(Washington, D.C., October 31, 2022) — The Office of the Prosecutor of the International Criminal Court (ICC) should investigate senior Israeli military lawyer Eyal Toledano in the commission of war crimes and crimes against humanity, including the crime of apartheid, said Democracy for the Arab World Now (DAWN), in a submission filed with the Prosecutor today.
The war crimes and crimes against humanity documented in DAWN's ICC submission, the result of a months-long investigation, took place between 2016 and 2020 in the occupied West Bank, placing them temporally and geographically within the scope of the existing ICC investigation into the Situation in Palestine.
"What makes the Toledano case so appropriate for the ICC is not just the crimes involved, but the opportunity for the court to show that international crimes cannot be 'legalized' through domestic legislation," said Michael Schaeffer Omer-Man, Director of Research for Israel-Palestine at DAWN. "Bringing to justice someone like Toledano, an engineer of Israel's apartheid, is the ICC's raison d'etre and we believe the Prosecutor will see this evidence and reach the same conclusion."
While many organizations have submitted complaints to the ICC about Israeli crimes and victims, both generally and related to specific incidents, it is extremely rare for a complaint to focus on an individual culprit.
Col. Eyal Toledano served as the Israel Defense Forces' (IDF) West Bank Legal Advisor between 2016 and 2020, making him the top-ranking legal authority in the Occupied Palestinian Territory (OPT)—effectively, the attorney general of Israel's occupation. In that role, Toledano was responsible for the legal planning and approval of all IDF non-combat activities and policies, including ones that violate international humanitarian law (IHL) and the Rome Statute of the ICC. Documentary evidence establishes that Toledano planned, approved, or oversaw acts and policies that constitute war crimes, crimes against humanity, and human rights violations, including: hundreds of home demolitions causing forced displacement; collective punishment though punitive home demolitions; arbitrary restrictions on movement; facilitating the transfer of settlers to the occupied territory, advancing de facto illegal annexation; and maintaining a system of apartheid.
As West Bank Legal Advisor, Toledano and his staff of 40 lawyers oversaw 618 home demolitions, which displaced 2,115 Palestinians in the OPT, violating both the IHL prohibition on destruction of property and forced displacement, both war crimes. He also authorized dozens of punitive home demolitions against innocent family members of alleged militants, a practice that violates the prohibition on collective punishment in customary IHL. Toledano played a key role in planning, justifying, and defending the planned—but not yet executed—mass demolition and forcible transfer of the entire village of Khan al-Ahmar, which the former ICC prosecutor warned at the time could constitute war crimes.
"It is rare that you find one person like Toledano tied to so many types of war crimes and crimes against humanity, and with so much documentary evidence freely available," said Michael Schaeffer Omer-Man, Director of Research for Israel-Palestine at DAWN. "Usually the ICC would look at whether the state, Israel, conducted its own investigation into the crimes to determine if it has jurisdiction. In Toledano's case, all his actions were legal under Israeli laws, a fact which should oblige the Prosecutor to make him a focal point of his Palestine investigation."
Toledano was also responsible for authorizing sweeping restrictions on movement both within the West Bank, as well as arbitrary travel bans denying over 10,000 Palestinians, including human rights defenders, permission to travel overseas, which violates their right to freedom of movement under international human rights law.
Further, Toledano abetted the Israeli government's unlawful annexation of occupied territory by incrementally applying Israeli civilian laws—legislated by the Israeli parliament—extraterritorially to the occupied West Bank, by copying them into military orders that carry force of law in the occupied territories. This legal process allows the Israeli government to claim that it is not directly applying its domestic legislation to the occupied territory, which is impermissible under international law, while achieving the same result. Unlawful annexation amounts to the international crime of aggression.
Taken in the aggregate, when carried out to maintain a system of oppression or domination, these and other crimes for which DAWN's investigation found Toledano culpable, amount to the crime of apartheid. Under the Rome Statute, the crime of apartheid takes place when an inhuman or inhumane act is carried out in the context of an institutionalized regime of systematic oppression and domination by one racial group over another, with the intention to maintain that system.
Such acts, according to Human Rights Watch and Amnesty International, include punitive home demolitions, discriminatory home demolitions, forcible transfer, and the denial of basic rights like severe restrictions on residence and movement, each of which Toledano has authorized, supervized, or carried out. Carried out with discriminatory intent, these aggregage crimes also constitute the crime of persecution under the Rome Statute, also a crime against humanity.
"Col. Toledano represents a professional class within Israel's occupation who could choose to not participate in these crimes, and have the professional discretion to do things differently if they wanted to," said Michael Schaeffer Omer-Man, Director of Research for Israel Palestine at DAWN. "Toledano is a trained lawyer who should have rejected the crimes he was tasked with carrying out."
In addition to filing a complaint to the ICC Prosecutor detailing these crimes, DAWN also relayed its investigation to the State Department, the UN Commission of Inquiry on the Occupied Palestinian Territory, and the UN Special Rapporteur on the situation of human rights in the Palestinian territories, urging them to include Toledano and his successors in their reporting and draw the connections between Israel's apartheid and war crimes and the individuals implementing them.
DAWN also presented its findings to the U.S. Judge Advocate General's Legal Center & School, asking them not to host Col. Toledano or others holding his role, in light of his culpability for grave violations of human rights and humanitarian laws. At least one former West Bank Legal Advisor has been hosted at the school.
"Col. Toledano, the current West Bank Legal Advisor, and all those who succeed them, should understand that they can no longer hide behind the facade of normative civil servants performing unexceptional functions and will face prosecution and censure for their crimes against Palestinians," said Sarah Leah Whitson, Executive Director of DAWN. "The international legal community, democracies across the world, and in particular the signatories of the Apartheid Convention and Rome Statute have an obligation to reject Israeli apartheid by holding Toledano accountable for his culpability in the crime of apartheid."
Israeli military criminal investigations into abuses by IDF personnel tend to focus almost exclusively on the lowest ranked soldiers accused of violating Israeli military laws and regulations. Completely outside their purview is an entire professional class enabling and complicit in a slew of war crimes and crimes against humanity. They are professionals who work in offices, liaison offices, courtrooms, police stations, and other normative bureaucratic roles. In the case of Israel's treatment of the Palestinians, they are the engineers of the crime of apartheid.
DAWN's Culprit Gallery
DAWN works to expose the identity of the state agents who enable repression and to make them recognizable at home and abroad. These individuals, whom DAWN identifies as "culprits," bear administrative, civil, moral, legal, or political responsibility for human rights abuses, IHL violations, and international crimes. From other countries in the Middle East and North Africa, DAWN has identified the abuses of individual judges, prosecutors, state security operatives and officers, prison wardens, attorneys general, and diplomats in its Culprit Gallery.
In the Israel-Palestine context, this work exposes not only the identity of the faceless enablers of crimes and abuses, but also aims to expose the many mechanisms and professionals that give abusive and undemocratic systems of oppression a veneer of legality and legitimacy. Untangling the roles of these professional culprits also empowers others to investigate their crimes more thoroughly, exposing them to possible sanctions, international criminal and civil proceedings, and ensure they are not welcome in professional fora in countries and associations that respect democratic values.