Sham trials won’t defend IDF officers from int’l courts

By Noam Wiener

Not even a slap on the wrist. Lieutenant colonel Omri Barborg, who ordered one of his soldiers to shoot a rubber coated bullet at a bound and blindfolded Palestinian from point blank range, was not even demoted by the military court yesterday. Barborg (seen in this video holding the prisoner while he is being shot) was sentenced to “no promotion for two years”. All is quiet on the Eastern Front.


The Israeli justice system, and especially the military “justice” establishment, is preparing for the day when Israeli soldiers and politicians will have to start accounting for their actions to international tribunals. We can shake our heads and point out that the International Criminal Court currently has no jurisdiction over Israelis. But that will not last forever. Last year I had a couple of long conversations at a conference with an official at the Israeli Ministry of Justice who all but admitted that they are behaving as if international criminal jurisdiction is already here.

When the International Criminal Court was established, its member states wanted to protect their own interests, so they determined that the court shall have no authority over anybody who has already been investigated or tried in his own country. This is the context in which we need to understand Israel’s efforts to show the world it can investigate and prosecute its own soldiers.

In its response to the Goldstone Report, Israel boasts that it has a strong independent judiciary that investigates and tries offenders according to the rule of law. A few decisions, such as the 1997 ruling prohibiting torture, are set forth as beacons of compliance with international law. Let us conduct our own investigations and try our own criminals, Israel says. Last month we have even tried two soldiers who used a young boy as a shield, and yesterday we punished a Lieutenant Colonel who ordered his driver to shoot a bound man. The hope of the establishment is that the international community will leave Israel alone if it is convinced that we can clean up after ourselves.

But the international community is not stupid. Trials that end with a guilty verdict, but with a sentence following which the accused cries for joy are not going to convince anybody that Israel is enforcing the law. There is an exception to the limitation on the International Criminal Court’s jurisdiction: If the Court finds that the State meant only to shield the accused from standing trial in an international court, no regard will be given to the national proceedings.

This brings us back to Omri Barborg. If anybody in the Judge Advocate General or the Ministry of Justice thinks that by having sham trials Israel will get off the international hook, they have another thing coming. Convictions without punishment may convince those who think Barborg should not have been tried in the first place, but shielding Israeli soldiers by trying them in Israel with the sole intent of protecting them abroad is just not going to work.

If I were lieutenant colonel Barborg, I would think twice before visiting Europe or Latin America in the near future.

Noam Wiener is a doctoral student at the University of Michigan researching International Criminal Law