The Sde Teiman Crisis and the Assault on Israel’s Rule of Law

The Israeli legal system is yet again embroiled in a high-stakes constitutional confrontation. The latest controversy centers on the question of who has the authority to supervise the criminal investigation into former military advocate general (MAG) Maj. Gen. (ret.) Yifat Tomer-Yerushalmi for actions she took while leading an inquiry into allegations of wrongdoing by Israel Defense Forces (IDF) reserve soldiers. The investigation represents the culmination of a protracted legal and political campaign that predated the recent war in Gaza.

On Nov. 16, the Supreme Court, sitting as the High Court of Justice (HCJ), handed down a controversial judgment in the case. It decided that, in this special circumstance, the minister of justice should appoint a civil service lawyer who is not part of the attorney general’s or the state prosecutor’s office to supervise the investigation. The petitioners in the case appealed on Nov. 19 to the president of the Supreme Court and asked for a rehearing before an expanded panel of judges. The request for a rehearing was granted on Dec. 4, and the case will be heard before the full court.

While the question before the court involves a standard quis custodiet ipsos custodes (who guards the guards) problem, what is at stake is far more than just a jurisdictional squabble over the conduct of internal investigations. Justice Minister Yariv Levin’s aggressive challenge to Attorney General Gali Baharav-Miara’s authority to oversee the investigation of the MAG capitalizes on a military justice scandal to advance a broader political agenda: the systematic weakening of Israel’s nonelected legal gatekeepers. Beyond this concerning implication, the current crisis may also hinder Israel’s ability to defend itself against accusations of war crimes brought on the international stage.

Background: An Original Sin in the Negev Desert

The long path to the current iteration of the constitutional crisis began in the aftermath of the Hamas attack against Israel on Oct. 7, 2023. In the course of the Israeli military operations that followed the attack, Israel detained thousands of militants from Hamas and other Palestinian militant groups in the Sde Teiman military detention facility in the Negev desert (in southwestern Israel). As we explained in an earlier article, Sde Teiman was never intended to serve as a long-term detention camp for large numbers of detainees but, rather, as a temporary holding site for the initial screening of detainees (in order to determine whether to release them or to continue to detain them in long-term criminal or administrative detention facilities). As a result, the conditions in the camp were entirely inadequate for longer-term detention. Yet it effectively became a long-term detention facility as a result of the decision of the Israeli Prison Service (IPS) to refuse the transfer of detainees from Sde Teiman to regular prison facilities. This decision was at least partly politically motivated and made with full knowledge of the inadequate conditions in Sde Teiman.

In addition to the harsh conditions in the improvised detention facility—which housed up to a thousand suspected terrorists at a time—it was staffed by IDF reservists belonging to a special unit established shortly after the outbreak of the war, Force 100. These reservists were trained to intervene in riots inside security prisons but lacked formal training as prison guards. The combined effect of the unsuitable infrastructure, the involvement of unprofessional and vengeful guards, and the serious security risk posed by detainees has resulted in chronic mistreatment of the detainees, allegedly leading in some cases to injury and death in custody.

In one notable case, a military doctor reported having treated a detainee with a severe rectal injury. A military police investigation ordered by the IDF MAG led to the discovery of security footage documenting what appears to be severe abuse of the detainee by IDF guards. Subsequent indictments filed against five reservists confirmed the severity of the attack, specifying that it involved kicking, dragging, stepping on, and using a stun gun on the detainee, resulting in fractured ribs, a punctured lung, and a rectal tear.

The MAG’s Preexisting Legitimacy Challenges

The MAG, Maj. Gen. Tomer-Yerushalmi, was operating in a highly charged political environment even before the war. For more than a decade, the MAG unit has been the target of attacks by right-wing politicians for allegedly imposing excessive legal constraints that limited the ability of the IDF to successfully combat terrorism. These allegations closely track the more general allegations of legal activism and progressivism raised by the Israeli government against the country’s legal system, which led it to initiate in early 2023 a judicial overhaul plan.

At the root of the 2023 plan is a populist ideological strain, according to which the Israeli legal system—both the judicial branch and the professional legal service (including the military legal service)—have become too powerful and unaccountable. The system has also faced criticism for being too liberal and detached from the more traditional values held by the majority of Israelis. After the MAG authorized the participation of low-ranking, plainclothes soldiers and officers in demonstrations against the judicial overhaul, the MAG Corps were perceived by parts of the government’s political supporters as oppositional in their orientation.

Despite this perception, during the Israel-Hamas war, the MAG Corps appeared to adopt a relatively permissive stance on the implementation of international humanitarian law (IHL), including a policy of prosecutorial restraint. To be sure, the MAG ordered the opening of hundreds of operational examinations using the IDF’s Fact-Finding Assessment Mechanism (FFAM)—a professional body outside the chain of command established at the recommendation of the Turkel Commission (2010-2013) to examine alleged violations of the laws of war and to collect evidence in support of potential MAG decisions to order a criminal investigation. However, of these hundreds of cases, only several dozen led to criminal investigations, mostly connected to abuse in detention facilities, and few, if any, related to violations of IHL during combat operations.

The extreme nature of the alleged abuse at Sde Teiman, confirmed by medical reports and video evidence, crossed the high threshold of reasonable criminal suspicion, leading the MAG to order a criminal investigation into the affair. So far, five reservists from Force 100 have been indicted, and their trial is ongoing. The apparent victim of the attack has since been released from custody and returned to Gaza as part of one of the hostage deals struck with Hamas. This makes it unlikely that he will be available to testify in the trial against the five reservists.

A Two-Stage Obstruction of Justice Scandal

The decision by the MAG to open a criminal probe at Sde Teiman triggered an unprecedented, violent response by right-wing protesters and agitators. When military police officers arrived to question the suspected soldiers, a multitude of Israeli civilians, mobilized by social media calls for action to “defend our soldiers from the military police,” descended on the base with the intent to thwart the military police’s actions. In an unprecedented move, two Knesset members and one government minister led a mob into the Sde Teiman base itself, invoking their parliamentary immunity. Attempts to obstruct the legal process continued later that evening. A throng of angry protesters surrounded and breached the base at Beit Lid, where the military courts to which the detained suspects were brought were located. Israel Police forces on the scene refrained from thwarting the mob, and the IDF chief of general staff himself arrived at the site to oversee the process of reestablishing order there.

Politicians opposed to the investigation of the Force 100 suspects focused their criticism of the MAG on two issues: one, aggressive measures used in the inquiry, including the public nature of the initial arrests and the allegations of sodomy against the soldiers (which were later dropped). And two, a principled opposition to conducting any war-related investigation against IDF soldiers. Some politicians even publicly accused the MAG of prioritizing the rights of Hamas detainees over the protection of Israeli soldiers.

Faced with growing political pressure, the MAG made a fateful decision. In order to shore up public support for the investigation, she secretly authorized the leak of a short segment of the incriminating video to a reporter for News 12, Israel’s leading news television network. The decision was made despite the fact that, legally speaking, leaking pre-indictment evidence could violate defendants’ rights and raise obstruction of justice allegations. A number of senior officers in the MAG Corps were reportedly privy to the decision to leak the tape.

The MAG likely sought to replicate the outcome of the 2016 Elor Azaria case, in which video evidence was decisive in convicting a soldier who had shot an incapacitated terrorist. In that case, the airing of the video on television shortly after the shooting incident helped generate public support for the decision to investigate and convict the offending soldier, despite intense political pressure opposing the move. However, the MAG underestimated the Israeli populist movement’s gains after Oct. 7. The Sde Teiman video failed to convince the public of the investigation’s merit; instead, it fueled a political counter-campaign alleging that the video footage was “cooked.”

Crucially, the MAG also overlooked changes in the international media environment. The video gained tens of millions of views around the world and yielded worldwide headlines accusing IDF soldiers of sexual abuse of Palestinian detainees on the basis of the documented images. This, in turn, potentially damaged Israel’s legal defense before international courts and tarnished the reputation of the IDF.

A second, even more serious error in judgment by the MAG followed the attorney general’s order to launch a probe into the leak, inter alia, in light of the aforementioned political pressure. Instead of admitting her involvement in the decision to leak—a decision that was arguably within a “gray area” of her discretionary powers—the MAG appears to have doubled down on her duplicity. The MAG’s deputy, who was not involved in the criminal proceedings into the Sde Teiman abuse incident, was appointed to run what seems to be a sham preliminary probe.

Furthermore, when a petition was submitted to the HCJ demanding that the investigation be taken out of the MAG Corps, the MAG allowed the state attorneys to submit an affidavit to the HCJ claiming that the exhaustive probe failed to identify the leaker. Relying on this false affidavit, the court dismissed the petition. The upshot of this is that, for months, it seems that the head of the military legal system knowingly lied to the attorney general, the chief of staff, the minister of defense, and the highest court in the land about her involvement in the Sde Teiman leak.

The cover-up was exposed when the low-ranking MAG Corps spokeswoman responsible for transferring the video footage to the News 12 journalist disclosed this detail to Israel Security Agency (Shin Bet) investigators during a routine polygraph test she took when seeking an appointment as a military judge. The newly appointed head of the Shin Bet immediately notified the IDF chief of staff, who in turn notified the attorney general. This led to a criminal investigation by the Israel Police, ordered by the attorney general, into the affair. The MAG subsequently resigned and was arrested on suspicion of—among other things—obstruction of justice and abuse of official power. In the following days there have been media reports of two attempted suicide attempts by Tomer-Yerushalmi and a comprehensive search for her missing mobile phone (that she allegedly tried to dispose of at sea), which is believed to contain digital evidence regarding the suspicions against her.

A Surprising Conflict of Interest Judgment

The exposure of the cover-up by the MAG Corps immediately accelerated the ongoing constitutional battle in Israel. Justice Minister Levin—who has led attacks against the courts and professional legal service from his very first days in office—argued that the attorney general and her team were barred from investigating the MAG, since they had failed to exercise adequate oversight over the sham preliminary probe which the MAG Corps had undertaken. The minister implied that the attorney general may also have to testify in the investigation and might herself be a suspect in the cover-up. He therefore moved to try and strip her of her legal authority to oversee this sensitive police investigation by seeking to appoint an external supervisor for the investigation (the current ombudsman for complaints against the judiciary, retired Judge Asher Kula).

The legal basis for this attempt was Section 23A of the Public Service (Appointments) Law 1959, which authorizes ministers to appoint temporary replacements for officeholders who are prevented from fulfilling their job or exercising their authority. The attorney general’s office has argued vehemently against Minister Levin’s initiative, claiming that this constitutes illegitimate political intervention in a sensitive investigation and sets a dangerous precedent by having the political echelon appoint prosecutors ad hoc for specific cases, violating the independence of law enforcement in Israel.

Cross petitions challenging both the attorney general’s decision to stay on the investigation and the minister’s attempt to appoint Judge Kula were brought to the HCJ by politicians and civil society groups. Before the hearing, the attorney general announced that she will not be personally involved in the investigation but that it will continue to be administered by her office (her decision seems to have been motivated by an internal ministry of justice legal opinion that raised conflict-of-interest concerns).

In a judgment issued on Nov. 16, the HCJ sided, in principle, with the minister of justice. Controversially, the court accepted the premise underlying the minister’s position, agreeing with him that the entire office of the attorney general is in an institutional conflict of interest due to the personal involvement of the office heads in monitoring the flawed internal investigation. Adopting this far-reaching interpretation of the prohibition on conflicts of interest has led the court to reach an even more contentious decision: For the first time in Israel’s history, it allowed the minister of justice to intervene in a pending criminal investigation by accepting his authority to appoint a replacement for the attorney general for the purpose of the MAG’s investigation. While the court rejected the nomination of Judge Kula, since as a serving ombudsman he is barred from undertaking other official positions, it allowed the minister to appoint another senior public official who would meet the criteria set by the court for that role.

All too predictably, Minister Levin, instead of appointing a senior civil servant as he was instructed to do by the court, chose to appoint a retired judge—Yosef Ben Hamo—who is no longer a civil servant. Levin requested that the Civil Service Commission temporarily readmit Ben Hamo into the civil service for the purposes of overseeing the MAG investigation. However, in a judgment rendered on Dec. 3, the court blocked the appointment, holding that it violated the terms of the Nov. 16 judgment. On Dec. 16, Levin asked the court to reconsider his decision to disqualify Judge Kula. A week later the request was rejected.

The Nov. 16 court decision to exclude the entire attorney general’s office from overseeing the investigation of the MAG and transfer this authority to an external, politically appointed official is particularly remarkable in a situation in which the minister of justice is serving under a prime minister who is himself standing trial for corruption charges. If an expansive interpretation of conflicts of interest is to be consistently followed, it could be said that Minister Levin is at least as conflicted with respect to an investigation that may examine the conduct of the attorney general who is currently prosecuting the prime minister, as attorney general’s office prosecutors—who had nothing to do with the MAG affair—are with regard to the MAG. The minister has been explicitly trying for months to remove the attorney general from office, and Member of the Knesset Moshe Saada, one of his Likud colleagues, has even explicitly stated that the purpose of the MAG’s investigation should be the removal of the attorney general. In light of these facts, we find the court’s selective application of the conflict-of-interest principle to be perplexing. The fact that the court has agreed to reconsider the judgment en banc suggests that some judges on the court are also uneasy with the original decision. Recent leaks from Israeli police—suggesting that the investigation of the conduct of the MAG did not reveal any wrongdoing on the part of the attorney general—may further encourage the Court to reverse course. 

Broader Implications

The chain of events leading to the resignation of the MAG and the opening of a criminal investigation against her has serious consequences. First, several of the MAG Corps leadership echelon were either part of the cover-up or aware of it. At this critical moment for the unit—that is, when it is expected to undertake sensitive war-related investigations—it remains without some of its most important professional leaders. The crisis necessitated the urgent appointment of a new MAG from outside the unit, and Defense Minister Israel Katz, at the recommendation of the IDF chief of staff, appointed Itai Ofir, a former civilian legal adviser, to the ministry of defense. Ofir is not an expert in IHL or criminal law, and his approach to investigating IDF soldiers for possible crimes committed during the war in Gaza is yet unknown.

More broadly, the scandal around the MAG Corps underscores the difficulty of conducting effective criminal investigations against IDF service members in the current political climate in Israel. Yet, without effective investigations, there will be no meaningful accountability, and Israel’s complementarity and subsidiarity defenses before the International Criminal Court and domestic courts applying universal jurisdiction could suffer a blow.

Another troubling consequence of the affair is its effect on trust in the legal system in Israel. The current scandal played directly into the populist narrative that government lawyers have no respect for the law when it comes to their own actions. The conclusion that critics of the system draw is that there is no impartial and professional legal service in Israel, but rather that the legal system is deeply political and self-serving. We and many others do not subscribe to this view but acknowledge that much damage has been done to the credibility of Israel’s legal system.

At the end of the day, the Sde Teiman case is a result of the changing times in Israel. The top brass of military lawyers received their education in an era in which the armed forces and their political superiors professed respect for international law and its institutions, and for the rule of law in general. In Israel, as well as in other countries, this worldview is subject to increasing political and public pressure. Some of the right-wing politicians who have now come to power with populist agendas have no patience for legal niceties. They are even less willing than their predecessors to clash with their popular base in investigating military abuse. Confronting such political pressures requires courage and a willingness to sacrifice long and distinguished careers. And those lawyers who rise up to the challenge must now be very careful not to cross the fine line differentiating righteous opposition from the use of the same deceitful tactics employed by many politicians. Sadly, this is a test that Israeli’s MAG failed to pass.