Why Bother?

By Keren Michaeli*

1. The Sentence

The last paragraph of the sentencing judgment handed down in the case of Military Prosecutor v. A.S. and G.A. reads as follows:

The Court, fresh from convicting the two defendants of using a nine-year-old as a human shield, is pleading with the "competent authorities" to expunge the criminal record it had itself created. What agony must the Court have felt in convicting the two if it resorted to make such an invitation to erase its own handy work.

Indeed, even in such a short sentencing decision (no longer than ten pages), one can see how conflicted the Court was. A sentence must be imposed for endangering the life of a child in contravention of military orders, to be sure. But the soldiers were exhausted, posits the Court, indeed more than once, their discretion impaired. And the defendants are brave, so goes the decision, well-liked, sons of families that devoted themselves to the state of Israel.

And so, the Court comes to the conclusion that the most appropriate punishment is a three-month probation period and the demotion of the defendants' ranks from Staff Sergeant to Sergeant. Alarmed by the consequences of this punishment, the Court then makes this unsolicited plea on the behalf of the defendants.

But could we realistically have expected differently from the Court?

2. The Offense

The defendants were convicted of two counts: exceeding authority while endangering life or health,2 and conduct unbecoming.3 The Court found that during a take-over of a building as part of operation "Cast Lead",4 the two defendants separated a 9 year old boy from his mother and forced him to open suspicious bags in their stead.

The circumstances were these: the take-over was conducted under heavy fire aimed at the Israeli unit from the building and the soldiers were tasked with locating weapons and explosives therein. The unit encountered approximately twenty civilians in the underground floor who they separated into two groups: men, who were handcuffed, and women and children. It was then that the two defendants, ordered to guard the group of women, separated the boy from his mother and took him aside to open bags that were deemed suspicious to them. The scared boy, who wet his pants in the process, managed to open a bag belonging to his family but was unable to open another suspicious bag. One of the defendants moved the boy back and shot at the bag, after which he returned the boy to his mother. Notably, the defendants wore protective gear (bulletproof vests, goggles and helmets). The boy, obviously, did not.

The use of a child in the abovementioned manner constitutes a violation of Israel's obligation to refrain from using civilians as human shields. IDF's practices relating to the use of human shields were criticized and prohibited by the Israeli Supreme Court in 2005 on the ground they violated articles 28 and 51 of the Fourth Geneva Convention and article 51(7) of Protocol I.5 In the specific circumstances of this case, the treatment of the boy also constitutes cruel and unusual or – at the very least degrading – treatment. The separation of a young boy from his mother by armed enemy soldiers wearing full protective gear in the middle of what seems to him as Armageddon, and placing him in a potentially life threatening position, exceeds what has been sufficient according to international human rights committees and courts to mean inhumane and degrading treatment.6

But the charges were reduced to conduct unbecoming, a disciplinary charge, and to exceeding authority. As far as the IDF was concerned, these were the most appropriate charges to include in the indictments: they are not severe enough to describe the incident for what it really was and at the same time they incorporate the point that this was not the IDF's way. The use of human shields was not a policy.

But one wonders. Despite the abovementioned determination of the Supreme Court and the orders promulgated by the IDF to that effect, the practice of using human shields has persisted among IDF soldiers. Reports of human rights NGOs7 as well as the report of the UN Human Rights Council on operation "Cast Lead", known also as the "Goldstone Report"8 – all documented several incidents involving the use of Palestinian civilians as human shields. This fact alone should have raised a red flag. The Court itself pointed to this case as a precedent. It also pointed to deterrence constituting a factor in deciding on the most suitable punishment.9 But the connection between what seemed an acceptable practice, the precedential nature of the case and the factor of deterrence was not made by the Court. It refused to make a judicial point that the use of human shields, especially of children, was not to be tolerated. It thus completely missed the mark on the deterrence front. Newspaper headlines following the sentencing highlighted the insignificant consequences such practice entails for IDF soldiers.10

3. Judging One's Self

In 2003, Professor Ben-Naftali and I wrote:

"At the margins of the verdict, we should point out that we are confident that the many rights gained by the defendants throughout their military service and their personal circumstances, will stand before the competent authorities in every motion regarding the expunging of criminal record, such that would be made, and be taken into account in their examination". 1

"It is, we submit, this very awareness of the local context that renders domestic courts not only most vulnerable but also, albeit paradoxically, most suitable for the determination of the legality of the 'choice of means and methods of warfare' made by the government and executed by the military. It is also quite probable that their decisions are likely to be most effective insofar as both domestic actions and domestic discourse about the actions, are concerned."11

We argued that the corpus of international criminal law was designed in such a way so as to give the state first choice in prosecuting perpetrators of international crimes. That the complementarity principle of the ICC and the jurisdictional basis of universal jurisdiction were an invitation to states to seize this opportunity.

I stand corrected.

The sentencing judgment of the Military Court demonstrates how futile it is to expect that Israeli courts adequately prosecute their own. In the story that makes up the case the Court could only identify with the soldiers, not the Palestinian boy. When it tells itself the story, the Court is the soldiers. And thus, despite its own findings in the judgment on the merits that the defendants not only treated the boy unlawfully but that they also outright lied about it in court12 – come the sentencing decision the Court is preoccupied, not with the lack of morality and honor of those who perjured themselves to escape responsibility, but with safeguarding the future of the "distinguished combatants" who wish to continue contributing to the state as soldiers and commanders, no less.13 In a sense the defendants are reverted to victims. Good guys gone bad by the relentless fighting during operation "Cast Lead". That the defendants themselves shared the sentiment of victimhood was evident by the t-shirts worn by their unit mates at the courtroom reading "we are the victims of Goldstone".

My point is that things could not be otherwise. That the "Goldstone Report", one-sided yet not incorrect, would be translated by the Israeli public into an assault on Israel, the "real" victim of operation "Cast Lead" was quite expected. That subsequent criminal proceedings would be received as "offerings" to the international community is a natural consequence of a culture that cannot conceive itself being in the wrong. And within this context, how could we expect our courts to feel otherwise?


  1. * Adv. Keren Michaeli is a PhD candidate, University of Oxford, and a lecturer of international humanitarian and criminal law at the College of Management, Academic Studies Law School

    1. Military Prosecutor v. A.S. and A.G (Sentencing Decision of 21/11/2010)

    2. Pursuant to article 72 of the Military Criminal Code

    3. Ibid. Article 130

    4. An extensive military operation (between December 2008 and January 2009) launched by Israel in Gaza in response to rockets fired by Hamas against Israeli cities

    5. HCJ 3799/02, Adalah Legal Centre for Arab Minority Rights in Israel et al. v. Commander of the Central Region et al. (23 June 2005) paragraph 21; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, arts. 28, 51, 75 U.N.T.S. 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), July 8, 1977, art. 51(7), 1125 U.N.T.S. 3, (opened for signature Dec. 12) reprinted in 16 I.L.M. 1391 (1977); Israel is not a party to the Protocol, but is bound by its customary provisions, such as rules pertaining to the principle of distinction: see Public Committee against Torture in Israel v. The Government of Israel (13 December 2006) paragraph 23

    6. See, for example IACHR, Villagrán Morales et al. v. Guatemala (Judgment of November 19, 1999) para. 163. Notably, the elements of humiliating or degrading treatment under international human rights law are not different than those comprising the term "humiliating or degrading treatment" in Common Article 3, paragraph 1(c) to the Geneva Conventions

    7. PCATI & Adalah: "Exposed: The Treatment of Palestinian Detainees During Operation Cast Lead", available at http://www.stoptorture.org.il/en/node/1572; HRW, "Turning a Blind Eye" (10 April 2010), available at http://www.hrw.org/en/reports/2010/04/11/turning-blind-eye

    8. UN Human Rights Council, Report of the United Nations Fact Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48 (15 September 2009) Paras. 1032-1095

    9. Sentencing Decision, supra note 1, para. 6.1.2

    10. A. Pepper & Y Liss, "Three Months Probation for Giv'Ati Soldiers Who Performed 'Child Procedure' during Operation 'Cast Lead'", Ha'Aretz (21/11/2010); A. Ben-David, "Used a Child as a Human Shield – and Won't be Sent to Prison", Nana 10 (21/11/2010)

    11. O. Ben-Naftali & K. Michaeli, "Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel’s Policy of Targeted Killings", 1 J. Int'l. Crim. Just. (2003) 368, 397-8

    12. Military Prosecutor v. A.S. and A.G (Judgment of 3/10/2010), paras. 15.2.30, 15.2.31

    13. Sentencing Decision, supra note 1, para. 6.6.4