Another attack on the rule of law: Now it’s the IDF’s turn
The governing coalition’s attempt to undermine the professional independence of Israel’s justice system has now reached a place where its impact could be life or death: the IDF.
Earlier this week, the Ministerial Committee for Legislation voted to advance a bill proposed by MK Osher Shekalim (Likud) that would make the military advocate general (MAG), the IDF’s highest legal authority, answerable to the IDF chief of staff not only in the military chain of command, but also in matters of professional legal guidance.
Currently, in order to ensure his or her professional independence as the IDF’s legal advisor and the head of military prosecution, the MAG is subordinate on legal issues to the professional guidance of the attorney general. This framework was established decades ago by the Supreme Court and has since been anchored in the attorney general’s directives.
If it passes, 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 during their military service.
According to its 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.”
The bill is also intended to allow 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 violate the law. It is important to understand: Under the IDF regulation addressing the position of the MAG, which has been in force for decades, the MAG is the authority that can determine for the military authorities what is lawful and what is unlawful.
Although the MAG reports to the IDF chief of staff, in professional matters, he or she is “subject to no authority but the law.”
To preserve the MAG’s role as a gatekeeper and secure his or her independence from the IDF chief of staff, unlike other members of the General Staff, the MAG is appointed by the minister of defense, a civilian authority, not by the chief of staff.
Subordinating the MAG’s professional authority to determine what is lawful to the chief of staff effectively grants the chief of staff a license to act unlawfully. The law would also enable the chief of staff to potentially intervene in the MAG’s discretion to decide whether to prosecute soldiers for alleged offenses.
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). Echoing a popular slogan, 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.
There is also a 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 established some 30 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. By its very nature, the military, particularly with a mandatory conscription model, requires service members to forgo 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 military prosecutor that is independent, 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 to the military justice system, rather than to 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.