Israeli Supreme Court Refuses to Address War Crimes

To anyone who loves or cares about Israel (as I do), the thought of charging Israeli officers with war crimes is a horrible concept to grasp. First, we’ve been brought up to believe that the IDF follows the moral path of tohar neshek (“purity of arms”) under which it adheres to a strict code in prosecuting military conflict. Unfortunately, we now know this concept, if ever honored, was mainly honored in the breach. Second, we know the tremendous suffering endured by Jews during the Holocaust, and they and we believed that the State of Israel was founded to end such suffering and hopefully make the world a slightly better place for it. The thought that our own pride and joy, the IDF officer cadre, could act in ways reminiscent of the world’s most cruel military conquerors is deeply troubling.

But ponder this we must. The Occupation has made the IDF into a ticking time bomb (as the IDF itself likes to call Palestinian militants it assassinates–because they are allegedly in the midst of preparing for an imminent terror attack). In order to maintain domination over the Palestinians, harsh force is needed. And when such force is used it becomes impossible to render it judiciously. Many times, the IDF has gone too far, sometimes far too far. And there must be an accounting.

In most democratic societies (think of Abu Graibh), when a nation’s armed forces violate laws they are brought to account. Admittedly, this is often helter skelter (as in Abu Graibh). Sometimes justice is rendered fitfully or hardly at all. But usually there will be some kind of investigation and sometimes charges will be brought and somewhat more rarely a violator will be convicted. It may even (as in the case of Argentina) take decades before justice even begins to be done. But justice–like a pigeon–comes home to roost.

This, I’m afraid, is what’s beginning to happen in Israel. Two Israeli anti-Occupation groups brought separate cases against the IDF for various alleged crimes against Palestinians. When the Israeli Supreme Court dithered and delayed for years in even hearing the matters (they still have not done so), cases were filed internationally against the suspects. This is how the British authorities almost arrested Doron Almog recently when he arrived at an airport there.

And as Michael Sfarad, one of the lawyers involved in the Israeli cases, writes in Haaretz, Israel and the IDF have only themselves and the Israeli justice system to blame for this development:

In Israel, a decision was made not to investigate war crimes; war criminals have not been prosecuted; no questions were asked as to what was permitted and what forbidden in occupied territory; and a lot of war crimes were indeed perpetrated.

All this could and should have been prevented by the only system of rule that is not elected and is not subject to public pressure (or at least should not be) – the justice system. In shirking its responsibility, the Israeli justice system transferred the obligation to act to foreign justice systems. In fearing rulings on the legality of IDF actions in the territories, the Israeli justice system abandoned IDF officers and soldiers to international criminal justice.

At the outbreak of the al-Aqsa intifada, former judge advocate general Major General Menahem Finkelstein decided on a policy whereby Military Police Investigations would not look into the killing of Palestinian civilians, apart from exceptional cases. Finkelstein’s successor adopted this non-investigation policy, and the High Court has refrained for over two years from ruling on a petition regarding the legality of such a policy. There is no investigation, no legal debate and no ruling on whether all this is legal.

…Unlike common crimes, war crimes are international crimes. This means that when the law enforcement authorities in the suspect’s home country prove…incapable or uninterested in investigating and judging those responsible, international law obligates all other countries to investigate and try them if there is enough evidence. If not Israel, then England. If not the High Court, then the House of Lords.

As long as the chief military prosecutor and Israeli justices do not understand that a proper investigation of events that raise suspicions that war crimes may have taken place, and exacting justice on those responsible, is not only the moral but the right thing to do from a patriotic standpoint, then more and more IDF officers will have to spend their vacations in the Golan Heights and Eilat.

Yesh Gvul poster addressed to IDF Chief of Staff Dan Halutz: “Fly Halutz home–return Tzahal to the code of military conduct”

Yesh Gvul brought suit against Almog, who as IDF Southern Command chief executed the plan to assassinate Hamas leader Salah Shehadeh. He ordered a one ton bomb be dropped on a residential Gaza City apartment house which killed not only Shehadeh, but 14 other innocent civilians at least five of whom were children while wounding 150. Chief of Staff Dan Halutz claimed callously in a Haaretz interview that he didn’t lose a wink of sleep over the murders [implying that the murders of the innocent didn’t trouble him either].

Editorially, Haaretz has turned up the heat on the Israeli judiciary for its abdication of responsibility:

Courts are meant to serve as moral barriers against the use of unreasonable means. However the courts in Israel turned their heads when asked to address the demolition of hundreds of houses in Gaza, the expropriation of private lands for the use of the occupying country, and the expulsion of 25,000 Palestinians from their homes in Hebron to expand the Jewish quarter. None of these constitutes valid means in the war on terror. The vacuum created by judges in Israel in dealing with these issues is what led to the appeal to the legal authorities in Europe.

One can complain about the hypocrisy of legal authorities who are tough on Israel and easy on other countries. One can ascribe political and anti-Semitic motives to plaintiffs and judges. But it is hard to claim that our hands are clean. Every officer who carries out an order involving serious human rights violations must take into consideration that he will find himself in the dock. An unbalanced and disproportionate use of universal authority to bring individuals to trial may sometimes be excessive and unjust, but the abrogation of the option to pursue war criminals wherever they may be could bring the wheels of justice grinding to a halt.

That last sentence seems quite imprecise to me. The penalty for the Israeli justice system in not hearing cases involving serious abuses of Palestinians would not be to “bring the wheels of justice to a halt.” The penalty is far higher. It means that Israel cannot be seen as a true and full democracy because there are some cases that justice simply will not pursue. It means that instead of receiving justice from their peers, some Israeli officers will receive justice at the hands of strangers–and merely because Israel’s most distinguished jurists cannot stomach the idea of disciplining one of their own soldiers.

I have written favorably a number of times about rulings of the high court which respect human rights and advocate a sensible, pragmatic way of facing conflicts between Israelis and Palestinians. But the Supreme Court’s weakest link lies in its review of the conduct of military and intelligence personnel in pursuing the conflict with the Palestinians. Just as the Supreme Court has ruled that torture is not absolutely forbidden under Israeli law, it has refused even to hold a hearing on these two major cases. And that is a schande (Yiddish for “shame”).

For more on these cases see the Yesh Gvul website. Another valiant Israeli group, Shovrim Shtika (“Breaking the Silence”) composed of former IDF soldiers attempts to chronicle human rights abuses perpetrated by Israeli troops in the Territories. Their 78-page booklet of testimony from such soldiers is heartbreaking, but necessary reading for anyone who cares about Israel and who cares about peacefully resolving the Israeli-Palestinian conflict.