On October 10, 2013, the Israeli NGO Yesh Din published a report, “Lacuna: War Crimes in Israeli Law and Court-Martial Rulings,” labeling Israel’s legal system “defective” and calling for the adoption of legislation to “criminalize war crimes in Israeli law.”
Yesh Din’s report was financed by the European Union, as part of a three-year, €150,000 grant “to change Israeli policy vis-à-vis criminal accountability of Israeli Security Forces Personnel” (emphasis added). In this instance, the foreign government funding is being used to “draft a proposed law” and lobby the Knesset for specific legislation.
In funding a project using NGOs to “change Israeli policy,” in particular through legislative processes, rather than engaging in direct diplomacy, the EU is violating Israel’s democratic integrity and accepted norms between states.
Yesh Din’s lawfare agenda
Contrary to its rhetoric of positioning Israel “as an equal member of the family of nations,” Yesh Din’s report is an attempt to brand Israel as guilty of “war crimes” and the Israeli justice system as lacking due process and accountability. This is part of a wider “lawfare” strategy of pressing “war crimes” cases against Israeli officials in foreign courts and in the International Criminal Court (ICC) – as exemplified in the NGO-Goldstone process.
In 2010, the Israeli paper Israel HaYom published excerpts from an internal Yesh Din document, “Law enforcement against security forces: Concept 2011-2012.” In this strategy document, Yesh Din details a project to “encourage the entry of the topic of war criminals into the legal discourse relating to the actions of security forces in the occupied territories.” The goal, then, is to make accusations of “war crimes” against Israeli soldiers an integral part of the discourse about Israel – a goal that would be actualized through Yesh Din’s recommended legislation.
Yesh Din’s activities in Israel dovetail with the advocacy of Palestinian NGOs Al Haq and Palestinian Center for Human Rights (PCHR), which have been lobbying for indictments of Israeli officials at the ICC for several years. (It is noteworthy that Yesh Din attorney Michael Sfard has worked with Al Haq on multiple lawfare initiatives.) Undermining Israel’s rule of law and investigatory practices is a prerequisite for such universal jurisdiction cases, which will only proceed if Israel has failed in its legal duties.
In this context, Yesh Din’s claim that “existing Israeli law may not satisfy the terms of the ‘principle of complementarity’” (pg. 29) can be seen as veiled threat, since “it should be remembered that the principle of complementarity provides protection against criminal prosecution and judgment, as long as the law enforcement system in their country fulfills its role.” Indeed, in this context, Yesh Din raises the specter of “foreign legal intervention” (pg. 6).
The lawfare and branding agenda can also be seen in the description of Yesh Din’s EU-funded project, which emphasizes a “severity and different nature of War Crimes, as distinguished from regular, domestic crimes.” The focus on “severity and different nature of War Crimes” is not a moral or legal argument, but rather reflects Yesh Din’s primary political goal – “Yesh Din views the occupation as a main source of the violation of the human rights of the Palestinian population and therefore seeks to end it” (emphasis added).
Yesh Din vs. Turkel Commission
In its report, Yesh Din suggests that its recommendations correspond with the recommendations of the Turkel Commission regarding “‘War Crimes’ Legislation” (pp. 362-366). However, there are fundamental differences between the two approaches.
The Turkel Commission, following the lead of the Israeli Supreme Court, concluded that “it is satisfactory to ‘translate’ the behavior amounting to a war crime into an existing offense in the domestic legislation, provided that it reflects the severity of the violation under international law” (364-365). The ICC’s pretrial “Decision on the admissibility of the case against Abdullah Al-Senussi” (October 11, 2013) confirmed that “‘a domestic investigation or prosecution for ordinary crimes…shall be considered sufficient.” That is to say, Yesh Din’s recommendations are not legally required. The Turkel Commission based its conclusions on input from independent legal advisors, as well as a broad range of NGOs, academics, and government officials. And, its nuanced formulations of international legal principles reflect this diversity (see, for instance, the discussion of the Rome Statute, pg. 70, note 61), distinguishing between what is legally necessary and ways in which Israel can improve.
In contrast, based on supposed “accumulated experience,” Yesh Din alleges that “the effective practice does not fully conform to” the conditions set by the Israeli Supreme Court (pg. 32), accusing Israel of a “defective legal culture” and suggesting that this compromised Israel’s complementarity. As noted above, this is part and parcel of the lawfare campaign against Israel.
Yesh Din’s foreign government funding, which constitutes improper manipulation of Israeli democracy, and its lawfare agenda undermine its ability to affect change on issues relating to Israeli law with any semblance of credibility.
It is possible that the Turkel Commission’s recommendations concerning “filling gaps in Israeli legislation” should be adopted by the Knesset. However, Yesh Din’s involvement in any stage of the legislation will be detrimental to that process.