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“I am the Law!”—Perspectives of Legality and Illegality in the Israeli Army

Published online by Cambridge University Press:  19 March 2012

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Abstract

The language of morality and legality infuses every aspect of the Middle East conflict. From repeated assertions by officials that Israel has “the most moral army in the world” to justifications for specific military tactics and operations by reference to self-defense and proportionality, the public rhetoric is one of legal right and moral obligation. Less often heard are the voices of those on the ground whose daily experience is lived within the legal quagmire portrayed by their leaders in such uncompromising terms. This Article explores the opaque normative boundaries surrounding the actions of a specific group within the Israeli military, soldiers returning from duty in Hebron in the Occupied Palestinian Territories. By examining interviews with these soldiers by an Israeli NGO, it identifies different narratives of legality and illegality which inform their conduct, contrasting their failure to adhere to conventional legal discourses with the broader “legalization” of military activities. Seeking an explanation for this disjunction, it explores the ways in which the soldiers' stories nonetheless reflect attempts to negotiate various normative and legal realities. It places these within the legal landscape of the Occupied Palestinian Territories which has been normatively re-imagined by various forces in Israeli society, from the judicially-endorsed discourse of deterrence manifested in the day-to-day practices of brutality, intimidation and “demonstrating power,” to the growing influence of nationalist-religious interpretations of self-defense and the misuse of post-modernist theory by the military establishment to “smooth out” the moral and legal urban architectures of occupation. The Article concludes by considering the hope for change evident in the very act of soldiers telling ethically-oriented stories about their selves, and in the existence of a movement willing to provide the space for such reflections in an attempt to confront Israeli society with the day-to-day experiences of the soldier in the Occupied Palestinian Territories.

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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 Notably, the so-called New (or “Revisionist”) Historians who accessed declassified Israeli archival materials in the late 1980s and early 1990s, including Ilan Pappé, Avi Shlaim, Benny Morris, and Simha Flapan.

2 For an overview of post-Zionism from a sociological perspective, see Gutwein, Daniel, Left and Right Post-Zionism and the Privatization of Israeli Collective Memory, in Israeli Historical Revisionism: From Left to Right 9 (Shapira, Anita & Penslar, Derek Jonathan eds., 2003).Google Scholar

3 The many films which formed part of the “Palestinian Wave” of the 1980s included “Hamsin” (1982), “Beyond the Walls” (1983), “A Very Narrow Bridge” (1985), “The Smile of the Lamb” (1986) and “Avanti Popolo” ( 1986). See Shohat, Ella, Israeli Cinema: East/West and the Politics of Representation ch. 5 (1989).Google Scholar More recent movies include Ari Folman's “Waltz with Bashir” (2008) and Eran Riklis's “Lemon Tree” (2008). Israeli literature has similarly explored these themes. Most recently, Alon Hilu, The House of Dajani (2010) sparked heated debate about the early settler movement and the original Zionist project.

4 HCJ 5100/94 The Public Committee Against Torture in Israel v. The State of Israel 53(4) PD 817 [1999], English translation available at http://elyonl.court.gov.il/files_eng/94/000/051/a09/94051000.a09.pdf.

5 In August 2009, Peace Now sought orders from the Israeli Supreme Court for the halting of construction and demolition of existing structures in the settlement of Kiryat Netafim. In October 2009, interim orders were issued: see Peace Now, Legal Actions—Kiryat Netafim Petition, Aug. 2009, available at http://www.peacenow.org.il/site/en/peace.asp?pi=370&docid=4380&pos=l. Following repeated violations of the court orders and failure of the state to enforce them, the organization filed a petition for contempt, see Glickman, Aviad, Supreme Court Slams State for not Enforcing Construction Freeze Orders, Ynet News, Mar. 1, 2010, available at http://www.ynetnews.com/articles/0,7340,L-3856166,00.html.Google Scholar

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7 For a discussion of this literature, see Mendelson-Maoz, Adia, Checkpoint Syndrome: Violence, Madness, and Ethics, in Textual Ethos Studies or Locating Ethics 209 (Fahraeus, Anna & Jonsson, AnnKatrin eds., 2005).Google Scholar

8 Breaking the Silence, Israeli Soldiers Talk about the Occupied Territories, available at http://www.shovrimshtika.org/about_e.asp.

9 The group claimed its accounts were consistent with statements of returning soldiers who attended the Oranim pre-military academy in Kiryat Tivon reported by Harel, Amos in IDF in Gaza: Killing Civilians, Vandalism, and Lax Rules of Engagement, Haaretz, Mar. 18, 2009, available at http://www.haaretz.com/news/idf-in-gaza-killing-civilians-vandalism-and-lax-rules-of-engagement-1.272379Google Scholar; Harel, Amos, Shooting and Crying, Haaretz, Mar. 20, 2009 [in Hebrew], available at http://www.haaretz.co.il/hasite/spages/1072440.html.Google Scholar The report was published in June 2009. See Breaking the Silence, Soliders' Testimonies from Operation Cast Lead, Gaza 2009 (June 2009). More recently, the organization has released a 431 page compilation of testimonies marking the tenth anniversary of the Second Intifada. See Occupation of the Territories—Israeli Soldier Testimonies 2000–2010 (December 2010).

10 Israel Defense Forces, Hearsay: IDF Releases Findings of Investigation Regarding Remarks Made at Rabin Center, Mar. 30, 2009, available at http://dover.idf.il/IDF/English/News/today/09/03/3001.htm.Google Scholar

11 Feige, Michael, Settling in the Hearts: Jewish Fundamentalism in the Occupied Territories 18, 145–47 (2009).Google Scholar For a history of the settlement of Hebron, see Zertal, Idith & Eldar, Akiva, Lords of the Land: The War for Israel's Settlements in the Occupied Territories, 1967–2007 (2007).Google Scholar

12 Feige, supra note 11, at 148–49.

13 Id. at 151. (Feige relates an incident in which a soldier asked why a group of settler girls were throwing rocks at an old Palestinian woman carrying grocery bags. They responded “How do you know what she did in Tarpat [the term used to describe the date of the massacre]?”); id. at 154 (“[i]dioms appropriated from Holocaust discourse dominate the discourse of the Tarpat massacre. One can even say that, for its Jewish settlers, Tarpat is the Hebronian Holocaust.”).

14 Zertal & Eldar, supra note 11, at 248.

15 Id. at 249.

16 Israel-Palestine Liberation Organization: Protocol Concerning the Redeployment in Hebron, Jan. 17, 1997, 36 ILM 650 (1997). See Dumper, Michael, The Politics of Sacred Space: The Old City of Jerusalem in the Middle East Conflict 146–47 (2002).Google Scholar

17 See, e.g., B'Tselem & Association for Civil Rights in Israel (ACRI), Ghost Town: Israel's Separation Policy and Forced Eviction of Palestinians from the Center of Hebron (May 2007)Google Scholar, especially Chapter Four (“Refraining from Protecting Palestinians and their Property from Violent Settlers”) which documents the security forces' failure to enforce the law on settlers, including official recognition of this state of affairs; see also id. at 29–32 for the extent to which prohibitions and restrictions on Palestinian movement in the centre of Hebron reflect settler demands. For an analysis of the “urbicide” thesis, see Cesari, Chiara De, Hebron, or Heritage as Technology of Life, 41 Jerusalem Q. 6 (2010).Google Scholar

18 See B'Tselem & ACRI, supra note 17, at 32–33. See also infra notes 59 & 94.

19 See B'Tselem & ACRI, supra note 17.

20 Id. at 17–22.

21 See HCJ 11235/04, Hebron Municipality v. The State of Israel Statement on Behalf of the Respondents (Nov. 16, 2005) (unpublished), sect. 22, cited in id at 23–24.

22 See cases cited in id. at 29, including HCJ 4639/02, Abd Alsallem Qatsrawi et al. v. The Commander of IDF Forces in Judea and Samaria, Supplemental Response on Behalf of the Respondents (Aug. 5, 2002) (unpublished).

23 The possibility of the concurrent operation of international humanitarian and human rights law was determined by the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 266 (July 8); the Court's apparent endorsement of international humanitarian law as a lex specialis was modified in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136 (July 9). See also Harvard University's Humanitarian Policy and Conflict Research Policy Briefs, including From Legal Theory to Policy Tools: International Humanitarian Law and International Human Rights Law in the Occupied Palestinian Territory (May 2007); Israel's Obligations under IHL in the Occupied Palestinian Territory (Jan. 2004) and Review of the Applicability of International Humanitarian Law to the Occupied Palestinian Territory (July 2004). It is worth noting that while the Israeli government rejects the formal application of GC IV (infra note 60) (which relates to belligerent occupation) to the OPT, it has repeatedly declared that it will abide by its humanitarian provisions, and has never formally contested the application of the Hague Regulations 1907. On the disagreements concerning the operation of human rights law, see Ben-Naftali, Orna & Shany, Yuval, Living in Denial: The Applicability of Human Rights in the Occupied Territories, 37 Isr. L. Rev 17 (20032004).CrossRefGoogle Scholar

24 See Rome Statute of the International Criminal Court, arts. 13–15, July 17, 1998, 2187 U.N.T.S 3 [hereinafter Rome Statute]. Israel is not a party to the Rome Statute, but there are other methods by which Israel's activities in the OPT could be raised before the Court. The Palestinian National Authority lodged a declaration pursuant to Article 12(3) of the Statute on January 22, 2009, accepting the jurisdiction of the Court on an ad hoc basis and providing a potential avenue for a consideration of Israel's actions in Gaza. The Office of the Prosecutor is yet to decide whether the declaration meets the statutory requirements such that the Court would have jurisdiction. The question of jurisdiction is contingent upon a finding either that Palestine is a state or, alternatively, that it can be considered a state for the purposes of the Rome Statute.

25 See Dinstein, Yoram, The Israeli Supreme Court and the Law of Belligerent Occupation: Article 43 of the Hague Regulations, 25 Isr. Y.B. on Hum. Rts. 1, 14 (1996).Google Scholar For a more recent overview of the Supreme Court's role, see David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002).

26 See Breaking the Silence, Soldiers Speak Out About their Service in Hebron (2004).

27 See Breaking the Silence, Soldiers' Testimonies From Hebron 2005–2007 (2008).

28 A debate about the methodology was conducted in the Guardian Newspaper between Dan Kosky of NGO Monitor (who claims the stories are an “extremely narrow and presumably hand-picked sample” of “entirely unverifiable” testimonies) and Oded Na'aman of Breaking the Silence (who claims the organization “verifies all of its information by cross-referencing the testimonies it collects. The material that is eventually published has been confirmed by a number of testimonies, from several different points of view.”) See Kosky, Dan, Empty Noises from Breaking the Silence, Guardian, July 15, 2009, available at http://www.guardian.co.uk/commentisfree/2009/jul/15/israelarmy-breaking-silence.Google Scholar Na'aman, Oded, Israel Needs the Truth about Cast Lead, Guardian, July 17, 2009, available at http://www.guardian.co.uk/commentisfree/2009/jul/17/israel-gaza-breaking-silence.Google Scholar

29 This anonymity has been seized upon as undermining the credibility of the allegations. In response, the organization has said that it would make readily available the personal details of the soldiers quoted and the exact location of the incidents, described in the testimonies, to any official and independent investigation. See Na'aman, supra note 28.

30 Sasson-Levy, Oma, Constructing Identities at the Margins: Masculinities and Citizenship in the Israeli Army, 43 The Soc. Q. 357 (2002)CrossRefGoogle Scholar; Sasson-Levy, Oma, Individual Bodies, Collective State Interests: The Case of Israeli Combat Soldiers, 10 Men and Masculinities 296 (2008)CrossRefGoogle Scholar; Sasson-Levy, Orna, Military, Masculinity, and Citizenship: Tensions and Contradictions in the Experience of Blue-Collar Soldiers, 10 Identities 319 (2003)CrossRefGoogle Scholar; Kaplan, Danny & Ben-Ari, Eyal, Brothers and Others in Arms: Managing Gay Identity in Combat Units of the Israeli Army, 29 J. Contemporary Ethnography 396 (2000).CrossRefGoogle Scholar Bar, Neta & Ben-Ari, Eyal, Israeli Snipers in the Al-Aqsa Intifada: Killing, Humanity and Lived Experience, 26 Third World Q. 133 (2005).CrossRefGoogle Scholar

31 See Bar & Ben-Ari, supra note 30.

32 See Breaking the Silence, supra note 27, Testimony 40.

33 See, e.g., Breaking the Silence supra note 26, at 10–11 (“I thought I was immune, that is, how can someone like me, a thinking, articulate, ethical, moral man—things I can attest to about myself without needing anyone else to validate for me. I thought of myself as such. Suddenly, I notice that I'm getting addicted to controlling people”), id. at 12 (“I was disturbed and frightened most of all by the unregulated and uncontrolled power, and the things it made people do”), id. at 15 (“Like, it's crazy! I'm just a kid. I was born yesterday. I derive my power from my uniform and my machine gun, its what gives me the right to decide everything”), id. at 31 (“It had me checking myself all time to see how I held on to my values, how low I could go…”). See also Breaking the Silence, supra note 27, Testimony 28 (“Everyone's mind got rucked up there. Your whole grasp of reality gets distorted. After having such total control of so many lives, you can do anything you want to them: you can steal from them, sleep in their house, anything. Take their car. You really can. Do anything. Anything. Anything.”).

34 Several interviewees report on the regularity with which Palestinians were beaten. See Breaking the Silence, supra note 27, Testimony 2 (“We'd beat up Arabs a lot…”), Testimony 13 (“We always gave hell. We would always beat Arabs.”), Testimony 20 (“We catch them, beat them to a pulp…”), Testimony 22 (“The ldd gets beaten by the patrol, then thrown out at the other end of town, and he has to go through guard posts, pillbox positions, checkpoints. So he gets beaten on the road as well… So it's the whole way home, he doesn't just have to walk, he has to get beaten all the time.”), Testimony 28 (“Listen, there are beatings all the time. Constant beatings…”), Testimony 33 (“We were there with vests, the works, on the roofs, just waiting for someone to come along and do something silly and then we'd beat him to a pulp.”), Testimony 47 (“Guys woul[d] take the Arab into their post and beat him to a pulp.”), Testimony 49 (“we'd catch some kid who happened to be around there, and beat him to a pulp. Break him. Even if he hadn't thrown any stones, he knew who had.”), Testimony 49 (“We gave the boy over to this commander, and he really beat the shit out of him … It had become a habit, we'd go on patrol every day, and there were a lot of beatings. It was happening all the time … If you even just looked at us in some way that irked us, you'd get beaten up.”), Testimony 86 (“Arabs would regularly get beaten to a pulp [by Border Patrolmen]. Standard procedure.”), Testimony 89 (“Just walking down the street and hitting children on the knee with a stick to see them fall, seems like a case in point. Or catching children [aged 10] passing the checkpoint who did not understand what they were supposed to do and simply beat them up.”). Some incidents clearly amount to torture, such as the incident in where a soldier tied a wire around the wrist of a detainee (after beating him up), leading to the almost certain amputation of the hand. See e.g., Breaking the Silence, supra note 27, Testimony 41. For relevant provisions in international instruments, see Universal Declaration of Human Rights, G.A. Res. 217A, art. 5, U.N. Gaor, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948); International Covenant on Civil and Political Rights, art. 7, Dec. 16, 1966, 999 U.N.T.S. 171; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 1, 16, Dec. 10, 1984, 1465 U.N.T.S. 85; and Common Article 3 of the Geneva Conventions of 1949 which guarantees humane treatment for non-combatants in the case of armed conflict not of an international character. For further examples of incidents of violence by security forces against Palestinian residents in Hebron, some of which have been brought before the Courts, see B'Tselem, Status Report: Hebron, Area H-2, Settlements Cause Mass Departure of Palestinians (Aug. 17–25, 2003).

35 This has been documented by several human rights groups, including B'Tselem and Breaking the Silence. See also the reports of Machsom Watch [Checkpoint Watch], an Israeli NGO which monitors incidents at checkpoints in the OPT. See also U.N. Hum. Rts. Council, Human Rights in Palestine and Other Occupied Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict at 162, 12th Sess., Agenda Item 7, at 162, U.N. Doc. A/HRC/12/48 (Sept. 25, 2009). The UN mission reported several incidents where civilians were killed, harmed, or otherwise met with humiliating or degrading treatment by Israeli soldiers. In its Concluding Observations on Israel's report submitted under Article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (supra note 34), the Committee against Torture expressed serious concern “at the many allegations provided to the Committee from non-governmental sources on degrading treatment at checkpoints,” calling upon the government to consider establishing “an urgent complaints mechanism for any persons claiming they have been subjected to undue or improper threats or behaviors” as a “safety measure.” See U.N. Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Concluding Observations of the Committee against Torture, Israel, 42nd Sess., U.N. Doc. CAT/C/ISR/CO/4, May 14, 2009. The practice has occasionally been officially recognized. In 2003, the then Military Advocate General, Major General Dr. Menachem Finkelstein, confirmed that the many allegations of Palestinians being humiliated at checkpoints were well-founded in a statement made to the Knesset Constitution, Justice and Law Committee. See Humiliation at the Checkpoints, 8 July, 2003, available at http://www.haaretz.com/print-edition/opinion/humiliation-at-the-checkpoints-1.93502.

36 See Blau, Uri, Israeli Troops Humiliate Palestinians—and Put it on YouTube, Haaretz, June 19, 2009, available at http://www.haaretz.com/news/israeli-troops-humiliate-palestinians-and-put-it-on-youtube-1.278442.Google Scholar Haaretz found several clips online “in which Palestinians are seen being abused and humiliated by Border Police troops.” The soldiers interviewed by Blau note that Palestinians in the OPT have become very familiar with the chant which the soldiers force them to repeat. In 2008, the IDF announced it would court-martial four soldiers from the Golani infantry brigade who had posted film footage on YouTube depicting them humiliating a blindfolded Palestinian man at a checkpoint: Service, Haaretz, IDF Soldiers Filmed Humiliating Bound Palestinian Face Court Martial, Haaretz, Nov. 13, 2008, available at http://www.haaretz.com/news/idf-soldiers-filmed-humiliating-bound-palestinian-face-court-martial-1.285454.Google Scholar The posting of photographs on Facebook by former IDF soldier Eden Abergil showing her posing with bound and blindfolded Palestinian detainees resulted in her being stripped of her military rank and excluded from the reserve service. In response to IDF statements implying that the incident was exceptional, Israeli NGOs (including Breaking the Silence) released evidence that the practice was routine and commonplace. See Haaretz Service, Facebook Photos of Soldiers Posing with Bound Palestinians are the Norm, Haaretz, Aug. 17, 2010, available at http://www.haaretz.com/news/diplomacy-defense/facebook-photos-of-soldiers-posing-with-bound-palestinians-are-the-norm-1.308582.Google Scholar Layalina Productions, An Abu Ghraib Deja-Vu for Israeli Soldier on Facebook, VI Layalina Rev. 3, 3–4 (2010).Google Scholar

37 See Awad, Monica, Seeking an Education in the Occupied Palestinian Territory, Unicef, Oct. 31, 2004, available at http://www.unicef.org/oPt/voices_children_541.html.Google Scholar According to UNICEF, at least 580 schools were closed in the 2003–2004 school year. Together with violence and curfews, the result is that “more than one generation of Palestinian children is being denied the right to basic education.”

38 See Horowitz, Jonathan Thompson, The Right to Education in Occupied Territories: Making More Room for Human Rights in Occupation Law, 7 Y B. Int'l Human. L. 233 (2004).CrossRefGoogle Scholar

39 Breaking the Silence, supra note 26, at 12.

40 Breaking the Silence, supra note 27, Testimony 24 (“As part of the patrol, there was always that point in time when children would come out of the Palestinian school house, so we had to stand guard and watch over them so the settlers wouldn't throw stones at them. And then you continue your patrol. Every morning.” Several soldiers complain that the settlers send their own children out to carry out such acts of violence). See also Testimonies 19, 45,48, 51, 53, 54, 64, 66, 77, 88 and 90.

41 Breaking the Silence, supra note 26, at 27 (“I remember that I personally fired on an empty school… just as a deterrent, just to instill fear.”) Another interviewee noted: “So there's this school. We used to provoke lots of disturbances there. We'd cause them. Go on a patrol, walk around the village, look for firecrackers. We'd get bored. Trash shops, and such, find a firecrackers, beat someone up, you know how it is. You search. You trash. Then say we want a riot? We come by a mosque, shatter the windowpane, throw in a stun grenade, big boom, then there's a ‘disturbance’.”), supra note 27, Testimony 43. According to Breaking the Silence, the school in Jebl Ju'ar has been an army post for several years.

42 Breaking the Silence, supra note 26, at 35.

43 Id. at 29 (“We threw a glass so it would break and shatter, reported that an empty bottle was thrown at us, and asked permission to throw a stun grenade.”), 27 (one soldier describing what another one told him: “[w]e slammed two or three bullets into the concrete blocks of the post, to leave marks, we reported that we were being fired at, and we started to shoot. We started throwing stun grenades and all kinds of shit.”).

44 Id at 14.

45 Id at 26–27.

46 See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), art. 48, Dec. 8, 1977, 1125 U.N.T.S. 3 (“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”). The principle appears as the first rule in the comprehensive analysis found in Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rules, Volume I: Rules 3–24 (2005). The Israeli Military Court in Ramallah recognized the principle as a basic rule in, MC (Central) 3/57 The Chief Military Prosecutor v. Lance Corporal Ofer, Major Malinki Shmuel and Others, 17 PM 90 (1958) (District Court case concerning the events of October 29, 1956 in Kfar Qassem). In its advisory opinion in the Nuclear Weapons case, the International Court of Justice stated that the principle was one of the “intransgressible principles of international customary law.” Legality of the Threat or Use of Nuclear Weapons, supra note 23, at 257.

47 See Schwarzenberger, Georg, The Standard of Civilization in International Law, 8 Current Legal Probs. 212–34 (1955).CrossRefGoogle Scholar

48 See Rome Statute, supra note 24, art. 8(2).

49 See Stuart Cohen, Israel and its Army: From Cohesion to Confusion (2008) for a critique of the inadequacy of the well-intentioned Code.

50 See Rome Statute, supra note 24, art. 32 (2) (“A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistake of law may, however, be a ground for excluding criminal responsibility if it negates the mental element required by such a crime, or as provided for in article 33 [on superior orders and prescription of law].)” Article 33 provides a defense where a person acts under legal obligation, superior orders, and did not know the order was unlawful—unless the order was manifestly unlawful. For a scholarly analysis, see Eser, Albin, Mental Elements—Mistakes of Fact and Law, in The Rome Statute of the International Criminal Court: A Commentary (Cassese, Antonio et. al. eds., 2002).Google Scholar For an examination of the jurisprudence in Israel, see Bohrer, Ziv, Clear and Obvious? A Critical Examination of the Superior Order Defense in Israeli Case Law, 2 IDF L. Rev. 197, 213–19 (20052006).Google Scholar Bohrer identifies the vagueness and difficulties in application of the rule for subordinates considering refusing superior orders.

51 Israeli Defence Forces, Ethics—Basic Values: Purity of Arms, available at http://dover.idf.il/IDF/English/about/doctrine/ethics.htm. A recent example of the Code being cited in judicial decisions can be found in Military Prosecutor v. Sergeant A.K., S/153/09 (Aug. 11, 2009) in which the accused commission of the crime of looting was said to have “harmed the ‘combat moral code,’ the spirit of the IDF.” On the education of the military in the Code, see Lt. Col. Amos Guiora, former Commander of the IDF School of Military Law, Balancing IDF Checkpoints and International Law: Teaching the IDF Code of Conduct, Jerusalem Issues Brief, 2003, available at http://www.jcpa.org/brief/brief3-8.htm.Google Scholar See also Ministry of Foreign Affairs, Gaza Operation Investigations: An Update, ¶10 (Jan. 2010)Google Scholar (“First and foremost, Israel is committed to educating state agents—in this case, IDF commanders and soldiers—of their duties and restrictions. This includes the widespread dissemination of relevant Law of Armed Conflict principles across the ranks of the IDF.”)

52 Heller, Jeffrey, Israel Vows “Disproportionate” Response to Rockets, Reuters, Feb. 1, 2009, available at http://www.reuters.com/article/idUSL1506825._CH_.2400Google Scholar, citing then-Prime Minister Olmert as saying “The government's position was from the outset that if there is shooting at the residents of the south, there will be a harsh Israeli response that will be disproportionate.” A similar statement was made by Major General Gadi Eisenkot, head of the army's northern division, in March 2008 with respect to villages in southern Lebanon (“We will apply disproportionate force on it (village) and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases.”). See Reuters, , Israel warns Hezbollah war would invite destruction, Ynet News, June 10, 2008, available at http://www.ynetnews.com/articles/0,7340,L-3604893,00.html.Google Scholar The Dahiya strategy, as this has become known, is now arguably military orthodoxy during warfare.

53 David Kennedy, of War and Law 7 (2006).

54 Id. at 5 (Kennedy notes “the astonishing way the legitimacy of war and battlefield violence has come to be discussed in similar legal terms, by military professionals and outside commentators alike. As such, law today shapes the politics, as well as the practice, of warfare.” id. at 7).

55 Ron, James, Varying Methods of State Violence, 51 Int'l Organization 275, 277–79 (1997).CrossRefGoogle Scholar

56 Id. at 276.

57 Kennedy, supra note 53, at 8.

58 See Ron, James, Savage Restraint: Israel, Palestine and the Dialectics of Legal Repression, 47 Soc. Probs. 445, 452–53 (2000).CrossRefGoogle Scholar

59 See B'Tselem, supra note 34, at 12, on a presentation prepared by the Civil Administration in Hebron that one of the “guiding principles” of the settlement is that “[t]he [Israeli] government is a tool for fulfilling the settlement's goals, and nothing more.”

60 The literature and jurisprudence on the legality of settlements is immense. The relevant legal provision is paragraph 6 of Article 49 of the Fourth Geneva Convention which states that: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” Geneva Convention relative to the Protection of Civilian Persons in Time of War, art. 49, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter GC IV].

61 According to Yesh Din, an Israeli human rights group, only six percent of the 1,246 investigation files opened for criminal offenses against Palestinians between September 2001 and December 2007 resulted in indictments. These rates remained unchanged in 2008 and 2009. See Din, Yesh, IDF Investigations of IDF Offenses Against Palestinians: Figures for 2008–2009 (Feb. 2010).Google Scholar For an overview of the military justice system and an outline of cases which have been prosecuted, see Ministry of Foreign Affairs, supra note 51.

62 Cohen, supra note 49, at 75–77. Cohen notes that Justice Barak “tiptoed” around the issue of the settlements, never addressing their legality. It is notable that some of the soldiers recognize the role of the courts in regulating the construction of buildings and opening of roads to Palestinians. See Breaking the Silence, supra note 27, Testimony 62 (although the soldier here was unaware of the court's actual ruling, and was unconcerned that his actions were therefore illegal), and Testimonies 4, 38 and 88 (on the Court's ruling regarding construction of a house).

63 James Ron similarly noted this thin level of legality that existed in the OPT, quoting a soldier saying: “You can't just kill an Arab in the West Bank without at least being able to make up some kind of legal excuse.” See Ron supra note 55, at 297.

64 Breaking the Silence, supra note 26, at 15.

65 D.C. (Jm.) Attorney-General of the Government of Israel v. Eichmann, 36 ILR 5 (1961). Hannah Arendt's Eichmann in Jerusalem: A Report on the Banality of Evil (1963) remains a fascinating study of the impact of the trial on Israeli society, although her attitude toward Israel is on occasion tinged with negative stereotypes. See David Cesarani, Eichmann: His Life, Crimes and Legacy 345–46 (2005).

66 The Nuremberg judgment was clear that an individual was obliged to possess certain universal obligations that took clear precedence over a specific set of domestic orders. As the Tribunal famously noted, “the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.” Judgment of the International Military Tribunal for the Trial of Major German War Criminals, Cmd. 6964, pp. 41–42.

67 See Osiel, Mark J., Obeying Orders: Atrocity, Military Discipline and the Law of War, 86 Cal. L. Rev. 943, 948–49 (1998).CrossRefGoogle Scholar

68 Rome Statute, supra note 24, art. 33. For the purposes of the Article, orders to commit genocide or crimes against humanity are manifestly unlawful.

69 The Rome Statute defines war crimes as including inter alia: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment, id. art. 8(2)(b).

70 One soldier interviewed did question whether he should have obeyed orders. See Breaking the Silence, supra note 26, at 21 (“I said to myself, damn I'm really doing something here that I don't believe in. I don't believe in it 100% … Do I have no choice in the matter? In other words, should I refuse? Is refusal the answer?”).

71 See Osiel, Mark, The Uncertain Scope of “Manifest” Illegality, in Obeying Orders: Atrocity, Military Discipline & the Law of War 71 (2d ed. 2002).Google Scholar

72 These terms are borrowed from the online commentary of ProfessorHaber, Jeremiah, How the “Most Moral Army in the World” Urinates on the Floor of University Professors, The Magnes Zionist, Jan. 20, 2009, available at http://themagneszionist.blogspot.com/2009/01/how-most-moral-army-in-world-pisses-on.html.Google Scholar

73 Breaking the Silence, supra note 27, Testimony 12.

74 See Breaking the Silence supra note 26, at 12. See also Breaking the Silence, supra note 27, Testimony 7 (“The main bulk of the assignments is offensive in nature … essentially they are intended to make people (Palestinians) constantly aware of your presence. So they'll never feel comfortable, and realize the army is always around … That anywhere they go, the[y] can be inspected … I guess it's some kind of strategic concept, that they'll want to ostracize terrorists, anyone involved in insurgency … [A]t officers' training they would lecture us about this, taken for granted. Namely, the objective is to force the Palestinian population into rejecting terrorists.”). See also Breaking the Silence, supra note 26 at 27 (“just as a deterrent, just to instill fear.”)

75 Breaking the Silence, supra note 27, Testimony 16.

76 See Kretzmer, supra note 25, at 161. Kretzmer points to a number of cases that have attempted to question the deterrent effect of demolitions. “However, the Court has never accepted the argument that the measure is ineffective as a deterrent.” (Id. at 161). See HCJ 897/86 Jabar v. The Commander of Central Command 41(2) PD 522 (1987), in which the Court found that the use of house demolitions for the purposes of deterrence was valid since the measure authorizing the demolition order predated occupation. It is notable that the court stated unequivocally in HCJ 7015/02 Ajuri v. The IDF Commander in the West Bank (Sep. 3, 2002) Israel Supreme Court Database, English translation available at http://elyonl.court.gov.il/files_eng/02/150/070/al5/02070150.al5.pdf, that deterrence is not a lawful basis for the forcible relocation of an innocent person. Nonetheless, it upheld two of the deportations in this instance, supported by a controversial reading of the notion of “assigned residence” in Article 78 of GC IV (supra note 60), despite the fact that the state relied exclusively on a deterrence justification until very late in proceedings, and presented very limited arguments and no evidence to support a finding that the individuals posed a future danger. According to B'Tselem, the Court regularly defers to the discretion of the military commander in such instances, thereby providing implicit imprimatur to the policy of deportation as deterrence. See B'Tselem, Deportation of Family Members to Gaza: Prohibited Collective Punishment, available at http://www.btselem.org/english/Deportation/Deportation_to_Gaza.asp. For criticism of the judiciary's ready acceptance of the IDF's broad definition of “military necessity” in the context of house demolition orders, see the analysis in Human Rights Watch, Razing Rafah: Mass Home Demolitions in the Gaza Strip, 127–130 (Oct. 17, 2004), available at http://www.hrw.Org/node/l1963/section/1.

77 See Breaking the Silence, supra note 27, Testimony 11 (“We didn't know ifit was legal or not … A fake arrest is basically a training move, to practice arrest procedure in order to be able to carry it out. Again, to intimidate, deter Palestinians, to say: This here is army. So that will be the next day's talk around the Palestinian neighborhood.”).

78 See Kretzmer, supra note 25, at 190, 196. A similar observation is made by James Ron with respect to the legal system more generally. As Ron notes with respect to the rationalisation of coercive interrogation, “[t]he process of acknowledgement and justification penetrated deeply into the judicial system, and both Israeli military and civilian legal experts became enmeshed in the process of legitimation.” See Ron, supra note 55, at 288. For further analysis of recent High Court decisions, see Mersel, Yigal, Judicial Review of Counter-Terrorism Measures: The Israeli Model for the Role of the Judiciary During the Terror Era, 38 Int'l L. & Pol. 67 (2006).Google Scholar See also Barak-Erez, Daphne, The International Law of Human Rights and Constitutional Law: a Case Study of an Expanding Dialogue, 21-CON 611 (2004).Google Scholar The jurisprudence has also been a source of acrimonious debate between ProfessorDershowitz, Alan and ProfessorFinklestein, Norman in their respective books: The Case for Israel (2003)Google Scholar and Chutzpah, Beyond: On the Misuse of Anti-Semitism and the Abuse of History (2008).Google Scholar

79 See Kretzmer, supra note 25, at 187.

80 Breaking the Silence, supra note 26, at 25–26.

81 Maoz, Zeev, Defending the Holy Land: A Critical Analysis of Israel's Security and Foreign Policy 279 (2006).CrossRefGoogle Scholar

82 Id. at 280.

83 Id. at 551.

84 Id. at 280.

85 See GC IV, supra note 60, art. 33(3). (“Reprisals against protected persons and their property are prohibited.”). See Frits Kalshoven, Belligerent Reprisals (2005). In Prosecutor v. Kupreskic, Case No IT–95–16–T, Trial Judgment, ¶ 527–28 (Jan. 14, 2000), the International Criminal Tribunal for the Former Yugoslavia found that the inherently barbarous practice of reprisals against civilians was prohibited as a rule of customary international humanitarian law, despite the scant evidence of State practice, “under the pressure of the demands of humanity or the dictates of public conscience [i.e., the Martens Clause].”

86 Staff Sergeant (res.) Liran Ron Furer, interviewed by Levy, Gideon, Twilight Zone: “I Punched an Arab in the Face,” Haaretz, Nov. 21, 2003.Google Scholar Furer, Liran, Checkpoint Syndrome (2003)Google Scholar, recounts his experiences as a checkpoint guard from 1996–1999, a relatively quiet period in the conflict.

87 Mendelson-Maoz, supra note 7, at 218.

88 James Ron comes closest in this regard. For the most part, the sociological literature overlooks perspectives of legality in their analysis of interviews with soldiers, preferring to focus on other justificatory discourses.

89 Kaplan & Ben-Ari, supra note 30, at 398.

90 See Sasson-Levy (2002), supra note 30, at 358.

91 Sasson-Levy, who makes an important contribution to the literature in this area, explores the reproduction of ethnic and class stratification in the Israeli army. As she noted in id. at 357: “In Israel, hegemonic masculinity is identified with the masculinity of the Jewish combat soldier and is perceived as the emblem of good citizenship. This identity … assumes a central role in shaping a hierarchal order of gendered and civic identities that reflects and reproduces social stratification and reconstructs differential modes of participation in, and belonging to, the Israeli state.”

92 For Sasson-Levy, military service “reinscribes the hierarchy between these soldiers and groups that do not serve in the army, namely, Palestinians and women of the lower classes … and declares that they are normative Israeli men.” See id. at 369.

93 Sasson-Levy (2008), supra note 30, at 316.

94 See, e.g., Breaking the Silence, supra note 27, Testimony 64 (“[H]e told me that there was this ruling by some rabbi that Arabs are not humans. Some regional rabbi ruled this, and that it was okay to throw stones at them, really okay. And you're standing there, in shock…”), Testimony 81 (“The Jew is allowed to do anything he pleases”), Testimony 56 (“Obviously, if it's a Palestinian child you arrest and shackle him and all. Not Jews. We're there to serve the Jews. That's also part of this sense of injustice. For you have a very clear feeling that you're helping the Jews. As though you're helping them in their revenge against the Arabs. You're helping them do it, hassle Arabs. They hide behind you.”), Testimony 81 (“But there's not too much you can do about the Jews. What can you do? …A Jewish kid walks along, an Arab kid passes by, boom! He kicks the Arab in the face. Now if the Arab hits back, I have to catch him, slap his face. Got it? The Jew is allowed to do anything he pleases.”), and Testimony 84 (“I mean you have the ability to use force against Palestinians. You cannot use force against Jews. You don't want to use force, it always reaches such an extent that you have to exercise force against the side that does not deserve it…”). See B'Tselem & ACRI, supra note 17. The observation that IDF soldiers fail to enforce the law against settlers is consistent with the hundreds of testimonies given to B'Tselem over the years. See B'Tselem, Means of Expulsion: Violence, Harassment and Lawlessness Against Palestinians in the Southern Hebron Hills (July 2005)Google Scholar, and Free Rein Vigilante Settlers and Israel's Non-Enforcement of the Law (Oct. 2001).

95 This observation is consistent with what some scholars have termed “Type I” norm internalization. For an overview of these theories, including mechanisms such as role playing, normative suasion and strategic calculation, see Checkel, Jeffrey T., International Institutions and Socialization in Europe: Introduction and Framework, 59 Int'l Org. 801 (2005)CrossRefGoogle Scholar, and the other contributions in that volume.

96 Cohen, supra note 49, at 147.

91 Id. at 147–48.

98 Boudreaux, Richard, Israeli Army Rabbis Criticized for Stance on Gaza Assault, L.A. Times, Mar. 25, 2009, http://articles.latimes.com/2009/mar/25/world/fg-israel-holywar25.Google Scholar The article also cited Avi Sagi, a Bar-Han University philosophy professor who co-authored the military Code of Ethics, saying “The army itself is a battleground of conflicting ideals in Israeli Jewish society.”

99 Breaking the Silence, supra note 26, at 10.

100 Greenfield, Steve, Osborn, Guy, & Robson, Peter, Film and the Law 51 (2001).CrossRefGoogle Scholar

101 Breaking the Silence, supra note 26, at 10.

102 The quote appears in the documentary film footage. For statements which appear in the written documentation, see infra note 107.

103 For Hart, the compliance must be by the population for primary rules, by relevant officials for secondary rules. See Hart, H.L.A., The Concept of Law (Bulloch, Penelope & Raz, Joseph eds., 2d. ed. 1994) (1961).Google Scholar

104 See Breaking the Silence, supra note 26, at 4 (“Whatever I used to call democracy here, would simply vanish in Hebron. Jews did as they pleased there, there were no laws. No traffic laws. Nothing. Whatever they do there is done in the name of religion, and anything goes—breaking into shops, that's allowed … As a soldier I had a real problem because I come from a family that believes in values, in morals. I was in a youth movement. I knew about democracy, had learned about it in school. And I find myself in an army post, having to say to people: ‘Listen, you can't get through here now.’ ‘Why not?’ ‘Because these are the orders now …’). See also id. at 24 (“Since there is no law in effect there, they [the settlers] can do whatever they please …”).

105 One soldier notes perceptively: “Okay, so here you're in a different state. That is to say, everything you have known until now, all the rules by which you and your own family conduct your lives, all that does not seem to count here,” cited in id. at 22.

106 See discussion in Ben Saul, Defining Terrorism in International Law (2006).

107 See, e.g., Marks, Susan R. & Clapham, Andrew, International Human Rights Lexicon 358 (2005).Google Scholar

108 Gearty, Conor, The Future of Terrorism 24 (1997)Google Scholar cited in id. at 358.

109 Gearty, Conor, Human Rights in an Age of Counter Terrorism, Oxford Amnesty Lecture 2 (Feb. 23, 2006).Google Scholar

110 According to Gearty, “[t]his trick with the truth is only possible because of the way in which the idea of the terrorist has come to be seen as a category of person rather than the purveyor of a type of conduct.” Gearty, Conor, Terrorism and Morality, Eur. Hum. Rts. L. Rev. 377, 382 (2003).Google Scholar

111 Breaking the Silence, supra note 27, Testimony 16.

112 Speaking at the IDF Induction Centre in March 2009, Chief of the General Staff Lt. Gen. Gabi Ashkenazi stated, “I don't believe that IDF soldiers hurt civilians intentionally, in cold blood … The IDF is one of the world's most moral armies …” These comments were in response to the publication of testimonies which alleged that civilians were intentionally targeted during Operation Cast Lead. See Schneider, Dikla & Ben-Dror, Amon, The IDF is one of the World's Most Moral Militaries, IDF, Mar. 23, 2009, available at http://dover.idf.il/IDF/English/News/today/09/03/2302.htm.Google Scholar See also Pidd, Helen, Gaza Offensive: Israel Military Says No War Crimes Committed, Guardian, Mar. 31, 2009, available at http://www.guardian.co.uk/world/2009/mar/31/israeli-military-denies-war-crimes-gaza.Google Scholar (Israeli Defense Minister, Ehud Barak, said the investigation into war crimes allegedly committed during the 2009 Gaza offensive “showed that Israel possess ‘the most moral army in the world”’).

113 See Heller, supra note 52.

114 Weizman, Eyal, Hollow Land: Israel's Architecture of Occupation 197–201 (2007).Google Scholar

115 Id. at 201.

116 Id. at 186.

117 The widely criticized use of bulldozers during the military operations in Balata, Nablus, and Jenin in 2002 arguably reflected this philosophy turned into practice. See Amnesty International, Israel and the Occupied Territories, Shield from Scrutiny: IDF Violations in Jenin and Nablus, Al Index MDE 15/143/2002, Nov. 2002Google Scholar; The Secretary-General, Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/10, U.N. Doc. A/ES-10/186 (July 30, 2002)Google Scholar; Jenin: IDF Military Operations, 14 Hum. Rts. Watch (May 2002).

118 de Sousa Santos, Boaventura, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition, 473 (1995)Google Scholar, cited in Butler, Chris, Critical Legal Studies and the Politics of Space 18 Soc. & Legal Stud. 313, 316 (2009).CrossRefGoogle Scholar

119 Id.

120 Butler, supra note 118, at 316.

121 See Weiss, Meira, War Bodies, Hedonistic Bodies: Dialectics of the Collective and the Individual in Israeli Society, 24 American Ethnologist 813, 815 (1997)CrossRefGoogle Scholar cited in Sasson-Levy (2008), supra note 30, at 317.

122 Osiel, supra note 67 & Osiel, supra note 71.

123 For the political potential of such ethically-oriented self-narratives, see Charles Taylor, Sources of the Self: The Making of the Modern Identity (1989).

124 Associations Law, 5740–1980 (Amendment—Exceptions to the Registration and Activity of an Association), 2010. The Bill was modified in July 2010 to remove many of the more contentious components but retained the reporting obligations. See Modified Bill to Monitor Funding of Israeli NGOs Discussed: Israeli Civil Society Fearful as Knesset Increases Legislation Efforts, JNews, July 16, 2010, available at http://www.jnews.org.uk/news/modified-bill-to-monitor-funding-of-israeli-ngos-discussed. See also Adalah, et. al., Position Paper: Government-Backed Legislation Curtailing Foreign Funding Seeks to Undermine Civil Society in Israel (Apr. 2010).Google Scholar

125 See Menuchin, Ishai, An Assault on Democracy, Haaretz, July 16, 2010, available at http://www.haaretz.com/opinion/an-assault-on-democracy-1.302316.Google Scholar

126 See MKs Hold Stormy Debate over Leftist Probe, YNET, February 2, 2011, available at http://www.ynetnews.com/articles/0,7340,L-4022354,00.html. The move to set up the panels has been condemned by the Knesset's legal adviser, Eyal Yinon, as ideologically driven and one-sided, and by the Attorney General, Yehuda Weinstein, as potentially violating fundamental human rights by creating a “chilling effect.” See Lis, Jonathan, Israel's Attorney General: Probing Leftist NGOs Infringes on Human Rights, Haaretz, Feb. 21, 2011, available at http://www.haaretz.com/print-edition/news/israel-s-attorney-general-probing-leftist-ngos-infringes-on-human-rights-1.344684.Google Scholar

127 See Bourke, Joanna, An Intimate History of Killing: Face-to-Face Killing in Twentieth-Century Warfare 225–35 (1999)Google Scholar, for illustrations of the tendency to rationalize unlawful conduct, from the First World War to Viet Nam.

128 See Boudreaux, supra note 98; and Harel, IDF in Gaza, supra note 9, reporting on statements made by soldiers who were speaking as alumni at a symposium held at the Oranim Academic College in Tivon. Anshel Pfeffer, noting how those who reported on the claims were tainted as being involved in a “blood libel,” made the following observation:

These debates are taking place in academies, in homes, in yeshivas, in kibbutz dining halls and also in many parts of the army itself. Some of them are being recorded and will come out in the media and, later, as books. And they have a hallowed place in Israeli culture … it is an integral part of what this society is about.

Pfeffer, Anshel, How IDF Testimonies Led to the ‘Haaretz Blood Libel’, Haaretz, Mar. 27, 2009, available at http://www.haaretz.com/print-edition/news/anshel-pfeffer-how-idf-testimonies-led-to-the-haaretz-blood-libel-1.272988.Google Scholar It should be noted that an expedited internal military investigation into the soldiers' claims found them to be “hearsay.” For criticism of the inquiry, see Human Rights Watch, Turning a Blind Eye: Impunity for Laws-of-War Violations during the Gaza War, Apr. 11, 2010, at 2426.Google Scholar

129 A similar theme is evident in Ari Folman's remarkable film “Waltz with Bashir” (2008) which enjoyed unprecedented popularity in Israel, despite its anti-war sentiments and concern with the complicity of soldiers in war crimes.

130 See Cohen, Stanley, States of Denial: Knowing About Atrocities and Suffering (2001).Google Scholar Cohen discusses legalism as a form of denial prevalent in Israeli society and not the de-legalization process I have explored.