"The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: 'Prohibited!' Not formal illegality, hidden or partially hidden; not illegality that is apparent only to learned custodians of the law; but: a clear and obvious violation of the law, a certain and unmistakable illegality that is immediately apparent in an order, the clearly criminal nature of an order or of the actions that the order commands to be done, an illegality that pierces the eye and outrages the heart, if the eye is not blind and the heart is not impervious or corrupted. This is the degree of illegality required to negate the soldier's duty to obey and to impose upon him the criminal responsibility for his actions."
(From Judge Benjamin Halevy's ruling at the 1958 court martial of the perpetrators of the Kafr Qassem massacre )
An altered battlefield
From talks I had recently with commanders in the army, some quite senior, it appears that the attitude toward moral dilemmas in military action is closely tied to the Kafr Qassem ruling regarding a patently illegal order. This type of order, about which generations of commanders have been taught and whose implications generations of soldiers have memorized, and which amounts to a criminal offense if obeyed, still serves as the basis for discussion of the subject.
It is still the basis for discussion, even though it was handed down following the Kafr Qassem massacre, which took place on the first day of the Sinai Campaign in 1956; even though since then, soldiers have not been tried on the basis of it; and even though it is difficult-to-impossible to ascribe inherent illegality to an order given in the field in real time. This is because despite the boldness of Judge Benjamin Halevy's ruling at the Kafr Qassem court martial, it is difficult to apply legally, and because of the fact that the prosecutor in the West Bank territories - the army - has no interest in prosecuting on this basis.
Fifty-five years after the massacre, the ruling is mostly considered the basis for an anachronistic moral discussion, for a number of reasons.
Kafr Qassem, where Border Police troops shot 43 villagers at short range, a distance from which the shooter could look the unarmed victim in the eye, is not the same as contemporary warfare situations like Operation Cast Lead, where planes dropped bombs and caused hundreds of casualties without soldiers having direct eye contact with those hit by the weapons.
The technological advances of the past 50 years have completely altered the battlefield. It is much easier to drop a bomb from a great height, often when the aircraft is not even above the area it is bombarding, than to shoot a person face to face, even if the shooter is convinced that the shooting is justified. Technology has greatly enhanced the shooter's power, reduced his ability to see the eyes of his victim and lessened the chances of his recognizing that the shooting is prohibited. Or as Judge Benjamin Halevy put it, of arriving at a situation in which the eye "is pierced" and the heart "is outraged."
Even if the lone soldier on the battlefield only has a narrow angle of vision, the knowledge he has about the battle as a whole far exceeds that which was possessed by soldiers in the Sinai Campaign. This is due to the multitude of media that enable him to be exposed to an overall picture of the situation prior to entering the battlefield - television he has watched, updates he's received from a friend at another location. The IDF troops in the Sinai Campaign didn't know the slightest thing about what was happening in Kafr Qassem until they returned from the battle, but the infantry troops in Operation Cast Lead were well aware of the aerial bombardments of Gaza City that preceded their entry there.
The soldier who would be committing a criminal offense by carrying out a patently illegal order could easily help to commit such an offense in another nearby sector, even if he himself stood the moral test. Therefore, the responsibility is no longer confined to his own adhering to what is legal. The information exists and the soldier has the responsibility to know about it, and therefore the responsibility he bears is even greater than that which Judge Halevy stipulated in his ruling.
Even though the Arab population at the time of the Sinai Campaign was under a military administration, the people murdered at Kafr Qassem were Israeli citizens. This is in contrast to those killed by IDF operations in the territories in the years since, who have always been non-citizens. From the outset, access for the victims of the operations or their family members to the courts is practically nonexistent, as is their ability to take part in the political game. Even if there is a political dispute over the future of the occupied territories, it is clear to all that combat within the territory of the State of Israel is not equivalent to combat outside the country's international borders, nor is combat against citizens of the state equivalent to combat against an occupied population.
More than a million soldiers have served in the territories since the occupation began. The incidents they have been a part of are totally different from the massacre in the village. Unlike the massacre in Kafr Qassem, which shocked many by virtue of its high visibility, many of the people killed in the West Bank and Gaza were hurt in what the IDF refers to as "routine incidents." They died in detention, under interrogation, while being delayed on the way to the hospital or waiting for the bureaucracy to approve an urgent operation. They died as lone individuals and for the most part, their deaths were easy to deal with emotionally (easy for us, that is ).
This death, which is often a byproduct of strict control of a civilian population which naturally resists being controlled, is not perceived as an atrocity and, as such, not as the kind of thing that one must refuse to take part in.
Granted, Kafr Qassem doesn't happen literally anymore, but precisely for this reason it has become the curtain behind which countless illegal acts hide, for "as long as it doesn't look like the Kafr Qassem massacre, it's not illegal, or at least not patently illegal."
In recent years, two extenuating principles have been added to the discussion surrounding a patently illegal order. The first is the need to deal with an environment of terrorism, which the IDF refers to as low-intensity combat in a civilian environment, and the second is protecting soldiers' lives. While these are just two of the principles appearing in IDF documents issued in recent years laying out the army's ethical and humanitarian code, they are the most influential.
The first principle, of combat within an environment of terrorism, did not exist when the Kafr Qassem decision was handed down. Most Israelis identify every Palestinian resistance action against the Israeli occupation as terror, while any combat action carried out to preserve the occupation is perceived as defense.
In recognizing that the operative environment created for the army by the political system requires combat amid a civilian population, and therefore more stringent rules of engagement, the new principles made the trigger finger lighter. Which accounts for the increasing number of people being killed.
And as for the second principle, protecting the lives of soldiers, whose cost in Palestinian lives is as high as its operative relevance is low, every graduate of a commander's course knows that in order to quickly and effectively win a battle, soldiers must often risk their lives. In fact, a calculated risk of this kind will often lead to fewer losses. When does this not hold true? When the battle is being waged against an enemy without an army. When the strong army is liable to finish the battle with minimal loses, and the enemy with many hundreds of losses, many of them civilians, this principle necessarily becomes the basis for countless illegal orders.
Judge Halevy's decision in the Kafr Qassem case was an extraterritorial ruling. It has no kin in Israeli military or civil law. It is a unique ruling because an army is based on obedience, and the penalty imposed on a soldier who disobeys an order is the final tool in instilling obedience. It is preceded by a series of social tools that lead the individual to heed the principles and rules established by the society.
A Jewish soldier, so said Judge Halevy, four years before he would sit as the chief judge in the Eichmann trial, cannot be absolved by saying "I was just following orders." He must be conscious of what he must not do. And contrary to those who automatically object to the comparison to the Holocaust and essentially give any action a stamp of approval because it will never be "like it was in the Holocaust," Halevy ruled that evil must be stopped before it spreads.
The discussion of what constitutes a patently illegal order, as it has been going on now for more than a generation, has become flawed and threadbare. The IDF spirit and ethical code that were subsequently formulated are not legally binding. Since no soldiers have been tried for carrying out a patently illegal order since Kafr Qassem, there have been no judges to add their rulings to Halevy's ruling.
Rather than striving for a moral, legal and legally innovative Israeli approach, with the help of a lenient and obfuscating interpretation of the "patently illegal order" the approach has become one that sanctions practically anything and, for the reasons listed above, delineates for soldiers extremely broad limits of what is permitted to them.