The article is part of a collaboration with Obitar
The purity of the weapon is a sublime expression that is often used, especially in air-conditioned places during an academic or legal discussion. In practice, the situations in the field during combat are much more complex.
This was the case during Operation Cast Lead, on the last day of the fighting at a place called Tel El Hawa in the Gaza Strip, where the sounds of the amplification system were replaced by the sounds of gunfire, the smell of coffee was replaced by the smells of gunpowder and sewage, and the flashes of presentations were replaced by the flashes of shells and shoulder-fired missiles.
Amidst all this inferno, A and S, veteran fighters, together with their fellow unit members, were ordered to take control of a multi-story building in the same neighborhood and search it.
A and S, like the rest of their members in the unit, were already after 21 days of fighting, during which they were shot from weapons and shoulder-fired missiles, explosive charges were thrown at them, and in addition to all the sheer pleasure, they suffered from great fatigue due to the intense fighting and the lack of sleep.
During the searches in the building, A and S were ordered to search a room where the building’s doormen’s bags were and rule out explosives. The two commanded a boy who was there to open a bag and when he failed, they moved him and shot the lock to open it.
It is clear that if there was a bomb in the bag that would have exploded everyone around would have been hurt and first and foremost A and S who were close to him. A year after the incident, A. and S. Shay received from the IDF in the form of an indictment charging them with a criminal offense for the aforementioned incident.
My attempts to get the indictment dismissed were unsuccessful.
Those were the days of the commission of inquiry led by Goldstone and it seemed that the decision makers wanted to show that the army handles and investigates such incidents itself. According to the same approach, the military prosecution was instructed to demand the imposition of severe punishments on A and S.
The military court, although it convicted the two, sentenced them to very light sentences, contrary to the prosecution’s petition and even expressed its opinion that they deserve to continue serving as fighters.
I left the affair with a hard feeling and the first question that popped into my mind was who would agree to fight in the next war. The question did not remain theoretical for long. In Operation Rock Ethan, the soldiers of the A and S units gathered and after a discussion they decided that despite the above procedures they would come and fight and the response was maximal.
As a citizen, as a jurist, as a senior officer in the reserves and as a soldier, it was clear that soldiers who err in their judgment during combat should not be criminally prosecuted.
Prosecution for offenses committed during combat is only possible in relation to the commission of serious criminal offenses unrelated to combat, such as rape, theft, etc.
And what happened with A and S?
To my delight, they continued with their lives, studied, progressed, started families and continue to contribute to the country and society.
The article is courtesy of the legal portal obiter.co.il
The article is part of a collaboration with Obitar, if you find an error in the article, you are welcome to send the correction to the email: [email protected]
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