Israel must investigate claims of detainee abuse

Following allegations of abuse of a Palestinian detainee at Israel’s Sde Teiman military detention facility, military police raided the base to take a number of Israeli soldiers allegedly involved for questioning. What followed were threats against senior commanders and law enforcement figures in the IDF made by various political leaders and online and media personalities, which culminated an angry mob storming two military bases, among them several government ministers and Knesset members. Such rhetoric and actions constitute a dangerous attempt to insert politics into the IDF and to undermine the chain of command and the authority of commanders. Moreover, this conduct displays a serious lack of understanding and a willingness to undermine the important steps being taken by the IDF and Israel’s government to protect its citizens and soldiers from a number of international legal challenges.

The alleged act of the suspect soldiers is morally repugnant and the IDF is right to conduct a full and throughout investigation. Whenever reliable allegations arise of abuse of a detainee under IDF custody, they must be investigated — first and foremost, for moral and ethical reasons. Regardless of the anger against the terrorists held at the Sde Teiman detention facility, these detainees are still subject to the laws of the State of Israel and are entitled to certain rights and protections under international law. Respecting these rights and protections is part of the bedrock of the system of values of a modern democratic state. Sentencing and punishment must be decided only by a court of law, and there can be no place for administering any sort of private retribution. This is a core element of the foundation of a functioning democracy, and is also an important moral quality that differentiates Israel from the enemies who attack us.

The duty to investigate stems also from the IDF’s professional standards. A professional army’s advantage in overcoming terrorist organizations stems precisely from the fact that it operates under the rule of law: its soldiers are not members of private militias, but rather operate within a framework of rules and discipline. As a rule, there is no operational justification for physically abusing detainees. In a country guided by the rule of law, when reliable allegations are made that such abuse has occurred, giving rise to reasonable suspicion that criminal acts have been committed, then a criminal investigation is necessitated.

Throughout the long months of the war, the IDF has, in general, proudly maintained its discipline and its values. There have been many cases in history in which armies have abandoned their ethics and values, especially when fighting against irregular forces such as terrorist organizations. But, with very few exceptions, the IDF has preserved its professionalism and ethics even under extended and very challenging combat conditions.

Those soldiers who step out of line should be held accountable for failing to uphold the moral, professional and legal standards of the IDF. This is also our duty toward all those who serve in the IDF and uphold its standards. As the Torah commanded: “And your camp shall be holy” (Deuteronomy 23).

Furthermore, investigating claims of detainee mistreatment is an accepted norm among the Western states that are Israel’s closest allies. When such claims arose against coalition forces during the wars in Iraq and in Afghanistan, they were investigated, and those found to be responsible were brought to justice. One infamous example emerged when it became clear that American soldiers had tortured and abused Iraqi detainees at the Abu Ghraib prison during the Second Gulf War (2003). Eleven American soldiers were eventually put on trial for these crimes, and two were sentenced to lengthy prison terms. The United Kingdom also tried soldiers accused of abusing detainees during the war in Iraq. In one case, a soldier was accused of “inhumane treatment” of a detainee, and, after pleading guilty, he was sentenced to 12 months’ imprisonment, stripped of his rank, and discharged from the army. The United Kingdom has also established several formal mechanisms for investigating complaints and suspicions of detainee mistreatment, as have Australia and Canada.

It should of course be noted that the detainee mistreatment was also the subject of examinations and investigations conducted by the International Criminal Court (ICC) regarding UK forces in Iraq and US and Australian forces in Afghanistan. The examination against the United Kingdom, for example, was only closed after the ICC was convinced that the British investigations were generally satisfactory.

All of this sends a clear message to Israel’s leaders and security establishment: independent and effective investigation of claims of detainee abuse by IDF soldiers is the standard that our allies expect of us — the same standard they have applied to themselves. In discussions between Israel and the British authorities regarding arms exports to Israel, the allegations about detainee mistreatment were given considerable weight. American and German officials have also expressed concern on this score, as have UN officials. In the context of the criminal investigation already being conducted by the ICC with regard to the war in Gaza, if the IDF does not investigate these allegations, there is a risk that they will be considered by the ICC prosecutor, who has already demonstrated that he has no aversion to requesting arrest warrants for Israelis. An independent Israeli investigation remains the most effective way of preventing legal proceedings abroad.

In this context, it is also important to note the unacceptable behavior of Knesset members who led the break-in to military bases, and to the vitriolic language used against those responsible for law enforcement in the IDF, headed by the IDF Military Advocate General and the Commander of the Military Police Corps. In democracies such as Canada, Australia, or Britain, it has been members of parliament who stood at the forefront of demands to investigate similar allegations of detainee abuse. They did so based on an understanding that the use of military force by a democratic state requires an unwavering commitment to the rule of law. In Israel, by contrast, factions of our parliament have, in recent weeks, served as a pressure group to prevent any investigation, and the Supreme Court, which is currently considering a petition about the conditions of captivity at the Sde Teiman detention facility, has been subjected to a barrage of criticism.

The Israeli Knesset members who are publicly opposing the investigation and undermining the army’s ability to maintain its moral and professional values, are not strengthening the IDF and its soldiers. Quite the opposite — they are actually endangering them, and are eroding the basis of shared values that enable the continued existence of Israel’s “people’s army.” They are also further weakening international support for Israel, and are putting IDF soldiers at risk of potential legal proceedings overseas. For the sake of the IDF and our soldiers — and for sake of our democracy, it is incumbent upon Israeli political leaders to uphold the rule of law and respect and bolster the investigative authority of the IDF.

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The above was co-authored by Prof. Amichai Cohen, a senior fellow at the Israel Democracy Institute, where he serves as the director of the Amnon Lipkin-Shahak Program on National Security and Democracy. He is also a lecturer in the faculty of law at Ono Academic College.