Practice Relating to Rule 141. Legal Advisers for Armed Forces
Israel’s Manual on the Rules of Warfare (2006) states: “The State of Israel does not perpetrate war crimes and its acts are covered by routine legal advice.”
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
According to the Report on the Practice of Israel, the International Law Department of the Israel Defense Forces (IDF) is responsible for advising all military commanders on the application of the laws of war in the field.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated:
216. Leading up to and during the recent operations in Gaza, the IDF [Israel Defense Forces] Military Advocate General’s Corps [MAG] provided legal advice on the Law of Armed Conflict to commanders at the General Staff, Regional Command and Divisional levels. The lawyers examined the legality of planned targets, participated in the operational planning process, helped direct humanitarian efforts, and took part in situation assessments, exercises and simulations. Legal advisors also assisted in drafting operational orders and procedures and in preparing legal annexes to such orders.
217. IDF military lawyers were involved in advising commanders on international law aspects of the Gaza Operation. The IDF structure ensures that the IDF legal advisors can provide frank and professional advice. All legal advisers belong to the MAG Corps and are not subordinate to the commanders they advise. According to Israeli law, the head of legal services in the IDF, the Military Advocate General has an independent status outside the military hierarchy in relation to all legal issues. In principal legal aspects the MAG is subject to the guidance and supervision of Israel’s Attorney-General and regularly consults with the Attorney General. In addition, IDF activities, including during active combat, as well as all MAG and Attorney General decisions are subject to judicial scrutiny and review by Israel’s Supreme Court sitting as the High Court of Justice.
In January 2010, in an update of its July 2009 report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009, Israel’s Ministry of Foreign Affairs stated:
The Military Advocate General’s Corps
14. The Military Advocate General’s [MAG] Corps is comprised of highly professional and trained lawyers, and is responsible for enforcing the rule of law throughout the IDF. It also provides advice on military, domestic, and international law to the Chief of General Staff and all divisions of the IDF. The decisions and legal opinions of the Military Advocate General are binding on all components of the military.
15. Although he serves on the General Staff of the IDF, the Military Advocate General is legally independent. IDF Supreme Command Orders state that in executing his powers and authority, the Military Advocate General is “subject to no authority but the law.” Thus, the Chief of General Staff has no authority over him regarding legal matters. The Military Advocate General is not subject to direct orders of any superior officers, excluding the Chief of Staff in non-legal matters. As a former Military Advocate General has explained, the Military Advocate General has a unique status in the military:
“Members of the Military Advocate are not subject to the functional command orders of the command ranks that they serve, and the decisions that they make are in their exclusive discretion. The MAG is not subordinate to the Chief of Staff in respect of the exercise of his powers and is not under any command whatsoever – de jure or de facto.”
16. The independence of the Military Advocate General extends to every officer within the Military Advocate General’s Corps. Each is subordinate only to the Military Advocate General and is not subject to direct orders by commanders outside the Corps.
17. The manner in which the Military Advocate General is appointed further evidences his independence. Under the Military Justice Law, the Minister of Defence appoints the Military Advocate General, upon a recommendation of the Chief of General Staff of the IDF. The Military Advocate General’s dual enforcement and advisory responsibilities parallel those of chief military lawyers in other countries, such as the United Kingdom. The units within the Military Advocate General’s Corps that issue legal guidance to the IDF and that examine and prosecute alleged crimes by IDF forces are separate from one another.
[footnotes in original omitted]