Will Israel turn its back on the principles central to the Nuremberg Trials of Nazi war criminals?
In October 2022, 23 members of the Knesset sponsored a bill that would do just that. The bill would grant absolute legal immunity to any Israeli soldier or officer for acts committed during military or anti-terrorist operations.
The sponsors of the bill, mainly from the right-wing Likud and far-right Religious Zionism and Otzma Yehudit parties, included eight figures who have now been tapped to be either ministers or deputy ministers in the new Netanyahu government sworn in last week.
This bill flatly contradicts the most well-known principles to emerge from the Nuremberg Trials: the principles that individual soldiers are criminally liable for war crimes and that “just following orders” is not a defense to such charges.
Formal rejection by Israel of these principles has long been unthinkable. Most famously, the Israeli Supreme Court rejected the “just following orders” defense in the 1961 trial of Adolf Eichmann.
These principles have undergone some refinement over the years. As codified by the International Law Commission in 1950, the “Nuremberg Principles” mandated criminal liability for “any person” who committed an international crime. Moreover, they clearly rejected the “following orders” defense as long as “a moral choice was in fact possible” for the accused.
Later formulations elaborated the notion of the “possibility of moral choice.” In the Statute of the International Criminal Court, soldiers are liable for war crimes, despite a commander’s order, unless they “did not know the order was unlawful” and “the order was not manifestly unlawful.” This formulation is very similar to that of the Israeli court that decided the Kafr Qasem case in 1956 (following the massacre by Border Police of some 50 Arabs).
The bill submitted in October directly rejects these principles. It provides absolute immunity, without any exception for “manifestly unlawful orders.” Moreover, the immunity it grants to soldiers continues even after the end of their military service. Perpetual, absolute immunity. The bill is, quite literally, a license for soldiers to commit war crimes.
This absolute immunity grant is not only immoral but has grave international consequences. Parties to the Geneva Conventions are under a duty to prosecute “grave breaches” of its provisions, regardless of where they occurred. The International Criminal Court can prosecute the war crimes defined in its statute.
The interior view of the courtroom of the Nuremberg Trials against top Nazis in Nuremberg, Germany, 1945.Credit: AP
The Israeli legislative proposal would, therefore, not only violate Israel’s duties under the Geneva Conventions – but would expose its soldiers to prosecution elsewhere, both in the International Criminal Court and in the domestic courts of any party to the Geneva Conventions.
The cruel irony that Israel might provide legal immunity for war crimes 77 years after the Nuremberg Trials is glaringly obvious. This is not to say, of course, that the crimes alleged against Israeli soldiers compare in gravity to the worst crimes committed by the Nazis. But the Nuremberg Trials, the Geneva Conventions, the Eichmann Trial, and the Statute of the International Criminal Court stand for broad principles that apply in all situations. Individual liability for war crimes, regardless of whether the soldiers were “following orders” is the most important of these principles.
Any human being should know not to kill, beat or torture prisoners and civilians. Any human being should know not to expel civilians from their homes. Any human being should know that those with power to rule a territory are responsible for the lives and well-being of those under their control. Any human being should know that collective punishment is unjust. Any human being should know that applying different laws to people on the basis of ethnicity is wrong.
Far-right Israeli lawmakers Itamar Ben-Gvir and Bezalel Smotrich at the Knesset in JerusalemCredit: POOL/ REUTERS
Israel’s record even now on prosecuting those accused of such crimes has been spotty, at best. Some of these violations of the Geneva Conventions are, indeed, official government policy.
The coalition agreement between Likud and the Religious Zionism and Otzma Yehudit parties calls for legislation relating to the “legal responsibility” of soldiers, in order to “strengthen” those soldiers, a clear reference to providing some form of immunity. The provision is not as radical as the October bill that would provide for absolute immunity. It seemingly provides for an exception for war crimes committed “maliciously” and adds a caveat about “conformity” to international law.
Given the large number of sponsors of the October bill in central roles in the new government, however, the danger looms large that its basic provisions may yet become law.
All people of good will, whether Israeli or not, Jewish or not, Palestinian or not, should join together to urge the Israeli government to reject this betrayal of the legacy of the Nuremberg Trials. Moreover, they should call upon the new Israeli government to ensure that any alleged war crimes are fully investigated and prosecuted. To do otherwise is not only immoral and illegal, but devastating to Israel’s stature in the world.