Ramallah - published by the Palestinian Forum for Israeli Studies - MADAR, Paper 61 of “Israeli Papers” series, titled “In Israeli Law, War Crimes are 'Regular Crimes'”
This issue includes a report published in October 2013 by the Israeli organization “Yesh Din” (“Law Exists”), (which is a volunteers-based human rights organisation). The report is considered the first of its kind and is published under a title rich in its overtones: “A Gap – War Crimes in Israeli Law in Courts-Martial Rulings.” The report concludes by calling for “a legal modification (the passing of a special bill) that facilitates carrying out trials for war crimes in Israel.” The report was translated and prepared for publication by Salim Salameh.

This report traces the prevailing legal status in Israel, affirming that there is a wide legal “gap” in all that is related to the definition and determination of war crimes, and the options for suing those involved in such crimes based on Israeli law in local courts, be they civil or military.

War crimes are known to be categorised under international war crimes, which are violations that concern the common values of the entire international civil society, and are characterised by special severity. A large number of countries have passed special laws that aim at defining this kind of violations, as well as ways to punish its perpetrators, as required by international law. However, the law record in Israel is still suffering from a lack of jurisdiction that would define war crimes, all the while the Israeli courts-martial tries the soldiers who violate the laws of war by considering the latter as “regular” crimes.
“Yesh Din's” report aims to explain that and to stress the need towards a special Israeli litigation in that respect.
The following is written in the publication's introduction:

So far, the adopted approach in the state of Israel is based on presenting those indicted of committing crimes that may amount to war crimes to local criminal law. Moreover, and alongside presenting international models of legal systems that criminalise war crimes, this report examines the Israeli military jurisdiction and the sentences levied by the courts-martial.

The report includes two groups of test cases (those are: the use of “human shields” and the harming of bound detainees) that exemplify the way in which the current legal provisions in the state of Israel lead to the prosecution of those accused of war crimes as “regular” crimes, and even no graver than simple crimes. Furthermore, these prosecutions do not take into account the special danger that the committing of these crimes by a “combatant” soldier entails in what is termed as “armed confrontations” with civilians. The report also shows that the sweeping majority of these trials end in a significantly lightened punishment.

The report writer and researcher, Lior Yavne, states that “The State of Israel was a pioneer in the introduction of legislation outlawing genocide. However, it is one of the few democratic countries that has yet to legislate laws that punish war crimes. The results of the report call for a legislation that defines war crimes and punishes them as such.

Yavne also noted that the “Turkl Commission” that examined the maritime case of the Turkish “Mavi Marmara” and the performance of the Israeli army throughout it, had recommended in its final report that a special Israeli legislation must be passed that defines war crimes in its criminal law.

He added that “within the upcoming months “Yesh Din”, along with other partners, will persevere in drafting a bill that, should it be accepted, would make Israel an equal member in the international society that had sworn to do its utmost in order to uproot the war epidemic and protect its victims.”