Establishment of a Legal Department by the Israeli Security Cabinet to Deal with Issues of International Jurisdiction

On 20 October 2009, Israel's Ministerial Committee on National Security Affairs (the Security Cabinet) decided to establish a legal department to serve as a special task force charged with handling all international legal proceedings against Israel, Israeli soldiers or officials. Dr. Roy S. Schondorf will head the department. The establishment of this legal department is a direct result of the various legal proceedings taking place outside Israel, which allege that some of the counter-terrorism measures employed by Israel constitute international crimes.

IDI’s Terrorism and Democracy Newsletter presents a short discussion of the Security Cabinet's decision.

In recent years, high ranking Israeli officials and military personnel have been confronted with numerous attempts to initiate criminal proceedings charging them with personal responsibility for counter-terrorist measures implemented by the Israeli Defense Forces (IDF) and the Israeli Security Agency (ISA). These attempts include the decision of the Central Magistrates' Court Number Four of the High Court in Madrid to initiate an inquiry into the targeted killing of Salah Shehadeh in Gaza,[1]  and the latest Dutch Court of Appeal decision regarding the former director of the ISA.[2]  A number of proceedings were also initiated in the UK,[3]  and one investigation was opened in New Zealand.[4]

Moreover, on 22 January 2009, following "Operation Cast Lead,"[5]   the Palestinian Authority Minister of Justice, Mr. Ali Kashan, lodged a declaration with the Registrar of the International Criminal Court (ICC) on behalf of the government of the Palestinian Authority, recognizing and requesting the court’s jurisdiction over cases accusing Israel of international crimes in Palestine since 1 July 2002 under Article 12(3) of the Rome Statute.[6]

As a result of these events and due to the increased exposure of the State of Israel and its soldiers and officials to such legal proceedings, on 20 October 2009, the Security Cabinet decided to establish a new legal department, which will serve as a special task force within the Ministry of Justice. On 8 December 2009, Dr. Roy Schondorf was nominated head of the department.

Following the decision, the Security Cabinet asked the Minister of Justice, in coordination with the Attorney General and the State Prosecutor, to immediately establish a new department within the Ministry of Justice. The department will handle all relevant issues pertaining to international legal proceedings that involve the State of Israel and those who act on its behalf to counter terrorism.
The decision grants the department the mandate to handle (inter alia) legal proceedings before international tribunals and national courts of foreign states that are initiated against the State of Israel; to provide advisory opinions to Israeli officials who might be exposed to such legal proceedings; to establish throughout the world a legal network of law firms that have relevant legal expertise in international law in order to provide immediate legal advice and representation when needed; and to serve as an information center on relevant issues.
The Security Cabinet also decided that the department will work in conjunction with a permanent steering committee composed of experts in relevant fields from the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Defense, the IDF, and the Office of the Prime Minister. The steering committee will work with the department in order to establish and coordinate the relevant policy and activities entailed in handling international legal proceedings.

The decision also mentions that the head of the department, who is required to have expertise and experience in relevant legal fields, will update the Security Cabinet on international developments that might impact Israel's counter-terrorism activities.[7]

The Security Cabinet's decision to establish the new department is evidence that the Israeli Government has come to terms with the new state of "law fare" in which it finds itself. This legal battlefield was created by increased attempts by different persons and organizations to apply universal jurisdiction, the large scale international effort to bring criminal charges against Israeli officials in international courts, and the initiation of numerous civilian tort actions seeking reparation for damages.

Moreover, the  decision by the Security Cabinet may be viewed as a likely reaction to the Goldstone Report, which called on the international community to bring the conduct of the IDF during "Operation Cast Lead" before the International Criminal Court.[8]

The consolidation of the Israeli Government’s efforts to address legal challenges to its counter-terrorism policies is sensible from an internal perspective. However, had the new department been granted the authority to review the propriety of the internal investigations of allegations of international crimes, its work might be more useful. Such a procedure, which is currently not employed in a systematic and centralized manner, could considerably reduce the inclination of foreign and international courts to initiate criminal proceedings against Israeli officials.

1. For a discussion of the Spanish Court decisions concerning this matter see the third, fifth, and eighth issues of the IDI Terrorism and Democracy Newsletter.
   
   
2. For a discussion of the Dutch decision, see the eleventh issue of the IDI Terrorism and Democracy Newsletter.
   
   
3. Such as arrest warrants against numerous Israeli figures (www.haaretz.com/hasen/spages/955883.html) and a recent arrest warrant issued against Israel's former Foreign Minister Tzipi Livni (www.haaretz.com/hasen/spages/1134978.html).  Also see the eighth issue of the Terrorism and Democracy Newsletter for a discussion of Al-Haq's request for a judicial review of the UK Government’s refusal to take action against the Israeli Government following "Operation Cast Lead."
   
   
4. www.ynetnews.com/articles/0,7340,L-3334597,00.html
   
   
5. The recent armed conflict between the IDF and Hamas that took place in Gaza from 27 December, 2008 to 18 January 2009.
   
   
6. www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf  It should be noted that at this time, the Registrar is still deliberating this request.
   
   
7. On 8 December 2009, Dr. Roy Schondorf was nominated head of the department.
   
   
8. For a discussion of the Goldstone Report, see the tenth and eleventh issues of the IDI Terrorism and Democracy Newsletter.