Kahn. 'It could be used against them'
צילום: עטא עוויסאת
Legal expert: Board of inquiry would change everything
Decision to discipline senior officers over Gaza operation may be insufficient if world accuses them of committing war crimes. Former head of the international department at the State Prosecutor's Office says IDF's objection to independent commission of inquiry 'not working in favor of the army'
Are Gaza Division Commander Brigadier-General Eyal Eisenberg and former Givati Brigade Commander Colonel Ilan Malka in risk of being charged with war crimes following the Southern Command chief's decision to discipline them for "exceeding their authority" during the Israeli operation in Gaza, or will Israel be able to claim that all proceedings have been exhausted?
Attorney Irit Kahn, former head of the international department at the State Prosecutor's Office, explains that "if we had our own internal commission of inquiry, which would look into all the incidents and circumstances, the entire procedure would look completely different."
According to Kahn, "The army opposes such a committee, but I'm not certain that this objection works in favor of the army, and these are the results."
As for the possibility that following the publication of the disciplinary measures taken against them the officers will be exposed to legal proceedings across the world, Kahn says, "I am not familiar with all of the affair's details, but there is no doubt that they have been exposed and that this can be used against them.
"If the incident is defined as a war crime, from an international point of view a military disciplinary trial is insufficient, but if this is not a war crime, the IDF is conveying a message that it is engaging in what it sees as the right procedures and is not ignoring the matter, so it's a positive message in favor of Israel."
Kahn explains that the details of the incident itself are what matters in terms of the possibility of implements the rules of international law: "There is always the possibility that international legal elements will determine that the rules of war have been violated in terms of international law and that a disciplinary trial is insufficient, and then they will push for moving the discussion to a different arena."
'Hard to prove international offense'
Prof. Kenneth Mann of Tel Aviv University, who specializes in criminal law, explains that the disciplinary trial will have no effect on the internal legal level and that the focus will be on the nature of the act."What matters in terms of international law is not if the officers were disciplined but the nature of their actions. There are definitely cases in which disciplinary measures are taken when there is no violation of international law but a violation of internal military rules. Therefore, we must not conclude from this procedure that this is an offense with ramifications on the level of international law."
According to Prof. Mann, "My first impression is that this is a case in which internal rules of the army have been violated. It's true that there are people here who have been marked as responsible for this act, and the fire might be directed at them, but it will be difficult to prove that they committed offenses as part of the rules of war of international law.
"I stress that this is an independent legal matter which depends on the facts of this specific case and not on the disciplinary trial, which is an internal military procedure."
According to Dr. Robbie Sabel, an expert in international law, "The rule is that you are not put on trial twice. A reasonable court across the world will say that Israel has already taken measures against the officers and will not prosecute them, but there is still a risk that an 'unreasonable' court will say that a disciplinary trial is not valid and will seek to try them.
"I assume that putting them on a disciplinary trial is enough. In addition, the Hague court is unauthorized to put them on trial."
Aviad Glickman contributed to this report
