Are Soldiers in the IDF Punished Disproportionately?

A recent article published in the Times of Israel reported that 1 of every 15 IDF soldiers (about 7%) is sent to jail during their service. It was stated that there is a sense the commanders use prison as a default punishment, instead of as a last resort. many expressed concern, and I felt It proper to expand on the subject and to offer input and possible solutions.

there’s an old joke about the IDF disciplinary track that sums this issue:
Two officers in the IDF are caught without their shirt tucked inside their pants against regulations and have to go through the disciplinary measures required. being friends of the same unit, the two buddies decide to hold the procedures where one tries the other, and vice versa. the first is tried and gets a lenient fine. when it’s his buddy’s turn to punish his friend, he sends him to the jail. ” jail?!  I gave you only a fine!” he asked. his buddy replied: “look, its the second case in a row in the same unit, we need to send a message”.

while many occupants of the IDF prison system are there justifiably, most for dereliction of duty and going away without leave. however, some may have received harder punishments because of a random factor, the mood of the commander issuing the punishment or them being, as the joke above, the next (unlucky) person in line.

To put things in order – In the IDF, there are two separate channels of handling a soldier offender:

severe cases or cases that require trained investigators and legal professionals, the incident is referred to the IDF criminal legal system and might end in a court-martial (but some cases are referred back to the unit commanders after review).

disciplinary actions are used to punish for going away without leave (for relatively short periods of time), refusal to follow orders, losing equipment and other misdemeanors. those would be left in the hands of the soldiers’ direct commanding officer. these commanders are usually not expert judges or investigators. holding a disciplinary procedure, for most of them, is an irregular affair unrelated to their training and expertise.

It is usually held that disciplinary actions should be immediate and swift, in order to be effective as a preventive measure for the soldier and other soldiers, and as an educational measure. in some cases, expediency contradicts the need to hear witnesses and reviewing evidence. insisting on due process sometimes might make the commander conducting the procedure angry or impatient. some soldiers are intimidated by their commander or other persons present (such as drill sergeants filing complaints), that they’ll just want to get it over with.

Commanders have the authority to punish soldiers with a reprimand, a small monetary fine, or probation. in the more severe end of the spectrum are punishments like denying leave or weekend passes, confining the soldier to barracks (while effectively remaining in the unit and on duty), and sending a soldier to the brig, stockade or disciplinary barracks (removing the soldier from unit and duties). the sentence could alternatively be carried out in military prison (usually if the unit has no brig or another suitable facility). and there is a maximum allowed punishment for different categories of offenses. all these punishments can be issued separately or in combinations, which are also restricted.

Therefore, A soldier who has to go home to work, or to aid his family in some way or a soldier that counted on him being home for any other reason, could be damaged by almost any punishment given in a disciplinary action, as most punishments include some form of denial of the freedom of movement. sometimes, even a commander denying a soldier time for personal errands might be unknowingly damaging the soldier. all of the above is especially true for lone soldiers, who for them stability is imperative.

Just this week, I had to scramble to go to court to file an important document for a soldier that we are representing (pro-bono) in NADAN, that couldn’t do it himself since he was confined to the barracks for a refusal to wash dishes (not sent to jail).
if the document was not filed to the court on time, it could have impacted a case regarding a debt of 130,000 Shekels, of which the soldiers claims his identity was stolen. he was deservedly punished for insubordination, however, nobody listened when he said he had to go or to why.
The bigger picture, in this case, should have been to allow him to deal with the court first and delay the punishment till after. a soldier with an untreated 130,000 shekels in debt, ultimately would cost his unit and the IDF in general much more (in providing aid, special work leave, etc.).

And this is the real problem. not the mere overuse of some form of punishment over the other, but not taking into account the whole ramification of the punishment given before issuing the verdict. how can the IDF improve? first, it needs to be said, that the data we collect from soldiers seeking legal aid in NADAN shows consistently, in the last 4 years, that approximately 86% (!) of soldiers feel their commanders are attentive and would help them if they needed. a most encouraging number.

that means, that for the other 14%, we need to make an improvement. those are the ones that fall through the cracks.

in some units (most are long term training camps, usually for combat troopers), the higher ranking commanders gave an order to all the commanding officers to visit their soldiers’ home at least once, to see his or her, or their family’s, living conditions. that familiarity should promote mutual respect and attentiveness, and that should promote consideration, compassion, and fairness, not only in disciplinary actions but in day to day service. currently, this is dependant on the whim of the commander in charge of a unit.

I feel, this should be made a standard regulation, at least in all remote units, where soldiers do not go back home every day, and plights from the civilian life are more difficult to stave off.

also, making changes to the conscription policy, to include a more thorough socio-economical background check before conscription and deployment, and making sure that information is constantly updated and provided automatically to a commander deciding on a punishment, would allow not to rely on the soldiers’ ability to express himself or herself in extreme situations like when they’re on trial.

we need to remember that correlating discipline and severity of punishment is many times worse in the long run, especially for conscripted soldiers. being familiar with the unit, keeping level heads when sentencing and taking a broad perspective would serve everyone better, and allow for a cleaner, better service for our troops.

About the Author
The author is the CEO and Founder of NADAN - a legal aid organization for IDF conscripted soldiers and lone soldiers and a private attorney. he is a Major (res.) in the IDF Magistrate Advocate General, practicing law in the IDF 2006 till 2012 and to this day on reserve duty. former military prosecutor, and the IDF military police criminal investigations department legal advisor between 2009-2012.
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