Can new MAG Itay Offir save the IDF's legal corps - and shield Israel from ICC war crime threat?

These are dark days in the Israeli legal establishment.

But this article is not about the dramas of Tomer Yerushalmi's downfall or what might or might not be on her cell phone found in the Mediterranean Sea after she allegedly tried to commit suicide.

On Thursday, Offir was sworn in as the new MAG and elevated several ranks, from a mid-level rank of captain as a long-retired reservist Givati Brigade combat soldier, to the rank of major general and the IDF high command.

Offir's path to becoming the MAG is as unique as the circumstances in which he takes up the role and the challenges he was greeted with this week, the moment he walked through the door of his new office.

Invariably, the IDF MAG is someone who has spent significant time serving within the IDF legal division and already has intimate experience with its vast, distinct arms.

Frequently, it is someone who previously served either as the IDF deputy MAG or as one of the small number of colonels-division chiefs of the IDF legal division who help the MAG run the enormous institution of several hundred lawyers.

Offir never served in the MAG.

Katz wanted an outsider. Someone who not only was not directly untainted by Tomer Yerushalmi's scandal, but who could not even indirectly be identified with it, or with Attorney-General Gali Baharav-Miara.

This does not mean that Offir is not ultra-qualified – he is.

From 2017-2024, surviving several defense ministers with different ideologies, he worked as the chief legal advisor for the Defense Ministry, a behemoth even larger than the IDF legal division (though now he is not only the chief lawyer, but also effectively an organization CEO.)

Sources said that Offir may also have been one of the three closest advisors to current IDF Chief of Staff Lt.-Gen. Eyal Zamir back when he was the defense ministry's director general, his last post before taking command of the IDF.

This closeness will undoubtedly pay off from the start in navigating sensitive issues.

His past reputation was so strong, that he was approved by the committee of former chief justice Asher Grunis to be on the short list of three final candidates for attorney-general in 2022, narrowly losing to Baharav-Miara.

Prior to serving in the defense ministry, Offir worked at top law firms in New York, Weil, Gotshal, & Manges, and in Israel, Tadmor-Levy, respectively. Had Katz not grabbed him as the next MAG, he would have become a high level partner at one of Israel's premier law firms.

But all of that is well-known.

Possibly Offir's most complex mission, for which he has been given high marks from multiple officials who are highly familiar with him, was when he helped move certain complex authorities regarding the West Bank from then defense minister Yoav Gallant over to Religious Zionist party leader Betzalel Smotrich, to fulfill various coalition agreements.

Smotrich wanted to have a greater role in expanding certain Jewish settlements.

Gallant and IDF Chief of Staff Lt.-Gen. Herzi Halevi strongly opposed the transfer of some of their authorities.

Whether one was for or against this change, the fight over whether and how it would happen was a potential major threat to the stability of the government and the IDF in 2023.

Gallant and Halevi, sources contended, did not see how this change could play out in the real world without causing chaos and undermining the IDF's ability to provide security in Judea and Samaria. They also viewed Smotrich as part of the problem of destabilization. Smotrich at times was condescending about their security concerns, thinking they simply opposed him politically.

According to sources, Offir displayed his capabilities to bridge between different perspectives working late into the nights and doing shuttle diplomacy between the sides.

He held separate meetings with the IDF Civil Administration heads, with Gallant, and with Smotrich.

Finally, Offir worked over and over again at creative ways to draft a compromise which all sides could live with and walk away from claiming some kind of victory: for Gallant-Halevi, curing security concerns, and for Smotrich curing a freer hand on some of the civilian West Bank issues.

It was critical, for example, that sources said that he helped convince Gallant that the civilian issues were overall a distraction, and that Gallant could invest more of his time in core security issues if he allowed the specific authorities to move over to Smotrich. Further, he noted that if Smotrich handled the civilian issues, he, Offir, who advised both Gallant and Smotrich in the defense ministry, would actually have more say. In contrast, until then the IDF West Bank legal advisor had been more dominant and les sin Gallant's control.

Also, he reminded Gallant and Halevi that others, such as Eli Ben Dahan as deputy defense minister, had held aspects of civilian West Bank authorities in the past from within the defense ministry, and Michael Biton had been a separate minister in the ministry.

Sources said specifically some of Offir's high-level problem solving and drafting skills from the private sector and time he spent studying at Harvard University helped out (some noting that his drafting in English is also at a very high level, not just in Hebrew.)

They also credited him with being ready to take risks and suggest bold suggestions that the sides in any given dispute had not necessarily considered. This could disarm them and help them realize that a solution could be found if they did not view the dispute as winner takes all.

Sources said that Offir Is strong at developing a broader vision for the organization he is running and then sticking to and effectuating that vision with a very pragmatic approach.

This was crucially important when he led the several dozens of lawyers in the Defense Ministry's legal department, who themselves handle legal issues for thousands of the ministries' employees.

In addition, sources said that whereas many lawyers see only black and white scenarios, Offir is creative in finding ways to implement the vision of the political echelon or top executive who he is working for in the gray areas of legal interpretation.

Some sources said that in recent years, some top legal officials have elevated the aspect of their job to uphold the law into a larger role to proactively push themselves into legal issues where they have not even been asked to opine. Some have said they have done this because they do not trust the political echelon to follow the law and so they must proactively put up obstacles as the last gatekeepers for the rule of law.

In contrast, sources said that Offir will not seek out ways to block the political echelon.

If and when the political echelon proposes an action which is blatantly illegal, he will stand firm and inform them and refuse to sign off on it, such as seeking an illegal exemption from a mandated public bidding process, said sources.

But he will not, sources explained, proactively try to stop the political echelon from exploring its various options out of suspicions that it might try to later break the law.

Rather, he will do all he can to find creative interpretations for the political echelon to implement its policies, even if those policies may depart from general custom until that moment, provided the policy proposal is not apparently illegal.

And if he is forced to say "no", sources say he will do it privately, without fanfare, and while expressing sympathy with the political echelon's dilemma, instead of coming off as viewing the politician echelon in a condescending manner for suggesting an alleged illegal approach.

Regarding integrating haredim into the army, Offir is well-known for facilitating then-defense minister Avigdor Liberman's policy for confronting the issue more aggressively.

On the other hand, Offir has not gotten stuck in the middle of the issue between Defense Minister Israel Katz, who has tried to slow haredi integration, versus Zamir, who has tried to speed it up.

Rather, Offir has said this issue must be decided by the political echelon and that he will provide legal interpretations as required based on the policies they set.

Also, sources said that Offir is practical enough to know that major events, like the October 7 war, greatly impact both the political and legal context of a variety of policy issues.

Some have described top defense officials as metaphorically being ready to wield a large axe to overtly and loudly fight their internal Israeli rivals. Offir does not really have many foes, as made clear by the praise he received both within the government and from opposition officials when his appointment was announced.

But if he needed to defend himself, sources indicate – in a metaphorical sense - that he would more likely do so using camouflage, a cleverly set trap, and small knives in place of the loud openly brazen commander wielding an axe.

Of course, all of this is simply a metaphor for the idea that sources call him formidable, but in a subtle way, as opposed to diving headfirst into the center of a battle.

Regarding whether he can handle the ICC challenges, sources noted that large amounts of his work in the defense ministry involved international issues.

Offir had to manage countless international agreements between Israel and other countries. Some of these deals were just large contracts, but many of them involved complex, classified and sensitive security issues, said sources.

He spent significant time, sources noted, especially working on security agreements with the US, Germany, Singapore, and others.

In addition, during Offir's term as the ministry's legal advisor, the ICC issued an arrest warrant against then defense minister Yoav Gallant.

Sources explained that Offir was one of the lead figures involved in handling issues related to the ICC and Gallant.

Even if the IDF Legal Division and Justice Ministry International Law Division took the lead on certain laws of war issues, he and his international law department still needed to weigh in on security legal advice issues, often on a daily basis.

Offir also grew the international law division within the Defense Ministry to close to 10 lawyers, showing, sources stated, that he recognized the importance of that arena and the readiness to back it with greater resources.

Sources acknowledge that Offir is less experienced in the criminal law arena.

However, they point out that the current Attorney-General, Baharav-Miara, had little experience in criminal law as well before taking office as the country's chief prosecutor.

Despite that, both she and Offir were approved by the Grunis committee due to their vast experience in other relevant areas of law and their strong managerial backgrounds.

Other areas that the IDF MAG must deal with, where Offir likely has more experience than your typical MAG, are: defending civil claims, handling PTSD legal issues, working with the Knesset, and working with the executive branch.

Sources say that when he was brought in to run the Defense Ministry legal division in 2017, he had little experience in any of these issues other than civil commercial law, but picked up how to manage them at a surprising rapid pace – a good omen for how he may handle criminal law issues going forward.

How quickly Offir gets familiar with international law and criminal law issues and how successfully he navigates Israel's domestic political and global diplomatic needs are not just another issue, but may decide his legacy near the start of his term in office.

From a domestic political perspective in terms of the current government, the safest move would be to tank the Sdei Teiman case against five IDF soldiers for allegedly sexually assaulting a Palestinian detainee.

He would not need to call the case a "blood libel" as some coalition politicians have done, but could simply close it based on technical problems, which he could blame on his predecessor.

The technical problems are real and many: Tomer Yerushalmi leaked a video of the five defendants allegedly beating the detainee, harming some of their fair trial rights, the lead prosecutor for the case Lt. Col. Lior Ayash is one of the officials under a criminal probe which disrupts the progress and management of the case, the Palestinian detainee who was beaten was sent back to Gaza without having testified in court.

But simply closing the case would be problematic not only for Offir's standing within Israel's legal community, but also before the ICC.

All of the technical issues above are real, but all of them can also be overcome, and to close the case, Offir would need to ignore the medical report, which is far more damning against the five soldiers than the widely discussed video.

The five IDF soldiers, broadly speaking, do not deny that they had a physical altercation with the detainee.

Mostly, they claim self-defense and that they had to get him under control.

The problem is that the medical report reveals seven of his ribs were broken and that an object was either shoved up his anus or that he was stabbed in the rear by an object.

These do not seem like actions consistent with merely getting control over one detainee in self-defense. And the much-defamed video was not doctored. It, in fact, seems to show IDF soldiers beating the detainee. It was just edited to shorten it from many hours of footage where nothing happened to the moments when the more critical events occurred.

Ignoring all of that evidence would permanently harm his standing with the Israeli legal community and might make it harder for him to manage the IDF legal division.

More importantly, the ICC would likely reject Israeli explanations that it had taken the beating issue seriously, but that a strange series of events, including Tomer Yerushalmi's personal meltdown, had simply unwound the case on technical grounds.

They would likely reject this not only because of the public statements by some coalition officials saying that detainees should not have rights, and because Israel is currently considering passing a new capital punishment law seen as anathema in most of the West. The ICC might also reject such a decision because Tomer Yerushalmi leaked the video at a time when Israeli extremists broke into an army base to try to free the IDF soldier-suspects – meaning there were actually active measures in Israel to obstruct the case.

If the ICC saw closing the case as a sign that IDF legal cases have lost independence from the political echelon, this could theoretically lead to dozens or even thousands of new arrest warrants against IDF officers and soldiers. Such a scenario would be far worse than two warrants against just Netanyahu and Gallant.

In contrast, if Offir moves forward with the case, he would signal to the ICC that even under tremendous political pressure, the IDF legal division is ready to prosecute its own when there is evidence.

But if Offir moves forward with the case as is, much of the coalition may immediately turn against him, making it hard for him to work with the executive and legislative branches for the rest of his term.

A third way through the morass may be a sort of compromise outcome.

The three largest points about the case that angered the coalition and their supporters were how the IDF soldiers were arrested in a demeaning fashion, the original leaked charge of rape, and the leaking of the video.

At some point, the IDF said it would change its arrest procedures in the future and reduce the rape charge to sexual assault. But there was no public apology or acknowledgement of these issues. Tomer-Yerushalmi wrote a letter to IDF chief Zamir admitting to leaking the video, but the public has not yet heard from her, and may never.

If Offir gives a public speech apologizing for how the soldier-suspects were arrested and outlines the changes made for how future situations will be handled, apologizes for the original exaggerated rape charge and possibly even further reduces the ongoing charges, and apologizes for the leaking of the video (though he was not involved) - that may reduce some of the anger he may face for continuing the case.

Israel will likely have problems with the ICC no matter what, as it already does. Offir will likely face some political officials who will not forgive him. But it would set a different tone than Tomer Yerushalmi had set, while maintaining his standing with the Israeli legal community and giving Israel the best chance it has left before the ICC.

That is only one issue. Offir will need to quickly replace top legal officials, such as Solomush, so that he can manage the enormous IDF legal division. But sources said that this is one of his best talents: finding the right people to fit the right position. He will also likely have a freer hand on the issue than a typical new MAG, given the Tomer Yerushalmi scandal. Some sources said that diversifying the kinds of officials at the top of the IDF legal division will be part of the fix needed to restore public faith in the institution.

And there will be countless other ICC issues, regular IDF prosecution issues, and IDF legal advice issues to deal with, with very little grace period.

Whether Offir is up to these climatic challenges will have a very real impact on the fate of the country for years to come.