Resisting Israel’s ‘patently illegal’ policy of collective punishment in Gaza

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Yesterday, Israeli human rights NGO B’Tselem began a media campaign urging Israel Defense Forces soldiers posted on the Gaza border to disobey “patently illegal” shoot-to-kill orders against unarmed protesters, as Yossi Gurvitz has reported on this site.

Gurvitz has elucidated why this move by B’Tselem is “breathtakingly brave”:

“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 [that] 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.”

This is a dramatic occurrence in the Israeli context. Nonetheless, I would like to focus on that phrase, “patently illegal” and explain just how murky this quasi-legal notion is when applied to Israeli reality vis-à-vis Palestinians.

Gurvitz has provided for us the historical background for the term’s coinage: The Qafr Qassem massacre in 1956:

“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'”.

All true, and the court is sounding quite noble and poetic there. But let us take a closer look at what actually happened in that case. It was Judge Benjamin Halevy who uttered those ominous words and coined the term ‘patently illegal’. But how did that case actually turn out for the defendants?

B’Tselem ad in Hebrew that urges Israeli soldiers to defy orders to shoot Palestinian protesters.

Following public protests, 11 Border Police soldiers from the rank of Major and down were charged with murder. The most senior defendant in the case, Col. Issachar Shadmi, commander of the brigade in charge of the area, was only later charged, but sentenced to . . . a fine of 10 pennies for exceeding authority. All of the others received prison sentences, but these were soon reduced by appeal, commuted by the chief of staff and further pardoned by the president. All of them got out within about a year.

Major Shmuel Malinki, commander of the Border Patrol battalion, testified at the trial that Col. Shadmi had ordered him to enforce the curfew with gunshots. Asked what would happen to those who return to the village after the curfew, Kedmi said Shadmi had said “may God have mercy on their soul” (he said it even in Arabic – “Allah Yerhamu”).

Let us also not forget the context in which the Qafr Qassem massacre had occurred – in a time of military regime over Palestinian citizens of Israel – the military regime of 1949-1966. These were the remaining minority of Palestinians, provided citizenship by Israel, but seen as enemies and treated under institutional Apartheid.

So while the Qafr Qassem massacre and its aftermath represent a situation wherein Israel supposedly turned and established a moral notion of ‘patently illegal’, the extent of the institutional rot of Israeli Apartheid was not really being altered. The fact that the higher commanding officer got a fine of 10 pennies appears symbolic in representing just how little Palestinian life is really worth for Israel .

But let us return to the current case of Gaza and the orders to shoot unarmed Palestinian protesters.

There is a striking difference here, when comparing to the Qafr Qassem situation. B’Tselem is referring not to the recent massacre, but to a future one. It is anticipating it. This is not an ad-hoc situation where some commander suddenly decides to give a ‘patently illegal’ order. This is institutional. B’Tselem had already warned ahead of last Friday’s massacre:

“Ahead of the Palestinian demonstrations planned to start tomorrow (Friday) in Gaza, Israeli officials have repeatedly threatened to respond with lethal force. Completely ignoring the humanitarian disaster in Gaza and Israel’s responsibility for it, they are couching the planned protest in terms of a security risk, framing the demonstrators as terrorists and referring to Gaza as a “combat zone”. Fragments of information reported by the media indicate that: soldiers will be ordered to shoot anyone coming within 300 meters of the fence; snipers will fire at anyone touching it; live fire will be used also in circumstances which are non-life-threatening. In other words: shoot-to-kill unarmed Palestinians taking part in these demonstrations.”

In the aftermath, they said:

“These are the predictable outcomes of a manifestly illegal command: Israeli soldiers shooting live ammunition at unarmed Palestinian protesters. What is predictable, too, is that no one — from the snipers on the ground to top officials whose policies have turned Gaza into a giant prison — is likely to be ever held accountable”.

Defense Minister Lieberman has already promised that there would be no investigation and opined that the soldiers deserved a medal.

So what we are seeing here, is a ‘patently illegal’ policy. Indeed, it is at the level of doctrine, coming from the highest levels.

I explained in my piece yesterday, how all this was also informed by the Dahiya Doctrine, named after a neighborhood in Beirut which Israel pulverized because many Hezbollah members lived there. The doctrine has been applied (as was promised by the current Israeli Chief of Staff Gadi Eisenkot) in Gaza. Eisenkot said in 2008, “What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on”, and that “We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases.”

We are experiencing collective punishment, at the level of state doctrine.

Remember judge Halevy’s words? “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”. None of that seemed to worry most Israelis in relation to 51 days of death and destruction, including the obliteration of whole families – just as it seems perfectly moral for most all Zionists to ethnically cleanse an indigenous Palestinian population and deny it return. Halevy spoke of an “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” – assuming, that is. Let it be noted, that in Israel’s last massive Gaza bombing campaign in 2014, 95% of the Jewish Israeli public was supportive of it throughout. Even the Israelis who watched the 2014 Gaza carnage from atop a hill, like in a cinema, could not see themselves. They were blind to their own cruelty, their hearts made of stone and corrupt. And the rest of the Israelis that saw the carnage from their TV screens – how much better are they?

Now, let’s think about those snipers which B’Tselem is trying to appeal to. Consider their choices. Not obeying orders would for them not simply be turning against their direct commander – it would be turning against the whole Israeli chain of command, the whole system, top down.

B’Tselem is arguably advocating for a mutiny against the state, as things stand now. It would be a kind of revolution. Sadly, it is doubtful that many Israeli soldiers would opt for that. The system is not bound to congratulate them for this mutiny, they are bound to be seen as non-patriotic and become outcasts.

B’Tselem are being roundly condemned for their advocacy – including by left Zionist Union leader Avi Gabbay who tweeted yesterday:

“I condemn any call for refusal and refusal of orders. IDF is the army of the nation and does its work faithfully, protecting us in the holiday”.

In Israel, simply following international law is a radical act.

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Imagine what Israel would be doing without the internet in existence.

Jonathan, in addition to the fact that the snipers are not likely to turn against the orders of the State, my educated guess is that they are part of units which have already screened for an unwillingness to perform such actions. If there was an indication of past reluctance to kill Palestinian civilians and militants, they most likely are not part of those deployed units. Just a thought based upon violent institutional structures being self-selective… Read more »