Israel on the way to the Hague?
War Crimes and Israel's security
Gush Shalom forum discussion
January 9, 2002, at the Tzavta Hall, Tel-Aviv
General (res.) Dov Tamari
• Dr. Yigal Shohat,
Colonel (res.), Israeli Air Force
• Dr. Eyal Gross,
Faculty of Law, Tel Aviv University
• Prof. Adi Ophir,
Dept. of Philosophy, Tel-Aviv University
Michael Tarazi, legal adviser to the
PLO Negotiations Dept., Ramallah
• Shulamit Aloni,
former minister of eduation and Meretz Party leader
[Note: In several of the following
speeches, the term "Black Flag" occurs. It is taken from the verdict
Israeli Supreme Court which found guilty the perpetrators of the 1956
Qafr Qasem massacre, rejecting their plea of following orders and ruling
that a soldier has the right and duty of refusing "A manifestly illegal
order, on which the black flag of illegality flies". There is, however,
no autoritative definition as to what may constitute such an order.]
I have no intention of competing with the speakers and making long
speeches of my own. I would, however, like to start this evening with
the reading of a few lines by Yehuda Amihai.
Of the three or four in the room
Always one is near the window
Has to see
The wrongdoing between the thorns
And the fires on the hill
And how people who left whole in the morning
Are brought home as a few small coins.
I am here this evening because of a letter to the editor that I wrote in
July. In that letter I did not speak of comprehensive conscientious
objection. The truth is that I had not yet fully developed my opinion on
the option of completely refusing service in the IDF.
I am in favor of the State of Israel, of
the defense of its security, of defending its borders and, also, of the
fight against local and international terrorism that threatens it. For
this, an army is necessary. But, on the other hand, I cannot resign
myself to the matter of course acceptance of the ongoing occupation. The
fact that one generation of soldiers after another serve this occupation
actually provides the changing governments with the power to hold onto
the territories and the settlements and to oppress the Palestinian
population. Therefore I find myself in a major dilemma, which I have
solved for myself, at least temporarily, by opposing military service in
the occupied territories rather than a comprehensive refusal to serve.
I know there is some hypocrisy in this. A
soldier who works at the General Staff offices in Tel Aviv, doing
administrative duties, can do more harm than a soldier at a checkpoint
in the territories. Still, I think that refusal to serve in the Occupied
Territories has a sharper political and moral message. It states that
you are willing to protect your country and fight for it, but are not
willing to oppress another nation over an extended period of time, an
act with negative security effectiveness for the State of Israel. In
actual fact, military service in the Occupied Territories harms the
security of Israel and serves only the security of the settlers. I think
there is general agreement on this point.
With regard to pilots, combat pilots,
helicopter pilots, all pilots, they cannot just refuse to serve beyond
the Green Line [pre-'67 border]. Pilots do not serve at the location in
which they are stationed. They must decide anew each day, sometimes each
hour, what they can and cannot do from a moral and legal perspective.
I am not naive. I know that any pilot who
refuses once or twice to bomb Nablus or Ramallah will soon end his
career - and it is a career indeed. Flying is a way of life and a
profession. It is never merely a term of service, as a conscript or
reservist, to be quickly done with and return home safely. Therefore,
when discussing pilots, I am in favor of expanding the concept "Black
In my opinion, pilots must carefully
examine the orders they receive, ask many questions about the objective
and refuse to undertake any order that appears illegal to them. In
practice, I fear that they are not at all concerned about such issues.
Rather, they compete amongst themselves for the next assignment of
assassinating someobody in the main street of Nablus or dropping a bomb
on a building in Ramallah. They probably come back pleased if they hit
their target, even if somewhat regretful if civilians are killed. I
remember these feelings myself. People want to excel at their jobs and
they want "action". That is why they became combat pilots in the first
I think that F-16 pilots should refuse to
bomb Palestinian cities. They should think how such an attack would
affect a city they lived in. Imagine that Arafat would decide to send a
fighter plane to destroy the Police Headquarters on Dizengoff Street [in
Tel-Aviv]. Imagine that Arafat had a fighter plane with which to do it,
and he came to the conclusion that he could thereby convince Sharon to
leave the territories. Would we accept bombings from the sky in the
middle of our cities as a legitimate means of warfare? Hardly, since
even this morning's strike against an IDF outpost on the Gaza Strip
border is considered in Israel to be "terrorism".
I can imagine how Ramallah must have looked
when an F-16 bombed its police headquarters. I'm not even referring to
the people who were killed there - cooks from Gaza, rather than
fighters. I am speaking of the bombing of a densely populated city. I am
speaking of assassination in the main street by missiles fired from a
helicopter, when three bystanders are killed. This cannot be described
as "collateral damage"; it cannot be claimed that there was no intention
to harm civilians. When a plane bombs a populated city, civilian
casualties must be taken into account. Even when the bombs are supposed
to be precisely targeted. Therefore, this is a premeditated killing of
civilians. A war crime.
We have seen in the past few months what
"smart bombs" can do, both here and in Afghanistan. I don't think the
objective is important enough for us to pay such a price, especially as
we are not confronting an army but, rather, civilians. Especially when
our cause is unjust. Very unjust. In my view, the main objective of this
fight is not legitimate, as the occupation is not legitimate. And the
lesser objective, destroying the police building in order to pressure
Arafat to stop terrorrism, is not legitimate either. Nor did I accept
[in 1986] the legitimacy of the "Grapes of Wrath" campaign, which aimed
at chasing away Lebanese villagers by bombing them and thereby
pressuring the Lebanese government to fight Hezbollah.
But pilots are not the only ones involved
in war crimes. Possibly, I think, the pilots are ultimately less
involved than others. Every bulldozer driver should refuse an order to
demolish houses so as to create "a clear field of fire" for the IDF.
This week I read the interview [in Ha'aretz] with Brigadier General Dov
Zadka , head of the military government's civil administration. I read
about the authorizations he gives for the destruction of Palestinian
plantations and orchards and his complaints about how the officers on
the ground becomes hyperactive and uproot twice the authorized number of
But what authority does he have to
authorize anything of the kind, on whatever scale? I am amazed every
time I think of a person who gets up in the morning to do a day's job of
this kind. We are not speaking of a boy just conscripted, but of a
general with many years' experience and training. What does he say to
himself at the end of each day? Today I authorized the destruction of 50
acres of strawberry fields? For what purpose? For the security of the
State? I see that General Zadka is now concerned that he might
eventually get to the War Crimes Tribunal at The Hague, as well he
might. So, he is aware of what he is doing and of the implications. How
can one be aware and still go on committing such deeds?
I think that the destruction of civilian
homes, just because they obstruct the sharpshooters' field of vision, is
an immoral action by definition. I am not a lawyer and I don't know what
is legal and what isn't, but I shouimagine that it is also illegal. I
know that the question about when a black flag is waving above a certain
order is entirely personal. It is impossible to wait until a court
pronounces an action to be illegal. One should not wait, because then
the action has already taken place - as in the case of Ehud Yatom
[Israeli security service operative who obeyed an order to kill two
Palestinian prisoners in 1984]. There are people who never see black
flags, even when it is about the murder of a bound Arab. There are
people who see black flags only when they get old, like me. When I was a
young pilot I did not question my orders, I did as I was told.
I am in favor of a broader usage of the
concept "black flag" which means a refusal to obey a manifestly illegal
order. But I know that neither conscripts not career soldiers will often
use it. When you are inside, you see things differently. I think that
even standing at a checkpoint in the Occupied Territories and selecting
which person will get to the hospital and who not, which woman will get
to the maternity ward and which one will be delayed and give birth right
there at the checkpoint, is a manifestly illegal job. Therefore, I think
that anyone called to serve at these checkpoints should refuse, even at
the price of being prosecuted. It would be good if the issue of this
"selection" at the checkpoints would be examined by a court.
I think that those who refuse to do
military service in the Territories should not be content with merely
going to prison - they should make efforts to get to a civilian court of
law so that the issue be examined and publicized. They should take their
refusal to the High Court of Justice. They should state that the
commands which were issued to them are illegal. The ones who go quietly
to prison have no real impact. The army must not be allowed to place
checkpoints at will and prevent people from living their lives, going to
work, going to the doctor. We must not accept this situation as if it
were Heavenly ordained. This is a collective punishment of civilians. It
is illegal according to the Geneva Convention.
I think it is shameful that so few refuse
to serve in the territories, but I find it difficult to reprimand
anyone, as I myself did not refuse when I should have.
Almost twenty years ago I visited Professor
Isaiah Leibowitz. He asked me then, in 1983, why was it that 500
officers could not be found who would refuse to serve in the Occupied
Territories. In his opinion, 500 such officers would have put an
immediate end to the occupation. I think he was right.
Soon it will no longer be possible to speak
about the occupation, since our presence in the Territories over such a
protracted period has created a new situation. People who were
conscripts in the Territories come back during their reserve duty, and
their children return to the same place. The new generation does not
even know any Palestinians because of the prolonged closures, and the
territories come to resemble Lebanon. An attitude of Apartheid towards
the Palestinians is passed on from generation to generation. This is
true not only for the settlers but for all of us. If there were no
violent incidents, we would not even remember that there are any
I can't say whether all the military
actions I participated in when I was an active combat pilot were legal
or moral. I assume not. Friends from that period, who bombed targets
along with me, accuse me that I made the decision to become morally
sensitive too late. That it is no big deal to talk about conscientious
objection when it no longer has anything to do with me, when I would not
be the one to go behind bars. They say I kept my silence as long as I
was still concerned about promotion on the ranks of the IDF, but now
that I have nothing to lose, I suddenly become a hero.
To this I respond: It is true that I
attained political and moral maturity very late. But I can also say
that, on the whole, the targets bombed were military. That when I did
bomb in civilian areas it was in the context of an all-out war, when
there were planes and tanks and soldiers fighting on both sides and it
was entirely unclear who would emerge the winner. In the wars I was in,
we usually had the feeling that Israel was in an inferior position, that
we were fighting for our lives and our home.
Insofar as the Territories and this
military fight against the Palestinians are concerned, I don't see any
armies confronting each other. And as far as the present war is
concerned, I don't even know which side I am on - as certainly I am not
on the side of the settlers. What I see is an occupied population with a
few hundreds of rifles and mortars trying to get us to leave, and we are
refusing since we invested a few pennies in unnecessary settlements.
I am familiar with all the arguments
against conscientious objecting. First of all it is said that in a
democracy it is up to the elected government to determine what is and
what isn't a legitimate objective. I disagree. Particularly in a
democracy it is the right and the responsibility of every citizen to
object to illegitimate kinds of fighting. In totalitarian regimes,
refusers and objectors are shot. Here, they just go to prison for a
short while. It is in a democracy that one has the opportunity not to
follow the herd.
The second argument is that more
humanistically-minded people should become soldiers and stand at the
checkpoints in order to ameliorate the Palestinians' situation, and that
they should not be left to the mercy of the right-wing fanatics. But I
doubt this importance which is placed on the individual soldier at the
checkpoint, because with time everybody becomes indifferent to the daily
suffering. I think that the individual soldier has the most weight when
he refuses to serve.
The third argument is that if each one
chooses which orders to obey and which not, then when the time comes the
settlers and their supporters will refuse to take part in evacuating
settlements. On this I just say that it is fine with me. Soldiers who
are settlers themselves will refuse to evacuate settlements, and we will
do it in their place. I, for example, would have refused to drive a
bulldozer destroying the house of a Palestinian family; a settler would
refuse to evacuate a settler family. Fine with me. The most important is
that IDF soldiers keep their humanity and that they feel moral dilemmas.
In my view, all of the IDF actions are
approaching the red line of the black flag. I am not able to state in
detail what is legal and what is a war crime. At a time when the
Americans kill 7000 people in order to catch one man, it is difficult to
talk about morality in war.
Since the Palestinian authority was created
after the Oslo Agreements, we started treating it as a state though it
is not. This makes it easier for us to attack it with weapons which are
intended for fighting against armies, such as tanks and fighter planes.
I think we have already crossed some kind of fundamental watershed. I am
very much afraid that in the not too far future we are going to bomb
also the Arab citizens of Israel, as we have already shot at them during
the October 2000 demonstrations. The day will come when the Air Force
bombs Umm-El-Fahm, just as Saddam Hussein bombed his own Kurdish
citizens. I don't know if the pilots will refuse that order, either.
Somebody will convince them that it is logical and vital, that the bombs
are smart, that they are only bombing the Town Hall, the Islamic
Movement. They will become convinced that they are not going to hurt
innocents. I can't see the big difference between this and the bombing
Before handing the floor to the next speaker, I would like to quote a
concrete case of a war crime, the operational order for an Israeli
miltary unit which undertook a cross-border raid on October 1953, and
which only came to light forty years later. On September 9, 1994,
Ha'aretz published the photo of the original document, in the
commander's handwriting: "Objective: to attack the village of Kibiya,
occupy it and cause maximal damage to life and property." last six words
are underlined. The order is signed by Major Ariel Sharon, Commander of
Special Forces Unit 101.
Dr. Eyal Gross:
First, I would like to congratulate Yigal Shohat for the important and
moving things he said here. If it was up to me, these words would appear
on the front pages of all the papers.
Recently, I was invited to speak on the
subject of war crimes in many and varied forums: The Holocaust Memorial
Council, The Council for Peace and Security [dovish ex-generals and
senior officers], the Bar Association. The interest in this subject is
the result of rapid changes in international attitudes to it.
I would like to explain what is taking
place, what is going on in the international courts and what is meant
when people utter the magic word "The Hague". In recent years, there is
an enormous intensification of a tendency which is far from new in
itself: the definition of universal offences, for which a person may be
tried wherever they had been committed. In general, law is territorial.
If I stole in Israel, only an Israeli court may judge - unless I stole
from a citizen of another country. But there had always been some
exceptions. A well-known universal offence, established already for
centuries, is piracy. In the absence of a universal court, a pirate may
be judged by the courts of any country, even one whose ships he never
Nowdays, there are two tendencies:
empowering the courts of individual countries to judge those accused of
universal offences, and the creation of specific international
tribunals. A prominent recent case was the Pinochet Affair. Spain asked
Britain to extradite Pinochet so that he could stand trial in Spain for
torture offences which were not committed on Spanish soil . The House of
Lords ruled that he may indeed be extradited. In the end he escaped
extradition, after the British Government decided that his health is too
frail. (Upon the ex-dictator's return to his homeland, the Chilean air
seems to have worked wonders and his health improved overnight?) Still,
the important precedent established by the House of Lords stands: a
person may be extradited for universal offences, and having been Head of
State at the time does not give immunity.
Belgian law makes it possible to prosecute
for violations of the Fourth Geneva Convention, which deals with
protection of civilians in time of war and specifically civilians living
under occupation. First to be judged under this law were citizens of
Rwanda, which aroused some discomfort, since Rwanda is an ex-colony of
(The same can be said of Spain and Chile,
though that is older history; it is to be hoped that the assumption of
jurisdiction with regard to universal offences will not develop in the
direction of ex-colonial powers claiming jurisdiction over citizens of
It is under this Belgian law that the
present law case against Sharon is taking place in Bruxelles. The
Belgian law is clear on the issue of immunity - i.e. the lack of one,
despite Sharon's being a Prime Minister. The issue which is hotly
debated, also in Belgium, is retroactive jurisdiction over offences
committed before it was enacted.
It should be mentioned that the prime
international precedent on this issue was created in Israel -
specifically, in the Eichmann Trial.
A precedent of retroactive jurisdiction was
established when the Israeli courts assumed the right to judge a person
for acts committed long before the Israeli "Law for Exacting Justice
Upon the Nazis and their Collaborators" was enacted, indeed before
Israel itself was created. The Belgians (and many others) rely upon the
Israeli verdicts in the Eichmann Trial, in particular that of the
Supreme Court. (There is a significant difference between the two courts
which Eichmann faced: the Jerusalem District Court, which condemned him
in the first place, emphasized the Jewish aspect, i.e. Eichmann's
victims being mainly Jewish and the right of Israel as a Jewish state to
judge him; the Supreme Court, in rejecting Eichmann's appeal, emphasized
on the contrary the universal aspect - the right and duty of any state
to punish the perpetrators of genocide, whether or not that state had
any direct connection to the case.).
You may say: how can you make such a
comparison? Well, I am not comparing Sharon to Eichmann; still, from the
judicial point of view, the Eichmann trial remains the most prominent
relevant international precedent, and it was created by Israel. Israel
was also an active participant in the creation of universal jurisdiction
by enacting its "Law on the Crime of Genocide" under which any
perpetrator of genocide - say, from Rwanda - could have been judged by
an Israeli court, without Israel having any direct relation to the case.
Now, for the other track - specific
international war crime tribunals. The first known case was that of the
Nuremberg Trials. That was, however, a very specific court, set up to
judge the members of a specific regime in a specific country, and rather
controversial in nature. After it ended its assigned task and disbanded,
there were decades without any such court, until the 1990's when the UN
security Council set up the special War Crimes Courts for Rwanda and the
That was followed by the conference at Rome
which culminated in the decision to set up a permanent International War
Crimes Court, to be located in The Hague. This court, which has not yet
been established, should be sharply differentiated from the
International Court in the Hague, which exists already for nearly a
century at the same location. At that court, only states can sue each
other, individuals have no standing there, and of states only ones which
accepted the court's authority are subject to its rulings. The permanent
War Crimes International Court is due to be established at the Hague
when at least sixty states have signed and ratified the Rome Treaty
which establishes it. This number nears completion. For their part,
Israel and the US have signed but not ratified the treaty. The US made
clear its objection: it would not ratify unless it is made sure that
none of its citizens would ever be prosecuted by the court.
The Rome Treaty sets out the offences which
the court is empowered to judge: the crime of Genocide; Crimes Against
Humanity, which include widespread or systematic damage to civilian
population by such ways as murder, extermination, torture, expulsion,
rape or apartheid; and War Crimes which include severe violations of the
Fourth Geneva Convention, among them the killing of civilians and the
destruction of property not needed for immediate military needs. This
also includes the transfer of population from the occupying power's own
territory into the occupied territory, that is the creation of
settlements. Because of that article, Israel did not agree to ratify the
treaty. Another offence which the court is empowered to judge is the
crime of agression, but that will not come into force until an agreed
definition of "aggression" is achieved, a complicated legal issue.
With the International War Crimes Court,
unlike the cases I mentioned earlier, it has been specified that there
will be no retroactive jurisdiction - i.e., the court will only rule on
offences committed after the court was created.
The main issue is how will the court
operate once it is created, and who may be judged by it. Three
categories are set out. First, citizens of states which ratified the
treaty can be judged by the court. Secondly, those accused of offences
committed in the territory of state which ratified it can be judged,
even if their own country did not ratify; for example, if Lebanon
ratified it, Israelis can be judged for offences on Lebanese soil. (The
territories of the Palestinian Authority, which is not a state, are a
far more complicated issue.) A third possibility is that the UN Security
Council is empowered to decide on the prosecution of a particular person
for particular offences; that, of course, is subject to the normal
operating procedures of the Security Council and the veto power of its
A further limitation on the Interantional
Court ithat it has no power to intervene if a state decides to conduct a
sincere investigation of allegations against one of its citizens - even
if at the end of such a sincere investigation the state decides not to
prosecute that citizen in its own courts.
For the time being, until the court is
formed at The Hague, there is the ongoing prosecution of those accused
of war crimes at ordinary courts of specific states. Such are the
ongoing legal suit against Sharon in Belgium, and the failed attempt to
prosecute Karmi Gilon in Denmark. In fact, these two cases are both
problematic, due to the issue of immunity - acting Head of Government's
immunity in the first case, diplomatic immunity in the other. A far
easier case would be, for example, if instead of Karmi Gilon somebody
would start proceedings against a former head of the Israeli Security
Service who came to Denmark on his private business and had no
diplomatic immunity. If there is something which really frightens this
kind of people, it is the possibility that they will not be able to
And meanwhile, except for all the issues of
International Law, we should remember the Israeli law's own important
definition of a Manifestly Illegal Order, "on which the black flag of
illegality flies". In my view, an order to torture a prisoner, to
destroy a civilian home etc. are such manifestly illegal orders.
Therefore, a call to disobey such an order is a call to keep the law
against those who whould break it. A soldier sitting in a bulldozer and
refusing the order to demolish a home deserves the full support of civil
and human rights organizations. Personally, as chair of the Judicial
Committee of ACRI (Assoc. for Civil Rights in Israel), I would certainly
propose that the association take up the legal and public defense of
such a refusing soldier.
What I want to say is not necessarily in contradiction with what the
preceding speakers said, but I would like to introduce a different way
of looking at it: the difference between the old wars and the new wars.
The old wars, the wars of the Nineteenth
Century and a large part of the Twentieth, such as the two World Wars
and many other wars, were wars of a state against a state, an army
against an army. Wars whose aim, on both sides, is to defend the state,
to use the state apparatus in order to achieve as fully as possible the
interests of the state. But in the past decades there has been a
significant change, a considerable decrease in the number of wars of
this kind and a corresponding increase in the other kind of war - "The
small war", which is what "Guerrilla" originally meant though that term
has accumulated a lot of other meanings and connotations.
This is the small, marginalized "sister" of
the conventional "Big war". Theoreticians such as Clausewitz ignored the
other kind of war, perhaps because it did not fit into the neat
categories of their German idealism. A symmetrical theoretical structure
was built up to describe and analyze war. It is not necessarily
symmetrical in terms of the two sides' strength - wars are possible
between two armies which are vastly disparate in numbers and strength.
Even in such cases, however, the two states and two armies share the
same basic logic. Those who think and act in terms of that logic are
unable to comprehend what takes place in an a-symmetric conflict, a
conflict between a state and a non-state entity - an elusive state
without a visible presence, as opposed to the conspicuous presence of a
conventional army; a decentralized entity, fighting for ethnic survival,
or sometimes for a religious-cultural one, as in the case of Bin Laden.
The very current concept "terrorist
infrastructure" doesn't have a clear meaning. In 1982, it included
schools and charitable associations in the refugee camps . Later,
mosques were included as well. The fact is that the "terrorist
infrastructure" is composed of people, a lot of people. If you want to
destroy that "infrastructure" you have to start killing people en masse,
and if you don't want to do that you just have to give up the idea.
The present laws of war do not fit the
situation of a non-symmetrical war. It is doubtful whether they could be
made to fit, either. There is a gap between the Western perception of
war, and the perception of this other, elusive and nomadic, war. What
does not fit the logic of the "Big War" is just criminalised and lumped
together under the label "terrorism" which is wholly inadequate.
Near us there is a Palestinian entity - and
I deliberately say "entity", not "authority". When you examine it, you
do see a formal Authority which behaves like a state, which has a
cabinet, a parliament and an army. But beside it there is an elusive
entity, whether you call that entity Hamas, Jihad or Tanzim. A
changeable entity, without fixed rules, bent on killing as a main
purpose - but also with the ability to stop the killing on occasion,
with a high capacity for learning.
All these are one entity. Not that it is a
conspiracy, that Arafat is having secret meetings with the Hamas people
to plan everything, as it is sometimes portrayed. It is just that the
Palestinian concept of struggle is different from ours, a different
culture of struggle which we insist upon interpreting in our own terms,
with the result that we consistently reach wrong conclusions. That is
why Sharon's famous concept of "seven days of quiet" is wholly wrong.
The same for the idea of "A Palestinian theory of stages" - if it was
correct, the Palestinians would have created a state under the offer of
Barak and used it as a springboard for the next "stage".
We encounter this problematic situation
again and again, since 1967. We have a binary way of thinking which
demands a clear "yes" or "no" which forever elude us. "War requires an
agreement to end it". "Taking the offensive creates deterrance". When
there is shooting there is no talking, no negotiations under fire". "If
we give in at one spot there will be a domino effect".
Our policy is wholy responsive. There are
processes of learning. We want to see a solution tomorrow. The time has
come to consider how to live in a situation without a solution. I don't
want to speak of optimism or pessimism. It is just that I don't see a
solution or an agreement in the offing, except learning to live with
this situation for many more years.
My perception of the situation started on
one specific night, the night between August 7 and 8, 1970, when the
cease fire came into effect between us and the Egyptians [ending the
three-year "War of Attrition" along the Suez Canal].
Since 1967, Israel missed all
opportunities. Immediately after the Territories came into our hands we
could have created a Palestinian state, even imposed its creation.
Later, the proposal for Palestinian Autonomy in Camp David, Begin and
Saddat's Camp David, was deliberately emasculated and came to nothing.
Then implementation of Oslo was made conditional upon numerous stages of
confidence-building, and in practice confidence was destroyed rather
Erasing the Green Line pulled the
Palestinians westwards, rather than pushing them eastwards. The
settlements were designed to push the Palestinians out, towards the
east, that is the whole logic of their creation. In fact, however, the
occupation pushed the Palestinians westwards, to take up menial jobs
within the Green Line and also carry out attacks there.
We are in fact coming back to the time when
Mapam's kibbutz movement spoke of a bi-national state. If you don't want
that you need a border. A border is the only reference between states.
You can't have a situation in which on side of the border there is a
state and on the other side there isn't.
We didn't make peace with Hizbullah in
Lebanon, still, there is a clear border between us and Lebanon, the
reference was to "where is the border." Israel has a tendency to think
in terms of lines, not borders. Armistice lines, ceasefire lines. We
have ignored the concept of border until we achieved a clear border with
Egypt and Jordan, but we didn't apply it in other places.
Adi Ophir: The
Israeli Army is involved in war crimes- on this, I think, we are all
agreed here. The question is, in what tribunals is it possible to judge
the perpetrators. Some tribunals already exist, and others may be formed
in the future. There is also the possiblity of creating simulated
tribunals, which can at least put some of them before the court of
public opinion. And there are NGO's whose task is to document, to
collect evidence, to point out the guilty.
On the basis of the above, we should not
ask the abstract question if Israel is on the way to the Hague but a far
more concrete one: why are we not doing more to ensure that concrete
persons will get there, persons whose name and address and the details
of their misdeeds are all well-known? For example, to build a dossier on
[Defense Minster and Labor Party leader] Ben Eliezer? We all know what
he has done, to what he bears responsibility. And more dossiers, as many
as possible, for anybody who can be connected and held accountable to a
specific deed. From generals on down to brigade commanders and battalion
commanders and until brutal sergeants or corporals at checkpoints. Why
can't B'Tzelem, for example, start compiling such dossiers?
It has an immediate nuisance value.
Officers will hesitate whether or not to go abroad, will ask for legal
advice. Moreover, making this demand will increase the process of
internationalizing the conflict - a vital process since it seems that
Israeli society is unable to extract itself from the abyss all by
Of course, such a step also carries a
price. First, talking of war crimes may have the effect of
de-politicizing the discussion, placing the focus on the specific person
and the specific order and ignores the more general background of the
ongoing occupation. Secondly, if some group were to start compiling
dossiers on specific persons and distributing them in the world, via the
internet, to diplomatic missions etc., it would be a radicalization, a
radicalization which would marginalize even further the group which
would do it. As if we are not already marginalized and rejected.
Nevertheless, it should be done. We should
remember the general context. Since the Intifada outbreak, in fact since
the failure of Camp David, a new situation has developed. The occupation
has gone into a new phase, the more so since the election of Sharon. The
gap between de-facto and de-jure, which was there since Oslo, has
disappeared. Between 1993 and 2000, de facto there was an ongoing
occupation on the ground, in the realm of Palestinian daily life - but
de-jure, in the agreements and political process, there was the
assumption that the occupation is temporary, a situation which gives
hope, a window looking on a better future. In February 2001, this window
closed. There is at present no political dimension, no meaningful plans
for any kind of political process. There is occupation, period - in
spite of Peres' occasional performances and shows. Occupation de facto
and occupation de jure, no gap.
One very important thing was left over from
Oslo: temporariness. Nobody thinks this situation is or can be
permanent. Everything is temporary: the closure is temporary, the siege
is temporary, the issuing of documents is temporary. Everything is
temporary, temporariness is the law. And this is terrible. Under cover
of the temporariness the occupier can do anything, because it is an
emergency. Under cover of temporariness there are many more war crimes.
Under cover of temporariness, the society can be mobilized to close its
eyes and ignore everything.
Because of this dynamic, the Palestinian
side has no choice but to resist - a resistance which is legitimate
within the common Zionist terms. If you place within the common terms of
Zionist discourse the present situation of the Palestinians, and ask
"what would you do in such a situation?" than all the implementers of
the occupation would have said "In such a situation I would resist". As
Barak once said "If I were born a Palestinian I would have become a
terrorist". But of course, this equation is not usually made, it was
rare even in the case of Barak. Usually, there is a complete or near
complete blindness to the other side's situation, unwillingness to place
yourself even for one moment in the other side's shoes.
This is the situation which creates the new
regime of the occupation, making the Israeli society more nationalistic
and at the same time formalizing an Apartheid regime inside Israel. Not
only the traditional forms of discrimination towards the Palestinian
citizens of Israel, with regard to land tenure, military service and the
rights made dependent upon it, etc. There is an escalation in this
Here I just read that the Minister of the
Interior does not want to grant Israeli citizenship to the spouses of
Arab citizens, and that he wants to enact a ministerial decree which
will make that legally possible. And there is the attempt to exclude the
Arabs from the Knesset. The legal proceedings against KM Azmi Bishara
are a concrete example of that. Yigal Shohat was right to speak about
the possibility that the Air Force may once upon a time bomb Umm El
If we are headed in the direction of an Apartheid regime, than our
response should go much further than refusal to serve in the
Territories. That would be a regime to which you can't be loyal. There
is no loyalty towards an Apartheid regime!
Anybody who understands that occupation and
Apartheidization are bound together cannot remain "an insider". You must
turn to the outside. Therefore, the argument that speaking of the Hague
and of International Law might isolate us is irreleavant. We should go
in this direction, not only wave The Hague as a slogan but start
building up the files for the future war crimes trials, whether or not
they take place.
I am a legal adviser for the Negotiations Affairs department in Ramallah.
As a lawyer, I would like to talk of the Palestinians' problem with
International Law - not with its text, but with its implementation. Most
of the articles of International Law dealing with occupied territories
should work in favor of the Palestinians, but in practice the occupation
is alive and well.
In the course of negotiating with the
Israelis, before Camp David, a member of the Palestinian negotiating
team tried to raise the issue of the ever-expanding settlements,
extremely damaging to the Palestinian population's confidence in the
process and illegal under International Law. The Israeli negotiator
simply ignored this query. We asked whether we were conducting
negotiations within the framework of International Law, or on the basis
of the relationship of forces on the ground. Our Israeli interlocutor at
first continued to ignore this issue. Then, when we insisted upon an
answer, he had a sudden outburst: "We will implement the Geneva
convention only if we are forced to". Even before, it was clear to us
that this was the Israeli policy. Still, to hear it stated with such
brutal frankness was a shock. We understood that the high echelons of
the Barak Government intended to conduct negotiations on the basis of
the relationship of forces, rather than of International Law.
When we took a look backwards, we realized
that this had been the policy ever since the negotiations started in
1993. That was also reflected in the terminology that was spread out
into the world. There was no longer talk of Occupied Territories but
rather of "Disputed Territories" - that is, territories to which nobody
has an inherent right, and whose fate was to be decided on the basis of
the relationship of forces on the ground. They didn't make the
distinction between East Jerusalem and West Jerusalem, just one
"Jerusalem". Gilo is not considered a settlement, but a neighborhood.
People who live there don't know at all that it is beyond the Green
Line. How can people all over the world understand what the conflict
here is about, when the very terms used are twisted and deliberately
The man across the negotiating table said
that Israel would only behave according to the Geneva Convention if it
is forced to. How can we Palestinians force Israel to do tha? This is
connected with what Mr. Tamari said here, a matter of a state against a
state. We are not a state.
We were forced to search for somebody who
would enforce the Geneva Convention. This is not the first occupation in
history. Rules were defined how to behave and how not to behave under
conditions of occupation. The Geneva Convention was intended to control
Some Palestinians are angry with me when I
say that the occupation itself is not illegal under International Law.
But the destruction of houses is certainly illegal, and so are
deportations, denial of the freedom of movement and torture. All that is
definitely forbidden. So are, of course, the settlements. The Geneva
Convention expressly forbids transferring the population of the
Occupying Power into the Occupied Territory. That, as the text of the
convention specifically states, is needed in order to prevent any
possibility of the occupier being able "to threaten the existence as a
race of the local population" as the convention put it. The State of
Israel joined that convention; that was a condition for Israel's
acceptance as member state of the UN in 1949. But Israel does not care
about this signature, does not draw any practical conclusions.
International Law forbids the extension of
borders by force. The legal borders are the borders of 1967. There is no
difference between different parts of the Occupied Territory, The
occupation does not begin beyond Ma'aleh Adumim. Ma'aleh Adumim is a
settlement, and so are Gilo and French hill, which are often described
as "neighborhoods of Jerusalem".
So, how is Interantional Law to be
enforced? We went to the UN. We got hundreds of UN resolutions,
thousands of them. What are they worth? We approached the states
signatory to the Fourth Geneva Convention. We asked them to enforce the
convention which they signed. They agree, they smile at us, pat our
heads. But they continue to buy settlement products, they do not
consider any kind of sanctions against Israel. Sanctions are a measure
reserved for use against Arab and Muslim states, only.
This is like demanding of the rape victim
to herself take care that the law will be enforced upon the rapist. If
she had such power, probably she would not have been raped in the first
In the past decade, however, there are new
developments in the realm of humanitarian international law. The main
thing, from our point of view, is who can sue whom. The new Belgian law
makes it possible to sue anybody who broke the Laws of War, regardless
of who is the perpetrator and who is the victim. No more is the right to
sue in international courts reserved to states only. Now, individuals
can go there as well.
One of the appelants who presented the case
against Sharon in Bruxelles is Suad Sarur, a woman who was raped during
the Sabra and Shatila Massacre in 1982. She saw her parents and her five
brothers being murdered. Then, three days later, she tried to leave the
camp but was recognized by the soldiers who had raped her, and was
thereupon raped again. The people who did this were the militiamen of
the Lebanese Falange, Sharon's allies, the men which he introduced into
the camps under Israeli military protection.
We, the Palestinian Authority, are required
to act as a state, to implement all obligations of a state, though we
only contol 18% of the territory, in thirteen disconnected enclaves. If
we had tried to sue Sharon in Belgium, for what happened to this woman
and to many others, we would have been accused of making a provocation
and hurting the cause of peace, and the Americans would have backed
Sharon on it. But now she can just go by herself to the Belgian court,
together with 23 other Palestinians from Lebanon, survivors of the
And here in the Occupied Territories,
Palestinian NGO's are taking action to activate International Law. They
are collecting evidence, not only against Sharon and the heads of the
IDF, not only against the soldiers in the checkpoints, but also against
the settlers, against those who destroy property on the West Bank,
against building contractors who build settlements and real estate
agencies which make money out of it. Everything is being documented and
written down. This will help us much more than the, to my opinion, very
destructive terrorist acts.
I would like to continue from the point at which the last speaker ended.
The violation of International Law goes on, day after day - with
impunity. We just don't understand the limitations of power. We explain
to the gentiles that the laws should not apply to us, and if they don't
get the message it means that they are antisemites.
Golda Meir said that after the Eichmann
Trial we have the right to do everything. During the Lebanon War Begin
said that no one has the right to tell us what to do, definitely not
those who bombed Dresden. He also made a very rude attack on the German
Chancellor Schmidt, even though he knew perfectly well that Schmidt's
grandfather was Jewish and that no blame attached to this family from
the time of the Holocaust. One day after Begin made this statement came
the worst bombing of Beirut. Because if everything is allowed, then
indeed everything is allowed.
Our diplomats are trying to sell to the UN
the version that the Territories are not at all occupied, despite the
fact that we never annexed them but rather placed them under a military
administration, which is the hallmark of an occupation. But Prof.
Yehudah Blum, whose legalistic theories are declaimed whenever our
diplomats speak at the UN, came up with the brilliant idea that we
conquered these territories from an occupier, and therefore they are
The fact is that the West Bank had been
transferred to Jordanian rule in the 1949 Armistice Agreements, with the
full concurrence of all parties and under the auspices of the UN. And
the Jordanians, unlike us, did not behave there as occupiers. They gave
citizenship to the Palestinians, and the possibility of entering the
Jordanian parliament and army.
Earlier, the Balfour Declaration and the
League of Nations' mandate over Palestine, documents which are often
cited on our side, did promise the creation of a Jewish National Home in
this country - but this was made contingent on preserving the rights of
the existing population, a reservation which is nowadays conveniently
The new Israeli Ambassador to the UN sat
down with me for two hours and tried to convince me that there is no
occupation and the whole territory belongs to us. I told him that if you
reject the map of the 1949 Armistice, which held until June 1967, then
the logical conclusion is not that everything is ours. The logical
conclusion then would be to go back to the partition plan of 1947, which
we would like much less.
We did not sign any Human Rights Treaty.
There is no regional treaty in our own region, and we did not join the
European one. We want so much to be Europeans, we clamor for the right
to join any possible European institution, but not where it comes to
human rights, no sir! And we did not join the Treaty of Rome, we have no
desire for it to be applicable to us.
Since 1995 we have ceased to be a
democratic state. The law was enacted that if you don't recognize Israel
as "The state of the Jewish People" you are not allowed to run for the
Knesset. The victory of Kahane!
The settlements are illegal. Everybody
knows they are. The first settlements had pretexts that they are needed
for military and security purposes, and the Supreme Court collaborated
with this pretence. When the settlement of Shilo was created, they
claimed at first to be engaged in archaeological diggings? From
settlement to new settlement their greed is growing, the crimes
increase, land robbery in broad daylight.
Considering what is going on nowadays in
the Territories, there should have been international observers coming
in, to put a stop to this greed. But the observers will not come. They
will not come because of the tactic of abusing the guilt feelings of the
Western Christian World. When the proceedings against Sharon were
instituted in Belgium, what was his reaction? "This is against me. This
is against Israel, against the Jewish People, against all the
generations of the Jewish People." So, he, Sharon, he is Israel. He is
the Jewish People. He is all the generations of the Jewish people. He is
sacrosanct. And if the Belgians still go on with prosecuting him, then
it means that the Belgians are antisemites?
How much arrogance, how many techniques to
avoid all laws! What was invested in these brutal estate owners, the
Gaza Strip settlers who cultivate the land by the labor of imported
migrant workers, could have easily solved the problems of the disabled
who demand to have just a slightly higher allowance. The Ambassador of
the US to Israel, who happens to be Jewish, said just that. And then,
what did the settler Knesset Member say, our King of the Hill? The
settler said that the ambassador is "a little Jew-boy".
The government has no plans how to restart
or advance the peace process. Nothing is further from its real
intentions. The US gives its backing, because in the US there are Jews
and there are politics and electoral considerations. Therefore, there
will probably be no international observers in the Territories, nor
indictments of Israelis at the war crimes court.
Our public has become a collaborator.
People are just parroting the government line. Once I heard on the radio
a news item which I knew to be wrong. I called the news editor, and she
told me: "I know, but that is what the bosses want me to broadcast".
The government is steadily escalating the
situation, and Shimon Peres is inside, bearing his share in the
collective responsibility for what is going on. Does the Labor Party not
know what it means to be in the opposition? Peres says that if he were
in the opposition he would have had to beg journalists for two lines on
a back page. Uri Avnery had been in the Knesset and had been in the
opposition - sometimes constituted the opposition, all by himself. If
Peres had been on the outside, our situation would have been much
easier, far easier for the many people who want to keep their humanity
and not become collaborators.
I don't have many hopes from the
International Court, because of that manipulation and the accusations of
antisemitism. For example the Germans, with all their power in Europe,
will never dare to confront the government of Israel on anything.
Chancellor Kohl was Israel's senior representative at the gatherings of
the European Union. All because of a feeling of guilt and apprehension
which is being systematically and cynically manipulated.
It can change if we, the Israelis who
believe in peace and justice, explain to the Europeans that what is
happening now is worse than antisemitism. Every single Palestinian
village or town has become a virtual detention camp. They are prevented
from travelling, the roads are closed to them. The greed is increasing
all the time. They are talking of demography, of a "demographic threat",
in order to preapare the ground for a "Grand design" of conquest and
deportation, like what Sharon tried to carry out in Lebanon. Benni Elon
and Avigdor Liebermann, the extreme right ministers, speak about it
openly. Sharon praises them, and speaks about "our right" to both banks
of the Jordan River, and about the possible "generosity" he may show by
"giving up" the eastern one. We have never really understood what it
means to be a state of law, to adhere to laws and rules. Before 1948,
our leaders thought it was praiseworthy to steal from the British, and
such attitudes have a way of sinking deep in.
We citizens must organize to protest and
raise our voice. Otherwise, we will end up as the world's pariahs, and
we will deserve it. We here are a big part of the public. We can raise
our voice in protest, we can stand with picket signs. The media would
not be able to ignore us forever. We can't rely on the international
community or the international courts. We can't, unless we ourselves
call upon them to come and to ignore the emotional blackmail of being
called antisemites. We must call a spade a spade. Our Government is
committing war crimes. We must reiterate it again and again, as Cato the
Elder repeated his admonition. Repeat it without flinching. The time has
come to prepare the War Crimes Dossiers!
To discus this article:
haGalil onLine 29-01-2002