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Orna Ben Naftali's "Whose Conduct Unbecoming" full paper, based on cooked video provided by B'Tselem

Dr. Orna Ben-Naftali, Head, International Law Division, The Law School, The College of Management, Academic Studies. Tel. (9723) 963-4121 E-mail: obennaft@colman.ac.il

To view the cooked video provided by B'Tselem and news report http://www.ynetnews.com/articles/0,7340,L-3570692,00.html





Electronic copy available at: http://ssrn.com/abstract=1366775


Whose Conduct


The Shooting of a Handcuffed, Blindfolded

Palestinian Demonstrator

Orna Ben-Naftali* and Noam Zamir**


The article focuses on the decision of the Israeli MilitaryAdvocate 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 SeparationWall;

(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.

1. Introduction

The termconduct unbecoming has an archaic ring to it, echoing bygone days,

where officers were gentlemen and only gentlemen could become officers;1

where a certain, not necessarily specified but nevertheless clear code of

* 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 Btselem, 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.


1 Such an offence still exists in military codes of justice, see e.g. Art. 133 of the United States

Uniform Code of Military Justice: Any commissioned officer, cadet, or midshipman who is

convicted of conduct unbecoming an officer and a gentleman shall be punished as a courtmartial

may direct. See generally, E.L. Hillman, Gentlemen under Fire: The U.S. Military and

‘‘Conduct Unbecoming’’’, 26 Law and Inequality Journal (2008) 1^57.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Journal of International Criminal Justice (2009), 1 of 21 doi:10.1093/jicj/mqp012

_ Oxford University Press,2009, All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org

Electronic copy available at: http://ssrn.com/abstract=1366775

honour was expected of members of a certain class, reflecting their ethically

superior esprit de corps and, by implication, legitimizing their privileged status.

Yielding to democratization processes, that class is currently far less specific,

but old habits die hard. The offence of conduct unbecoming still exists in

many military codes, which have, probably grudgingly, been brought up to

date, by inserting, for instance, an explanatory note to the effect that [A]s

used in this article, ‘‘gentleman’’ includes both male and female.2

Common explanations of the nature of the offence tend to relate the conduct

to personal disgrace which, if committed in a personal capacity seriously compromises

the officers character as a gentlemen, and, if committed in a professional

capacity seriously compromises the person standing as an officer.3

Such disgrace is indicated by acts of dishonesty, unfair dealing, indecency,

indecorum, lawlessness, injustice, or cruelty. Examples of the offence include

making a false official statement, using insulting language, cheating in an

exam, being drunk in a public place and public association with prostitutes.4

Shooting a blindfolded, handcuffed civilian detainee does not fit within the

usual conception of conduct unbecoming an officer and a gentlemen. Such

conduct is indeed unbecoming, but from a broader human perspective which

focuses on the human dignity of the victim rather than on the honour of the

perpetrator.5 Conduct of this nature is also commonly qualified as a war crime.

Such shooting was ordered by an officer of the Israeli Defense Forces (IDF) and

executed by a soldier during a routine non-violent demonstration against the

construction of the Separation Wall in the Occupied Palestinian Territory

(OPT).6 The Israeli Military Advocate General (MAG), Avichai Mandleblitt,

decided to charge both with conduct unbecoming.7

The case raises a myriad of issues ranging from the proper response to

civilian demonstrations against the illegal construction of the Wall8 to obedience

to a manifestly illegal order. The focus of this article, however, is limited to

the designation of the shooting of a blindfolded and handcuffed detainee as

2 G. Filbert and A.G. Kaufman, Justice and Procedure in the Sea Services (3rd edn., Annapolis,

Maryland: Naval Institute Press, 1998), 112.

3 Ibid.

4 Ibid., at 115.

5 OnhumandignityseeO.Kamir,Israeli Honour and Dignity: Social Norms, Gender Politics and the

Law (Tel Aviv: Carmel Publishing, 2004), 19^43 (in Hebrew).

6 Legal Consequences of the Construction of aWall in the Occupied Palestinian Territory, Advisory

Opinion, ICJ Reports (2004) 136.

7 See HCJ 7195/08 Abu Rahma et al. v. the MAG, at 7^9 (a petition against the MAGs decision)

(hereinafter Petition). The petition is available online at www.acri.org.il/pdf/petitions/

hit7195.pdf (visited 24 January 2009) (in Hebrew). Note that the conduct unbecoming offence

is stipulated in Art. 130 of Israels Military Justice Law 5715-1955. In general, the jurisprudence

of military courts in Israel indicates that such conduct denotes an act which dishonours the

actor and is morally objectionable. See e.g. A/365/81 Maj. Binyamini v. the Chief Military

Prosecutor; A/256/96 Maj. Bibas v. the Chief Military Prosecutor. It is usually inserted in an

indictment together with other offences: e.g. a soldier who poured boiling water on a cat was

charged both with cruelty to animals and conduct unbecoming. See A/107/03 St. Srg. Kradi v.

Chief Military Prosecutor.

8 Construction of aWall, supra note 6, at 181^193.

2 of 21 JICJ (2009)

conduct unbecoming and to its implications. Part 2 details the facts of the

incident and proceeds to consider additional relevant data which suggest that

the incident, far from being exceptional, in fact reflects routine IDF practice.

Part 3 advances the argument that the treatment of the detainee, from the

moment of his apprehension and up to his shooting is a war crime. Part 4

focuses on the implications of the MAGs decision to categorize this treatment

as conduct unbecoming. It proposes that to the extent that such conduct

reflects common and perhaps even systematic practice, the MAGs decision is

even more problematic: it is indicative of a policy of tolerance towards military

violence directed at non-violent civilian protest against the construction of the

Wall. The implication of such policy is twofold: first, it might transformconduct

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.

2. The Factual Framework

A. The Facts of the Incident

On 7 July 2008, during a routine demonstration against the construction of

the SeparationWall in Nilin, a village in theWest Bank,9 Israeli border policemen

stopped, handcuffed and blindfolded a 27-year old Palestinian demonstrator,

Ashraf Abu Rahma. He was taken to an army jeep, beaten and driven to the

villages entrance, where he was left for some two hours. Thereafter, still handcuffed

and blindfolded, a Lieutenant Colonel of the IDF led him by the arm to

stand next to a jeep after which the following exchange took place between the

officer and a soldier standing less than 2 meters away. Speaking in Hebrew, the

officer asked the soldier: What do you say, shall we take him aside and ‘‘shoot

rubber’’ at him? The soldier responded, also in Hebrew: I have no problem

shooting him. The officer then instructed the soldier to load the bullet and

the soldier responded that he had already done so. The soldier then aimed his

weapon at the demonstrators legs and fired a rubber-coated steel bullet at him,

hitting his left toe.10

9 Nilin is a Palestinian village located 17 kilometres west of Ramallah in the centralWest Bank.

In May 2008, work began on the construction of the SeparationWall in the villages land. The

route of theWall designed to secure the neighbouring settlements requires confiscation

and destruction of agricultural lands, including the olive groves which are the main source of

the villagers livelihood. Organized demonstrations against the construction of the wall take

place on a regular basis, involving the Palestinian villagers, Israelis and internationals (mainly

from the International Solidarity Movement). See, http://imeu.net/news/article0013888.shtml;

www.ynet.co.il/english/articles/0,7340,L-3579716,00.html (visited 24 January 2009).

10 The so-called rubber bulletsare in fact steel bullets, coated with thin rubber. They are used to

disperse demonstrations based on the belief that such bullets are less lethal than live ammunition

and that they are therefore appropriate for use in situations that pose no threat to the IDF

soldiers lives. Yet, they can be lethal, a fact acknowledged by the drafters of the Open-Fire

Regulations, which stipulate, inter alia, a minimum range for firing them of 40 meters. In fact,

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 3 of 21

The incident was filmed by Salaam Amira, a15-year old girl from Nilin, from

her home.11On 20 July Btselem, the Israeli Information Center for Human Rights

in the OccupiedTerritories, received and published the video-clip she shot.12

Following the publication of the video-clip, Btselem demanded that a military

police investigation be opened and that the soldier, Staff Sergeant L., and

the officer who turned out to be the battalion commander, Omri Borberg, be

brought to justice. It was only then that the MAG ordered an investigation and

the commander was transferred to a training officer position. In an interview,

the Chief of Staff stated explicitly that he does not rule out the possibility that

in the future the commander would resume his previous post.13

Following the investigation, the MAG decided to prosecute both the soldier

and his then commander for conduct unbecoming. A conviction for this

offence does not result in any criminal record.14 According to the military

indictment, the commander intended merely to frighten the detainee, whereas

the soldier understood that he had been ordered to shoot.15 It should be noted

here that the detainee was blindfolded and his understanding of Hebrew is

extremely limited, a fact apparently known to the commander. It is also important

to note that ample evidence suggests various other questionable incidents

under the command of Lt Col Borberg, which include shootings at Palestinian

civilians involving both rubber bullets and live ammunition, denying injured

Palestinians access to medical care and detainee beatings.16

On 19 August, Ashraf Abu Rahma and a coalition of human rights organizations

filed an urgent petition to the Israeli High Court of Justice (HCJ) against

the MAGs decision, demanding that the indictment be altered to reflect

the gravity of the offence.17 The HCJ issued an interim injunction deferring

both criminal proceedings and requiring the MAG to justify his decision.18

rubber bullets have caused the deaths of dozens of Palestinians, and it is probable that the fact

that they are perceived as less lethal generates a light trigger-finger. See, www.btselem.org/

english/Firearms/Rubber_Coated_Bullets.asp (visited 24 January 2009).

11 The day following the release of the video, Salaams father, Jamal, was detained by the IDF for

26 days, probably as a vengeful measure for the release of the video clip, a connection acknowledged

even by the military court which, having found no evidence to justify his continued

detention, ordered his release. See www.ynet.co.il/english/articles/0,7340,L-3583912,00.html

and www.haaretz.com/hasen/spages/1016196.html (visited 24 January 2009).

12 The video clip is available at http://www.btselem.org/english/Firearms/20080819_HC_Suspends_

Proceedings_In_Nilin_Shooting_Case.asp (visited 24 January 2009).

13 See http://www.ynet.co.il/english/articles/0,7340,L-3581694,00.html (visited 24 January 2009).

14 Criminal Register and Rehabilitation Law1981 (Regulations 1984).

15 Cited in Petition, supra note 7, at Section E, 7^9 (a petition against the MAGs decision).

16 Petition, supra note 7, at 7^10.

17 Petition, ibid. The petitioning organizations are: Btselem The Israeli Information Center for

Human Rights in the Occupied Territories (www.btselem.org/English/About_BTselem/

Index.asp); The Association for Civil Rights in Israel (ACRI, www.acri.org.il/eng/Story.

aspx?id¼15); The Public Committee Against Torture in Israel (PCATI) (www.stoptorture.org.il/

en/odot); and Yesh Din- Volunteers for Human Rights (www.yesh-din.org/site/index.php?


18 See HCJ interim-injunction available online at http://elyon1.court.gov.il/files/08/950/071/r01/

08071950.r01.pdf (visited 24 January 2009).

4 of 21 JICJ (2009)

On 28 September, the HCJ held a hearing on the petition and ordered the MAG

to reconsider the indictment and to inform the court of its decision within

40 days.19 On 4 November, following extensive consultations with the top

echelons of the military and the government legal advisers, including the

State Attorney General, the MAG decided to retain the original indictment

and charge the officer and the soldier with no offence other than conduct


This decision merits special attention not only because it trivializes a grave

incident, but also because there is ample evidence suggesting that this incident

reflects common and perhaps even systematic practice in the territories. Indeed,

what is exceptional is that the incident was filmed and that the video-clip was

distributed. The fact that during the time that elapsed between the incident and

the mass distribution of the video-clip, the MAG ordered no investigation

demonstrates an inverse relationship between the IDFs concern for the honour

of its soldiers and its respect for the human dignity of Palestinians under their

control. This point is substantiated once the incident is placed in the wider

context of the military response to Palestinian demonstrations against the continuous

occupation in general and the construction of theWall in particular.

B. Placing the Incident in the Context of IDF Conduct towards

Palestinian Demonstrators and Detainees

Owing to the magnitude of the conflict, an overall evaluation of the Israeli

response to the Palestinian opposition is beyond the scope of this article.

After all, the context of such assessment is the 41-year long Israeli occupation

and more specifically the second Palestinian uprising (Intifada) that commenced

in 2000. The conflict is complex, protracted and wide in scope. For

illustration, over the last eight years an astounding number of 4,829

Palestinians have been killed by the Israeli security forces.21 Since 2005 the

average number of Palestinians in the custody of Israeli security forces exceeds

8,000.22 Cognizant of this difficulty, the following analysis confines itself

19 See HCJ decision, available online at http://elyon1.court.gov.il/files/08/950/071/r04/08071950.

r04.pdf (visited 24 January 2009) (in Hebrew). See also www.btselem.org/English/Firearms/

2008106_Nilin_HCJ_Hearing.asp http://www.ynet.co.il/articles/0,7340,L-3584653,00.html (visited

24 January 2009).

20 Available online at www.btselem.org/english/firearms/20081104_nilin_state_response.asp (visited

24 January 2009).

21 According to the information gathered by Btselem. Available online at www.btselem.org/

english/statistics/casualties.asp (visited 24 January 2009). During the past eight years, 727

Israeli civilians have been killed by Palestinians. These numbers do not include Palestinians

killed or injured during the January 2009 operation in Gaza. On the numbers of Palestinians

that have been killed by Israel in 2007, see also UN General Assembly, Report of the Special

Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and

OtherArabs of the Occupied Territories, 13 August 2008, A/63/273, xx89^91.

22 The data are supplied by the Israeli Government. Available online at www.btselem.org/english/

statistics/detainees_and_prisoners.asp (visited 24 January 2009).

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 5 of 21

merely to two facets of conduct of the IDF that are related directly to the

treatment of Mr Abu Rahma: the exercise of the rules of engagement and the

treatment of detainees.

The detention and shooting of Ashraf Abu Rahma is not an isolated incident.

Indeed, participation in demonstrations against the Israeli occupation has

proved to be a perilous activity, claiming the lives of over 100 Palestinian civilians,

at least10 of whomwere protesting against the construction of theWall.23

As stated in the 2008 report of the Special Rapporteur on the Situation of

Human Rights in the Occupied Palestinian Territories, Israeli security forces

use both rubber-coated steel bullets and live ammunition as a means to disperse

demonstrations in the OPT.24 In its 2007 annual report, BTselem stated

that over 1,000 civilians protesting against the Wall have required medical

attention since 2004 due to injuries fromrubber bullets, beatings and tear gas

inhalation and that 320 of them were injured during 2007 alone.25 According

to testimonies, most of the incidents involved no threat to the lives of the

soldiers or policemen.26 In a letter dated 31 August 2008, BTselem requested

the Israeli General Attorney to review the escalating occurrence of ostensibly

illegal shootings with rubber-coated steel bullets by the security forces. The

letter draws attention to the fact that fired from a short range, rubber-coated

steel bullets are lethal and in violation of the armys rules of engagement.27

The current rules of engagement themselves are subject to criticism from

human rights organizations. Following incidents involving injury to Jewish-

Israeli protesters,28 the IDFs rules of engagement relating to the OPT were

amended and now distinguish between demonstrations involving Israelis and

those that do not. Although the IDF denies public access to the rules, media

reports published relevant sections of these instructions.29 These rules forbid

the use of live ammunition or rubber bullets when Israeli protestors are present

in a demonstration, unless the demonstration is violent and soldiers are

faced with a clear and imminent danger.30 Palestinian demonstrations, on

the other hand, are subject to more permissive rules, whereby the use of

rubber bullets is allowed when there is danger to the physical integrity

23 Available online at www.btselem.org/english/statistics/casualties_data.asp?Category¼ 28&region¼TER (visited 24 January 2009).

24 UN General Assembly, Situation of Human Rights in the Palestinian Territories occupied since 1967:

note/by the Secretary-General, 25 August 2008, A/63/326, available online at www.unhcr.org/

refworld/country,,,,PSE,4562d8cf2,48e5e2be2,0.html (visited 24 January 2009). See x 26.

25 Available online at www.btselem.org/Download/200712_Annual_Report_eng.pdf, at 27 (visited

24 January 2009).

26 For example, Amnesty International reports that soldiers standing on rooftops of Palestinian

houses shoot at Palestinian children throwing stones. Available online at www.amnesty.org/

en/library/asset/MDE15/033/2007/en/dom-MDE150332007en.html, at section Bullets Greet

Anti-Wall Protesters (visited 24 January 2009).

27 Available online at www.btselem.org/Download/20080831_12759_Letter_to_Mazuz_Concerning_

use_of_rubber_coated_steel_bullets.doc (visited 24 January 2009) (in Hebrew).

28 Ibid.

29 www.nrg.co.il/online/1/ART1/590/452.html (visited 24 January 2009) (in Hebrew).

30 Ibid.

6 of 21 JICJ (2009)

of soldiers.31 According to BTselem, there has been a relaxation of the rules of

engagement since the outbreak of the second intifada. Thus, during operations

involving arrests of Palestinians suspected of terrorist activities, soldiers are

allowed to shoot live ammunition at anyone fleeing the areawithout confirming

the identity of the person first.Warning shots towards houses are also permitted

even when civilians are present therein.32 Another example is the death zones

around the Gaza perimeter fence where fire is opened automatically against any

person approaching the fence.33 These rules have resulted in the deaths of at

least16 people who were neither armed nor involved in hostilities.

It is estimated that over 2,000 Palestinians not taking part in hostilities have

been killed since 2000.34 The permissive character of the rules of engagement

partly accounts for the high number of civilian casualties. The problem is

exacerbated by the fact that the rules that do exist are consistently violated.

The reasons for these violations are varied, and probably include, at least to

some extent, the confusion surrounding them.35 The finger on the trigger has

become unbearably light.

The incident at hand should also be assessed in the context of the treatment

accorded to Palestinian detainees by Israeli security forces. A recent report

published by the Public Committee against Torture reveals the extent of violence

and humiliation to which Palestinian detainees are subject from the

moment of capture to post-trial imprisonment.36 Numerous testimonies give

evidence of widespread abuse of handcuffed Palestinians which begins immediately

upon arrest and consists of brutal beatings and humiliation (such

as their placement on the hot floor of military vehicles to serve as foot rest

for soldiers).37 In a study conducted by UAT (Uniting against Torture), the illtreatment

of detainees upon arrest is actually considered milder than the

treatment meted out in subsequent detention facilities.38 A report published

by BTselem and Hamoked Center for the Defense of the Individual, on the

treatment of Palestinian detainees indicates that at least 49% of the persons

interviewed reported being beaten (most commonly by punching and kicking)

31 Ibid.

32 Supra note 25, at 6.

33 Ibid., at 7.

34 Supra note 21.

35 An internal review undertaken by the IDF in 2006 found deficiencies in military training

programmes concerning rules of engagement that brought about misconceptions and misunderstanding

of the rules on the part of soldiers. Thus, for instance, confusion existed regarding

the circumstances calling for the use of rubber bullet as opposed to those permitting live

ammunition. Available online at www.ynet.co.il/articles/0,7340,L-3235501,00.html (visited 24

January 2009) (in Hebrew).

36 Available online at www.stoptorture.org.il/files/no_defense_heb.pdf (visited 24 January 2009).

37 Ibid., at 7^10.

38 Available online at www.stoptorture.org.il/files/UAT_Report2007.pdf, at 30 (visited 24 January

2009). Although the Israeli Supreme Court decreed some of the General Security Service

interrogating techniques amount to torture and are therefore illegal, they are still employed

on a regular basis. On 2 November 2008, Human rights organizations submitted a petition on

contempt of court, due to the continued use of torture. The petition is available online at http://

www.stoptorture.org.il/en/node/1332 (visited 24 January 2009).

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 7 of 21

whilst handcuffed and blindfolded;39 34% reported being cursed at (usually

with respect to the detainees family members) and humiliated (incidents

include ridicule during strip searches);40 23% reported being deprived of basic

needs such as food, water, medication and visits to the toilets.41

The abuse of Ashraf Abu Rahma is thus clearly not an exceptional incident.

It is part of a systematic pattern of conduct by the IDF against Palestinian

civilians. It should finally be stressed that security considerations, the alltoo-

automatic justification for violations of human rights, are irrelevant to

the case at hand (and, indeed, were so far not advanced) as well as to similar

cases involving the use of force against Palestinian demonstrators.42 The

proper normative characterization of the treatment of MrAbu Rahma is undertaken

in the following section.

3. The Normative Framework: International

Humanitarian Law and International Criminal Law

The treatment of Mr Abu Rahma, from the moment of his apprehension and up

to his shooting, makes for a textbook example of awar crime. It was undertaken

in the context of an armed conflict, against a civilian, and it constitutes inhumane

and cruel treatment, or at a minimum an outrage upon personal dignity.

A. The Application of International Humanitarian Law

International Humanitarian Law (IHL)43 provides the primary normative

framework applicable to this case.44

39 Available online at www.btselem.org/English/Publications/Summaries/200705_Utterly_

Forbidden.asp, at 33 (visited 24 January 2009).

40 Ibid.

41 Ibid.

42 Note that the demonstrations are considered illegal in the sense that they are not permitted by

the IDF. Indeed, it would seem that from an Israeli perspective, the law allows not merely the

deprivation of rights of Palestinian, but also deprives them of the right to protest this deprivation

peacefully. From the perspective of international human rights law as indicated by the

Special Rapporteur, Palestinian residents are entitled to protest against the construction of the

Wall. Available online at www.unhcr.org/refworld/country,,,,PSE,4562d8cf2,48e5e2be2,0.html,

x 27 (visited 24 January 2009).

43 IHL comprises the following documents: Hague Convention Respecting the Laws and Customs

of War, 18 October 1907, Annex, 36 Stat. 2277; T.S. 539 (hereinafter Hague IV or Hague

Regulations); Geneva Convention Relative to the Protection of Civilian Persons in Time of War,

12 August 1949, 75 UNTS 287 (hereinafter GC IV); Protocol Additional to the Geneva

Conventions of 12 August 1949, and relating to the Protection of Victims of International

Armed Conflicts, 8 June 1977, 1125 UNTS 3 (hereinafter AP I). GC IV and AP I together shall

be referred to, when appropriate, as the Law of Geneva.

44 IHL applies as lex specialis which does not preclude the applicability of international human

rights law. See Construction of aWall, supra note 6, x105^106; Legality of the Threat or Use of

NuclearWeapons, Advisory Opinion, ICJ Reports (1996) 226, at 240; O. Ben-Naftali and Y. Shany,

8 of 21 JICJ (2009)

The conflict between Israel and the Palestinians of the OPT is arguably a

non-international armed conflict. This is so for two reasons: first, Article 2(a) of

the Fourth Geneva Convention defines an international armed conflict as a

conflict between states;45 The OPT is not a state. Second, Israel is not a party

to the First Protocol Additional to the 1949 Geneva Conventions, the only

instrument which transforms a conflict between a state and a non-state entity

into an international conflict.46 Nevertheless, the wider context of the conflict,

namely, the occupation of the OPT by Israel, has imported the application of the

GC IV via Article 2(b) therein,47 and with it the determination by the HCJ that

the conflict qualifies as an international armed conflict.48 For the purposes of

this article, however, the classification of the armed conflict as international or

non-international is immaterial since the conduct under examination is, as

shall be argued, prohibited and criminalized in both kinds of conflict.49

B. Human Dignity as a Basic Principle of IHL

The protection of human dignity is the hallmark of IHL in both international

and non-international armed conflict. In the context of the former, Article 27

of GC IV reflects this notion. This provision is considered the basis of the

Convention, proclaiming as it does the principles upon which the whole of the

‘‘Geneva Law’’ is founded and the principle of respect for the human person

and the inviolable character of the basic rights of individual men and

women.50 Article 27 reads in its relevant part:

Protected persons are entitled, in all circumstances, to respect for their persons, their

honour . . .. They shall at all times be humanely treated, and shall be protected especially

against all acts of violence or threats thereof . . . .

Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Israel Law

Review (2003^2004) 17^118.

45 GC IVArt. 2(a).

46 AP I Art. 1(4). For a discussion on the non-international character of the conflict see O. Ben-

Naftali and K. Michaeli,Public Committee Against Torture in Israel v. Government of Israel,101

AmericanJournal of International Law (2007) 459^465, at 463^464.

47 Construction of aWall, supra note 6, x101.

48 HCJ 769/02 (2006) Public Committee Against Torture in Israel v. Government of Israel, x18, available

online at http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf (visited 24

January 2009); see A. Cassese, International Law (2nd edn., Oxford: Oxford University Press,

2005), 420.

49 See Part 2(B). Furthermore, it should be stressed that the principles of IHL that have been

violated in this case, i.e. the principle of distinction and the principle of respect for the human

person are applicable to both kinds of conflict and are part of customary law. See Decision on

the Defence Motion for Interlocutory Appeal an Jurisdiction, Tadic (ICTY-94-1), 2 October 1995,

xx 112, 127; Judgment, Kupreskic (ICTY-95-16-T), Trial Chamber, 14 January 2001, x521;

J-M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Vol. I

(Cambridge: Cambridge University Press, 2005), 3^8 and 306^308.

50 J.S. Pictet (ed.), The Geneva Conventions of 12 August 1949- Commentary ^ IV Geneva Convention

Relative to the Protection of Civilian Persons in Time ofWar (Geneva: International Committee of

the Red Cross, 1958), 200.

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 9 of 21

The reference to the obligation to treat protected persons humanely, writes

Pictet, is in truth, the ‘‘leitmotiv’’ of the four Geneva Conventions; it is to be

construed broadly as applying to all aspects of mans life; it is absolute in

character, valid in all circumstances and at all times, and remains fully valid

in relation to persons in prison or interned . . . . It is in such situations, where

human values appear to be in greatest danger, that the provision assumes its

full significance.51 Focusing on the obligation to respect the honour of protected

persons, Pictet emphasizes that the fact that the protected person is an

enemy cannot limit his right to consideration and to protection, and exemplifies

acts that fail the obligation to treat a person humanely, such as slander,

calumny and insults.52

Article 32 of GC IV specifies the principle stated in Article 27, by clarifying

that the prohibition on taking measures of such a character as to cause physical

suffering extends to any . . . measures of brutality. Two points merit

emphasis in this context: first, the similarity between this provision and the

prohibition set forth in Article 27 of GC IV on acts of violence.53 Second, the

drafters substituted a causal criterion (of such a character as to cause) for a

criterion of intention (likely to cause, which appeared in the original draft).54

The idea was, thus, to expand the scope of the prohibition.

In the context of a non-international armed conflict, Common Article 3 of

the Geneva Conventions, a Convention in miniature,55 reiterates the principle

according to which persons not taking active part in the hostilities shall in all

circumstances be treated humanelyand that acts consisting inter alia, of cruel

treatment and outrages upon personal dignity, in particular humiliating and

degrading treatment, are prohibited.56

C. Inhuman/Cruel Treatment and Humiliating/Degrading Treatment

asWar Crimes

Mr Abu Rahma qualifies as a protected person.57 He was apprehended following

his participation in a demonstration, was handcuffed and blindfolded,

beaten and driven to the villages entrance, where he was left for two hours.

In this state he was thereafter shot and injured in his toe. The conduct of the

IDF personnel towards Abu Rahma violated his humanity, dignity and person.

Under international customary law, such conduct violating the basic IHL principles

described above constitutes a war crime.

51 Ibid., 205.

52 Ibid., 202.

53 Art. 27 provides: Protected Persons . . . shall at all times be humanely treated, and shall be

protected especially against all acts of violence or threats . . .. See also Pictet, supra note 50, at


54 Pictet, supra note 50, at 222.

55 Ibid., 34.

56 Art. 3(1)(c) GC IV.

57 According to Art. 4 GC IV, Mr Abu Rahma qualifies as a protected person since he is in the

hands of the occupying power (Israel) of which he is not national.

10 of 21 JICJ (2009)

Both inhumane treatment and degrading treatment are part of the corpus

of International Criminal Law. Their constitutive elements have been identified

in the jurisprudence of the ad hoc Tribunals for the former Yugoslavia (ICTY)

and Rwanda (ICTR), a jurisprudence that is used here as an authoritative


International Criminal Law does not distinguish between inhuman and

cruel treatment as the degree of physical or mental suffering required to

prove either one of those offences is the same.59 Thus, inhumane treatment,

which is considered as a grave breach by Article 147 GC IV,60 is (i) an intentional

act or omission, that is an act which, judged objectively, is deliberate and

not accidental; (ii) which causes serious mental harm or physical suffering or

injury or constitutes a serious attack on human dignity; and (iii) committed

against a protected person.61 Similarly, cruel treatment under Common Article

3 was defined as (i) an intentional act or omission; (ii) which causes serious

mental or physical suffering or injury or constitutes a serious attack on human

dignity and (iii) committed against a person taking no active part in the


In the same vein, the elements of crimes for both Article 8(2)(a)(ii) of the

Statute of the International Criminal Court (infliction of inhuman treatment in

an international context), and Article 8(2)(c)(i) (violence to life and person, in

particular cruel treatment in a non-international context) are identical.63 They

require that the perpetrator inflicted severe physical or mental pain or suffering

upon one or more persons.64

Inhuman treatment was further characterized by the Trial Chamber in

Blaskic as follows:

inhuman treatment is intentional treatment which does not conform with the fundamental

principle of humanity . . .acts characterized in the Conventions and Commentaries as

inhuman, or which are inconsistent with the principle of humanity, constitute examples

of actions that can be characterized as inhuman treatment . . . [T]he category inhuman

treatment included not only acts such as torture and intentionally causing great suffering

or inflicting serious injury to body, mind or health but also extended to other acts

58 While the decisions of the ICTY and ICTR are binding only on the defendants brought before

them, they serve as a source supporting the existence of customary norms within Art. 38(1)(d)

of the ICJ Statute.

59 Judgment, Naletilic and Martinovic (IT-98-34-T),Trial Chamber, 31 March 2003, xx245^246.

60 Pictet, supra note 50, at 596; See also Judgment, Delalic et al. (IT-96-21-T), Trial Chamber, 16

November 1998, xx516^534.

61 Judgment, Blaskic (IT-95-14-A), Appeals Chamber, 29 July 2004, x665.

62 Blaskic, ibid., x595; Judgment, Limaj, Bala and Musliu (IT-03-66-T), Trial Chamber, 30 November

2005, x231; Judgment, Strugar (IT-01-42-T), 31 January 2005, x261.

63 A. Zimmermann, Article 8 ^ War Crimes, para 2(c)-(f), in O. Triffterer (ed.), Commentary on the

Rome Statute of the International Criminal Court - Observers Notes, Article by Article (2nd edn.,

Oxford: Hart Publishing, 2008) 475^502, at 490.

64 Elements of Crimes, Adopted by the Assembly of States Parties, ICC ASP/1/3 (2002) 130

(hereinafter Elements of Crimes).

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 11 of 21

contravening the fundamental principle of humane treatment, in particular those which

constitute an attack on human dignity.65

Another guiding tool to interpret the concept of inhuman and cruel treatment

is the case law of international human rights bodies,66 as employed by

the ICTY itself.67 According to the European Court of Human Rights:

Ill-treatment must attain a minimum level of severity . . .. The assessment of this minimum

is, in the nature of things, relative; it depends on all the circumstances of the case, such as

the nature and context of the treatment, the manner and method of its execution, its

duration, its physical or mental effects and, in some cases, the sex, age and state of health

of the victim.68

The notion that since the physical effect of the shooting was merely an injury

to a toe, the shooting fails to meet the standard of serious pain accompanying

grave physical injury69 is not supported by relevant international jurisprudence.

The Appeals Chamber of the ICTY in the Brd_anin case rejected a similar

argument, holding that acts inflicting physical pain amount to torture even

when they do not cause pain of the type accompanying serious injury.70 This

is a fortiori the case when the conduct considered falls short of torture.71When

coupled with the severe mental effect of being detained for hours while blindfolded

and then shot at from short range, the conduct is bound to have an

effect akin to that of a mock execution which has been considered torture.72

The appropriate classification of the conduct is therefore not unbecoming;

rather it is inhumane and cruel.

At a minimum, the treatment of Mr Abu Rahma constitutes other acts contravening

the fundamental principle of humane treatment, in particular those

which constitute an attack on human dignity.73 While an attack on human

dignity is an element of the crime of inhumane/cruel treatment under customary

law, it should be noted that under the normative framework of the ICC

Statute it is not. Rather, a conduct amounting to an attack on human dignity

65 Judgment, Blaskic (IT-95-14-T),Trial Chamber, 3 March 2000, x155.

66 C. Droege,In Truth the Leitmotiv:The Prohibition of Torture and other forms of ill Treatment in

International Humanitarian Law, 89 International Review of the Red Cross (2007) 515^543, at

520^524; K. Do« rmann, L. Doswald-Beck and R. Kolb, Elements ofWar Crimes Under the Rome

Statute of the International Criminal Court: Sources and Commentary (Cambridge: Cambridge

University Press, 2003), 66^69.

67 Delalic et al., supra note 60.

68 Kudia v. Poland, ECHR, 30210/96 (26 October 2000), xx90^94.

69 HCJ 7195/08 Abu Rahma et al. v. the MAG, at 27 (the states response to the petition).

70 Judgment, Brd_anin (IT-99-36-T), Trial Chamber, 28 November 2003, x521.

71 For further discussion on the differences betweentortureand inhuman treatment, see C.M. De

Vos, Mind the Gap: Purpose, Pain, and the Difference between Torture and Inhuman

Treatment, 14 Human Rights Brief (2007) 4^9; G. Mettraux, Crimes Against Humanity in the

Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for

Rwanda, 43 Harvard International LawJournal (2002) 237^316, at 289^291.

72 See Commission on Human Rights, Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment: Report of the Social Rapporteur, UN ESCOR, 1986, UN Doc. E/CN.4/1986/15, x119.

73 Supra note 65.

12 of 21 JICJ (2009)

falls under the crime of committing outrages upon personal dignity, in particular

humiliating and degrading treatment laid out in Article 8(2)(c)(ii) with

respect to international armed conflicts and in Article 8(2)(b)(xxi) with respect

to non-international armed conflicts. Like the crime of inhumane and cruel

treatment, these provisions, as well as their respective elements of crimes, are

identical. The elements required are that the perpetrator humiliated, degraded

or otherwise violated the dignity of one or more personsand that the severity

of the humiliation, degradation or other violation was of such degree as to be

generally recognized as an outrage upon personal dignity.74

The foregoing elements correspond to the customary definition of the crime

as articulated by the ICTY:

[T]he crime of outrages upon personal dignity requires: (i) that the accused intentionally

committed or participated in an act or an omission which would be generally considered to

cause serious humiliation, degradation or otherwise be a serious attack on human dignity,

and (ii) that he knew that the act or omission could have that effect.75

The threshold of humiliation is high. Thus, the humiliation to the victim must

be so intense that the reasonable person would be outraged.76 There is no

requirement, however, that the injury to the victim be physical or be longlasting.

77 Furthermore, any assessment as to the level of humiliation of the

victim should take into account not only the victims subjective evaluation,

but also objective criteria.78

In light of the above, the treatment of Mr Abu Rahma qualifies as degrading

and humiliating treatment: it does not take a particularly active imagination to

understand the vulnerable state in which he found himself both physically and

mentally even before his injury and the fear he must have felt throughout the

experience. Such treatment thus qualifies as an outrage on his personal dignity

as a human being.

4. Policy of Tolerance towards Systematic Violence

and its Implications

The MAG, as noted above, decided to charge the officer who gave the shooting

order and the soldiers who executed it, with conduct unbecoming, a charge

highly unbecoming a conduct that amounts to a war crime.79 In responding to

74 Elements of Crimes, supra note 64, at 140.

75 Judgment, Kunarac, Kovac andVukovic (IT-96-23 & 96-23/1-A), Appeals Chamber, 12 June 2002,

x 161.

76 Judgment, Aleksovski (IT-95-14/1-T),Trial Chamber, 25 June 1999, xx56^57.

77 Judgment, Kunarac, Kovac andVukovic (IT-96-23 & 96-23/1-T),Trial Chamber, 22 February 2001,

x 501.

78 Kunarac, Kovac andVukovic, supra note 75, x162.

79 Note that military manuals often refer to actions that are considered war crimes in international

law as domestic offences or violations of military discipline. See W.N. Ferdinandusse,

Direct Application of International Criminal Law in National Courts (The Hague: T.M.C. Asser

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 13 of 21

the petition against this decision,80 the MAG detailed his reasoning. The

deposition emphasizes the importance the MAG attributes to taking forceful

steps against violations of the Army Rules of Conduct by soldiers. In the

present case, however, the MAG believes that the circumstances and evidence

do not merit a more severe charge since the shooting resulted from a misunderstanding

between the officer and the soldier. The investigation, proceeds

the MAG, did not reveal an intention to hurt Abu Rahma nor was there

any evidence of cruelty on the part of the soldiers involved to support

a harsher charge.When these considerations are coupled with the slight physical

injury, and with the disciplinary steps taken,81 the charge of conduct

unbecoming should be maintained.82 The view advanced by the MAG, thus,

is that the IDF employs a vigorous policy against illegal conduct of soldiers

towards Palestinians and that the manner with which this case was handled

did not constitute an exception thereto, since, in the specific circumstances,

both the disciplinary and criminal proceedings against the soldiers are


We find the MAGs position untenable as a matter of both fact and law: the

analysis of the incident advanced in Part 3 generates the conclusion that the

conduct qualifies as a war crime.When coupled with relevant data suggesting

that the investigation and prosecution policies of the IDF leave much to be

desired, the MAGs decision becomes all the more problematic. Indeed, the

handling of the Abu Rahma incident is not an exception; it is the rule. It

attests to a highly deficient enforcement system put in place by the IDF with

respect to illegal violence against Palestinians in the OPT and reflects a

consistent policy of tolerance towards such violence. These deficiencies carry

two main legal implications: first, an inadequate legal response towards systematic

violence against Palestinian civilians might indicate that said violence

constitutes state policy that renders the systematic attack against

civilians a crime against humanity. Second, the exercise of such poor judgment

as to the adequate legal response to such violations of IHL, unless

rectified by the HCJ, may be construed as an invitation to the international

community to substitute its own judgment for that of the Israeli penal


Press, 2006). Israels Military Justice Law is no exception: it does not refer toWar Crimes, but it

does include offences better suited for the conduct under consideration, such as the offences

stipulated in Arts 65 (maltreatment); 72 (excess of authority to the extent of endangering life);

85 (illegal use of arms) and 115 (offences in connection with arrest). For further discussion on

the above mentioned offences see Petition, supra note 7, at 15^16.

80 Petition, supra note 7.

81 HCJ 7195/08 Abu Rahma et al. v. the MAG, at 5,11 (states complementary notice and response by

affidavit). Available online at http://www.acri.org.il/pdf/petitions/hit7195mashlima.pdf (visited

24 January 2009) (in Hebrew).

82 Ibid.

14 of 21 JICJ (2009)

A. A Crime against Humanity

Effective penal sanctions for war crimes are a necessary component of the duty

to suppress such conduct as indicated by Article 146 GC IV.83 This is why a

deficient penal system is indicative of a states policy condoning illegal


Under International Criminal Law, as stipulated in Article 7 of the ICC

Statute, an act committed as part of a widespread or systematic attack against

any civilian population is executed pursuant to a state policy and may amount

to crimes against humanity.84 To the extent that the treatment of Mr Abu

Rahma, far from being an isolated and an exceptional incident, actually conforms

to a pattern of similar incidents, the inadequate legal response to this

and to numerous similar occurrences, might establish that it has been committed

in pursuance of a state policy, thus constituting a crime against


The customary category of crimes against humanity is codified in Article 7

of the ICC Statute. The provision enumerates 11 acts, the common denominator

of which is that they constitute aserious attack on human dignity85 and gross

violations of human rights law. Some such acts, if they take place during an

armed conflict, also constitute war crimes.86 In order for such violations to

qualify as crimes against humanity, they must be committed as part of a

widespread or systematic attack directed against any civilian population, with

knowledge of the attack.87

To qualify an attack as widespread may either refer to a single attack the

effect of which was extremely widespread, or to the cumulative effect of a

number of attacks.88 A systematic attack refers to the organized nature of

the violent acts and the improbability of their random occurrence.89 It must

83 Art. 146 of GC IV provides: The High Contracting Parties undertake to enact any legislation

necessary to provide effective penal sanctions for persons committing, or ordering to be committed,

any of the grave breaches of the present Convention defined in the following Article.

84 Art. 7(1) ICCSt. provides: For the purpose of this Statute, ‘‘crime against humanity’’ means any

of the following acts when committed as part of a widespread or systematic attack directed

against any civilian population, with knowledge of the attack.

85 A. Cassese, International Criminal Law (2nd edn., NewYork: Oxford University Press, 2008), 98.

86 For the development of the crime against humanity and for the connection between war crimes

and crime against humanity see e.g. P. Akhavan, Reconciling Crimes Against Humanity with

the Laws of War, 6 Journal of International Criminal Justice (2008) 21^37. In our case, the

situation is one of an armed conflict (see supra notes 43^48 and the text therein). In such a

situation both IHL and IHR laws apply (see supra note 44).

87 Art. 7 ICCSt.

88 International Law Commission, Report of the International Law Commission on theWork of Its

Forty-Eighth Session, from 6 May to 26 July 1996, UN GAOR, 48th Sess., Supp. No. 10, at 94^95,

UN Doc. A/51/10 (1996), at 94^95, quoting Blaskic, supra note 65, x206; see also Judgment,

Kayishema and Ruzindana (ICTR-95-1-T),Trial Chamber, 21 May 1999, x123.

89 Kunarac, Kovac andVukovic, supra note 77, x429. See also Judgment, Akayesu (ICTR-96-4-T),Trial

Chamber, 2 September 1998, x580 ([Systematic means] thoroughly organised and following a

regular pattern on the basis of a common policy involving substantial public or private

resources); Blaskic, supra note 65, x203; Opinion and Judgment, Tadic (IT-94-1-T), Trial

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 15 of 21

reflect and advance a pattern of misconduct90 that regularly interferes

with the life and existence of a person or his relationships with his social

spheres, or interferes with his assets and values, thereby offending against his

human dignity as well as humanity as such.91

The treatment of Mr Abu Rahma should be examined in the context of the

IDFs reactions to Palestinian demonstrators and Palestinians detainees that

serve as the backdrop of the incident. That context has been described in Part

2(B) above and is sufficient to establish a pattern of a cumulative effect of a

number of attacks. As suggested in Part 3, the act qualifies as other inhumane

acts of a similar character intentionally causing great suffering, or serious

injury to body or to mental or physical health.92

It is further instructive to note in this context, that in one of the Kapo trials

held in Israel during the 1950s, and the only such case in which the defendant

was found guilty of crimes against humanity under the Nazi and Nazi

Collaborators Punishment Law,93 the Israeli Court stated that a systematic

violation of human dignity can qualify as other inhumane acts, and that the

defendants acts dealing blows by a rubber club onexhausted, powerless and

dispirited victims,94 were indeed such acts.95

The requirement of a widespread or systematic attack emphasizes the collective

nature of crimes against humanity, thereby distinguishing them from

isolated or sporadic acts which, at most, may amount to war crimes. Ensuring

the gravity of the category of crimes against humanity, Article 7(2) of the ICC

Statute elaborates that the term[A]ttack directed against any civilian population

means a course of conduct involving the multiple commission of acts

referred to in paragraph 1 against any civilian population, pursuant to or in

furtherance of a state or organizational policy to commit such an attack.

The significance of the policy element in the context of Article 7(2) of the

ICC Statute cannot be underestimated. It was specifically inserted to secure the

grave nature of the crime.96 The policy element is understood to require that

Chamber, 7 May 1997, x648; ILC 43rd Sess., at 266 (The systematic element relates to a

constant practice or to a methodical plan to carry out such violations.); ILC 48th Sess., ibid.

90 Blaskic, supra note 65, x251.

91 HarlanVeit (Jud Su« ss) Germany, Court of Assizes (Schwurgericht) of Hamburg, 29 April 1950,52

cited in Cassese, supra note 85, at 100, footnote 3.

92 Art. 71(k) ICCSt.; Elements of Crimes, supra note 64, at 124.

93 Nazi and Nazi Collaborators (Punishment) Law, 1950, 4 LSI (1949^50) 154.

94 Cr. C. 9/51, Attorney General v. Enigster, 5 Psakim (Dist. Ct.) 152, at 167. Cf. Kupreskic, supra note

49, x564 (referring critically to this interpretation).

95 O. Ben-Naftali and Y. Tuval,Punishing International Crimes Committed by the Persecuted: The

Kapo Trials in Israel (1950s^1960s), 4 Journal of International Criminal Justice (2006) 128^178.

96 This was done in response to concerns regarding the disjunctive nature of the systematic and

widespread elements. See H. von Hebel and D. Robinson, Crimes within the Jurisdiction of the

Court, in R.S. Lee (ed.), The International Criminal Court: The Making of the Rome Statute

(The Netherlands: Kluwer Law International, 1999) 79^126, at 97; L.N. Sadat and R. Carden,

The New International Criminal Court: An Uneasy Revolution, 88 Georgetown Law Journal

(2000) 381^474, at 431^432.

16 of 21 JICJ (2009)

the State or organization actively promote or encourage such an attack against

a civilian populationand that,

Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to

take action, which is consciously aimed at encouraging such attack. The existence of such a

policy cannot be inferred solely from the absence of governmental or organizational


It is against this normative position that the decision of the MAG as to the

charge brought against the soldiers, assumes its primary significance: an act

might amount to a crime against humanity if it is part of an attack that is

encouraged by a states failure to take action with respect to such acts.98 It is at

this point that the Israeli policy regarding investigations of abuse becomes

relevant, indeed crucial. This is so because a systematic abdication by the

Israeli authorities of their obligation to bring charges against personnel inflicting

injuries on civilians that do not take part in hostilities might qualify as a

deliberate failure to take action, which is consciously aimed at encouraging

such attack[s].99

The nexus between this policy and the wide scope of abuse is quite clear:

illegal behaviour of an individual soldier and his commander is not the only

cause for the high number of Palestinians killed and injured who were not

taking part in hostilities and posed no danger to security forces. The primary

reason for these deaths and injuries is Israeli policy, set by the armys top

echelon, which includes illegal easing of the militarys rules of engagement,

approval of operations that constitute disproportionate attacks and failure to

carry out independent investigations in relevant cases.100

Numerous complaints brought forward by various NGOs are yet to generate

a proper response designed to rectify the situation.101 Reports by highly reputable

NGOs concerning the mistreatment of detainees have so far generated

merely an acknowledgement by the IDF regarding lack of rules and guidelines

regulating the handling of detainees in the period between their arrest and

arrival at detention centres.102 Indeed, doubts as to the internalizing of the

illegality of abuses by the military system have been voiced even in decisions

of the MilitaryAppeals Tribunal.103

97 Elements of Crimes, supra note 64, at 116, footnote 6 (emphasis added).

98 It should be noted that it is unclear whether the policy element constitutes part of the

customary definition of crimes against humanity. According to the ICTY it is not. See

Kunarac, Kovac and Vukovic, supra note 75, x98, at footnote 114 (construing the case law

supporting the need for the element as either merely highlight[ing] the factual circumstances

of the case at hand or dismissing it on the ground that it has been shown not to

constitute an authoritative statement of customary international law).

99 Elements of Crimes, supra note 64, at 116, footnote 6.

100 Supra note 25, at 5.

101 Supra note 38, at 31.

102 Supra note 36, at 33.

103 A/28/04 St. Srg. B. S. v. the Chief Military Prosecutor. Available online at http://www.courts.

co.il/SR/army/irur-28-04.htm, x16 (visited 24 January 2009) (in Hebrew).

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 17 of 21

In general, investigations and indictments are scarce. Many investigations

are hampered by a myriad of shortcomings: the time gap between reported

incidents and the decision to open an investigation means that physical evidence

has disappeared and that suspects and witnesses are harder to trace; the

military police employs only a handful of interpreters; and many investigations

are overseen by reserve commanders and are therefore frequently handed

down from one officer to another.104 Statistics gathered by Yesh Din

Volunteers for Human Rights, a human rights organization dedicated to the

enforcement of law in the OPT, substantiate this assessment105: between 2000

and 2007 out of 427 investigations conducted in relation to incidents of violence

against Palestinians only 35 resulted in indictments, 33 of which ended

in convictions; out of 239 investigations of illegal shooting incidents only 30

reached the stage of indictment and only 16 indictments resulted in


The judiciary plays some part in the culture of impunity: on top of the

dearth of investigations and indictments, the sentences meted out by military

tribunals do not reflect the severity of the crimes and rarely exceed four

months imprisonment.107 A petition filed by BTselem and the ACRI against

the MAG concerning the latters decision to refrain from investigations into

deaths of many Palestinian civilians is still pending before the HCJ, five years

since proceedings commenced.108

It follows from the above that the MAGs decision to charge the soldiers

responsible for the treatment of Mr Abu Rahma merely with conduct unbecoming

fits neatly into a pattern of inadequate sanction policy, and reflects a

policy of tolerance towards IHL violations. It also brings Israel closer to the

threshold set in Article 7 ICC Statute than it might realize.109

The MAGs insistence on classifying the shooting of the handcuffed, blindfolded

detainee as merely conduct unbecoming itself qualifies as conduct

unbecoming an officer and a gentlemen, in the sense that it disgraces both

the military esprit de corps and the integrity of the legal profession. When

coupled with the poor record of law enforcement, it is indicative of a policy of

104 Supra note 39, at 60.

105 It should be stressed that these statistics are based on the IDF Spokespersons response toYesh

Dins questions, 28 October 2007. See http://www.yesh-din.org/site/images/ds1eng.pdf, at 2,

footnote 5 (visited 24 January 2009).

106 Available online at www.yesh-din.org/site/index.php?page¼criminal4&lang¼en (visited 24

January 2009).

107 Supra note 36, at 30^31.

108 HC 9594/03, BTselem v. MAG. The text of the petition is available online at www.acri.org.il/

Story.aspx?id¼1014 (visited 24 January 2009).

109 Note that for a crime against humanity to be established, the offender must be aware of the

link between his action and the widespread or systematic practice; cognizant generally of the

larger context an attack against civilian population to which he adds his specific

offensive. The perpetrator may believe that such collegiality would shield him from future

liability. It is also quite conceivable that given the systematic practice with which his act

coheres, he sees it as nothing extraordinary. This misconceived awareness, however, is precisely

why international criminal law articulated this requirement.

18 of 21 JICJ (2009)

tolerance towards grave breaches of IHL and may itself amount to complicity

in crime.110

While an analysis of the complicity of the legal profession in the commission

of international crimes is beyond the scope of the present article,111 it is nevertheless

necessary to note that government lawyers in general and military

lawyers in particular shoulder a responsibility that extends beyond serving

the immediate interests of their formal clients. Their responsibility is to

uphold the law, not to bend it; to foster an atmosphere that condemns, rather

than condones, criminal behaviour; their responsibility is towards the general

public, its interests and values,112 and, in relevant cases, towards the international

community.113 In this context, the role played over the past few years

by the legal advisors to the Bush Administration in the horrid road leading to

Abu Ghraib is not a beacon to follow; it is a bonfire of vanities to avoid.114 The

reason was well articulated by the Nuremberg International Military Tribunal

decisions concerning legal advisors who betray their role: an officer who sold

his intellect and scholarship to power, said the Tribunal, was engaged in the

prostitution of a judicial system for the accomplishment of criminal ends, an

engagement that involves an element of evil to the State which is not found in

frank atrocities which do not sully judicial robes.115

110 The different kinds of criminal responsibility are articulated in Arts 25(3) and 28 ICCSt. See

V. Militello, The Personal Nature of Individual Criminal Responsibility and the ICC Statute, 5

Journal of International Criminal Justice (2007) 941^952. On the complicity of lawyers in international

crimes, see, Trials of War Criminals Before the Nuremberg Military Tribunal Under

Control Council Law No. 10,Vol. 3 (1951), at 31 (hereinafter The Justice Case). In The Justice Case,

high-ranking bureaucrats in the Nazi Ministry of Justice and seven individuals who served as

judges and lawyers were indicted for a conspiracy to commit war crimes and crimes against

humanity. See generally, M. Lippman, Law, Lawyers and Legality in the Third Reich: The

Perversion of Principle and Professionalism, 11 Temple International and Comparative Law

Journal (1997) 199^307.

111 P. Sands, Torture Team: Deception, Cruelty and the Compromise of Law (Allen Lane: Penguin

Group, 2008), especially 211^278.

112 See,The Role of the Legal Adviser of the Department of State, A Report of the Joint Committee

Established by the American Society of International Law and the American Branch of the

International LawAssociation (July 1990) (American Society of International Law, 1 October

1990), rep. in 85 American Journal of International Law (1991) 358^373.

113 See e.g. E. Ciammaichella, A Legal Advisers Responsibility to the International Community:

When is Legal Advice aWar Crime, 41 Valparaiso University Law Review (2007) 1143^1164.

114 See, K.J. Greenberg and J.L. Dratel (eds), The Torture Papers: The Road to Abu Ghraib (New York:

Cambridge University Press, 2005); S.G. Mestrovic, The Trials of Abu Ghraib: An ExpertWitness

Account of Shame and Honor (Boulder, CO: Paradigm Publishers, 2006).

115 The Justice Case, supra note 110, at 1086. This pronouncement was made in respect of the role

played by Schlegelberger who headed the Nazi Ministry of Justice. See also, U.S. v. von Leeb (U.S.

Military Tribunal 1948) (hereinafter The High Command Case), rep. in Trials of War Criminals

Before the NurembergMilitaryTribunals Under Control Council LawNo.10,Vol.11 (1950),462, at

490^495 (convicting Rudolph Lehman, Chief the Legal Department of the Oberkommando der

Wehrmacht for his criminal connection to the Barbarossa Jurisdiction Order, the Commando

Order and the Night and Fog Decree for either drafting or formulating the policy behind these

illegal orders); U.S. v. Go«ring (IMT 1946) in Trials of the Major War Criminals Before the

International Military Tribunal Vol. 1 (1947), 223, at 286 (convicting Joachim von Ribbentrop

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 19 of 21

B. Universal Jurisdiction and the Role of the Israeli HCJ

In light of the above analysis, it is hoped, and indeed expected that the Israeli

HCJ would reverse this decision. In doing so, it will act properly from a normative

perspective and send the right ethical message. It will further clarify that

expediency is subject to principle and that attempts to shield soldiers from

shouldering responsibility for crimes fosters a culture of impunity which the

Court finds objectionable. International Criminal Law in general and the exercise

of universal jurisdiction in particular are designed to assist the Court in

reaching this determination.

Universal jurisdiction refers to the power of the courts of any state to try

persons for international crimes, in the absence of any nexus between the

prosecuting state and the crime: as the latter was committed outside its territory,

neither the perpetrator nor the victims was its nationals, and none of its

own national interests was affected.116 Given that the international legal order

is still primarily state-centred, the granting to each state of special extraterritorial

powers is clearly exceptional. Indeed, only the failure of a domestic

system to subject alleged crimes to judicial determination justifies the exercise

of universal jurisdiction. Universal jurisdiction is, thus, a residual enforcement

mechanism, to be used as a means of last resort, when the state most concerned

has abdicated its primary responsibility, indeed obligation, to bring

offenders to justice.117 The success of this mechanism, then, can be measured

by its redundancy. Universal jurisdiction is an invitation to states in which

international crimes are committed to appropriately exercise their jurisdiction.

If the invitation is accepted, universal jurisdiction becomes redundant and

unnecessary; if it is declined, the exercise of universal jurisdiction by another

state is required to ensure that law and the order it supports remains


The Israeli HCJ should accept its invitation and overturn the MAGs decision.

In so doing, it will send a proper message both to the international community

and to its domestic constituency. It will remind the latter that Israel is part of a

globalized community and that the community will not ignore violations of its

basic norms; that sovereign prerogatives cannot remain oblivious to this reality

without paying too high a price; that the national interest is inseparable from

the international interest. Its message, that normative behaviour does not

necessarily compromise the national interest, and may indeed advance it, is

who served as Hitlers Foreign Policy Adviser, of war crimes for his memorandum justifying

Nazi preemptive strikesagainst Norway, Denmark and the Low Countries).

116 O. Ben-Naftali and K. Michaeli, Justice-ability: A Critique of the Alleged Non-Justiciability

of the Israeli Policy of Targeted Killings, 1 Journal of International Criminal Justice (2003) 368^

405, at 389^395.

117 R. Wolfrum, The Decentralized Prosecution of International Offences Through National

Courts, in Y. Dinstein and M. Tabory (eds), War Crimes in International Law (The Hague,

Boston: Martinus Nijhoff Publishers, 1996) 233^245, at 235^236.

118 G. Triggs, National Prosecution of War Crimes and the Rule of Law, in H. Durham and

T.L.H. McCormack (eds), The Changing Face of Conflict and the Efficacy of International

Humanitarian Law (The Hague, Boston: M. Nijhoff Publishers, 2000) 175^190.

20 of 21 JICJ (2009)

designed to echo in the corridors of power; reverberate in military barracks

and filter through the public discourse, reawakening democratic sensibilities

numbed by the continued maintenance of the Israeli control over the OPT.

By the time the Court will render its decision in the petition, the normative

fog over the Israeli operation in Gaza would have been lifted.While compliance

of the IDF with the requirements of IHL still awaits determination and may

well require the establishment of an independent Commission of Inquiry,119 it

is noteworthy that once the cease-fire was declared, the State Attorney General

ordered that footage from Gaza should blur the faces of IDF soldiers who

participated in the fighting.120 The rationale behind this order is the fear that

once the identity of the soldiers is exposed, they might face criminal charges in

states exercising universal jurisdiction. The bitter irony is that a concern for

the honour of the soldiers at the expense of the human dignity of civilians has

generated not only violations of IHL, but also a dishonoured army, an army

that has to hide the face of its soldiers. The culture of tolerance towards

violence against civilians is thus as counterproductive as it is illegal and,

indeed immoral.

119 See demand for the establishment of an independent Israeli Commission of Inquiry,

Investigate Now, Haaretz Op. Ed., available online at www.haaretz.com/hasen/spages/

1057672.html (visited 24 January 2009); demand by UN Secretary-General Ban Ki-moon for

the establishment of an independent Commission of Inquiry, available online at http://

www.un.org/unrwa/refugees/stories/2009/attacks_un_in_gaza_jan09.html (visited 24 January

2009); demand by John Ging, head of the UN Relief and Works Agency (UNRWA) for the

establishment of an independent Commission of Inquiry available online at http://

www.ynetnews.com/articles/0,7340,L-3660925,00.html (visited 24 January 2009).

120 Available online at http://www.ynet.co.il/articles/0,7340,L-3659554,00.html (visited 24

January 2009) (in Hebrew).

Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 21 of 21

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