In January 2009, an Israeli military force operating in Gaza City during Operation Cast Lead instructed a nine-year old boy to open several bags and suitcases that were suspected of containing explosives or a terrorist. This incident led to charges against two soldiers for the offense of “exceeding authority to the point of risking life or health.” This grave affair, in which a child was used as a human shield, is a war crime according to any acceptable definition; yet it led to an indictment with a sentencing of a maximum of three years imprisonment, since it is impossible to try people for war crimes under Israeli law. The report Lacuna: War Crimes in Israeli Law and Military Court Rulings (henceforth: Lacuna) published by Yesh Din called for an amendment to the legislation that would enable indictment for war crimes.

War crimes are included in the category of offenses called “international crimes” – offenses that violate the common values of the entire international community, and which are therefore particularly grave. Many countries around the world have already passed laws intended to define such offenses and punish their perpetrators, as required by international law. Israel has not yet enacted a law defining war crimes, although this was one of the specific recommendations of the Turkel Commission, published in February 2013. It recommended the adoption of domestic legislation defining the offenses of war crimes in a manner that conforms with international law. As a result, courts-martial adjudicate soldiers who violate laws of war as if they were “ordinary” offenses.

The accepted view in Israel is that ordinary domestic legislation is adequate for prosecuting defendants for actions that constitute war crimes. There are very few countries that share Israel’s approach. Lacuna surveys international models for legislation that criminalizes war crimes, the existing directives in Israeli law, the military prosecution’s policy, and military court rulings.

Two test cases included in the report (the use of human shields, and abuse of shackled detainees) illustrate how the current legal framework in Israel leads defendants charged with war crimes to be convicted of “ordinary” and even minor offenses. These convictions fail to take into account the unique gravity of the offenses committed by combatants against a civilian population in the context of an armed conflict. The report also shows that, in most cases, those convicted receive lenient sentences, and in many cases the period of criminal record is substantially reduced.

Yesh Din’s position is that in light of the courts-martials’ practices and due to the absence of material offenses in local law, Israel must enact legislation defining a category for unique offenses as war crimes in criminal law.