Decision of the Attorney General

STATE OF ISRAEL
MINISTRY OF JUSTICE

Jerusalem, August 28, 1995

1. Recently, various publications have appeared in the media regarding incidents that took place during the 1956 Sinai Campaign and the 1967 Six Day War, when officers and other soldiers of the Israel Defence Forces allegedly killed Egyptian military prisoners. As a result of these publications, my office received requests from both public officials and ordinary citizens, urging that these allegations be investigated and that the individuals responsible or otherwise involved in these incidents be brought to justice.

After considering these requests, and after consultations with the State Attorney’s Office, I have come to the conclusion that there is no legal basis for such investigation or criminal proceedings. The reasons for my decision are as follows.

2. The murder or killing of prisoners of war, or the doing of any other harm to them, are unlawful and intolerable acts. The International Community long ago outlawed the doing of physical or mental harm to individuals who are not actively involved in military activities, including soldiers who have been removed from the field of battle for reasons of illness, injury, imprisonment or other such reason (see, in this regard, article 3(a) of the Geneva Convention of August 12, 1949. Relative to the Treatment of Prisoners of War). It need hardly be added that murder is a very serious crime under Israel law, punishable by life imprisonment.

However, Israel’s domestic law sets prescription (or limitation) periods for the bringing of criminal proceedings. And with respect to the crimes allegedly committed during the Sinai Campaign and the Six Day war, such prescription periods have long since expired.

To explain: Section 9 of the Criminal Procedure Law (Consolidated Version), 5742-1982 provides as follows:

"9(a) Unless otherwise provided in another Law, a person shall not be brought to trial for an offence if a period as stated hereunder has elapsed since the date of its commission –

(1) in the case of a felony punishable by death or imprisonment for life – twenty years;

(2) in the case of any other felony – ten years;

(3) in the case of a misdemeanor – five years;

(4) in the case of a contravention – one year.

(b) There shall be no prescription with regard to offenses under the Crime of Genocide (Prevention and Punishment) Law, 5710-1950, or the Nazis and Nazi Collaborators (Punishment) Law, 5710-1950."

As a result, there is no legal possibility of bringing to trial anyone involved in incidents that took place almost forty years ago – or twenty-eight years ago – as the case may be. Those individuals involved have the right to this legal defense, and there is therefore no legal possibility to bring criminal proceedings against them.

3. In order to avoid any doubt. I will now make specific reference to section 9(b) of the Criminal Procedure Law, and to the scope of the Crime of Genocide (Prevention and Punishment) Law, 5710-1950.

Section 1(a) of the Crime of Genocide (Prevention and Punishment) Law provides as follows:

"1(a) In this Law, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, 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 calculated to bring about its physical destruction, in whole or in part;

(4) imposing measures intended to prevent births within the group; (5) forcible transferring children of the group to another group."

The legal and historical context of this Law is well known, and there is no need for a detailed discussion of this subject. The Law is based on the "Convention on the Prevention and Punishment of the Crime of Genocide", a Convention that was drafted by the General Assembly of the United Nations, in the aftermath of the holocaust against the Jewish people during the Second World War. The International Court of Justice noted, with regard to this Convention:

"The origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as "a crime under international law"… involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity." Reservations to the Convention on Genocide Case (Adm. 1951 I.C.J. Ap. Rep, 15, at 23). See further, in this regard, the Government Bill on The Crime of Genocide (Prevention and Punishment) Law, 5709-1949, at p. 37; "Documents on the Law of War" (ed. Roberts and Guelff, 2nd ed., 1989, p.157)).

The Convention and the Law are concerned with wrongs of unique severity when particularly horrific measures are taken against a people, a race or an ethnic group, intended to destroy them.

The incidents which are the subject of the inquiry before me, though serious in themselves, are not of the kind contemplated in the Convention or the Law on Genocide, From what was described in the media, we are here concerned with particular incidents, limited in number and time, closely following specific military activities or perhaps even during such activities. It must thus be concluded that under Israel domestic law, the offenses allegedly committed during the Sinai Campaign and the Six Day War are now legally prescribed.

For completeness, it should be pointed out that Israel is not a signatory to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1968.

4. In the course of making my decision, I examined the provisions of the Third Geneva Convention, dealing with the treatment of prisoners of war. As mentioned above, the Convention prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture" (article 3(1)(a)). Article 130 of the Convention defines "wilful killing [of a prisoner of war], torture of inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health…" as ‘grave breaches’ that ‘contracting parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committee…" any of them. (Article 129, 1st paragraph). These grave breaches, or at least the majority of them, are included in the Penal Law 5737-1977, and they are subject to the same prescription periods mentioned above.

5. Moreover, the provisions of the Convention have not been made part of our Criminal law (see the discussion of the distinction between "self-enforcing treaties", the adoption of which does not require special domestic legislation and "non-self-enforcing treaties", which require such domestic legislation in B. Rubin, "The Adoption of International Treaties in Israel Law by the Courts.: 13 Mishpatim 210 at p.227-28 (1983)). It should also be mentioned in passing that while the provisions of the Third Geneva Convention have not been adopted in primary legislation, it is provided in the Order of the Military Command (No. 33.0133 – of July 20, 1982), that all members of Israel’s Defence Forces are obliged to act in accordance with the provision of the Convention.

In conclusion, I find no legal basis for bringing criminal proceedings against anyone involved in the above-mentioned incidents; nor is there any justification for an inquiry into these events or those involved, since an investigation can only be justified when there is the legal possibility of ultimate criminal proceedings.

In light of this conclusion, I saw no purpose in addressing questions that would have arisen had I not been faced with this procedural barrier – questions such as the public interest in a legal review of incidents which occurred 30 and 40 years ago, and the degree to which changed in time and circumstance have affected the public interest issue.

Still, I wish to stress again that acts of harm to prisoners and defenseless individuals are illegal and objectionable; their perpetrators must be brought to justice, and the principles of law and morality which are part of the very foundation of Israel’s Defense Forces must ensure that such things never happen again.

Michael Ben-Yair
Attorney General