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[Law School, The College of Management Academic Studies, Israel] Orna Ben Naftali and Noam Zamir: "Whose ‘Conduct Unbecoming’?" Charge an officer who ordered shooting for war crime and crime against humanity

Journal of International Criminal Justice Advance Access published online
on March 3, 2009

Whose ‘Conduct Unbecoming’?
The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator
Orna Ben-Naftali* and Noam Zamir**
*Professor Orna Ben-Naftali is the Dean of the Law School, The College of
Management Academic Studies, Israel. She is also a member of the executive
board of B’tselem, the Israeli Information Center for Human Rights in the
Occupied Territories. [obennaft@colman.ac.il]
**Noam Zamir is a research fellow at the Concord Center for the Integration
of International Law into Israeli Law, the Law School, The College of
Management Academic Studies, Israel. [sonicnoam@gmail.com]


The article focuses on the decision of the Israeli Military Advocate
General (MAG) to charge an officer who ordered the shooting of a
handcuffed, blind-folded Palestinian demonstrator, and the soldier who
executed the order, for ‘conduct unbecoming’. It advances the following
propositions: (i) from the perspective of the applicable international law,
the facts of the case qualify the shooting as a war crime; (ii) said
decision of the Israeli MAG is indicative of a policy of tolerance towards
violence against non-violent civilian protest against the construction of
the Separation Wall; (iii) the implication of such policy is twofold:
first, it might transform ‘conduct unbecoming’ — which as a matter of
law is a war crime — into a crime against humanity; second, it may well
be construed as an invitation to the international community to intervene
through the exercise of universal jurisdiction.


Information about Orna Ben Naftali:

Illegal Occupation: The Framing of the Occupied Palestinian Territory

Orna Ben-Naftali
College of Management Academic Studies

Aeyal Gross
Tel Aviv University - Buchmann Faculty of Law

Keren Michaeli
affiliation not provided to SSRN


Berkley Journal of International Law, Vol. 23, p. 551, 2005

The international legal discourse on belligerent occupation has traditionally regarded the phenomenon of occupation as a fact of international life which, once established, generates normative consequences: the application of the law of occupation. Accordingly, its focus has been on the manner with which an occupying power complies, or fails to comply with specific obligations under this law. Virtually no discussion exists as to the legality of the phenomenon itself. This article proposes to expand this discourse by inquiring into the nature of the normative regime of occupation, as distinct from the legality of specific actions undertaken within it. Such an inquiry, rather than regarding the phenomenon of occupation as merely a fact of power, identifies a norm which governs the phenomenon, thereby making it possible to differentiate between legal and illegal occupations. This identification involves a legal construction relating to both the normative order which is generated by an occupation and to the normative order which generates the legal regime of occupation. Focusing on the continued Israeli occupation of the Palestinian territory conquered in 1967, the article argues that this occupation has become illegal both intrinsically (that is, in terms of the normative regime of occupation) and extrinsically (that is, in terms of the international legal order which generates the normative regime of occupation as an exception to the normal order of sovereign equality between states: the situation is exceptional due to the severance of the link between sovereignty and effective control). Section I advances this proposition.

The intrinsic legality of an occupation is to be measured in relation to three interrelated fundamental legal principles: (a) Sovereignty and title in an occupied territory is not vested in the occupying power; under contemporary international law, and in view of the principle of self-determination, said sovereignty is vested in the population under occupation; (b) The occupying power is entrusted with the management of public order and civil life in the territory under control. In view of the principle of self-determination, the people under occupation are the beneficiaries of this trust. The dispossession and subjugation of these people is thus a violation of this trust, and (c) The occupation is temporary, as distinct from indefinite. The violation of each of these principles, as distinct from the violation of a specific norm which reflects an aspect of these principles, renders an occupation illegal. Further, these principles are interrelated: the substantive constraints on the managerial discretion of the occupant elucidated in principle (a) and (b) respectively, generate the conclusion that it must necessarily be temporary, and the violation of the temporal constraints expressed in principle (c) cannot but violate principles (a) and (b), thereby corrupting the normative regime of occupation. This occupation is illegal. This is the nature of the Israeli occupation. The extrinsic legality of an occupation is to be measured by its exceptionality. Once the boundaries between the exception and the rule are blurred, the occupation becomes illegal. The Israeli occupation has thus blurred these boundaries. Section II substantiates this argument.

Concluding Section III focuses on the indeterminacies of this occupation as reflecting both its essential feature and its legitimizing mechanism, and proceeds to consider the normative consequences of an illegal occupation.


Information about Noam Zamir:

ISRAEL: The quiet rebellion

23 May 2001

An outsider may observe the Israeli-Palestinian conflict and see Israel as
an oppressive military occupier — confiscating land, bulldozing houses,
imprisoning thousands of poverty-stricken people in their homes through
curfews, and besieging them in their villages. However, in this case, as in
so many others, the oppressor sees itself in a completely different light
from the rest of the world.

The mental universe of many Israelis is dominated by an ethnic nationalism
which has a particularly fearful and militaristic dimension — being
shaped by the horrendous traumas of the recent Jewish past. They see
themselves as continuing victims of irrational “anti-Semitism” that
will not cease until “they” have “thrown us into the sea”.

Even once pro-peace Israelis have since the outbreak of the recent intifada
gone through an orgy of self-chastisement for their “naivety” and have
reverted to these old formulas.

For Jewish Israelis, military service (for three years from the age of 18
for males, shorter for females) is the centrepiece of a young person's
life. For boys, army service is a near obsession throughout childhood and
adolescence. The military is paramount in national life and military
service is a youngster's initiation into adulthood and license for full

While exemptions from service are automatically granted to students in
Jewish religious seminaries, there is no recognition of conscientious
objectors (absolute or selective) in law — objectors face military trials
and imprisonment. In addition, the current “us or them” climate in
Israel can make life cruel for the small minority of kids who refuse to
take part in the military occupation and oppression of Palestinians.

To shed light on this quiet dissent, Green Left Weekly spoke with Noam
Zamir, an 18-year old member of the Jerusalem branch of the Israeli
Communist Youth League, known by its Hebrew acronym “Banki”. The group
is the youth wing of Hadash, a party of both Jews and Arabs with three
members in the Israeli parliament.

What is the response of the Israeli army to a young person who is
ideologically opposed to what the army is doing to the Palestinians?

The military has a certain fear of youth who refuse to serve in the army of
occupation. Jewish Israeli youth undergo a long preparation process so that
they'll be motivated and ready to serve regardless of their political
views. It starts already in kindergarten with songs about the state and the
brave soldiers. In primary school you learn the historical “facts”
about the Zionists who settled in Palestine and transformed it from a swamp
into a successful enterprise. It continues in high-school history classes.
We are taught that the Arabs wanted to destroy the Jews without any real
reason while the Zionists were always trying to reach a compromise.

So the army sees those who refuse to serve for ideological reasons as
evidence of a failing system and as a danger to society's consensus. On the
other hand it understands they are intelligent people who cannot accept
injustice. So it prefers not to confront them but simply to push them even
further away from mainstream society and exempt them for mental health
reasons. This is something that will cause problems for the person in the
future — in things like finding a job or even getting a driver's license.
Occasionally the army offers them service in non-combat units.

If objectors reject reject both non-combat service and mental health
exemption, the army sends them to prison. At the end of the day, if
objectors haven't given in, they will be released on the grounds of
“unsuitability”. This is the exemption they give to people who have
criminal records or behavioural problems. To this day there has not been a
case of the army exempting somebody on grounds of conscience.

Are you worried about your own army service?

With my upcoming army service, I was full of dilemmas. But in the end I
understood that I couldn't confront the army if I didn't have full support
from my family and unfortunately I don't. My father, who thinks of himself
as a man of the left, sees the army as a supreme value. It shows how the
left here has taken on a semi-fascistic outlook when it comes to Israel. My
service will be near home in a non-combat unit. Even so, I'm not sure that
I will complete my full term. If I decide that I can't do it any more, I
will just leave no matter what the consequences.

It must be very difficult on a personal level to voice one's opinions. Do
you keep quiet among your friends at school?

In my school I can voice my non-Zionist opinions and discuss my communist
beliefs freely but my school is not really representative. I go to a music
high school where the political views range from the Labour Party leftward.
I do raise my voice in history class when we are taught certain
“facts”. Also in civics class I have a big argument with my teacher. I
can say that civics classes in the Israeli school system are the biggest
form of brainwashing. For these classes they bring all sorts of
intellectuals and professors who justify the discrimination against
minorities and there is no voice for the real left.

For my fellow Banki members, voicing their opinions in school can be
dangerous. Most of the Jewish population is right wing. And since the
outbreak of the recent intifada there has been a shift to the right even
among Meretz [a “left-wing” Zionist party] voters. I am choosy about
who I debate with outside school, but generally we haven't been attacked
except by verbal abuse. We have received threats from the extreme right,
but we are committed not to abandon the street to the fascist groups.

Here we see the terrible damage that [former Prime Minister Ehud] Barak has
done. He proposed all sorts of final offers to end of the conflict that
were actually proposals for a Palestinian surrender. When the Palestinians
refused, he adopted the right-wing line that there was “no partner for
peace”. He has just about destroyed the left.

[The interview was translated from Hebrew for Green Left Weekly.]


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