An Israeli reservist rushed out of Brazil this week after a Brazilian judge ordered an investigation into whether he committed war crimes in Gaza.
Israeli consular officials helped soldier Yuval Vagdani leave the country on Sunday after the order was made public. The move follows a criminal complaint filed by a Belgium-based nonprofit group, the Hind Rajab Foundation, which “focuses on aggressive legal prosecutions of perpetrators, accomplices and instigators of war crimes and crimes against humanity.” humanity in Palestine.
On Wednesday, the Israeli army announced that it would no longer identify soldiers by name in the media, “fearing the arrest of soldiers abroad.”
Mr. Vagdani was deployed to Gaza following the Hamas attacks of October 7, 2023, which triggered Israel’s invasion of the territory as part of a campaign to defeat and destroy Hamas.
According to the Hind Rajab Foundation’s complaint, Mr. Vagdani posted videos and photos on social media from Gaza showing that he had destroyed civilian homes and other buildings. The group complaints these actions constitute a systematic attempt to impose unbearable living conditions on the civilian population, in violation of international law. (The Times has not independently verified this evidence.)
A Brazilian judge determined the allegations needed to be investigated and referred the case to federal police. Several similar criminal complaints have been filed against vacationing Israeli soldiers in recent months, including in Cyprus, Sri Lanka, Argentina and Chile.
Mr. Vagdani, whom the Times could not reach for comment, arrived in Israel on Wednesday.
In an interview with Kan, the Israeli public broadcaster, he admitted to having published the video of an exploded building. “That’s what they saw and they wanted to investigate me,” he said. “They turned the whole thing from a house into 500 pages, they thought I had murdered thousands of children and who knows what.”
Mr. Vagdani also told Kan that he was at the Nova music festival near the Gaza border on October 7, 2023, and escaped the massacre that took place there.
Israeli officials downplayed the seriousness of the cases, emphasizing that none of the criminal complaints led to arrests. “We understand that part of this phenomenon is motivated by pro-Palestinian activists and based on open source intelligence,” said Lt. Col. Nadav Shoshani, an Israeli army spokesman.
The open source methods in question are social media posts, which pro-Palestinian groups now use as evidence to seek criminal charges against soldiers when they travel abroad.
Universal jurisdiction
The combination of social media and international tourism – as well as a very old body of law – could open up a new arena in international criminal law.
Universal jurisdiction, one of the oldest principles of international law, holds that certain crimes are so serious that any country in the world can bring criminal charges against their perpetrators. In the 18th century, this rule was used for crimes like piracy; in recent times it has been used to prosecute genocide and war crimes.
Israel relied on universal jurisdiction to prosecute Adolf Eichmann, a senior Nazi official, for crimes against humanity committed during the Holocaust. Spain used it to demand the extradition of Augusto Pinochet, the former Chilean dictator, to face charges of torture and other crimes. And in more recent examples, several European countries have relied on this principle to try Syrian officials for war crimes and crimes against humanity. Belgium prosecuted Rwandans accused of being involved in the 1994 genocide in its courts.
For decades, these cases were relatively rare and tended to target high-ranking officials. “There has been this tendency to focus on higher levels in order to maximize impact, and also because at higher levels conduct is sometimes better documented than at lower levels,” said Yuval Shany, professor of international law at the Hebrew University. in Jerusalem.
It used to be difficult for a local prosecutor to obtain evidence of a war crime allegedly committed in another country. This has changed with social media. “Technology is bridging the gap, because once you have filmed and documented yourself committing a war crime, it is much easier to prosecute you, even in a court on the other side of the world,” Mr. Shany said.
Experts say Israeli soldiers posted videos and other images of themselves online in Gaza saying and doing things that could be interpreted as evidence of serious crimes, including the destruction of civilian homes and property and calling for the expulsion or extermination of Palestinians.
Although clips posted on social media may be taken out of context or misinterpreted – and Israel has accused Hamas of using civilian infrastructure for military purposes – “some of them look very bad,” Ms. .Shanny. “There is a potential level of accountability that we have never seen before in wars, simply because it was too difficult to produce evidence. »
However, even if the social media evidence is compelling, it alone likely won’t be enough to ensure a successful prosecution, said Rebecca Hamilton, a law professor at American University and a former attorney in the U.S. Attorney’s Office. the International Criminal Court: “A publication on social networks does not constitute a case of war crimes.”
A new legal strategy
The Hind Rajab Foundation claims to have gathered evidence against around a thousand Israeli soldiers. He also tracks their foreign trips on social media when they post about their vacations, then quickly files criminal complaints with the countries they visit.
Dyab Abou Jahjah, president of the Hind Rajab Foundation, said soldiers who respect international law have nothing to fear from his organization. “We are not organizing a witch hunt against Israeli soldiers,” he said. “We are prosecuting soldiers against whom we have proof that they are individually responsible for war crimes. »
Unlike high-ranking leaders, lower-ranking soldiers generally do not have diplomatic immunity or the resources to research which jurisdictions may make them vulnerable to war crimes claims.
Of course, an NGO filing a criminal complaint is not the same as a prosecutor filing a complaint, much less an arrest or conviction.
The Israeli government has taken steps that suggest it is concerned about the criminal complaints. The government, which insists its forces in Gaza have acted in accordance with international law, has formed an interagency team to assess the legal risks for soldiers and reservists abroad. And the Foreign Ministry recently publicly warned Israelis that their social media posts could be used to bring legal action against them in other countries.
These cases may not need to go to court, or even result in arrests, to have an impact. The prospect that soldiers cannot travel abroad without risking prison is one that the public may find difficult to tolerate.
Traveling abroad is extremely important for Israelis, Mr. Shany said. “So I think there’s this idea that this is actually an unacceptable risk and the government and the military need to make it go away. »
Isabel Kershner and Aaron Boxerman contributed reporting from Israel, Ephrat Livni contributed reporting from Washington, D.C., and Jack Nicas contributed reporting from Brazil.
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