Why Bother?

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?

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

Judging One's Self

In 2003, Professor Ben-Naftali and I wrote: