International Complementarity and Netzah Yehuda

On April 20, 2024, it was reported that the US State Department is planning on sanctioning the IDF battalion “Netzah Yehuda”. The news reignited an interesting discussion regarding Israeli loyalty to the United States, Israeli control over the West Bank and Gaza, and about the Israeli judicial system. The reported US decision stems from an independent American assessment of alleged violations of human rights carried out by the battalion. The most notable one – the tragic death of 80 year-old Palestinian-American Omar As’ad.

As’ad was arrested, cuffed, gagged, blindfolded and abandoned overnight, when he had a heart-attack. After an internal investigation within the IDF, the military stated that this was a “moral failure […] while enacting severe harm to human dignity” (My translation – Y.G.). The battalion commander was reprimanded, the company and platoon commanders were dismissed from their duty, and the soldiers were court-martialed. However, the IDF stated that there was “no causal connection” between the soldiers’ actions and As’ad’s death. Therefore, the criminal investigation against these soldiers was closed without pressing charges.

On the face of it, US sanctioning of the battalion appears to be a classic example of one of the arguments presented by protesters in the 2023 anti-Judicial overhaul movement. The argument claimed that the judicial overhaul plans would lead to destabilization of Israel’s legitimacy under the complementarity principle of international law. In essence, the complementarity principle states that international law organs will have secondary jurisdiction after national ones. This is, unless the national ones are unwilling or unable to prosecute such cases. This meant, in the Israeli context, that the overhaul plans, which were claimed to lead to a degradation in the enforceability of the law, would harm IDF soldiers. It would allow the ICC and Interpol to issue international arrest warrants, and allow states to prosecute suspected Israeli violators of international law (which includes IDF soldiers). This situation was perceived to threaten the HCJ’s (Israel’s High Court of Justice) status as Israel “bulletproof vest”. Hence, the whole ordeal appears to be a classic example of the unfolding of the deterioration of the bulletproof status of judicial decisions in Israel.

However, the reported US “sanctions” do not mean international “sanctions” in international law. The report suggests that the US State Department and the US Department of Defense will withdraw funding and will not participate in shared military exercises with the unit. This power is given to the departments in the Leahy Law. The Leahy Law, which is actually a set of amendments to different laws, stipulated that “[n]o assistance shall be furnished […] to any unit of the security forces of a foreign country [… if it] has committed a gross violation of human rights”. Another stipulation states that out of the Department of Defense budget “none may be used for any training, equipment, or other assistance for a unit of a foreign security force” if that unit has committed gross violations of human rights. The Leahy Act was implemented in the past on foreign military units: such as Turkish units in 1998, and Pakistani units in 2010. The most recent threat of using the Leahy Law was in 2023 against the Australian SAS following human rights abuses in the war in Afghanistan.

Therefore, this is not specifically about the complementarity principle but rather a law reserved for US departments in withholding American tax-revenue – not the prosecution of foreign nationals for violation of human rights. Its actions do not replace the jurisdictional authority of the Israeli judiciary (as with complementarity), but rather acts independently of it. It also does not stem from any judicial overhaul plans, but from military actions against Palestinians. In other words, this is not the situation envisioned by the protesters.

On the other hand, if we’ll look closely perhaps we’ll find a close relationship between the two outcomes. The basic assumption of the complementarity principle is that the international criminal system cannot trust the national one, since the latter is unwilling or unable to enforce the law justly. If it cannot trust that system, it must go around it to bring to justice, or to afford some sort of consequences. This is also the internal purpose of the Leahy Law – if it cannot expect the criminal justice system within a state to correct the ways of that unit (since the system condones it), there is no accountability. With no accountability, there are no consequences. If there are no consequences after the violation of human rights, the prosecution cannot be trusted. An American sanctioning of Netzah Yehuda would be a declaration of untrustworthiness of the Israeli justice system.

This does not mean, automatically, that the Leahy Law will be used, or that it stems from American mistrust in the Israeli judicial or political system. But, it can deliver the same massage. Through that massage, it can eventually harm the complementarity principle:

De-legitimization of one IDF unit could help American and international voices criticizing Israel’s war in Gaza. One way is the expansion of support for the withdrawal of US aid for Israel, or harm Israeli military coordination with the United States. In a bad scenario, it could affect Israeli defense capabilities that rely on American funding, such as the Iron Dome and the Arrow systems. A worst scenario could negate the complementarity principle and lead to arrests of Israeli civilians and soldiers who took part in the war in Gaza, thus replacing Israeli jurisdiction with international one.

This is, perhaps, a too slippery of a slope – but it’s entirely plausible with the implementation of a Leahy Law precedent on an IDF unit. This is exacerbated when Israel is fighting a ruthless opponent, and any action within it can deteriorate Israel’s international legal position, such as in the current ICJ case.

The solutions are quite obvious: tightening IDF internal investigations, as well as making them more transparent; expansion of the investigative and prosecution powers of judicial and parliamentary overview; and backing (by public and law enforcement officials) commanding officers who allow for their subordinates to be prosecuted in criminal law when violated human rights.