Speech of the Military Advocate General, MG Yifat Tomer-Yerushalmi

Acting President of the Supreme Court, Honorable Justicege Uzi Vogelman,

Attorney General, Gali Baharav Miara, 

Head of the Israeli Bar Association, Amit Bechar,

The Chief public Defender, Anat Meyased-Canaan,

my fellow lawyers; 

Good morning everyone.

I would like to thank the head of the Bar Association, for the invitation and the opportunity to speak at this distinguished forum.

It has been over seven and a half months that the State of Israel has been engaged in a complex, challenging, intense, and long war. A war with a heavy price - over fifteen hundred civilians, soldiers, and members of the security and search and rescue forces have been killed; thousands were injured, and one hundred and twenty-five hostages are still being held in the Gaza Strip, and it is our duty to return them.

IDF troops, in regular service and reserve duty, are operating on land, at sea, and in the air; in the south and the north; in Judea and Samaria, on the home front, and in additional and distant arenas. The dedication and bravery, to the point of sheer ferocity, of the soldiers, fill pages in the book of the chronicles of Israel's wars.

This war is unusual, among other things for being the most legal-focused war that we have seen. 

This is expressed in a number of aspects - 

First - in the unprecedented scope of the emerging legal issues, some of which will be discussed at this conference; 

Second - in the sensitivity and great complexity of the legal challenge we face;

And thirdly - the immediacy with which the legal front affects the war on the ground.

These are ongoing while we are fighting enemies that regard the laws of warfare as nothing; enemies who cynically exploit the law, brutally using the civilian population as human shields. 

From the first day of the war, the officers of the Military Advocate General Corps stood by the commanders of the IDF in the various arenas to help them achieve the goals of the war set by the political echelon, in accordance with the law. 

This is a good opportunity to show our appreciation to the members of the Bar Association. Many of you are taking part in the war efforts - some in uniform, and some in other settings. Many of you helped and are helping us, shoulder to shoulder, and work night and day for the State of Israel, and for its security. I cannot overstate the importance and impact of your contribution.

In tandem with the legal activity inside the IDF, the Military Advocate General’s Corps - in cooperation with the Ministry of Justice, the Ministry of Foreign Affairs, Israel’s National Security Council, and other bodies - is a part of the fight against the various attempts in the international arena, which seek to disrupt the State of Israel and the IDF’s geostrategic theater. 

I would like to speak about the events of the last few days in this context.

Last week, we heard the decision of the prosecutor of the International Criminal Court (ICC). The prosecutor announced that he submitted a request to issue arrest warrants against the Prime Minister and the Minister of Defense, on the suspicion of committing war crimes and crimes against humanity; He did this while naming them, in an outrageous manner, in the same sentence as the leaders of the terrorist organization Hamas.

A few days later, the fourth decision of the International Court of Justice, the ICJ, was made in the case filed by South Africa under the Genocide Convention. The court decided, by majority opinion, to grant additional provisional measures regarding, among other issues, the IDF's operation in Rafah.

Winston Churchill once said: ‘Truth is incontrovertible. Panic may resent it. Ignorance may deride it. Malice may distort it. But there it is.’

Honored guests - the truth is clear: 

The State of Israel is at war, one which it did not choose; A war that broke out in a horrific massacre, murder, rape, and acts that the mind refuses to grasp. 

War against a criminal terrorist organization, which holds women, children, and men, as hostages, in inhumane conditions; against an enemy who abuses and harms even its own people.

South Africa's disingenuous use of treaties and international courts that were founded on the blood of the victims of the most horrific events known to the world, first and foremost being the Holocaust, is abhorrent.

The claim that Israel condones a deliberate policy of starvation, while the IDF is making tremendous efforts to bring food, medicine, and humanitarian aid into the Gaza Strip - is senseless. 

The claim that Israel employs the deliberate targeting of civilians, and the systematic destruction of property, while the IDF is working tirelessly to reduce harm to the civilian population, has no basis in reality. 

As Judge Aharon Barak simply wrote: South Africa attributes to Abel, the crime committed by Cain.

The Military Advocate General’s Corps worked and is working to integrate the principles of international law into the operations of the army. We provide independent and binding legal advice, which is integrated into key parts of the operational planning processes. In this context, we frequently consult with officials from the legal counsel of the government and work in close cooperation with them.

In addition, many legal issues that arose in the war were discussed and are still being discussed before the Supreme Court. No other country in the world can proudly proclaim its commitment to examine its compliance with the rule of law, in the midst of an existential war. 

Naturally, in a war of such scope and intensity, complex incidents also occur. Some of the incidents, like last night's incident in Rafah, are very difficult. The details of yesterday's event are still under review, and we are committed to seeing it through to conclusion. The IDF regrets any harm to un-involved civilians during the war.

During war, there are also incidents that occur in which the suspicion of violations of the laws of war and military orders arises. 

However, these are exceptions and not the rule, and they do not bely a policy that deviates from the law. The opposite is true - these suspicions are examined thoroughly and decisively, as part of our deep commitment to justice.

The inspection and investigation mechanisms in the IDF, including the General Staff’s Fact-Finding and Assessment Mechanism and the Military Police Criminal Investigation Division (MPCID), are professional and independent mechanisms. They are professionally guided by the Military Advocate General, and are not subject to the regular chain of command involved in combat.

These entities are staffed by senior and experienced professionals who have a proven ability to review and investigate operational events in a comprehensive and thorough manner. The professionalism and capabilities of these bodies were also recognized in the past by international bodies, including the ICC prosecutor.

The findings of the examinations and investigations are all forwarded to the Military Advocate General Corps for examination in order to make decisions regarding the necessary legal steps. 

Each decision is made on a case-by-case basis following thorough examination and rooted in a deep understanding of the unique challenges that the war poses to us - but always, from the independence of our judgment, and our sole commitment to the law.

At this point, I can say that so far approximately seventy MPCID investigations have been launched regarding incidents that raised suspicion of criminal offenses.

As part of these investigations, there are also the allegations made regarding the detention  conditions at the "Sde Teiman” detention facility, and the deaths of detainees in IDF custody. We take these allegations very seriously and are working to see them through.

The investigations also look into incidents in which un-involved civilians were killed in operational circumstances; incidents of violence, property crimes and looting.

These examples join other incidents, in which their examination revealed that they did not cross the criminal threshold, and were therefore referred to commanders to take disciplinary measures.

Some claim, and these are claims we have heard more than once in the past: the cannons are rumbling! - Why are you prioritizing investigating soldiers in the midst of combat? Some even go further and claim that in any case the internal enforcement is not effective in preventing proceedings in the international arena.

I would like to emphasize: 

The IDF's commitment to the law does not stem from the concern posed by the international arena. It is rooted, first and foremost, in the fact that the State of Israel is a state of law. The rule of law, and the purity of arms, are values ​​woven into the IDF's code of ethics from the day it was established.

Thus, decades before the establishment of the ICC, we fearlessly acted for the enforcement of these values, in Houla and Kfar Qassem, in the Nirim police station and the Givati ​​cases, naming just a few examples.

It's no secret: throughout this war we encountered difficult dilemmas, which required hard decisions. I would like to say loud and clear: we did not hesitate to make these decisions, and we will not hesitate to make them, even in the future.

Maintaining clear boundaries, even in war, moreso during war, and enforcing the law when these boundaries were crossed - are a clear expression of the deep difference between us and our enemies. This is how we have operated in the IDF since the first day of the war, and we are proud of it. 

Implementing the law and enforcing it in combat is not simple. However, according to the words of Judge Haim Cohn z”l, “Everyone who ought to know should be aware that the rule of law in Israel will never succumb to the state’s enemies.”

Dear friends,

I began with the words of Winston Churchill, and I will conclude with a story about him. In 1922, Churchill, then the Minister of Colonies of Great Britain, came to visit the Land of Israel. In anticipation of his arrival, the mayor of Tel Aviv, Meir Dizengoff, ordered the young city to be decorated with trees.  

Since there was not enough time for planting - it was decided to cut down cypress trees from the Mikve Israel grove, and place them in the sands of Tel Aviv.

As Churchill's car approached, the crowd began to amass, the trees fell, and the felled trunks were exposed. Dizengoff was of course very embarrassed, but Churchill patted him on the back and said: "Mr. Dizengoff, take care to deepen your roots, because without them, you will not last."

Unlike the trees of Tel Aviv in the story, the roots of the State of Israel, and of the legal system in Israel, run deep. Our ancestors took care of it, and we enjoy the fruits of their labor, and we - sitting in this hall - have an important role in preserving these roots, and in deepening their grip on the land. These trees, according to the Mishnah in Pirkei Avot, all the winds in the world may come and blow on them - but they do not move them from their place. 

Thank you all and may the conference continue to be successful and fruitful.