On the morning of August 22, this message was sent on the internal mail server of a prominent Tel Aviv law firm. "For anyone who may find this relevant: In light of the damage inflicted on the Supreme Court, there is a higher probability today, that those serving in the territories could be photographed and identified and would then be exposed to possible arrest in Europe and elsewhere, on charges of war crimes. In such cases, a defense will be difficult to mount. Until all actions taken to harm the court and the legal system are revoked, will remain real and tangible. I recommend that you refuse calls to military reserve duty."
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The message was signed by the firm's senior partner Ron Berkman, who is one of Israel's leading litigators, who had been involved in a slew of international cases and is versed in international law pertaining to the possible prosecution of war crimes by members of armed forces.
Berkman added arguments that are partially based on his personal opposition to the government's judicial revolution, but in his opening remarks, including his call to avoid reserve duty, he had touched on a matter that is unrelated to opinions for or against the legislation. If the government's legislative push proceeds or if the law revoking the reasonability clause is upheld by the Supreme Court, and amid comments made publicly by members of the government, IDF soldiers, will face grave danger of prosecution, whether they are on active duty, or in the reserves.
'Don't go to the reserves'
Air Force pilots who have suspended their volunteer reserve duties, justified their decisions by claiming among other things, that they fear exposure to interrogations and legal proceedings in the international courts in the Hague or in other judicial forums as well as in countries that believe they have jurisdiction over such matters.
The pilots, of course, do not themselves believe that their present or past missions, carried out on a weekly basis, are war crimes, but say that damaging the Israeli legal system could bring international forums to believe that Israel's judiciary is not independent enough and therefore to initiate separate legal action.
Not only pilots at risk
It is now known that in closed-door discussions in military forums and the state prosecution and in sealed testimony given before the Supreme Court, experts have said that the danger of legal action extends to all enlisted personnel and officers of the IDF and not only to pilots, whose identities and actions are protected. They explained that the soldiers are exposed to cameras on the West Bank, that are not under the control of the military censorship or the military administration of the territories.
The deep concern of increased and dangerous exposure of the IDF troops to criminal prosecution in international courts added an additional dimension to those already worrying the senior levels of the IDF.
The problem was dubbed "The 4th dimension' in the consultations held by senior members of the military prosecution, members of the general staff and senior members of the Attorney General's office including AG Gali Baharav-Miara (who oversees the military prosecution – a vital aspect of the defense of soldiers from international prosecution.)
This dimension is added to others, causing the IDF concern, including military preparedness for war and its ability to complete its daily missions, the question of unity among the troops, the movements of enemies including the growing boldness of some adversaries who are willing to take increasingly more audacious risks that may lead to all-out war, because of the perceived Israeli weakness, among other reasons.
Leaders wanted this kept secret from lawmakers
Now, the legal dimension was revealed as an added concern that had already been flagged by members of the Military Prosecution's international division, in a closed-door meeting last February. At the time, leaders in the coalition asked that the contents of the meeting be kept off the record so that it did not reach the rest of the lawmakers.
According to military officials with knowledge of the meetings, "all IDF soldiers and officers in the regular army or the reserves, who take part in any military operation including intelligence gathering or coordination there-of, which is often done behind enemy lines, not to mention soldiers who are in daily contact with the civilian population of the West Bank or along the Gaza border," are exposed to the danger of prosecution.
The IDF says that if in the past Israel saw less of a need for its legal advisors, to travel to international forums to advocate for the country's independent judiciary, now such advocacy may not be so simple.
U.S. Aid could be impacted
A source in the Defense Ministry said there is not only the risk of soldiers being prosecuted or interrogated but also the bigger question of Israel's legitimacy. According to the source, the United States examines the independence of courts, to litigate suspected violations of the laws of armed conflict, before approving financial aid to its allies. The law to revoke the reasonability clause could inflict serious damage to the security of the country, in a congress that includes members who are hostile to Israel.
An indication of the serious concerns in the military can be gaged from comments made by Chief Military Prosecutor, General Yifat Tomer-Yerushalmi, in a conference last week:
"Steps that could harm or could be perceived as damaging to the independence, effectiveness and professionalism of the legal system, could fracture the shield that the courts provide to the military and the legal system and may harm Israel's security interests, the IDF and those who serve abroad," she said. She also let on, that the military was working to impress those concerns on the political echelon.
Experts who enjoy international acclaim in law, raise serious concerns in closed-door meetings and some of what is being discussed there, makes its way to addendums presented to the Supreme Court for its deliberation on the legality of the reasonability law.