50 No. 74 JUSTICE inherent drama of arrests, investigations, and trials – are a particularly effective venue for this “theater of terrorism.” If this theory holds, HRF's declared goal of “accountability” is a pretext. Instead, it uses the threat of arrest to damage morale in Israel and create the strategic ripple effects described. To be clear, it would be a mistake to call these tactics “legal terrorism,” as a terrorist act requires physical harm or a clearly illegal action.39 An attempt to initiate a criminal investigation with some information is apparently not an illegal act. Ostensibly, this campaign claims to enforce the rule of law, not break it. My claim is that this campaign, while not terrorism itself, uses the logic of terrorism to abuse the justice system. “Lawfare” is the most accurate term to describe it. Ineffective Responses: What Israel Must Avoid The “You Started It” Argument The current war in Gaza did not begin with Israel’s actions, but with the surprise attack launched by Hamas on October 7, 2023. During this assault, Hamas, other Palestinian armed groups, and even Gazan civilians committed extreme atrocities. More than 800 civilians, including children and the elderly, were murdered in their homes, at a music festival, and elsewhere. Over 250 Israelis were kidnapped and taken hostage into Gaza. Reports of sexual assault and the mutilation of bodies were widespread.40 Civilian communities near Gaza were systematically burned and looted, including agricultural infrastructure, in a deliberate effort to destroy the livelihood and future viability of these communities.41 The terrorists streamed their atrocities on social media to maximize shock and trauma. In response to this attack, Israel’s right to self-defense was widely recognized by the international community. However, under international law, atrocities committed by one party in an armed conflict do not justify violations by the other. The tragic reality is that in many conflicts, both sides may commit war crimes. Therefore, the horrific nature of the initial attack cannot shield Israeli actions from legal scrutiny. Immunity for Soldiers: A Self-Defeating Proposal Over the years, various bills have been submitted to the Knesset proposing to grant IDF soldiers sweeping immunity from criminal investigation and prosecution for actions taken during military operations.42 While these bills typically include exceptions for acts committed with malicious intent, such as looting or violence against “uninvolved civilians,” they pose a grave strategic risk. These proposals would seemingly exclude war crimes, which require intent and knowledge.43 However, they propose cumbersome mechanisms for lifting this immunity, such as special commissions appointed by the Minister of Defense that operate outside the standard military justice system. Making an investigation contingent on a political appointee’s decision would compromise its effectiveness and raise serious questions about the system's independence. Any perceived domestic advantage, such as a boost to military morale, would be far outweighed by the negative international consequences. Such legislation might dismantle Israel's most important defense against foreign prosecution: the principle of complementarity. This principle grants primacy to a state’s own justice system only if it is recognized as independent, impartial, and genuinely willing and able to conduct its own investigations without unjustified delay.44 Granting soldiers immunity in Israel would, therefore, be a direct invitation for foreign and international courts to intervene. Exposing the Campaigners' Motives: Useful but Insufficient The Israel Ministry for Diaspora Affairs has published a detailed report on the Hind Rajab Foundation (HRF), 39. International Convention for the Suppression of the Financing of Terrorism, art. 2(1)(b), Dec. 9, 1999, 2178 U.N.T.S. 197; Special Tribunal for Lebanon (STL), Interlocutory Decision on the Applicable Law, Case No. STL-11-01/I, Appeals Chamber, ¶ 85 (Feb. 16, 2011), available at https://www.refworld.org/jurisprudence/ caselaw/stl/2011/en/77425 40. Mapping the Massacre, available at https://oct7map.com/ 41. Jonathan Harounoff, “The untold story of October 7 is the destruction of Israeli agriculture,” THE JEWISH CHRONICLE (Aug. 7, 2024), available at https://www. thejc.com/news/israel/the-untold-story-of-october-7-isthe-destruction-of-israeli-agriculture-vsvramnp 42. The last bill traced is the Draft Bill for Immunity of IDF Soldiers on Operational Events, 5783-2023 (Private Member Bill), introduced to the Plenary on Feb. 1, 2025 (Isr.), available at https://main.knesset.gov.il/activity/ legislation/laws/pages/lawbill.aspx?t=lawsuggestionss earch&lawitemid=2198216 43. The Rome Statute, supra note 14, at art. 30. 44. The Rome Statute, supra note 14, at art.17(2). The Princeton Principles, supra note 13, at principle 8(f), (g); the Turkel Report, supra note 12, at 112-146.
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