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Between 'barbarism' and 'exceeding authority'

Israel lacks laws for trying soldiers for war crimes – and when IDF soldiers commit them, the results are ludicrous charges, indictments and sentences.

By Yesh Din, written by Yossi Gurvitz

Illustrative photo of Israeli soldiers raiding a Palestinian home and making an arrest in 2012 (Oren Ziv/Activestills.org)

For boys and girls, and we alongside them
Actively
Or by quiet agreement,
Are nudged, mumbling “necessity” and “vengeance”
Into becoming war criminals.

–Nathan Alterman, “About This” (Al Zot), 1948

During Operation Cast Lead in the Gaza Strip a force of Givati Brigade soldiers seized a position in a house in the Tel AlHawa neighborhood of Gaza City. Two of the soldiers, sergeants first class GA and SA, noticed bags they considered as possibly booby-trapped. Therefore, they used what the IDF used to call the “neighbor procedure,” separated a nine-year-old child from his mother and demanded he open the bags. Unfortunately for GA and SA, the incident was documented; they found themselves in the middle of a firestorm, and they ended up before a military tribunal, with the media dubbing the incident, “the child procedure.” In his testimony, the child, RM, described the fear he felt as he was taken from his mother, how he wet his pants and noted that the soldiers hit him in the face.

When former president of Israel’s Supreme Court Aharon Barak deigned to finally deal with the “Neighbor Procedure” case – a case the High Court of Justice postponed time and time again during the bloody years of the Second Intifada – he ruled that, “it’s clear that the army may not use the local residents as ‘human shields’,” and said the act was “cruel and barbaric.” The last word is of importance: before we were aware of the concept of war crimes, before we began haltingly to say that there are orders which are obviously illegal, the term for such acts was “barbarism.” The scholar Raphael Lemkin coined the term ‘genocide’ and advocated tirelessly for it to become a crime; but before he thought of the term ‘genocide,’ he described the crime itself, in 1933, in an article called “The Crime of Barbarity.”

It’s important to note that the barbarians – which is to say, the allegedly uncivilized people; the term is Greek in origin and refrains to the Greek concept that foreigners’ speech sounded like barking, bar bar – never had a monopoly over acts of barbarity. The history of civilized people, from the Athenian occupation of Melos to our own time, is full of them. Where people are armed – where, as Erich Kastner wrote, the beast in men is fed – there will be acts of barbarism. No army is free of them; by its very existence, war invites war crimes. Ares, the god of war, was portrayed as a drunk and a hot-tempered fool for a reason – and nobody but the Spartans worshipped him. Judaism’s view of war is also complicated: the important commentator Rashi wrote about the Bible describing Jacob going to war with Esau as “greatly afraid,” afraid that he might be killed, ”and distressed,” distressed at the thought that he might kill. Other commentators noted the suspect proximity between two chapters in Deuteronomy: chapter 20 describes the laws of war, and chapter 21 explains how to deal with an unknown murderer; and they said that one invites the other. Every army that goes to war will commit war crimes; the difference between them lies in how they treat the criminals.

But in the case of GA and SA, nobody spoke of barbarity or cruelty. The prosecution charged them not with war crimes, but with “exceeding authority to the point of endangering lives.” The court showed mercy to the two frightened so-called “fighters” – faster than the vulture, braver than a hare – and after uttering some empty words about their actions “being contrary to their orders, and to the international moral values as expressed by the Fourth Geneva Convention and the values of the IDF,” it sentenced them each to… a three month suspended sentence, as well one rank demotion. The court noted, however, that the “many merits” of the two cowards would have to be considered in their eventual requests for their criminal records to be wiped.

The question I want to ask is simple: how in damnation did the tearing of a child from his mother, threatening him with guns, beating him, forcing him to open bags he was told they might be booby-trapped – all of which was done by two “fighters” armed from head to toe – become the tepid ” exceeding authority to the point of endangering lives?”

It’s actually quite simple. All of the four Geneva Conventions say that all the signatories must investigate and punish war crimes, which are described as serious or severe violations of the laws of war. But, as our new report – “Lacuna: War Crimes in Israeli Law and Court-Martial Rulings” – shows, Israel never enacted the necessary laws to recognize the crimes committed by its army (and, again, by any army involved in war) as war crimes. This is particularly important, given that Israel has been in a state of ceaseless war from the day of its creation.

Given the lack of proper legislation, and the lack of emphasis on the rights of protected persons, even though the Geneva Conventions have become part of the army’s standing orders, the concept of war crimes is not understood – neither by the criminals nor by the prosecution or the courts. Recently, the Israeli Turkel Commission listed as its first recommendation the closing of this lacuna, this gap, in the law, recommending the legislation of laws relating to war crimes. We are in agreement: Yesh Din’s position, as our report puts it, is that “given the practice of the courts-martial, and the absence of essential violations in the domestic law, special violations of war crimes are to be recognized by the justice system of the State of Israel through legislation.”

In the case of the child RM, for instance, we see an alleged severe crime of abuse and risk of life of a protected person – a term absent from our court martial system, and not by accident – which is an express violation of international law. Another important principle absent from Israeli military law is that is that of the responsibility of commanders to the actions of their soldiers. This means that unless the commander expressly ordered the commission of war crimes, he cannot be tried for the act. The two cowards sentenced to several month-long suspended sentences should not have been in the dock by themselves. Where was their company commander?

The case of RM is not isolated. Our data, based on examining military indictments and verdicts, shows that IDF soldiers were indicted in three other cases for using human shields. In all three cases, they were charged with “exceeding authority to the point of endangering lives.” In one case, as part of a plea bargain, this tepid article was exchanged for “conduct unbecoming of an officer.” In neither case – all of them ended in conviction – was the defendant given an actual prison sentence. Time after time, using various phrases, the courts wrote that “we have to understand” the situation the soldier or officer was in.

No, we don’t. Understanding is the beginning of lenience. A war criminal should be treated as such, not as a frightened child. The understanding of the crimes, the forbearance towards it, is inviting the next crime to occur. This, of course, is not the fault of the courts alone, but of the public as well. Alterman – I began with him, so ending with him seems fitting – understood this:

“Cruel is war! The naïve preacher
Will have his face smashed by its fist!
And therefore
Let the writ of honesty and mercy
Be just as cruel!

And to the crowd rhapsodizing only of its majesty and magic
And provide it honeyed words,
It ought to prepare steely punishments!
Field courts-martial!

Let that placidity which whispers “indeed” be exterminated –
Let its face be shown in the mirror!
Stand up, Hebrew soldier! Defend yourself
Of the jadedness of the Hebrew public!

Of the jadedness of the Hebrew public.

Written by Yossi Gurvitz in his capacity as a blogger for Yesh Din, Volunteers for Human Rights. A version of this post was first published on Yesh Din’s blog.

Related:
Givati verdict in line with IDF history
Detained: Testimonies from Palestinian children imprisoned by Israel
VIDEO: Israeli forces appear to use Palestinian as human shield

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    1. “Where people are armed – where, as Erich Kastner wrote, the beast in men is fed – there will be acts of barbarism. No army is free of them; by its very existence, war invites war crimes.” “Every army that goes to war will commit war crimes; the difference between them lies in how they treat the criminals.” : Israel has been in something like a controlled war for most of its existence. It is neither a police force (as we know from the West Bank) nor an obliterating army (as we know from Gaza and Lebanon; actually, obliteration seems to be devolving in several areas of the world), placing it at the unfortunate cusp of what a war crime can be. In a total war this boy’s treatment would likely have gone unnoticed, certainly not material for a military tribunal. It is the sparing use of ground forces with limited period of engagement which make this war crime, as an acknowledged crime, definitionlly practical. IDF command doesn’t want to be at the forefront of this evolution, so, forced to notice, the event is defined as “endangerment,” which covers a broad range of actions and so a broad range of penalties. Yet the case at hand is beyond using someone as a human shield, for a sniper may decide not to fire in respect of the innocent life, while a bobby trap bomb can hardly decide not to blow up in similar deference. The military prosecutor chose an offence which allowed the military court to erase the action with a few words of “IDF values.”

      I don’t think conscripts should have to face sanction alone. Battle does terrible things to our mental control, and I think both immediate direct command officers (including non-com sergeants) and any other officers happening to be present should be liable to the same charge; indeed, that the trigger finger charge should be contingent on these being charged as well. This would help create an oversight bond between officers and conscripts, with all recognizing the difficulties of battle and the higher responsibilities thereof. The IDF is going to be necessary for a very long time. To charge the IDF with crime will not go far; to recognize what battle does so as to internally alter the IDF can turn potential accusation into fealty, mutual oversight replacing after the fact accusation.

      Charging endangerment also allows the IDF to avoid the High Court decision of Barak noted above. I am usually critical of the High Court, but this decision makes an advance the US Supreme Court has refused. I know of no case before the latter cutting so directly into military conduct in battle. Barak’s language, as the law of the land, was meant to restrict IDF behavior as a whole. The IDF has no wish for such Court oversight, so the military prosecutor charges in such a way that the tribunal can ignore Barak’s decision. I have in the past described the Israeli implicit constitution as a War Council of Knesset, Administration, Court, and IDF, each insulating itself from the others through a logic of common goal compromise, in analogy of agreeing when sharing an outside enemy. Barak’s decision tried to shift the balance within the Council on moral grounds. I think generally that Barak’s self named “legal revolution” and philosophy have been largely pushed back (significantly a consequence of suicide bombers), although the recent Refugee Detention Case suggests the Court is beginning to find its fighting ground again. The IDF will shape military misconduct to avoid acknowledging, practically, that the Court can constrain its operations in battle. This works against the IDF redefining itself internally through recognition of war crimes, a consequence of being a full partner in the War Council, protecting its seat. Crucially, the US military has been subordinated to much greater extent save for the major wars; but, then, Israel has been in a conceptual war footing indefinitely. To bash Israel without recognizing this process is counterproductive and just false, for how can one advocate change without understanding present process?

      An excellent post. When I read these Yesh Din pieces I have a far hope. The words may seem mostly futile now, but I have enough faith in Israelis to think they will eventually have an impact.

      Reply to Comment
      • Average American

        Call me average, but wasn’t it The Jews who were the reason for the Nuremburg Trials, and weren’t those trials the first time soldiers were held accountable for following their orders? Not to mention the mockery of legal procedures and rights that those trials were.

        So if war crimes are such a big part of Jewish history, a history they certainly remind everyone of whenever it’s useful, why wouldn’t the Jewish State be especially interested in having war crime laws that hold their own soldiers accountable?

        It appears to an outside observer that the reason is because they don’t consider their actions to be crimes at all, but bold righteous acts for the greater good of The Jewish People, and what could be wrong with that?

        Reply to Comment

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