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B’Tselem calls on Israeli soldiers to defy shooting orders, lest they commit war crimes

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B’Tselem, the respected Israeli human rights NGO, began a media campaign today urging Israel Defense Forces soldiers posted on the Gaza border to disobey “patently illegal” shoot-to-kill orders against unarmed protesters. Last week, the IDF gunned down 17 such protesters and wounded more than 700 of them. Another wounded protester later died of his wounds. Fresh protests are expected on Friday and the IDF already announced it will keep its Rules of Engagement (ROE) as they are.

The ad appeared on line today and is set to appear in major newspapers tomorrow. The text on B’Tselem’s ad reads:

“Sorry Sir, I cannot shoot

Soldier, the order to use lethal force against civilians who do not pose mortal danger is patently illegal. Using lethal force is only allowed when an actual, immediate threat to human life exists, and when there is no other option.

The responsibility for issuing these unlawful orders rests first and foremost with the policy makers, including the prime minister, defense minister, and the chief of staff. Yet obeying patently illegal orders is a criminal offense and you are duty-bound to refuse complying with them.”

“Patently illegal” is an Israeli military concept, coined after the 1956 Qafr Qassem Massacre, when soldiers of the Border Police murdered 47 Israeli Palestinians after receiving an order to kill anyone outside his house after an impromptu curfew was announced. The defendants claimed they were duty-bound to follow a legal order. The judges found that there are “patently illegal” orders, which may be recognized as “a black flag flying over the order, saying ‘it’s forbidden!’”. They continued:

We’re not dealing with a formal, hidden or not, illegality, not one seen only by scholars of law, but a clear and obvious illegality, a certain and essential illegality of the order itself […] illegality which pierces the eye and enrages the heart, assuming the eye is not blind and the heart is not made of stone or corrupt.”

While the words are stirring, the nature of a “patently illegal” order was always debated. Soldiers are taught that their duty is to obey a merely illegal order, but that they legally obligated to disobey a “patently illegal” one.

By declaring the ROE used on the Gaza Border as patently illegal, B’Tselem is implicitly warning that not only are soldiers bound to disobey the orders, but obeying them would place the soldiers in legal jeopardy of committing war crimes.

This is the first time an Israeli NGO has explicitly warned Israeli soldiers that they are about to commit war crimes in advance of the act itself.

B’Tselem warned last week, in anticipation of the Friday massacre, that the IDF was about to commit war crimes if it stuck to its ROE.

B’Tselem has toughened its position towards the army and government in recent years. Two years ago, the NGO decided to stop cooperating with the IDF and its notoriously inept Military Police Criminal Investigation Division, citing the fact that the military justice system serves only “to cover up unlawful acts and protect perpetrators.” B’Tselem CEO Hagai El-Ad appeared in the UN Security Council in October 2016, calling upon the world to protect Palestinians from Israel.

Those decisions caused controversy not just in the general Israeli public, but also within the Israeli human rights NGOs sphere: Most NGOs rejected B’Tselem’s position regarding non-cooperation with the IDF, arguing that by so doing they would lose whatever shred of ability to change the system they still had.

In the debate raging in the human rights community about whether to continue and try to work with the military system or break totally with it, B’Tselem has taken an irrevocable, and breathtakingly brave, step today.

Yossi Gurvitz

Yossi Gurvitz is a journalist and a blogger, and has covered the occupation extensively.

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9 Responses

  1. Stephen Shenfield on April 4, 2018, 1:59 pm

    That is fine, but soldiers also need advice concerning what to do about fellow soldiers who are committing war crimes. I suggest applying some means to disable them and thereby prevent them from committing further crimes, such as tear gas.

    • CigarGod on April 5, 2018, 10:54 am

      If the IDF can shoot parsley growers, retreating tire carriers, and anyone legally 1000 feet inside their own borders…I think IDF soldiers may shoot murdering IDF soldiers.

  2. amigo on April 4, 2018, 3:29 pm

    The only problem is that the soldiers know there will be no price to pay.They know they are going to pay a higher price for refusing to shoot versus obeying the order which will lead to Hero status and a promotion .Faced with these choices , even a soldier who is opposed to carrying out illegal orders will most likely take the road with least resistance .

    Let,s face it , The Most Moral is already replete with War Criminals .Committing war crimes is like eating lunch to these cowards.

  3. Citizen on April 5, 2018, 8:05 am

    I remember, back in the days of Vietnam Era, the collegiate students always jeered at the defense : “I was only following orders.” That defense was welded to all Germany as piss-poor, most dramatically by the ex post facto legal principles implemented at Nuremberg Trials. Now look. BTW Lt. Calley served very little prison time.

  4. genesto on April 5, 2018, 11:54 am

    Hats off, certainly, to B’Tselem for finally taking this principled position now. It’s yet another indication that the corrupt Zionist establishment is rotting away from within.

    It might have saved many lives if B’Tselem had taken this position back in 2008 or 2014 before the Gaza massacres of those years, or before any of the Lebanon or other massacres going back further. I guess that will have to remain a stain on B’Tselem’s conscience forever.

  5. oldgeezer on April 5, 2018, 1:01 pm

    Does anyone know what the border fence is made out of? From pictures it would appear to be steel.

    The zio nutters terrorist leaders have said the Palestinians are gathering tires to burn down the fence. Given the various temps involved that’s ludicrous.

    They’ve alao expressed concern about the toxic smokes effect on Palestinians. Risible that they care a whit about their health when they pump raw sewage onto their lands. The lead is that they say the Palestinians will claim poisonous gas was used on them.

    Given the murderous history of Israel it looks exactly like that. Pre establish a need to use force (burn down the fence) and create an alibi for pretending gas is not used (smoke).

    They tested using drones for delivery of gas already.

    • oldgeezer on April 6, 2018, 10:57 am

      On cue…. reports of unknown gas which causes nausea and paralysis are surfacing. No independent confirmation yet but OPCW will hopefully be given samples.

  6. gamal on April 5, 2018, 7:03 pm

    Does Mikoshim have any meaning Hebrew? or American

  7. inbound39 on April 6, 2018, 5:03 am

    The sad reality is until American, EU and British Governments de louse themselves of Israeli infiltrators and grow a pair then nothing will happen regardless of how legally wrong it is. Israel has control of all major governments so until that changes no action against Israel will occur. A despicable truth and one that politicians of those governments will have on their conscience for life.

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