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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