Yesh Din, Lacuna: War Crimes in Israeli Law and Court-Martial Rulings

Israel is among a small group of states in the world that believe that their domestic criminal law provides a sufficient response to war crimes, and does not need to incorporate the provisions of international law.

This report outlines the need for Israeli legislation forbidding war crimes and establishing appropriate punishment. It reviews the existing provisions of Israeli law, presents international models of legal systems that criminalize war crimes, and examines the Israeli military prosecution’s policy and the sentences levied by the courts-martial in cases in which soldiers are charged with crimes that may amount to war crimes.

The report finds that the Israeli criminal code lacks many offenses that constitute war crimes under international law, and thus defendants cannot be prosecuted for them. Moreover, in the cases in which prosecutions take place, even though the charges usually fit the conduct attributed to the defendants, they do not address the special gravity that derives from committing offenses against protected persons under international law.

Similarly, the sentences imposed on convicted defendants usually do not reflect the aforementioned aggravated circumstances. Finally, a recent amendment of the law considerably shortens the length of the criminal records of soldiers sentenced to certain prison sentences.

The report concludes that special offenses of war crimes should be incorporated through a separate codex into Israel’s legal system. This will help resolve tensions between unique principles of international criminal law and the principles of Israeli law, increase the public visibility of the crimes, and serve as an educational and informational tool for the population of the State of Israel and members of the security forces.