Security forces’ immunity bill paused after AG warns of potential prosecution abroad

Police minister Ben Gvir accuses Baharav-Miara of ‘automatically’ opposing soldier-focused legislation, prompting Likud to delay its advancement by a week

Carrie Keller-Lynn is a former political and legal correspondent for The Times of Israel

Attorney General Gali Baharav-Miara speaks during a conference in Haifa on January 12, 2023. (Shir Torem/Flash90)
Attorney General Gali Baharav-Miara speaks during a conference in Haifa on January 12, 2023. (Shir Torem/Flash90)

A sweeping proposal to grant Israeli security forces immunity from prosecution for their actions during operations was paused Sunday, after the attorney general warned that the bill would expose troops to foreign prosecution and pose grave dangers for the relationship between the Israeli public and law enforcement.

The bill, backed by far-right Otzma Yehudit MK Zvika Fogel, a former Israel Defense Forces general, was slated to come before a government panel later in the day to determine the coalition’s support for the measure. After Baharav-Miara issued her opinion, the bill was shelved until next week.

“This proposal significantly impedes the duty to investigate suspicions of illegal or improper use of force, a duty that is part of the protection of the rule of law and human rights in the State of Israel,” she cautioned.

Critics have warned that the legislation could expose security personnel to prosecution abroad, including at the International Criminal Court in the Hague, if the global community no longer considers Israel to have a reasonable internal justice system for dealing with accusations.

The debate over Fogel’s bill comes as the coalition is controversially pushing to upend judicial checks on political power, a separate move that critics also caution could make security personnel and politicians vulnerable to international prosecution, if Israeli rule of law is perceived to be undermined.

The attorney general echoed those arguments in a letter Sunday to the Ministerial Committee on Legislation.

Palestinians confront Israeli soldiers while waving Palestinian flags in the center of the town of Huwara, in the West Bank, March 2, 2023. (Nasser Ishtayeh/Flash90)

“Applying immunity may bring a significant risk to the public and the State of Israel, and may have far-reaching implications for the way the regime operates in Israel, in the relationship between the individual and distinct representatives of the government,” she wrote.

“The proposal also creates a risk for members of the security forces themselves, who will be exposed to investigation and criminal prosecution abroad, as well as to a more significant risk to their lives and the integrity of their bodies as part of their operational activities,” Baharav-Miara added.

She recalled that Israel had developed mechanisms to “balance the challenges that characterize operational activity and the importance of the duty to investigate cases of illegal or improper use of force by security forces.

“The immunity, as proposed, fundamentally changes the balance point, and thereby results in a violation of human rights and other essential interests,” she wrote, adding that it is not “the appropriate tool for safeguarding these important interests.”

The bill would guarantee soldiers, police officers, Shin Bet employees, Knesset Guard, national guard volunteers, and various other security forces blanket criminal immunity for “actions in the course of carrying out duties, during operational activities, or against acts of terror.”

Not just blocking criminal prosecution, the measure would also protect security forces against interrogation, but neither immunity would not be retroactive.

However, the bill creates a mechanism to strip immunity for acts judged to be “malicious or in bad faith.”

Demonstrators carry banners outside the International Criminal Court, ICC, rear, urging the court to prosecute Israel’s army for alleged war crimes, The Hague on Nov. 29, 2019. (AP/Peter Dejong)

Alluding to that provision, National Security Minister Itamar Ben Gvir, who oversees the police and leads Fogel’s party, said that this bill “does not protect war crimes and offenses committed intentionally.”

Baharav-Miara opined, however, that the bill’s proposed committee that would be granted the power to strip immunity would not have the legal expertise to examine cases and determine if a crime was committed. “Hence, the proposal will not achieve a balance between the need to give backing to the security forces and the exploitation of immunity for the purpose of committing illegal acts,” she said.

Ben Gvir accused the attorney general of “automatically” opposing what he called “an initiative for IDF soldiers and against our enemy.” He also pledged to keep pushing the bill, and his obstinance reduced the bill’s planned time-out from a Likud-requested month to only one week.

Although a source close to Fogel said that the attorney general’s opinion was so strong that he did not expect the bill to be ultimately passed under her watch, Otzma Yehudit denied there had been a final decision to freeze it.

The legislation was included in coalition agreements to establish the government.

The explanatory notes for the bill, proposed in January, state that its purpose is to “allow the security forces to carry out their missions without fear” of prosecution. “IDF soldiers are becoming paralyzed in carrying out their missions due to fear” of being put on trial, the bill claims.

Otzma Yehudit MK Zvika Fogel leads the Knesset’s National Security Committee meeting, in Jerusalem, February 27, 2023. (Yonatan Sindel/Flash90)

Critics of the government’s legal overhaul similarly warn that efforts to restrict the High Court of Justice’s power will rob the country of legitimacy in the international arena.

Baharav-Miara has come out against the planned judicial overhaul, clashed with Netanyahu as to whether or not he can involve himself in the required legislation due to an alleged conflict of interest over his ongoing corruption trial, opposed legislation to ease donations to lawmakers, and warned that a bill that limits the circumstances under which a prime minister can be removed from office would create a “legal black hole.”

Last month Justice Minister Yariv Levin appeared to threaten to fire Baharav-Miara in the future, as the hardline government continued to find itself at odds with its most senior legal representative.

Also last month, dozens of Israel Air Force pilots said they will no longer turn up for service or training in protest to the judicial plan. According to Channel 12, the pilots, reservists who continue to do active service, expressed to IAF chief Tomer Bar their fear that the government’s hardline conduct could expose them to prosecution by global bodies such as the International Criminal Court.

There have been attempts to pass similar immunity bills over the years, but none were approved by the Knesset.

The government is already advancing other controversial security-related legislation, such as a death sentence for terrorists who kill Israelis.

Times of Israel staff contributed to this report.

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