The IDF’s legal ‘Iron Dome’: Yifat Tomer Yerushalmi defends Israel

Yifat Tomer Yerushalmi is not tall or boisterous.

But in terms of influence over the IDF and defending its soldiers from war crimes allegations by international courts, she punches far above her weight, and may be the most important figure in the country, though there are certainly key figures in the Justice Ministry, Foreign Ministry, and other government offices.

And to be clear, the legal battle over Israeli legitimacy goes beyond the International Criminal Court and the International Court of Justice into broad strategic questions about how much the US and Europe will continue to be allies of Israel in the future, as well as how much they will buy weapons from, and sell weapons to, Israel.

Wielding that responsibility puts a heavy burden on Tomer Yerushalmi, but after nine months of the longest and most complex Israeli war since 1948, and nearly three years into her term, she remains determined to fight the marathon-long battle for Israel’s legitimacy on the world stage.

Paradoxically, the key to providing Israel a legal “Iron Dome” against ICJ, ICC, and other potential foreign court war crimes proceedings against the Jewish state, its leaders, and its soldiers, is probing them and, when necessary, prosecuting some of them at home.

The ICC’s own Rome Statute prevents it from intervening if a country is probing its own citizens.

Along those lines, Tomer Yerushalmi announced on May 27 that she had already opened 70 criminal probes into war crimes allegations relating to the ongoing war.

Since then, The Jerusalem Post has learned that she has opened another half a dozen additional criminal probes, and that around 60 operational probes are being pursued by Fact-Finding Mechanism Chief Yoav Har-Even.

He then relays his results to Tomer Yerushalmi for final decisions about whether to move from an operational fact-finding probe to a full criminal probe.

To date, the ICC has not yet brought a case or sought an arrest warrant against any IDF soldiers, possibly because of these probes being handled by Tomer Yerushalmi.

However, ICC Prosecutor Karim Khan on May 20 already requested arrest warrants against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant, who as civilian political officials are beyond Tomer Yerushalmi’s authority to probe.

State inquiry

On June 6, Attorney-General Gali Baharav-Miara publicly recommended that Israel should establish a state commission of inquiry – not on Israel’s failure to defend its citizens on October 7, but on whether the war cabinet and higher defense echelons complied with international law.

This would be in order to block any progress by the ICC against Netanyahu, Gallant, and anyone else.

Tomer Yerushalmi and the Foreign Ministry were also part of an intergovernmental committee with Baharav-Miara which supported the recommendation.

There are serious questions about why such a state inquiry was not started before Khan’s decision on May 20, given that Khan had made multiple threats in 2023, and in February vowed to go after Israelis if the Jewish state invaded Rafah, which it did on May 6.

And back on May 5, when former deputy attorney-general for international affairs Roy Schondorf recommended the state inquiry concept, the Post understood from sources that neither the government nor its current serving lawyers took it seriously.

However, subsequently the Post has learned that Tomer Yerushalmi supported the idea even before May 20, and quite possibly at even earlier dates, though her office has refused any comment whatsoever.

In September 2023, Tomer Yerushalmi warned publicly that the legal establishment was the only defense that might be able to protect Israeli security officials from international war crimes allegations.

Last week, the Post exclusively reported that the political echelon is finally taking the state inquiry idea seriously, but it seems that it is hoping that pressure from the US, England, and other countries may get the ICC Pretrial Chamber to reject Khan’s arrest warrant requests – without Israel having to open the state inquiry.

Yet, it is unclear whether opening a state inquiry would stop arrest warrants once they were already issued.

Late October warning

These events did not surprise Tomer Yerushalmi, and in fact the Post has learned that she was sounding the alarm about the ICC all the way back in late October 2023.

At the end of October, Tomer Yerushalmi sent a letter to the entire IDF high command warning that the entire war would be fought under the shadow of the ICC because it already ruled in 2021 that it had jurisdiction over Israel, despite Jerusalem’s protests.

At the time, the IDF high command did not come close to fully comprehending and internalizing this warning.

With the supportive statements of the entire Western world in hand and condemning Hamas in unequivocal terms, the IDF high command believed that a much longer-term change had taken place in the US’s and EU’s views of the Israeli-Palestinian conflict, and that it would have free rein.

Unfortunately, Tomer Yerushalmi knew that there were parties loading up for legal attacks on Israel from the beginning.

Strategy, slow-moving probes

What was Tomer Yerushalmi’s legal defense strategy? First, the IDF legal division has made sure that IDF officials from the Civil Administration as well as IDF Chief Spokesman Daniel Hagari have been careful not to use terms of incitement, but to stay on message regarding respecting international law.

This is important because if there are no “criminal” statements, then no overseas court, the ICC or otherwise, can prove that IDF commanders had a criminal mental state, without which there is usually no case.

Besides avoiding incitement, though, the US, Europe, and especially Israel’s critics have said that the IDF probes are moving far too slow, which stains their credibility and legitimacy.

Here, unfortunately, Tomer Yerushalmi has little in the way of comforting news, and there is no expectation of being able to announce even five to 10 major probe results in the next several months.

This approach is somewhat shocking, especially for incidents such as from October 2023 regarding which the IDF has mostly admitted that it mistakenly killed Reuters reporters in Lebanon, but has never issued an official finding.

Delaying addressing such well-known incidents severely undermines IDF credibility in the global media, maybe even more than controversial attacks on Hamas headquarters in mosques or UNRWA facilities.

The Post has also learned that there is no wider probe at any level regarding the controversy of IDF treatment of Palestinian cemeteries.

Essentially, the IDF vehemently rejects not only the obviously false mass grave allegations, but also more plausible allegations that Palestinian dead bodies were unintentionally mishandled while searching for the bodies of dead hostages.

After CNN and other media outlets covered this issue extensively, the failure to at least produce a probe on it will harm Israel’s credibility.

Tomer Yerushalmi’s emphasis is on explaining the unique difficulties delaying the probe results, which she believes cannot be overcome by populism and the snap of one’s fingers.

She believes that the operational probes were not designed for the middle of a war when the commanders and soldiers the IDF legal division needs to interview are still deep in the Gaza invasion.

Har-Even is thought of as one of the best reservist commanders outside the chain of command, but he has no magic wand.

There have been ongoing attempts since January to vet the cases for the most high-profile ones in order to move them along faster, but challenges remain – for one, given that the IDF does not have regular access to the “scene” of the allegations in Gaza.

But 2014 probes moved faster?

Some have asked her why the IDF cannot replicate the speed of the 2014 probes where, by early fall and late winter of 2014, there were already announcements coming out about some probes, though the war had only started in July 2014.

Her response to such questions tends to be that the 2014 conflict saw only 18 days of a ground invasion as compared to the current nine-months-and-running war.

Further, the 2014 ground invasion was symbolic, and only a small number of IDF troops actually entered populated Gaza areas.

In contrast, during this war, she likes to note, the IDF has sometimes operated five full divisions and tens of thousands of troops in the deepest urban areas of Gaza.

Further, in 2014 there were no probes during the war itself.

Her argument is that the fact that probe results started to emerge in less time from the start of the 2014 war than they have during the current war was because that conflict was so much shorter.

Repeatedly since January, there have been unexpected delays in the probes.

Originally, the defense establishment expected to enter “stage three” in January-February, which would have given it sufficient quiet to be able to pour more resources into probing the various cases and greater freedom to interview commanders and soldiers.

This never happened, and to this day the IDF has carried out around half a dozen reinvasions of Gaza.

Further delays were caused, according to Tomer Yerushalmi, by Iran’s massive attack on Israel on April 13-14.

Although Tehran’s attack only took place over one night, and the response attributed to Israel only took place over one night five days later, the attack reshuffled all operations and long-term projects.

Also, the intensity of threats presented by Hezbollah and by the Houthis of Yemen have slowed how much attention the IDF, including the legal division, could pour into the Gaza probes.

However, Tomer Yerushalmi has made great efforts since May to highlight the IDF legal division’s hard work on the probes issue, making public appearances at the Israel Bar Association in Eilat, Reichman University, and the University of Haifa.

And between the IDF legal division and the Justice Ministry’s state prosecution, there have already been a few indictments for stealing weapons belonging to Hamas or other related items from Gaza and from IDF Gaza invasion staging areas.

World Central Kitchen (WCK)

Some have questioned how the IDF could, in less than a week, finish its probe of an incident where the IDF mistakenly killed seven aid workers on March 31, but then need months or more for other probes.

Tomer Yerushalmi would recognize that IDF Chief of Staff Lt.-Gen. Herzi Halevi wrapped up the WCK operational probe in under a week, but would then add that the IDF legal division needed to address some red flags from the probe’s findings.

But questions from the legal division have remained open for three months.

It expects to get answers in the near future to some of those questions.

To finish that probe, Har-Even had to speak to Nahal forces who were in Gaza at the time and also needed to speak to WCK officials.

If the IDF legal division will only receive answers about the WCK incident soon, the IDF legal division portion of the probe could easily draw out for another half a year or more, with the results delayed into 2025.

The kinds of questions that the IDF legal division might raise could be going beyond questioning the soldiers on the ground about what they say they saw.

In order to evaluate whether the IDF soldiers really did not see the warning words for “press” – say, in the Lebanon-Reuters case – the legal division needs to look at all of the videos of visual intelligence of the area at the time.

Sde Teiman

One of the sagas connected to the war that has received extra media attention has been dozens of Palestinian detainees who died or were beaten in detention at the Sde Teiman army base in the South.

Sde Teiman was supposed to be a temporary holding area for Palestinian detainees when the war started, and Israel did not have sufficient numbers of regular prison cells for the vast number of newly arrested Palestinians.

However, it continued holding massive numbers of detainees until recently, when media and High Court of Justice attention led the government to either release detainees or find them proper prison cells.

Tomer Yerushalmi would point out two complications with trying to speed up the Sde Teiman cases.

Some detainees were badly wounded on the battlefield and died in Sde Teiman, but likely of their wounds.

She hopes she can move forward faster in cases of detainees who came to Sde Teiman fully healthy, and only later were wounded or died.

However, even with those cases, the IDF legal division is facing a massive delay in receiving professional medical opinions regarding injuries or the causes of death.

Was death caused by strangulation, a series of blows to the body, or a heart attack?

The state medical forensics institute has been overwhelmed in trying to advance all of these questions since October 7, and the depressing and unprecedented volume of work has decimated the staff size, just as the IDF legal division is growing to try to keep up with the war.

As an example of delay, regarding one soldier who committed suicide, it took seven to eight months to get a medical opinion.

To confront this issue, the legal division is trying to carry out many other parts of its investigations in parallel to the time it is waiting for medical reports, including collecting evidence from any live victims.

Probe advances vs. complications

There have been huge improvements to how Har-Even team and IDF legal team probes can operate. In 2014, probes had to request access to intelligence surveillance videos. Now, those investigative teams have direct electronic access to the surveillance videos.

But the huge improvements again run into the unique challenges of the current war.

How does one probe one specific strike, out of hundreds, which may have missed its Hamas target and struck civilians by mistake, among the vast majority which struck their Hamas targets precisely?

With so many targets on top of each other, and so many Hamas counterstrikes in the same battle zone, will it be possible to determine among a large number of aircraft, drones, tanks, and artillery, who made the error?

What does the IDF do if there is a claimed attack on a civilian location, and the wreckage, from satellite or other aerial footage, even appears to be caused by an airstrike, which would suggest the IDF, but the IDF has no record that it staged an attack in that area?

Bakeries and war

In Tomer Yerushalmi’s view, the probes have also gotten more complicated by having to probe incidents that normally might not draw the IDF legal division’s attention.

For example, there are claims that the IDF bombed Gazan bakeries in October and November 2023.

Whether true or not, these incidents would not normally get the same priority as looking into incidents of striking a school or a mosque (some of which are intentional attacks on Hamas forces abusing those civilian premises).

However, because of the claims before the ICJ and ICC against Israel of attempts to starve Gazans, probes in these cases have taken on higher importance. But that again deflects the IDF legal division’s attention from other cases.

Future enemy

Unfortunately, Tomer Yerushalmi’s future enemy is likely to be some Israelis who will attack her when she starts to eventually bring more indictments against Israeli soldiers who may have committed alleged war crimes.

Often, Israelis attacking government officials like Tomer Yerushalmi do not realize the strategic protection that her work provides the Jewish state and its officials.

The May 20 arrest warrants for Netanyahu and Gallant could have included many more Israelis, if not for her work, and the warrants might also have been issued months earlier in a way that could have held back the IDF from taking apart Hamas’s 24 battalions.

After junior IDF lawyer-prosecutors’ names were publicized, she even had to move to put a blanket gag order on such actions to avoid her staff being harassed.

But whether pressured over international law by Israelis on the Right or by the ICC, Tomer Yerushalmi will not be backing down.