Lacuna

de Lior Yavne

The family of nations considers war crimes to be among the worst crimes, and it includes them in the group of "international crimes" -- offenses that violate the common values of the entire international community, to which all countries and all people are committed: genocide, war crimes, crimes against humanity and others. Throughout the world special laws are enacted to criminalize such offenses and punish their perpetrators. Israel, too, has enacted clear laws to prohibit and punish the crime of genocide. However, the Israeli legal system does not contain legislation forbidding war crimes and setting corresponding punishments. This report outlines the need for Israeli legislation on that subject. The report 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. Two test cases included in the report show how the existing legal status in Israel leads people accused of war crimes to be convicted of minor offenses, sentenced to light punishments and in many cases granted a significant shortening of their criminal record. As international criminal law develops, the principle of universal jurisdiction for international crimes expands and the International Criminal Court in the Hague establishes its activity, it should be remembered that the "principle of complementarity" provides protection from criminal prosecution and judgment to those allegedly involved in committing international crimes, as long as the law enforcement system in their country fulfills its role. As such, the international system gives priority to the mother country and its legal proceedings. Therefore, a legal system fulfilling its duty and perceived to be doing so by external observers is of paramount interest to anyone who wishes to defend Israelis against foreign legal intervention.