The Moral Imperative to Refuse an Immoral or Illegal Military Order in Israel

The Moral Imperative to Refuse an Immoral or Illegal Military Order in Israel

By David Bedein 

The statement of “Jewish home” political leader Naftali Bennet used about his refusal to carry out orders to demolish Jewish or Arab communities must be placed in proper perspective. Israel is one of the few nations which mandates that a soldier may refuse an order, if that soldier deems the directive from his commander to run against the moral grain of his conscience. Israel applies the letter and law of the moral code that emerged from the Nuremberg Trials, which established the principle that a soldier cannot say that “he was following orders,” if these orders are illegal or immoral.

Sharp precedents loom on the horizon in Israel where the Nuremberg principles were applied. There was the 1956 incident which occurred in the Israeli Arab village of Kfar Kassam, which happened while Israeli troops were engaged in full-scale combat with Egypt.  A curfew had been clamped on the village. A truckload of Kfar Kassam villagers violated the curfew, returning from work after dark. The IDF local commander gave an order to open fire on the curfew breakers. More than fifty villagers were shot to death by IDF troops.

The IDF conducted an investigation and determined that the IDF officer who had given this order had issued an illegal and immoral order.  Every IDF soldier involved in the operation, down to the lowest private, was indicted by the IDF court and convicted of carrying out an illegal and immoral order, in what came to be known as the Kfar Kassam massacre.

A second precedent can be ascribed to activism of the late Israeli writer, Amos Kennan. I interviewed Kennan when I was a student at the University of Wisconsin in 1970 and heard his account first hand — at a time when I was considering the status of draft resister to Vietnam. Kennan served as a reservist in an IDF unit, north of Jerusalem following the 1967 war.

A senior IDF officer gave Kennan an order to demolish Arab villages in the Latrun area where Kennan’s unit was based. Kennan refused the order. Facing possible court martial, Kennan went a step further, and galvanized support from all walks of Israeli life in opposition to this order, and the order was rescinded.

Writing in the Israeli newspaper Yediot and later in English in the October 1968 issue of Midstream Magazine, a publication of the World Zionist Organization, Kennan wrote a seminal piece titled “A Letter to all the Good People,” in which he related that:

the action that I undertook was in flagrant violation of any military law. According to military regulations I should have been court-martialed. I have no idea what would have been the sentence of a Red Army soldier were he to violate national and military discipline in such a manner…

After the village demolition orders were revoked by the IDF, Kennan added that he asked for and received permission from the IDF to visit every area that Israel acquired after the 1967 war, to make sure that no orders like that would ever be issued again.

In passionate support of Kennan’s assertion that Israel cannot demolish communities, Prof. Eliav Schochetman, Dean of the Shaari Mishpat Law College in Israel, testified in 2005 at Israel’s Knesset Parliament Law Committee that any decision of Israel to demolish Arab or Jewish communities would represent a clear “human rights infraction “ which violates Israel’s own “Basic Human Rights Law” which oversees Israeli democratic institutions in matters of human rights and civil liberties, in the same way that the US Bill of Rights ensures that the US government can never trample on the human rights and civil liberties of American citizens.

In his testimony, Schochetman noted that this Israeli government’s decision to demolish Jewish communities, because of its new map, represented a blatant violation of the 1948 Universal Declaration of Human Rights, to which all democratic governments are adherents. Schochetmen added that Israel’s decision to expel entire communities also represented a violation of international human rights law.

Prof. Schochetman cited clause 9 of the Universal Declaration of Human Rights, which mandates that it is illegal for sovereign governments to expel their own citizens and ethnic minorities from their homes, from their private properties or from their farms. Since the only group that Israel now slates for expulsion are Jews, it should be recalled that the government of Serbia was held liable for international prosecution at the International High Court of Justice in the Hague, under the charge of “ethnic cleansing,” after leaders of Serbia singled out one ethnic minority for expulsion, solely because of their religion.

Prof. Schochetman also recalled clauses in the San Remo Treaty that was ratified by the League of Nations in 1923 and ratified by the new United Nations in 1945 which provided international recognition of the right of Jews to purchase and dwell in the “Jewish Homeland,” defined by both international bodies as any land which lies anywhere east of the Jordan River.

After Schochetman’s testimony at the Knesset, the Knesset Law Committee could not find a single law professor in Israel who could or would contradict Schochetman’s assessment that the Israeli government’s intention to destroy and exile entire communities would indeed represent a massive human rights violation

In addition to the human rights travesty involved in an order to destroy Jewish communities, the handover of IDF army bases to an Arab entity in Gaza that was defined by the Israeli government as a hostile entity represented a clear illegal action.

Ariel Sharon’s government had added a specific clause to the final version of the disengagement plan, which was ratified by the Israeli government on June 6th, 2004, after the April 18th version had been rejected by the Likud referendum on May 2nd, 2004, which mandated that all properties from evacuated Israeli communities would be transferred to “a third, international party which will put them to use for the benefit of the Palestinian population that is not involved in terror.” Sharon and the IDF simply ignored the law.

That is why orders to expel Jewish communities and hand over their property to the enemy would present an immoral and illegal order that must be disobeyed.

During Sharon’s expulsion and retreat process, 6,000 Israeli soldiers asked to be excused from active service, while 60,000 IDF troops carried out orders. Had 30,000 Israeli soldiers refused to follow orders, there would have been no IDF retreat and no IDF expulsion and demolition of 21 thriving Jewish communities near Gaza and 4 communities in Northern Samaria.

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