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Compliance with the Law of Armed Conflict: an Israeli Perspective

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Compliance with the Law of Armed Conflict: an Israeli Perspective Military Self-Interest in Accountability for Core International Crimes Morten Bergsmo and SONG Tianying (editors) PURL: http://www.legal-tools.org/doc/2ab08c/ E-Offprint: Marlene Mazel, “Compliance with the Law of Armed Conflict: An Israeli Perspective”, in Morten Bergsmo and SONG Tianying (editors), Military Self-Interest in Accountability for Core International Crimes, FICHL Publication Series No. 25 (2015), Torkel Opsahl Academic EPublisher, Brussels, ISBN 978-82-93081-81-4. First published on 29 May 2015. This publication and other TOAEP publications may be openly accessed and downloaded through the website www.fichl.org. This site uses Persistent URLs (PURL) for all publications it makes available. The URLs of these publications will not be changed. Printed copies may be ordered through online distributors such as www.amazon.co.uk. © Torkel Opsahl Academic EPublisher, 2015. All rights are reserved. PURL: http://www.legal-tools.org/doc/2ab08c/ 8 ______ Compliance with the Law of Armed Conflict: An Israeli Perspective Marlene Mazel* A myriad of historical, religious, ethical, institutional and geopolitical reasons inform the State of Israel’s firm commitment to compliance with the Law of Armed Conflict. Without attempting to provide a fully com- prehensive account of these factors, this chapter reflects on various fea- tures of Israel’s legal history and experience that have characterised and shaped its perspective with respect to compliance with the Law of Armed Conflict. This chapter is divided into four sections. The first section consid- ers how the history of the Jewish people, and particularly experiences of persecution and genocide during the Holocaust, led Israel to become an early pioneer of important legal doctrines, such as universal jurisdiction, which enable perpetrators of serious international crimes to be held ac- countable for their actions anywhere in the world, as reflected in the fa- mous Eichmann case. The second section discusses the role that Israel’s establishment as a Jewish and democratic State has played in promoting commitment by its armed forces to a code of conduct and legal principles that emphasise compliance with the Law of Armed Conflict, notwith- standing the difficult security situation that Israel has faced since its estab- lishment and the intense challenges posed by enemy rogue States and ter- rorist organisations that regularly exploit and breach those norms. The third section examines the important role played by Israel’s Supreme Court and its extensive jurisprudence applying the Law of Armed Conflict to Israel’s conduct on the battlefield. Finally, this chapter analyses the re- port of the Public Commission of Inquiry established in Israel to examine the conformity of Israel’s legal mechanisms for investigating alleged vio- lations of the Law of Armed Conflict with international standards, as the * Marlene Mazel is Deputy Director of the Department of International Affairs, Ministry Justice, State of Israel. The views expressed herein are those of the author alone and do not necessarily represent the position of the government of the State of Israel. FICHL Publication Series No. 25 (2015) – page 117 PURL: http://www.legal-tools.org/doc/2ab08c/ Military Self-Interest in Accountability for Core International Crimes most recent example of the State’s commitment to compliance and ac- countability in this context. 8.1. Historical Perspective and Early Legal Measures The personal and collective experience of the Jewish people throughout history, and in particular following the murder of over six million Jews in Europe during the Second World War,1 has played a vital and profound role in shaping the views of Israeli society and its leaders regarding the importance of ensuring the rule of law in war, no less than in times of peace, and the need for accountability as means to punish and deter the commission of such crimes. Thus, it was only natural that less than two years after its establishment, and notwithstanding the overwhelming secu- rity, economic and social challenges that were faced by the young State during that period, the State of Israel signed the four Geneva Conventions 2 in 1949 and ratified them in 1951. Following its signature and ratification 1 Though there is no precise figure for the number of Jews killed in the Holocaust, the figure commonly used is six million quoted by Adolf Eichmann in the Eichmann trial. See Yad Vashem: The Holocaust Resource Center, “How Many Murdered in the Holocaust?” available at http://www.yadvashem.org/yv/en/holocaust/resource_center/faq.asp, last ac- cessed on 13 November 2014. It is also important to recall in this context that experiences of persecution were not limited to Jewish populations from Europe, and that in the imme- diate years following its establishment, the State of Israel became home to more than 850,000 Jewish refugees who were either formally expelled or otherwise forced out of Arab countries in North Africa and the Middle East. See Malka Hillel Shulewitz with Raphael Israeli, “Exchanges of Populations Worldwide: The First World War to the 1990s”, in Malka Hillel Shulewitz (ed.), The Forgotten Millions: The Modern Jewish Exo- dus From Arab Lands, Continuum, London, 1999, pp. 126, 133–34, 138–39; Carole Basri, “The Jewish Refugees from Arab Countries: An Examination of Legal Rights – A Case Study of the Human Rights Violations of Iraqi Jews”, in Fordham International Law Journal, 2002, vol. 26, no. 3, p. 656–720. 2 Israel signed the four Geneva Conventions on 8 December 1949 and ratified them on 6 July 1951. Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, United Nations Treaty Series (‘UNTS’), 1949, vol. 75, no. 970, p. 31; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, UNTS, 1949, vol. 75, no. 971, p. 85; Convention (III) relative to the Treatment of Prisoners of War, UNTS, 1949, vol. 75, no. 972, p. 135; and Convention (IV) relative to the Protection of Civilian Persons in Time of War, UNTS, 1949, vol. 75, no. 973, p. 287. Furthermore, Israel is a party to the Conven- tion for the Protection of Cultural Property in the Event of Armed Conflict and its First Protocol (1954), the Third Additional Protocol to the Geneva Conventions of 12 August 1949 (2005), and the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to Have In- discriminate Effects (1980) and three of its Protocols – Protocol I on Non-Detectable FICHL Publication Series No. 25 (2015) – page 118 PURL: http://www.legal-tools.org/doc/2ab08c/ Compliance with the Law of Armed Conflict: An Israeli Perspective of the Convention on the Prevention and Punishment of the Crime of Genocide,3 Israel was also among the first States to codify the crime of genocide4 in its domestic law. According to the Crime of Genocide (Pre- vention and Punishment) Law: […] “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethni- cal, racial or religious group (hereinafter referred to as “group”); as such: (1) killing members of the group; (2) causing serious bodily or mental harm to members of the group; (3) inflicting on the group conditions of life calculat- ed to bring about its physical destruction, in whole or in part; (4) imposing measures intended to prevent births within the group; (5) forcibly transferring children of the group to an- other group.5 In 1961 Israel brought Adolf Eichmann to trial before its criminal courts.6 Eichmann, an SS officer who had been centrally involved in the planning and implementation of “the final solution of the Jewish ques- tion”, which led to the murder of six million Jewish civilians during the Fragments (1980), Amended Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (1996), and Protocol IV on Blinding Laser Weap- ons (1995). 3 Convention on the Prevention and Punishment of the Crime of Genocide, UNTS, 1948, vol. 78, no. 1021, p. 277 (Israel signed the Convention on 17 August 1949 and ratified it on 9 March 1950). 4 The term ‘genocide’ itself was coined in 1943 by Raphael Lemkin, a survivor whose fam- ily was killed during the Holocaust. Axis Rule in Occupied Europe, published in Novem- ber 1944, was the first place where the word ‘genocide’ appeared in print. Lemkin stated: New conceptions require new terms. By ‘genocide’ we mean the de- struction of a nation or of an ethnic group. This new word, coined by the author to denote an old practice in its modern development, is made from the ancient Greek word genos (race, tribe) and the Latin cide (kill- ing), thus corresponding in its formation to such words as tyrannicide, homocide, infanticide, etc. See Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress, Carnegie Endowment for International Peace, Wash- ington, DC, 1944, pp. 79–95. 5 The Law Regarding the Prevention and Punishment of the Crime of Genocide, 5710-1950, LA 137, Article 1(a). 6 The prosecution took place in Israeli domestic courts in accordance with the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950, Laws of the State of Israel (LSI), vol. 4, no. 64, p. 154. The crimes stipulated in this law relate to “the period of the Nazi regime” (between 30 January 1933 and 8 May 1945) and “the period of the Second World War” (between 1 September 1939
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