Should Israel define more war-crime charges?

Israel currently prosecutes war crimes, if they occur, by using “regular” charges, like murder or manslaughter.

By YONAH JEREMY BOB
IDF soldiers arrest Palestinian 370 (photo credit: REUTERS/Mohamad Torokman)
IDF soldiers arrest Palestinian 370
(photo credit: REUTERS/Mohamad Torokman)
To what extent can left-wing NGOs like Yesh Din contribute to the state/IDF improving their compliance with international law? Until last year, the gulf between the IDF perspective and the Yesh Din perspective was often so deep that there was hardly anything to discuss.
But the February 2012 Turkel Report II was a game changer, since all the players respected its comprehensiveness and it provided a middle ground in the debate, stating simultaneously that Israel’s apparatus for investigating itself for alleged war crimes was kosher, but also making 18 recommendations for significant changes.
The report was a by-product of the Turkel Commission, which started as an investigation into the May 2010 flotilla but expanded its mandate to include almost all issues related to war crimes.
Now Yesh Din has published a report which it claims is an extension of the criticisms presented in Turkel.
Is that true, or is Yesh Din doing something entirely different from Turkel? The Yesh Din report, like Turkel, calls on Israel to more specifically define war crime charges on its law books for handling a case where its security forces might illegally harm a civilian.
Currently, Israel would prosecute such violations, if they occurred, by using “regular” charges, such as murder or manslaughter, without special regard to the issue that a soldier might have killed a civilian in a potential war crime context.
The Turkel Report II pressed Yesh Din, because it is harder for the NGO to slam the state’s system of investigations and to come straight out and say that soldiers and officials must be brought before the ICC when a highly respected neutral commission endorsed the state’s investigative apparatus as kosher.
On the other hand, the report gave Yesh Din a running start in slamming the state on the same specific issues where the Turkel Commission said change is necessary.
NGO Monitor does not buy the idea that Yesh Din’s criticism is more moderate or focused.
According to NGO Monitor, NGOs like Yesh Din are fundamentally problematic from the outset, as they are heavily funded by the EU and other groups trying to delegitimize Israel.
A counter-report from the group noted that the EU gave 150,000 euros (64 percent of the Yesh Din report total funding) to Yesh Din to “change Israeli policy” regarding the “criminal accountability of Israeli Security Forces Personnel.”
Just as Yesh Din appears to want to wrap itself in the Turkel Report’s neutrality, drawing attention to such issues will cause many to ask questions about that neutrality.
NGO Monitor also notes that the Turkel Report essentially said that adding a list of specific war-crime-related charges (instead of just prosecuting soldiers under “regular” crimes like murder, manslaughter) would be “best practices,” or an improvement to a system already complying with international law.
In contrast, NGO Monitor blasts Yesh Din for arguing that failure to add an additional list of crimes could signal that the system is broken, opening the state to having its officials/soldiers brought before the ICC.
One specific crime that Turkel and Yesh Din have proposed adding is “command responsibility,” or a specific crime for commanders who might give an order to a soldier to commit a war crime or who do not stop their soldiers from committing war crimes when they had the power to intervene.
But whereas Turkel says that adding this crime would improve the system, Yesh Din says that without adding the specific crime, current IDF commanders and their civilian superiors have impunity regarding potential crimes committed by their soldiers.
NGO Monitor notes the 1988 incident of IDF Col. Yehuda Meir, who was prosecuted and convicted for crimes committed by soldiers under his command even though there was no specific crime for “command responsibility,” as a sign that the current system is sufficient.
A Yesh Din lawyer said that the Meir case still did not cover situations where commanders or civilian superiors knew war crimes were occurring (though they did not order them) and failed to stop them.
Into this debate enters a major ICC ruling last week, in a Libyan war-crimes case, supporting the idea that if states have defined crimes to prosecute their soldiers for war crimes, it does not matter whether the “tools” they use are “regular” crimes like murder/manslaughter or “war crimes.” Applying the ICC ruling could indicate Israel does not need to make changes and that even the Turkel Commission pressed for unnecessary reform.
Although making reference to ICC principles in the report, a lawyer for Yesh Din countered that the ICC ruling is not decisive in getting Israel “off the hook,” since Israel has not ratified the ICC’s Rome Statute, and that the government’s problem stems from an Israeli Supreme Court ruling.
The ruling in question, according to Yesh Din, essentially says that Israel’s current list of criminal charges is insufficient, unless they are used in the same fashion that war crimes charges would be used and the result is proper prosecutions.
Next, since Yesh Din claims that its report proves that Israel is not using these crimes to properly prosecute, it concludes that Israel could be vulnerable to ICC intervention unless the specific “war crimes” charges are added to the books.
So does Israel need more war crimes on its books and is the Yesh Din report (taking into account critiques) contributing to improving Israeli compliance with international law? The debate will probably not be resolved until the Knesset or the government seriously debates the issue, or until there is another serious attempt to bring Israeli soldiers/officials to the ICC.
In the meantime, developments like the game-changing Turkel Report II and the recent surprising ICC ruling continue to change the parameters of the issue and the major players’ presentation of the debate itself.