The Road to The Hague

The feeling that prevails today is that there are virtually no restrictions on killing Palestinians because the IDF will back up its soldiers in every case.

Fatma Zakarana, 32, a hired farmhand, and her two children, Muhammed and Abir, aged four and three, were killed last Sunday in the fields of Qabatiyah, east of Jenin in the West Bank, when a tank crew, which mistakenly thought that it had hit a bomb, opened fire on them.

The Israel Defense Forces expressed regret for the incident; the debriefing of the brigade commander found that he had put out incorrect information about a non-existent bomb; and a military source said that the soldiers had acted in accordance with a a drill procedure, "which, so far, has been proved effective." That was the end of the episode - at least as far as the IDF was concerned.

The soldiers who killed a woman and two toddlers - a Palestinian eyewitness told the B'Tselem human rights organization that the crew had opened fire from a range of 30-40 meters, while the IDF declined to provide this information - will not be placed on trial or even interrogated. It follows then that from the point of view of the IDF and its justice system, there was nothing irregular about the incident.

If the soldiers had stolen a few shekels from Zakarana's home, they would have faced trial. The criteria now in effect in the IDF send the message that looting is an incalculably more serious offense than killing. Every suspicion of looting is dealt with speedily, and at least 10 soldiers have already been arrested on such suspicions.

In contrast, the deaths of more than 1,400 Palestinians - 250 of them below the age of 18 - have generated 26 investigations, only three of which resulted in indictments being filed.

The incident involving the five children from the al-Astal family in Khan Yunis who were killed last November on their way to school by a bomb planted by the IDF was buried at the explicit order of Chief of Staff Lieutenant General Shaul Mofaz. Mofaz ruled that there was no place even for disciplinary measures in the case. According to the chief of staff, the ease with which explosives were planted in an area through which children make their way to school did not merit an investigation.

Morally speaking, we are quick to plead innocence and absolve ourselves of responsibility solely on the basis of intention: It's enough for us that the soldiers did not intend to murder a mother and her two children at Qabatiyah, or that no one intended to kill five children in Khan Yunis. However, the absence of malicious intent is not a sufficient criterion. The fact that the Palestinian terrorists kill civilians with such intent while our soldiers refrain from killing civilians maliciously does not exempt the latter from responsibility. The question that has to be asked is whether the soldiers did enough to ensure that women and children would not be killed. Was the killing of Zakarana and her children unavoidable? Was it not the result of criminal negligence, even if not by intention? That is the question that needs to be examined in a court of law.

The feeling that prevails today is that there are virtually no restrictions on killing Palestinians because the IDF will back up its soldiers in every case. The soldiers no longer need to have a "lawyer at their side," as they complained with exaggeration during the first intifada; Yitzhak Rabin's dream of a war "without the High Court of Justice and without B'Tselem" has become a reality. Is it not the case that the soldiers' knowledge that no harm will befall them prompts them to open fire too easily?

"The pleasure of every driver is to knock down a house," the drivers of the bulldozers who demolished houses in Jenin boasted, according to a report in the mass-circulation daily Yedioth Ahronoth on May 10. They added that they had no fear of an investigation. Isn't it possible that in their joy of destruction, they demolished a few houses that were not on the list? Isn't it possible that the field personnel of Human Rights Watch, the New York-based international organization, were correct when they stated that "there was no proportion between the massive destruction and the military goals?" Who will investigate?

Israel, though, is not alone in this game, and it will not be able to continue thumbing its nose at the moral criteria of the international community. The European Community now views the concept of war fought with impunity - referring to exemption from punishment and not bring to trial those who are responsible for human rights violations and war crimes perpetrated on behalf of their country - as one of the major targets of its activity, along with the fight against torture and racism.

Along with the establishment of the new international judicial bodies, this trend should not be made light of, and Israel must recognize that it will have to pay a price for its policy of wielding force. The officers and soldiers of the IDF will no longer have the automatic immunity that they enjoy within their army and their country. In the international community, the killing of a woman and her two children, the killing of five children on their way to school, the blocking of medical treatment for the wounded and the refusal to allow women in labor or seriously-ill individuals to pass through roadblocks are crimes and the perpetrators must be punished.

The way to address these trends is to fight the morally-unacceptable phenomena by means of the Israeli law enforcement system. If we don't do it, the world will do it, and that will render worthless the promises of Mofaz and of the attorney general that no one will harm the soldiers, not even those who are responsible for serious human rights abuses or even war crimes. They have to know that if Kosovo is already here, and it is, then The Hague is not far behind.