“Anyone located in an IDF area, in areas the IDF took over – is not [considered] a civilian. That is the working assumption.” That statement, which appears in a report by Breaking the Silence that includes testimony from more than 60 soldiers and officers who participated in last summer’s war in the Gaza Strip, does a lot to explain the large number of civilian fatalities during Operation Protective Edge.
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This statement and others like it that appear in the report also reveal the policy set by high-level officials, especially the elected politicians. This policy includes a warped interpretation of the Israel Defense Forces’ Code of Ethics – which says the state has an obligation to protect its soldiers’ lives that outweighs its obligation to protect the lives of civilians “on the other side” who aren’t involved in the fighting – and permits indiscriminate harm to civilians.
“The saying was: ‘There’s no such thing there as a person who is uninvolved,’” another testimony said, revealing a prima facie disregard for the most fundamental principle of the laws of war – the distinction between combatants and civilians. The testimony exposes a de facto policy characterized by permission to “shoot anywhere, nearly freely,” which contradicts both international law and Israeli law. The orders given under this policy ought to be considered patently illegal.
The Supreme Court’s ruling on the 1956 Kafr Qasem massacre stated that “a black flag ... like a warning sign saying ‘Stop!’” flies over any order to shoot indiscriminately even at the price of killing innocents. “The illegality is glaringly apparent to the eye and infuriating to the heart, if the eye isn’t blind and the heart isn’t stony or corrupt,” the ruling said.
The Breaking the Silence report also reveals that the IDF tried to create the impression that the number of civilians killed was smaller than it really was – for instance, by classifying women who didn’t participate in the fighting but were shot to death as “terrorists.” There is also testimony about prima facie breaches of the obligation to take precautions to avoid harming civilians, as well as breaches of the prohibition on attacking a military target if disproportionate harm to civilians can be anticipated.
What is especially troubling about the report is the impression that these weren’t exceptional incidents, but settled policy. Therefore, investigating these specific incidents alone won’t contribute to uncovering the truth. An external probe must be launched that examines every level of official involved, and especially the elected politicians, because they’re the ones who bear responsibility for the policy that was implemented.
In an interview last week with Haaretz, Fatou Bensouda, prosecutor of the International Criminal Court in The Hague, said that the ICC only gets involved when a country refuses or is unwilling to conduct its own investigations. This is one investigation that Israel can and must conduct by itself.