an axe against them; for thou mayest eat of them, but thou shalt not cut them down; for is the tree of the field man, that it should be besieged of thee? Only the trees of which thou knowest that they are not trees for food, them thou mayest destroy and cut down, that thou mayest build bulwarks against the city that maketh war with thee, until it fall. (Deuteronomy 20, 19 20)

5 5

6 6 If Israel were your home instead of Estonia you would...

7 7 On Small Nations

8 8 Israel s National Security Threats states far (Iran) and near (Lebanon) failed, disintegrating (Syria) sub-state organizations- (Hezbollah, Hamas) terrorist organizations with no connection to a specific state or community (Global Jihad, Palestinian Global Jihad, Islamic State and others). (The IDF Strategy, July 2015, )

9 Structure of the Israel Defense Forces (IDF) General compulsory service (32 months for Men, 24 months for women) A small backbone of career officers and NCO s A large reserve force Unified command & interoperability of all branches The security concept: Detection, Deterrence, Defense, Defeating the Enemy 9

10 10 Basic Law: The Military The Army is subject to the authority of the Government. The Minister in charge of the Army on behalf of the Government is the Minister of Defense The supreme command level in the Army is the Chief of the General Staff (CGS) The CGS is subject to the authority of the Government and subordinate to the Minister of Defense

11 11 Military Justice Law, 1956 (MJL) A comprehensive law regulating: Jurisdiction Military offenses and punishments Legal institutions (courts, prosecution, defense) Pre-trial procedure & investigation Court procedure & rules of evidence Execution of sentences & pardon Disciplinary proceedings Ombudsman for soldiers

12 12 Military jurisdiction Permanent, not wartime Parallel to civilian criminal jurisdiction Persons: soldiers, civilian employees & others (limited jurisdiction) Matter: military offences & other servicerelated general criminal offenses time: from conscription until 6-12 months after discharge Place: extraterritorial

13 13 Investigation Conducted by the Criminal investigation unit of the military police (MPCID). Expert forensic assistance by the civilian police and autopsies by the National Center of Forensic Medicine.

14 14 Military Advocate General (MAG) unit Military Advocate General (MAG) Deputy MAG IDF School of Military Law Legal Advisor in Judea and Samaria Internation al Law Dep. Legislation and Legal Advice Dep. Chief Military Defender Chief Military Prosecutor

15 15 Military Advocate s responsibilities: May order a MPCID investigation Supervision over investigations Direction of investigation result: Indictment before a military court Disciplinary proceedings Recommendation about other measures (administrative, command, lessons learned) Closing the case

16 16 Military Courts District Military Court Military Court of Appeals Supreme Court (with leave)

17 17 Military Judges Usually sits in panel of three, with at least one jurist and one layman. Jurist military judges are nominated by the President of Israel, on the recommendation of a public commission representing the judiciary, government, Lawyers Bar, civilians and military command. Jurist military judges are institutionally independent Layman military judges are functionally independent

18 18 Legal Civilian Oversight over the Military representatio n Professiona l guidance AG MAG Legal Advice The Military Military Courts HCJ SC as Court of CA Submitting indictments, prosecuting, appealing

19 days 19 Trend: Getting closer to civilian procedure Arrest before judicial hearing

20 Trend reduction in command influence Amendment no. 42 to MJL (2003): Power to allow indictment after disciplinary proceedings (transferred to the Chief Military Prosecutor (CMP)) Power to cancel an indictment with the consent of a MA (now only by the MAG) Power to order the hearing of the trial in camera (transferred to the court) Power to order an appeal on leniency of the sentence (left for the CMP only) Power to mitigate a sentence 20

21 21 The Turkel Committee Mandate: to examine whether the mechanism for examining and investigating complaints and claims raised in relation to violations of the laws of armed conflict, as conducted generally, and as implemented with regard to the present incident, [the maritime incident of 31 May 2010], conforms with the obligations of the State of Israel under the rules of international law

22 Investigating Alleged Violations of LOAC 22 Complaint / Information MAG Clear Criminal Behavior Operational Debriefing Criminal Investigation MAG MAG Closed Case Command / Disciplinary Measures Indictment

23 23 Turkel report (part II) main conclusion: Lord Trimble: taken as a whole, Israeli law and practice will stand comparison with the best in the world, but there is always room for improvement 18 recommendations

24 24 Turkel report additional findings: The existence of a military justice system does not of itself compromise the requirement of independence, but in order to adhere to the principle of independence within such a system, an investigation must be conducted outside the chain of command (para. 98). The mere existence of an armed conflict does not negate the duty to conduct an effective investigation in accordance with the accepted general principles The precise content of the general principles has been determined carefully, with due regard for the contextual circumstances (para. 146)

25 25 Turkel report additional findings (2): The Investigation Policy in the IDF, whereby a CID investigation is not begun immediately following the death of a person during combat operations unless there is a reasonable suspicion that an offense has been committed, is consistent with Israel s obligations under international law. (para. 6, summary of the Conclusions and recommendations, p. 425)

26 26 Turkel Committee recommendations: Legislation war crimes and responsibility of military commanders and civilian superiors (1,2) Embedding reporting procedure in Supreme Command Orders (3) Enshrining investigation policy in rules and guidelines (4)

27 27 Turkel Committee recommendations (2): Establishing a fact finding assessment mechanism, to form the basis for a decision whether to investigate, instead of relying on operational debriefing (5) Procedures should establish a timeframe of a few weeks for the MAG decision whether to investigate (6) and another timeframe from this decision until the decision as to investigation s outcome (10) Enhancing the Independence of the MAG (7)

28 28 Turkel Committee recommendations (3): The MAG s double hat the status and independence of the CMP should be strengthened (8) A Department for Operational Matters should be established in the CID (9) Enhancing transparency towards victims and strict documentation procedure (11) Enhancing individual and systemic review of the Military Prosecution system (13)

29 29 The Azaria case

30 30 HCJ Israel s Supreme Court Democracies fight with one hand tied behind their back but that is why they have the upper hand President of SC Barak, HCJ 769/02

31 31 Additional Information The Public Commission to Examine the Maritime Incident of 31 May 2010 (Turkel Commision), Report, Part B: rt%20for%20website.pdf L. A. Libman, Legal Advice in the Conduct of Operations in the Israel Defense Forces, 50/1-2 MILITARY LAW AND THE LAW OFWAR REVIEW 67 (2011) M. Finkelstein & Y. Tomer, The Israeli Military Legal System: Overview of the Current Situation and a Glimpse into the Future, 52 A.F.L REV.137 (2002)

32 32 Additional Information (2) Examples of transparency as to alleged IHL violations: Gaza Operation Investigations: Second Update (19 Jul 2010), gaza_operation_investigations_second_update_july_2010.aspx Operation Protective Edge: Investigation of exceptional incidents - Update 4, Decisions of the IDF Military Advocate General (11 Jun 2015), es/operation-protective-edge-investigation-ofexceptional-incidents-update-4.aspx

33 33 Questions? Thank you for listening!