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How Israel increases its odds of international prosecution

When the criminal records of IDF war criminals are expunged, the government puts them in danger of being tried abroad.

By Yesh Din, written by Yossi Gurvitz

Last week Yesh Din published a new report,”Lacuna: War Crimes in Israeli Law and Court Martial Rulings.” It deals with the way the military justice system handles offenses that are in effect war crimes. One of the issues discussed is the criminal records of soldiers convicted of offenses of this kind.

In 2011 the Knesset enacted Amendment No. 61 of the Military Justice Act. It’s pretty complicated, but can be summed up by saying that if a soldier was convicted of an offense in a military court martial, and the court sentenced him to no more than two months imprisonment, his criminal record would be erased in five years.

The criminal record is a sort of cross that any man who has ever been convicted of a felony has to bear. It is a database run by that most efficient of Israeli bureaucracies, the Israel Police. Having your name appear in it seriously jeopardizes your chances of being employed by the government, and it may well even deprive you of a visa to travel abroad. Unless, of course, you are the leader of a major political party – then you can assault a child and still become the foreign minister. The period of time for maintaining criminal records is 10 years plus the length of the statute of limitations for the offense; the minimum period is 17 years.

As was mentioned, since 2011, soldiers convicted of offenses are given a significant discount: their criminal record is deleted after five years, assuming their sentence was shorter than two months. Amendment No. 61 is intended to prevent young people from having their names besmirched for the rest of their lives due to a mistake they made during their military service. It is also retroactive: if you committed an offense as a soldier and you were entered into the database, and five years have passed, your criminal record will be erased.

There are two problems with this change. To begin with, as Israeli law does not differentiate between regular offenses and war crimes – this gap, the lacuna, is at the heart of our report – Amendment No. 61 does not make that distinction, either. It is enforced with regard to offenses that would otherwise be considered war crimes. That in itself is reprehensible: one of the consequences of being convicted of a war crime is that it leaves a stain which should certainly follow the criminal for the rest of his life.

One suspects this would not trouble the common Israeli all that much. Israelis have a long history of overlooking war crimes. The soldiers convicted of the Kafr Qassam Massacre and the generals found responsible for the Sabra and Shatila massacre quickly and successfully integrated into civilian life. Nobody ever mentioned their past. There is a point, however, which should trouble Israelis nevertheless.

One of the criteria for being tried by an international tribunal is called “the principle of complementarity.” It says that if a country properly investigates and prosecutes its suspects of war crimes – and assuming there’s an army and a war, there will also be war crimes – then such a proper system is a good defense against being indicted by an international tribunal. Assuming, of course, the proper system exists not only in principle but in the specific case as well, and that the government demonstrated willingness and ability to investigate and prosecute, if appropriate.

The fact that Israel does not indict people for violating the laws of war as such, but rather charges them with other offenses, and the fact that its courts – in the absence of proper legislation – do not take into consideration the fact that these crimes are war crimes when they hand down verdicts and sentences, increases the risk that these criminals will one day find themselves before an international tribunal. So does the erasure of their criminal record: a violation of the laws of war should stigmatize the criminal. Ignoring this nature of the offense paradoxically endangers the felon. His lack of a criminal record may be used against him, when deciding whether or not to indict him abroad.

Therefore, before Israel finds its armed men and women indicted in various countries, we repeat our call: “that considering the practice of the courts-martial and the shortage of material offenses in Israeli domestic law, special offenses of war crimes should be incorporated through legislation into Israel’s legal system.”

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.

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    1. Haifawi

      I mean, assuming a proper functioning justice system (i know, i know, I read your reports), what sorts of crimes get 2 months in jail? Are these 2-month crimes really going to be important to the ICC?

      Reply to Comment
      • Gearoid

        Probably not, but considering that you need to work with the reality, not an assumption, plenty of things that could constitute a serious crime end up with light sentences.

        I’ll always remember reading about a settler convicted of a “wrongful killing” (those are the words used in the article, not sure if they were legal terms or not) of a Palestinian. Not murder. Just “wrongful killing”.

        He was banned from the West Bank for 6 months. I explicitly remember this case because of how clearly the punishment did not match the crime.

        Reply to Comment
        • Haifawi

          In the US, ‘wrongful death’ is a civil matter, not a criminal one, with a lower standard of proof. Hence why Nicole and Ron’s families were able to go after OJ after he was already acquitted of murder.
          I guess it is the same as in Israel, although the settler being found guilty of this wrongful death should have been exposed to financial liability from the victim’s family.

          Reply to Comment
    2. The devolution of command and control in the occupation via refusal to punish unnecessary violent acts by young soldiers (often reported on this site) makes a generic legislative war crime difficult to imagine. It might even be considered an affront to the IDF’s place on the War Council implicit Israeli constitution. I think placing command responsibility for the acts of soldiers, absent an affirmative defense that the soldier’s act is unique and never tolerated in military culture, might be a way of expanding legal control. Of course, this assumes that command wants to endanger its lower officer core to court scrutiny, even if a military court, which seems unlikely now.

      Yet, if there is a place to begin, it lies with the career officer, not the young Israeli conscript, who will be, in cultural definition, pure and innocent. All the latter want is to get through their service and have a life. Career officers, controlling others through their orders, have no such claim to untainted innocence.

      Reply to Comment
    3. Shaun

      If the questions was honestly: How can Israel decreases its odds of international prosecution.

      The simple answer would be: Get rid of groups like Yesh Din who provide “evidence” of criminal conduct by Israeli soldiers.

      As this premise is False and Yesh Din cares more about reporting crimes than Israeli prosecutions, I suggest that +972 adjust the headline accordingly.

      Reply to Comment
      • You have to care about (non) legal abuses against WB Palestinian residents before you can prosecute them. You seem to be saying “see nothing so there is nothing to prosecute.” Although this is a time honored position, it is not consistent with the rule of law–which is not supposed to exist in the WB, which is the point.

        Reply to Comment
        • Shaun

          “see nothing so there is nothing to prosecute.” That is exactly the point. Abuse of human rights is a subjective issue.
          Only the reported cases can be prosecuted.

          Reply to Comment
          • There cannot be a case if the police/IDF refuse to acknowledge one. Well, there can be, occasionally, but the bar is high. See some of Yossi’s other Yesh Din posts for examples.

            In the US during the 1960’s and 70’s, Federal prosecution was necessary partly because state prosecutors would do little if not nothing. There is no independent prosecution in the West Bank–again, see Yossi’s posts. Since there is no prosecution, there are no cases, so nothing is ever wrong.

            Reply to Comment