Monday, January 04, 2010

Contrary To Goldstone, In Israel, High Judicial Standards Come--Standard

David Benjamin--a reserve lieutenant-colonel, former senior legal adviser to the IDF, as well as advocate, consultant and lecturer in international law, the law of armed conflicts and counterterrorism--takes a look at Israel's justice system and wonders why Judge Goldstone wants Israel to lower its standards:
Goldstone says our investigations should be conducted in conformity with "international standards." We shouldn't have a problem with this demand, since it means, in effect, that we can drop our standards. The fact is that Israel probably has the highest level of accountability of the military under the law in the world.

LET'S TAKE a look at the investigation process as stipulated by Israeli law:
Firstly, the IDF is required to investigate every complaint into misconduct by its troops, from the severe to the trivial. The IDF will also launch investigations even when no complaint has been filed, such as when alleged misconduct is brought to light in the media. Generally, the initial investigation may take one of two forms: either a criminal investigation by the Military Police or an operational enquiry by senior officers.

The former is appropriate when the criminality of the alleged misconduct is clear, e.g. looting, assault of detainees. The latter is employed where the circumstances do not necessarily point to a criminal act, e.g. civilian casualties as a result of a bombing raid. There is nothing to preclude the military advocate general (MAG) from ordering a criminal investigation at the outset in any case, including in cases concerning operational activity (note that Goldstone erroneously claims that this is not so) and the MAG has in fact done so on a number of occasions.

The MAG is authorized to review the findings of all operational enquiries for the purpose of deciding whether or not to order a criminal investigation. Moreover, the civilian attorney-general is authorized to review and overturn the decisions of the MAG in this regard. Most significantly, the Supreme Court can review and overturn any such decision.

Also, the MAG's decision whether to press charges - and if so, what charges - is also reviewable and can be overturned both by the attorney-general and by the Supreme Court.

The point is that all decisions by the military and civil authorities in relation to investigations and prosecutions, including questions of "pusillanimity," are ultimately reviewable by the highest court in the land.

THE LIKELIHOOD of such review taking place is far from hypothetical. Anyone with a legitimate interest can petition the High Court to review any decision by any Israeli authority, civilian or military. It has been long established that Palestinian residents of Gaza and the West Bank as well as Israeli human rights organizations have the right of standing in the High Court.

The thousands of petitions brought annually against the IDF are testimony to the routine nature of such proceedings. It is important to note that unlike the US Supreme Court, which can select the cases it wishes to adjudicate, the High Court has no such luxury and is obliged to give its attention to every petition. The bottom line is that anybody who is unhappy with the Cast Lead investigation process in general, or with any individual investigation in particular, has a clear path to the High Court once they have exhausted other remedies.

...The High Court is the only court in the world that routinely hears petitions regarding military operations, including those carried out beyond the borders of the state and including in real time. Every IDF commander performs his duties in the knowledge that he may be called to account for his decisions in the High Court at any time. There is no parallel to this anywhere. This goes far beyond what are considered to be "international standards" of accountability. [emphasis added]
Benjamin gives a case in point:
There is a recent, well-publicized example of this type of judicial review:
Battalion commander Lt.-Col. Omri Borberg was indicted by the MAG for "conduct unbecoming an officer" for an incident, captured on film, in which a soldier in Borberg's battalion shot a bound Palestinian suspect in the foot with a rubber bullet. This happened while Borberg was standing next to the suspect. Following a petition by Israeli human rights groups, theHigh Court overturned the MAG's decision and ordered him to ratchet up the charges against Borberg.
Gee, next thing you know they'll be asking Israel--which has something of a reputation on the topic--to use the same security standards as the US.

Maybe Goldstone is thinking of those high international standards that the UN Human Rights Council used in congratulating Sri Lanka in its slaughter defeat of the Tamil Tigers--until some international pressure and politicking made it possible to bypass a certain bloc of countries that will remain nameless, do an abrupt about face and now demand a Goldstone-style investigation in Sri Lanka.

Or maybe Goldstone is thinking of the high standards that critics of his report are holding him to--questions and detailed criticisms of the content of his report that continues to ignore and deny exist.

Hight standards indeed.

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