Silence fell in the hall of the picturesque German building on the edge of Camp Schneller in Jerusalem 46 years ago, as the president of the military court, Colonel Benjamin Halevy, began to read the verdict in the Kafr Qasem case. Halevy convicted eight of the 11 accused in the killing of 43 Arab Israeli citizens who had been innocently returning home from work after a curfew had been declared, unbeknownst to them.
Because of the gravity of their acts, the accused were sentenced to between seven and 17 years in prison. The friendly atmosphere between the prosecution and the defense, especially during recesses, gave way to shock and dismay. The military judicial authority had seemingly created an iron-clad rule that is part and parcel of the state and the Israel Defense Forces to this day: Soldiers must refuse an order that is patently illegal; those who do not expose themselves to severe penalties.
In 1958, when the verdict was given in the Kafr Qasem case, the court assumed that the meaning of the word "patently" was clear. From then on, an illegal order could be easily identified, with no doubt as to its prohibitive nature.
The reality of the last four years attests to the fact that this assumption is becoming increasingly baseless. There is debate now over whether the shooting a 13-year-old Palestinian girl who happened innocently into a no-pass zone by virtue of an IDF decision (just like in Kafr Qasem in `56) constitutes obedience to a patently illegal order that has "a black flag flying over it" (as the court formulated it) - or whether it is carrying out a legal and even legitimate order.
The same is true of the term "confirming a kill." Ostensibly this concept does not exist at all in the IDF lexicon. In actual fact, the procedure is applied both in the heat of battle, during actual war, and as well in the present armed conflict with the Palestinians, which the IDF does not define as a war. To make it sound better, the IDF does not speak of "confirming a kill" but rather of "confirming neutralization." That is, the task of the soldier is to confirm that he has in fact neutralized the danger that lay in wait for and his comrades in the form of the Palestinian who threatened them. The element of confirmation is no different in each case: shooting at the Palestinian who has already been hit, or who appears to have been hit, to shut down with certainty his ability to harm our forces.
When the IDF acts in the territories in accordance with these two key concepts under circumstances in which the meaning of the concepts has eroded, it brings masses of trouble on itself and moral calamity on Israeli society.
In terms of values, this conceptual obfuscation allows soldiers and their commanders to behave shamefully, to act cruelly toward the Palestinian population and to mistreat and even kill them without justification. On the formal level, this behavior exposes soldiers to criminal proceedings both in Israel and internationally.
Obeying a patently illegal order (according to the original meaning of the term) and orders to confirm a kill (not under full battlefield conditions) is not only illegitimate behavior, it is also prohibited under the law. When the senior IDF command tolerates this behavior, it creates greater reasons for refusal to serve.
Refusal to serve for reasons of conscience, which involves mainly moral opposition to the occupation, may now join refusal to serve in order to avoid breaking the law. Young people about to be drafted or reserve soldiers will claim they are unwilling to serve in an army that puts them in situations in which they may become involved in criminal behavior. This is the real danger lying in wait for the IDF and its ability to keep Israeli society identifying with it, if the IDF does not change its behavior in the territories.
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