Remarks of the Military Advocate General at the Israel Bar Association Annual Confrence, May 2024

Interim President of the Supreme Court, the honorable Justice Uzi Fogelman,

Attorney General, Adv. Gali Baharav-Miara,

Head of the Bar Association, Adv. Amit Becher,

National Public Defender, Adv. Anat Meised-Knaan,

My friends and fellow lawyers,

Good morning.

I’d like to thank the Head of the Bar Association for the invitation and for the opportunity to speak at this prestigious gathering.

It has been more than seven-and-a-half months, that the State of Israel finds itself amidst an intense, lengthy, complex, and profoundly challenging war. A war that has cost us dearly—over 1,500 civilians, soldiers, members of the security forces, and rescue workers have been killed; thousands have been wounded; and 125 hostages still trapped in the Gaza Strip whom we are all obligated to bring home.

IDF troops, in active duty and in the reserves, are operating on land, in the sea, and in the air; in the South and in the North; in Judea and Samaria, on the home front, and across additional theaters—including some far away. The feats of devotion and heroism demonstrated by our soldiers, men and women, many of whom have tragically paid the ultimate price, continue to fill page after page in the Book of Chronicles of the Wars of Israel.

This war is unlike any previous war we have known, also with respect to the unprecedented legal battles which have waged throughout.

The unique and novel legal challenges presented by this war, manifest in a variety of ways:

First, with respect to the novelty of the legal questions which have for the first time emerged, many of which will be discussed throughout the course of this conference;

Second, with respect to the intricacy and complexity of the challenges we face across many legal fora;

And third, with respect to the immediacy and directness with which the legal frontier creates tangible effects on the battlefield.

All of this has taken place, as we continue to fight our enemies, whose methods in no way reflect the principles of the laws of war. In fact, our enemies cynically exploit those laws, cruelly and deliberately using the civilian population as a human shield.

From Day 1 of the war, the officers of the Military Advocate General Corps have reported to duty and have stood alongside IDF commanders across all fronts, in order to assist them in executing the objectives of the war as set out by the Government, in a manner consistent with the law.

This is a good opportunity to express my gratitude to all of you, my friends and colleagues at the Bar Association. Many of you have taken part in the war efforts – be it in uniform, or in a whole host of other ways. Many of you have supported, and continue to support us, shoulder-to-shoulder, and have worked tirelessly day-and-night, for the State of Israel and its security. It would be impossible for me to exaggerate the magnitude and importance of your efforts.

Simultaneously, and in collaboration with, the legal work that has taken place internally within the IDF; the MAG Corps, together with the Ministry of Justice, the Ministry of Foreign Affairs, the National Security Council, and many other bodies; have collaborated to fight back against various maneuvers across the international area which seek to damage the capacity of the IDF and Israel to defend itself.

I’d like to take this opportunity to specifically address the relevant news from the past few days.

Last week, we listened to the ICC Prosecutor’s decision. The Prosecutor announced that he had submitted a request for arrest warrants, to be taken out against the Prime Minister and the Minister of Defense, for suspicion of committing war crimes and crimes against humanity; while simultaneously, and unjustifiably, including them in the same request as the request for arrest warrants for the leaders of the Hamas Terrorist Organization.

A few days later, a fourth decision of the ICJ in the case filed by South Africa under the Genocide Convention was delivered. The court decided, by a majority opinion, to grant additional provisional measures, including measures which bear upon the IDF’s operation in Rafah.

Winston Churchill famously said: "Truth is incontrovertible, ignorance can deride it, panic may resent it, malice may destroy it, but there it is."

Ladies and gentleman. The truth is self-evident:

The State of Israel is in a war, which it did not choose; A war that broke out on account of a horrific massacre, murder, rape, and acts that the mind is incapable of grasping.

This is a war against a criminal terrorist organization, that is holding women, children, and men as hostages; in the most inhumane of conditions. This is a war against an enemy that abuses and harms even its own people.

South Africa’s callous and false use of treaties and international tribunals—founded upon the blood of the victims of the most horrific events known to mankind, chief among them the Holocaust—is beyond appalling.

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

The claim that Israel is engaging in the deliberate killing of civilians, and in the systematic destruction of property, all the while the IDF works tirelessly to mitigate harm to the civilian population, is completely disconnected from reality.

The fact is, as expressed in simple terms by Judge Aharon Barak, South Africa is “[I]mputing the crime of Cain to Abel.”

The MAG Corps has continuously worked to integrate the principles of law, specifically international law, into the operations of the army. We extend legal advice, which is both independent and binding, that is intertwined with the central elements of the operational planning processes. In this context, we frequently consult and collaborate with the legal advisors to the government, and work with them closely.

Furthermore, many legal issues and practices that have emerged during the fighting have been closely reviewed, and continue to be reviewed, by the Supreme Court. There is no other country in the world that take the same degree of pride in its commitment to legal review and to making sure that its compliance with the rule of law remains steadfast, in the midst of war for its survival.

Naturally, in a war of such scope and intensity, troubling incidents occur. Some of the incidents, like last night's event in Rafah, are tragic. The details of yesterday's event are still under review, and we are committed to reviewing the event to the utmost extent. The IDF deeply regrets all harm incurred by civilians during war.

During war, incidents which raise a suspicion of the violation of the laws of war and military orders, occur. Yet, the occurrence of these incidents are exceptional and do not reflect broad policies which deviate from the law.

In fact, the opposite is true – the incidents which raise these suspicions are examined thoroughly and decisively, as part of our deep commitment to the law.

The review and investigation mechanisms of the IDF, including the General Staff’s Fact-Finding and Assessment Mechanism and the Investigative bodies of the Military Police, are professional and independent bodies. They receive professional guidance from the Office of the Military Prosecutor, and are in no way subject to the Chain of Command taking part in this conflict.

These bodies are staffed by senior and experienced professionals, who possess a proven ability to review and investigate operational incidents, in a comprehensive and thorough manner. The professionalism and the capabilities of these entities have received recognition from meaningful international bodies, including from the ICC Prosecutor.

The findings of the reviews and investigations are all submitted for consideration to the Office of the Military Prosecutor, in order that the office can make decisions with respect to the appropriate legal steps which must be taken.

Each decision is made on its own merit, after the conclusion of a thorough examination; and while each decision is made with a deep understanding of the unique challenges presented to all of us by the war, decisions are always based on our own independent judgment and our unflinching commitment to the law.

I can currently inform you all that to this point, criminal investigations have been opened by the Military Police for 70 incidents which have raised a suspicion for the commission of a criminal offense.

As part of these investigations are included allegations which have been made with regards to the conditions of incarceration in the "Sede Teiman" detention facility, and regarding the deaths of detainees under IDF custody. We take these allegations extremely seriously, and are working to obtain all the facts.

Some investigations also deal with incidents in which civilians were killed under operational circumstances; incidents of violence; and incidents involving crimes relating to property and looting.

These incidents which I’ve discussed, come in addition to other incidents whose review did not indicate that the criminality threshold was crossed, which were therefore dealt with through command measures or disciplinary treatment.

Some argue against us, and these arguments are in no way new to us: “The cannons are roaring! – What in the world are you doing investigating soldiers while they are still amidst the intense fighting?”

Some people go even further and argue: “It’s not as if enforcing the law internally does us any good in combatting the legal proceedings (against Israel and IDF soldiers) which are taking place in the international area?”

I will emphasize:

The IDF's deep commitment to the law does not stem from the threats emanating from the international arena. It stems, first and foremost, from the State of Israel’s self-definition as a law-abiding State. The rule of law, and the purity of arms, are values ​​deeply woven into the IDF's moral code ever since its founding.

This is evident from the fact that we’ve acted fearlessly in our enforcement of these values, decades before the establishment of the ICC: We’ve done so in Kfar Khula and Kfar Qasim, in the matter of the Nirim police station and with regards to the Givati ​​incidents, just to name a few.

It's no secret to say that during the course of this war we faced difficult dilemmas, which in turn required difficult decisions. I would like to say in the clearest way possible: We have not hesitated when making those difficult decisions, and we will not hesitate in making those difficult decisions, now and in the future.

Our maintenance of red lines, even during war, especially in war—and the enforcement of the law when those lines are crossed—represents, clear as day, the profound difference between us and our enemies. This is how we have acted in the IDF since Day 1 of the war, and for that we are proud.

Indeed, the work of integrating the law, and enforcing it during war, is not straightforward. Yet, as stated by Judge Haim Cohen of his blessed memory, "Anyone who needs to know, should know—that the rule of law in Israel will never surrender to its enemies.”

Ladies and gentlemen,

I opened with Winston Churchill, and I shall conclude with him as well. In 1922 Churchill, then the Secretary of State for the British Colonies, came to the land of Israel for a visit. In anticipation of his visit, then Mayor of Tel Aviv, Meir Dizengoff, instructed that the young city be adorned with trees.

Due to the fact that there wasn’t enough time to plant new saplings – it was decided to take trees from the “Mikveh Israel” Grove and plant them in the sands of Tel Aviv.

As Churchill's car approached, the sand began to become unstable, 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, are deep. Our forbearers took care of it, and we are the ones who get to benefit from the fruits of their labor; And we—the ones sitting in this hall—have an important role to play in safeguarding those roots, and further entrenching them in the earth. These trees, as described in the Tractate of Pirkei Avot (Teachings of our Ancestors), there is no wind in this earth that if it comes to blow in their direction, can not move them from their place.

Thank you all very much and may you continue to enjoy a successful and fruitful conference.