A bill that would subordinate the professional work of IDF’s highest legal authority to the IDF Chief of Staff, rather than the Attorney General, would have grave consequences for the rule of law, the IDF, and all who serve in it.
Photo by Moshe Shai/FLASH90
The IDF is not spared from the current coalition’s attempt to undermine the professional independence of Israel’s justice system. Historically the position of the Military Advocate General (MAG), the IDF’s highest legal authority, has been subordinate on professional matters to the Attorney General, so as to ensure his or her professional independence as the IDF’s legal advisor and the head of military prosecution. Earlier this week, the Ministerial Committee for Legislation approved advancing a bill proposed by MK Osher Shekalim (Likud) that would subordinate the Military Advocate General (MAG) to the IDF Chief of Staff not only in terms of military command, which is the current state of law, but also in professional matters. If enacted, this bill would have negative implications not only for the rule of law, but also for the IDF and for those who serve in it, who would be exposed to increased legal risks abroad and to infringements of their fundamental rights in the course of their military service.
According to the explanatory notes, the bill is intended to “strengthen the chain of command in the military, preserve clear and uniform command responsibility, and ensure that the military operates independently, professionally, and without dependence on external actors.” In other words, the bill seeks to abolish the MAG’s subordination to the professional guidance of the Attorney General, as established decades ago by the Supreme Court and has since been anchored in the Attorney General’s Directives.
Moreover, the proposed bill is also intended to authorize the IDF Chief of Staff to set policy and give orders that are contrary to the MAG’s legal position, namely – policy and orders that are in violation of the law. It is important to understand: under the IDF Supreme Command Order addressing the position of the MAG, which has been in force for decades, the MAG is the authority empowered to determine, for the military authorities, what is lawful and what is unlawful. Despite the MAG’s command subordination to the IDF Chief of Staff, in professional matters he or she is “subject to no authority but the law.” Preserving the MAG’s professional independence as a gatekeeper, and his or her professional independence from the IDF Chief of Staff, is also the reason the law provides that the MAG is appointed not by the Chief of Staff, as is the case with the other members of the General Staff forum, but by the Minister of Defense, a civilian authority, upon the recommendation of the Chief of Staff. Subordinating the MAG’s professional discretion—i.e., determinations of what is lawful—to the Chief of Staff, effectively grants the latter a license to act unlawfully. The Chief of Staff would also potentially be able to intervene in the MAG’s discretion as the head of the military prosecution, for instance to act in a discriminatory manner in decisions regarding the filing of indictments against soldiers who violated the law.
MK Shekalim claims that he seeks to resolve an “absurd situation of the [civilian] justice system interference in the IDF chain of command,” which has led, according to him, to the recent affair involving the former Military Advocate General, (even though there is no basis for the allegation that the Attorney General was involved). In the spirit of the times, he proclaims that “it is time for governance—also in the military!” But the law he proposes is exactly the opposite of governance. It is an invitation to chaos. Instead of unity and consistency in the legal advice provided to state authorities, passage of the bill would create, for example, a risk that the MAG would, at the military’s request, legally approve operational activity that the Attorney General advised the government and the security cabinet is unlawful.
There is also risk of chaos in the exercise of criminal enforcement powers. For example, if the MAG refrains from prosecuting a soldier on improper grounds, the Attorney General would no longer be able to instruct him to act otherwise. This recalls that the very principle of the MAG’s professional subordination to the Attorney General was originally established in the context of the Attorney General’s authority to intervene in the MAG’s discretion as the head of the military prosecution, some thirty years ago in the Supreme Court’s judgment in the Avivit Atiya case. In that case, the family of a soldier who was accidentally killed by friendly fire in southern Lebanon petitioned the Attorney General, asking him to instruct the MAG to prosecute the platoon commander involved rather than suffice with a command-level reprimand. If MK Shekalim’s bill is adopted, families in similar circumstances will be left without recourse. Alternatively, the Supreme Court will be flooded with disputes between state authorities and their respective legal advisers, such as the MAG. Is this governance?
Beyond this, if the bill passes, those serving in the IDF will be exposed to grave violations of their rights by the military system. To begin with, the military system, particularly with a mandatory conscription model, by its very nature, requires service members to forgo of many of their rights. The proposed situation could leave soldiers and commanders alike unprotected in the preservation of the rights they do retain, subject to the arbitrary will of their superiors. The IDF risks becoming lawless, and the “people’s army” model, which rests on the trust of service members and the public in the IDF and its commanders, could collapse. Others subject to the authority of the IDF, such as those in the West Bank or on the battlefield, would likewise be left without protection.
Finally, abolishing the MAG’s professional independence would significantly increase the exposure of IDF soldiers and commanders to legal risks abroad. The most effective protection against such risks today is the existence of a professionally independent military prosecution, both in the legal advice it provides regarding IDF operational policies and conduct and in its decisions on investigating and prosecuting allegations of violations of the law of armed conflict. Even today, Israel is exceptional in that such investigations are entrusted with the military justice system, rather than with the civilian one, as is the case in many other democracies. Strict adherence to the MAG’s professional independence is what enables Israel to maintain the existing model, while protecting its soldiers from legal risks abroad. MK Shekalim seeks to deprive the IDF and those who serve in it of this protection.
The move to abolish the professional independence of the Military Advocate General and of the Military Advocate General’s Corps altogether is dangerous to the rule of law, dangerous to the IDF, and dangerous to those who serve in it. It must not be allowed to proceed.
This article was published in the Times of Israel