'Political expediency': Lawyer for IDF soldiers critical of war-crimes probe

There is a growing backlash after the RCMP announced this month it is investigating whether Canadian citizens involved with clashes in or around Israel were in contravention of this country’s Crimes Against Humanity and War Crimes Act. Amid outcry from Jewish groups, the force said it wasn’t a criminal probe, but to “collect, preserve and assess information” for potential future prosecutions. Foreign governments, such as Belgium and Brazil, have also opened investigations into their own citizens who served with the Israel Defense Forces. Lt.-Col. (ret.) Maurice Hirsch, director of the Initiative for Palestinian Authority Accountability and Reform, at the Jerusalem Center for Public Affairs, suggests these are politically motivated probes. He has been retained by IDF soldiers who have been questioned by foreign government representatives. Hirsch has previously served as senior legal analyst for Human Rights Voices in New York, lawyer for the Israel Defense Forces, director of the legal department for Palestinian Media Watch, senior military consultant for NGO Monitor, and adviser to the Israeli Ministry of Defense. Dave Gordon interviewed Hirsch for the National Post. What do you think motivates foreign governments who seek these investigations? I can’t tell you exactly as to what their motivation is, but I believe that it’s somewhere in the realms of political expediency, and internal demographic politics. It requires these governments to almost change what they’ve been doing traditionally, even to the point of potentially abandoning allies. Their voter base has changed. And so now you have a situation where you need to almost pander, to cater, to a more fringe population. In May, U.K. government lawyers told the High Court that there was no evidence Israel was deliberately targeting civilians in Gaza, and that evidence exists of Israel making efforts to limit harm to civilians. If the government doesn’t believe that war crimes are being committed, then obviously they won’t then take that forward, and actively engage in an investigation of something that they don’t believe is happening. But if the government is so prejudiced, and predisposed, that war crimes are being committed, then obviously you launch an investigation. What evidence would a foreign investigation need, to theoretically try a soldier in court? Video footage, forensic analysis, operational logs — all impartially examined. What they have is so weak and poor, it’s impossible to say it’s “evidence.” I think it’s just so circumstantial and flimsy, even imagined. Organizations are gathering information from social media, when IDF soldiers put up videos of their activities in the Gaza Strip, and those videos are predominantly taken out of context and given a criminal shade. They’ll destroy a civilian building, which is a war crime, but clearly not if it’s a military target. For example, a place where weapons were stored, where terrorists were encamped, that had tunnels going underneath it. All of these possible scenarios. And so the video itself shows absolutely nothing. Governments are looking at reports and statements from people who have left Gaza, and can say anything they want. This whole effort, really, is a huge waste of time, resources and energy. It’s entirely impotent, because without knowing exactly what the military goal was in any given circumstance, there’s no way you can actually assess the actions of the soldier. There’s a legal mechanism that already exists in Israel, to prosecute soldiers who have broken laws? Without question. There is an entire investigative process. Everyone knows they exist. And yet this almost sanctimonious drive, seems to be to ignore that reality, and pushes for these   ad hoc  courts to somehow take charge. In media interviews, you contend that there is no formal support from the Israeli government for IDF (soldiers), to defend them against foreign investigations. Is that still the case? That still appears to be the case. There are certain ministries that are involved in a risk assessment, and are there to help, I think, the higher ranking officers. But my experience till now has been that the lower ranking soldiers find it very, very difficult to get any support whatsoever from these ministries, and that I fear is very dangerous. Of these Israeli departments which you criticize, are they aware of the shortcomings you speak of? So the difficulty is, that they don’t know even the extent of the exposure that the soldiers are facing, and wouldn’t know necessarily to be able to provide assistance to everyone in need. You’re talking about potentially hundreds of thousands of people. This is just a question of personnel and manpower. It’s overwhelming right now, especially where we’re busy fighting a war. On a government-to-government level, how is this issue being dealt with? There are discussions on all different types of levels, and without again getting into too much detail, I think in many cases, a lot of the work is being done diplomatically. The opening of an investigation is dependent on a government decision, rather than anyone presenting to a court with alleged evidence. That’s already a very big step forward than what used to be the case in England, where any organization could claim that X had committed war crimes, submit any type of evidence they had to a local magistrate, and that magistrate could then issue an arrest warrant. With predominantly friendly governments, the hope is that they can be diplomatically persuaded, or dissuaded, from going down a certain path. Which steps should the Israeli government take to address these investigations? I think it needs to be a conglomerate of different actors, because the problem requires different solutions and different involvement. I would suggest a joint task force of the Justice Ministry, the Foreign Ministry, the Defense Ministry, each one contributing in their own unique way to providing the best support possible. And sometimes the support needed is relatively simple, just to say that that X person was not in active duty in any type of a position, that could be considered relevant, when the alleged war crimes happen. This interview has been edited for brevity. (National Post contacted the IDF spokesperson’s unit and the spokesperson for the Israeli Ministry of Foreign Affairs, and received no response.)

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