Former defense legal adviser warns against planned government moves in West Bank

Ahaz Ben-Ari says the role carved out for Smotrich in the Defense Ministry may harm security, and Ben Gvir’s proposed immunity for soldiers could cause international legal trouble

Emanuel Fabian

Emanuel (Mannie) Fabian is The Times of Israel's military correspondent

Illustrative: Palestinians clash with Israeli security forces during a protest in the village of Beit Dajan, in the West Bank, on December 9, 2022. (Nasser Ishtayeh/Flash90)
Illustrative: Palestinians clash with Israeli security forces during a protest in the village of Beit Dajan, in the West Bank, on December 9, 2022. (Nasser Ishtayeh/Flash90)

A former legal adviser to the Israeli defense establishment warned against legislation Prime Minister Benjamin Netanyahu’s new government intends to pass, saying it would harm Israel’s security and open it up to potential international scrutiny, in an interview with The Times of Israel last week.

Under coalition agreements, control over the appointment of several army generals and authority over a Defense Ministry unit that oversees Israel’s policy in the West Bank would be taken away from the defense minister and handed to Religious Zionism leader Bezalel Smotrich. Additionally, the far-right leader of the Otzma Yehudit party has been seeking to grant soldiers immunity from criminal prosecution for any action they might take while on operational duty.

Ahaz Ben-Ari, who served as the Defense Ministry’s legal adviser between 2007 and 2017, told The Times of Israel that the government’s plan to restructure military authority in the West Bank as part of a new office within the Defense Ministry given to Smotrich, the finance minister, would not only breach the law as it stands but would damage security.

“Smotrich is required to fulfill his role [in the Defense Ministry] as subordinate to the defense minister” and not as an independent minister, Ben-Ari said, citing the quasi-constitutional Basic Law: The Government, which stipulates that ministers within ministries are subordinate and not independent.

“The overall responsibility over the ministry units [including issues in the West Bank] still remains in the hands of the defense minister. He has a minister within the ministry, not a separate ministry,” he said.

“But when you read the coalition agreements, you find out that it is incompatible with the Basic Law because it gives the impression that [Smotrich] is given freedom of action and independence,” Ben-Ari said.

Ahaz Ben-Ari. (Courtesy)

Smotrich was given “civil responsibility” over the Coordinator for Government Activities in the Territories (COGAT), a hybrid civil-military unit, which means he is responsible for issuing building permits in the West Bank, while everything else related to the Defense Ministry unit is apparently to be handled by Defense Minister Yoav Gallant.

Coalition agreements also allow Smotrich to appoint the generals who head COGAT and the Civil Administration, the COGAT office that oversees many settlement issues, subject to Netanyahu’s approval, but it is unclear if the army will agree to such a change.

“There is a connection between [Israel’s] civilian activity and security activity [in the West Bank]. The functional benefit of having the defense minister in charge of the whole system is that it gives him an integrated view of what is happening,” Ben-Ari said.

Ben-Ari said the “most significant” civilian matter in the West Bank that the defense minister has control over is the advancement of building plans. Under a decision made during Netanyahu’s first government in 1996 — known as Resolution 150 — all construction plans in the West Bank must be approved by the defense minister.

“But the coalition agreement vows to amend Resolution 150, and transfer the authority and allow [Smotrich] to advance building plans in agreement with the prime minister, while completely ignoring the defense minister,” Ben-Ari said. “The plan is to skip over the defense minister on such a critical issue, and make [Smotrich] the one in charge of giving orders to the Defense Ministry’s higher planning council.”

“I can tell you from hundreds of hours of experience, when building plans are brought to the defense minister for approval, there is always a consideration of the timing and size of the building project. The security side of things is always taken into account. It isn’t something that can be disconnected,” he said.

“If civilian issues [in the West Bank] are not managed by the defense minister, there is serious potential for security harm, and that needs to be stopped,” Ben-Ari said.

Construction work for new housing in the settlement of Modi’in Illit. January 11, 2021. (Flash90)

Allowing Smotrich to appoint the two generals, as per the coalition agreements, violates another Basic Law, The Military, whose Clause 2 (b) specifies: “The Minister in charge of the army on behalf of the Government is the Minister of Defense.”

“There cannot be a case where another minister appoints [the head of COGAT or civil administration]. This authority cannot be transferred to another minister. And in any case, the defense minister doesn’t appoint the generals, but only really approves their appointment,” Ben-Ari said.

Currently, the major general in charge of COGAT is appointed by the defense minister at the recommendation of the IDF chief of staff, and the brigadier general overseeing the Civil Administration is appointed by the chief of staff without any involvement of the defense minister.

Smotrich has yet to make any decisions in his secondary ministerial position, and the Knesset’s legal adviser also said last month that Gallant would be able to overrule him.

Meanwhile, Ben-Ari said plans by far-right National Security Minister Itamar Ben Gvir to relax the military’s open-fire rules, and to pass legislation granting police and soldiers immunity from criminal prosecution for any action they might take while on operational duty, could open Israel up to international legal complications.

MKs Itamar Ben Gvir (left) and Bezalel Smotrich speak in the Knesset on December 19, 2022. (Olivier Fitoussi/Flash90)

The immunity plans bring up two main issues, according to Ben-Ari. “The first is internal, that it may give a license [for soldiers] to commit acts that should not be committed.”

“The second issue is the international frontier, which is no less serious. It needs to be noted that the International Court of Justice in The Hague, and also ‘regular’ courts in Europe, can have indictments filed at them against soldiers, or politicians, that are involved in what could be seen as war crimes,” he said.

“As long as the current situation is kept the way it is, where Israel has a remarkable and serious justice system and our legislation is accepted internationally as one that is correctly balanced, then the courts [in Europe] respect the Israeli system.”

“They would say, ‘Because it happened in a country with a respectful justice system, we won’t need to deal with it. They have their authorities, prosecutors, courts, police, they will do what is required.’ But if we get rid of that and give carte blanche to [soldiers to] do what they want and give them immunity from prosecution, it would open up all sorts of measures.”

“‘In Israel, they won’t do anything to them, so we will deal with them in Europe,’ they might say,” he said.

Israeli troops operate in the West Bank, early January 12, 2023. (Israel Defense Forces)

Ben-Ari said that during his tenure, joint efforts with the Foreign Ministry, Justice Ministry, Military Advocate General, and other top legal officials were made to prevent courts in Europe from bringing charges against soldiers and politicians for incidents in the West Bank.

Ben Gvir’s immunity for soldiers plan has not yet been formally submitted as a law suggestion, but it was a key part of his election campaign. It remains unclear if Netanyahu would support such legislation.

Ben-Ari is a member of a group known as Commanders for Israel’s Security, which is made up of over 400 former top officials from the security services and is dedicated to advancing a two-state solution between Israel and the Palestinians.

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