As has happened after similar episodes in the past, last week’s events in Gaza ended with the all too familiar assignments of blame, protests of abuse, and calls for justice and an inquiry. Such was the case last Friday, when the United Nations Human Rights Council, the veritable representative of a liberal international moral code, approved the establishment of a commission of inquiry on the Gaza demonstrations, where more than 60 were killed. The motion received 29 vote in favor, with 14 countries abstaining.

The Council’s decision demands that all alleged human rights violations in Gaza since the beginning of the demonstration on March 30 must be investigated. These include “cases that amount to war crimes.” The purpose of the investigation is to “formulate recommendations, especially punitive measures, to end the impunity and ensure legal accountability, including individual criminals [soldiers] and other officials, and to update the Council in written and oral reports.” Not surprisingly, Israeli politicians lashed out at this decision calling it “shameful” and “illegitimate.” Israel’s ambassador to the UN, Danny Danon, said that the decision was made after senior Hamas officials admitted that most of the dead were members of the Hamas organization, proving once again that the Council is motivated by hatred of Israel. Labor Party Chairman Avi Gabai called on the Council to “look a little more at what is happening beyond the northern border of Israel,” in Syria, saying that “there are people in the UN Human Rights Council who are convinced that Israel is the main source of trouble all over the world.”

It is true that much of the Council’s anti-Israel orientation stems from opposition to the Jewish state’s very existence, not specifically its conduct with the Palestinians, and some have even accused it of acting as a platform for anti-Semitism. At the same time, the inherent bias of the Council’s members does not preclude the possibility that human rights violations did occur. The problem is the concerns about international forums are grounded in real issues of double standards. This fear is especially pervasive if there is a chance that an investigation will lead to Israeli soldiers and officials being prosecuted by  the International Criminal Court.

So how does Israel make sure it can protect its soldiers and its right to sovereignty? With investigations of its own.

International law recognizes an internal investigation as a “barrier” against international investigation, but only on the condition that the internal investigation meets the conditions of independence, speed, transparency, honesty and efficiency. Of course, these standards do not exist simply to appease international observers, but also to preserve the integrity of Israeli democracy. A democratic state like Israel has multiple checks against misconduct. An internal IDF examination is Israel’s preferred option for actions taken by the military, in the same way that the Department for the Investigation of Police is the main instrument for investigating alleged police abuses. Of course, there is a problem inherent in relying exclusively on internal military investigations, which by themselves lack oversight and might not, as such, be considered as independent, transparent, honest, or effective (conditions for a satisfactory internal probe). This is what makes the role of the Supreme Court, civil society, and the independence of these elements so important in a democracy that wishes to be able to conduct investigations free from international pressure.

The Supreme Court discusses the petitions it receives regarding government actions, including decisions by the Attorney General and the military justice system. In this context, the Court exercises judicial review in matters relating to the application of international humanitarian law. Over the years, the High Court of Justice has reviewed various issues, including Shin Bet interrogation methods, the West Bank fence route, and government decisions relating the humanitarian situation in the Gaza Strip, as well as extensive criticism on the IDF’s operational activity.

These are important democratic mechanisms for maintaining transparency, independence, speed, honesty, and effectiveness in an internal investigation. The only way Israel can make sure it can shield its citizens from international prosecution is to keep its democratic institutions intact. Infringing on the independence of the courts makes it more likely that soldiers will face aggressive foreign criticism. Despite this reality, Israel’s current right wing government seems to have it out for such mechanisms and their independence. One of the indications for this is the proliferation of anti-democratic, populist bills currently being debated, some of which have been discussed in greater detail elsewhere in The Matzav Review. Even if most of the proposals do not come to fruition, the public atmosphere they create severely impinges the democratic and liberal values on which the state is based. These include a bill allowing a simple majority of 61 MKs to overturn High Court annulments, a bill that seeks to prohibit the police from publishing a “summary of an investigation” and forwarding it to the State Attorney’s Office (likely personal legislation aimed at protecting an embattled prime minister), as well as bills undermining the legitimacy of civil society organizations in Israel. Such motions put a waiver on Israeli democracy.

The Council itself has accused Israel of “a systematic failure in its ability to carry out genuine investigations independently, objectively, and effectively as required by international law on the crimes committed against the Palestinians.” However, even after all this, it is important to put things in perspective: democracy in Israel is still alive and kicking and history has shown us that governments change the current one won’t be in power forever. A change in the current paradigm is possible.

Still, the Israeli government should acknowledge that the principle of separation of powers in democracy and independent internal review can be a saving grace from international scrutiny or prosecution, and contribute to the country’s credibility in more difficult times. All the more reason for politicians to cease battering democratic institutions for easy political points and act to preserve these independent and transparent mechanisms.

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