Op-Ed | Lior Yavne | Haaretz | October 17 2013 [Translation from the Hebrew original]

The author is a human rights researcher and the author of the Yesh Din report: “Lacuna: War Crimes in Israeli Law and in the Rulings of the Military Courts”

At the age of 11, M. found himself testifying in a Court-Martial concerning his experiences 16 months earlier when soldiers entered the basement where he was hiding with his family and other residents of the building from the shooting outside. They shot at the door, and then came in. They took the men to a point close to the storerooms and ordered the women and children to gather in one corner. M. testified before the three military judges that two soldiers then approached him. “They grabbed my shirt; in the corridor I wet myself. They took me into the showers (where the residents who had fled from their apartments had placed their bags) and then made a sign like that with their hand, and I realized that I was supposed to open the bag.” M. demonstrated on the shirt of the military prosecutor how the soldiers had seized him: “They grabbed me by my shoulder, then I wet myself, and then I could open the first bag, but I couldn’t open the second one” (the bag was locked). “Then he slapped my face and moved me two or three steps away from the bag… They moved four or five steps away and shot at the bag.” The military prosecutor: “How did you feel when the soldier shot at the bag?” M.: “I was scared that they were going to kill me.” The military prosecutor: “After the soldier shot at the bag, what happened?” M.: “They took me back to my mother.”

The use of a civilian– whether a child or an adult– as a human shield is a war crime. This has been established by international law and by domestic criminal law in most countries of the world. War crimes are among those crimes that are considered to violate the common values of the entire international community. Indeed, in the vast majority of countries, and certainly in all the democratic countries, domestic legislation criminalizes war crimes. In Australia, for example, domestic law establishes a maximum penalty of 17 years’ imprisonment for a person who is convicted of using a human shield, and life imprisonment in cases in which this use led to a person’s death.

Israelis cannot commit war crimes. Not because we have some kind of genetic immunity to perpetrating such atrocities, but because Israeli law does not define any offenses as war crimes. Israel’s Nazi and Nazi Collaborators Punishment Law criminalizes war crimes and other crimes perpetrated during the Second World War in areas under the control of the Axis powers. However, Israeli law is silent regarding the possibility of criminalizing war crimes committed in the present day. When the Supreme Court discussed this matter, it determined that as long as it is possible to prosecute Israelis who have committed offenses considered war crimes by means of the “ordinary” offenses included in the statute books, and as long as those convicted of these offenses are penalized in accordance with the gravity of their actions, the status quo is sufficient.

However, the status quo is not sufficient. The two soldiers who forced not yet 10 year old M. at gunpoint, to open bags suspected of containing incendiary devices were prosecuted for their actions. Since Israeli law (both military and regular) does not include an offense of using a human shield, they were prosecuted for the almost-disciplinary offense of “deviation from authority tantamount to endangering life or health” (an offense for which the maximum penalty is three years’ imprisonment). Since the defendants were at the rank of first sergeant, they were also accused of an ancillary offense of “conduct unbecoming” (one year’s imprisonment). After a protracted trial, the two defendants were convicted of the offenses with which they were charged and sentenced to a suspended sentence of three months’ imprisonment, to be activated if they were convicted within two years of these same military offenses. They were also demoted by one rank, to the rank of sergeant. The sentence was granted some eighteen months after the two defendants completed their military service.

Similarly, the defendants in two additional incidents who were accused of using human shields were convicted of minor offenses and did not serve even a single day in prison. Soldiers convicted of beating and abusing shackled and blindfolded detainees – offenses which, in certain circumstances, constitute war crimes – have been convicted of relatively minor offenses and received lenient penalties. The same is true in other cases brought before the military courts. Faced with the silence of criminal law, these courts have failed to develop judicial policy to fill the lacuna. “War crimes” are not allowed through the gate and do not appear in a ruling bearing the emblem of the Military Courts Units.

Moreover, some three years ago Amendment 61 to the Military Jurisdiction Law was enacted. The goal of this amendment was to facilitate the return to civilian life of soldiers convicted of minor offenses, but it also led to the deletion of the criminal record of most of the soldiers convicted of serious offenses against Palestinians. In accordance with the amendment, the criminal record of the two soldiers convicted of taking a child under the age of ten as a human shield, who was afraid that he was about to be killed and wet his pants, was also deleted. In February, the Turkel Commission, appointed to examine the consistency of Israeli law with the rules of war in international law, submitted its concluding report to the prime minister. The first of its many recommendations, entitled “Legislation of war crimes,” proposes that the Ministry of Justice should introduce Israeli criminal legislation filling the gap in this regard. Months have passed since then, but we have not heard of any such initiative.

It is to be hoped that the justice minister will seriously consider this recommendation by the Turkel Commission. The “principle of complementarity” in international law grants a senior right to the home country to investigate, prosecute and penalize those involved in war crimes. However, since the State of Israel does not yet have the necessary legal tools to this end, the government exposes its citizens liable to be suspected of involvement in such actions to legal dangers abroad. The justice minister would be well advised to act promptly to promote Israeli legislation criminalizing and penalizing war crimes.