Apr 06, 2018
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.
© 2023 Mondoweiss
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