Dr. Orna Ben-Naftali, Head, International Law Division, The Law School, The College of Management, Academic Studies. Tel. (9723) 963-4121 E-mail: email@example.com
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
NOTES AND COMMENTS
The Shooting of a Handcuffed, Blindfolded
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’ ç which as a matter of law is a war crime ç 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.
The term‘conduct 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 B’tselem, the Israeli
Information Center for Human Rights in the Occupied Territories. [firstname.lastname@example.org]
** 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: email@example.com
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 officer’s 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.
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 MAG’s 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 Israel’s 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 MAG’s 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 MAG’s 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 transform‘conduct
unbecoming’ç which as a matter of law is a war crime çinto 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 Nil’in, 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
village’s 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 demonstrator’s legs and fired a rubber-coated steel bullet at him,
hitting his left toe.10
9 Ni’lin 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 village’s land. The
route of theWall ç designed to secure the neighbouring settlements ç 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 bullets’are 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 Nil’in, from
her home.11On 20 July B’tselem, 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, B’tselem 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 MAG’s 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, Salaam’s 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 MAG’s decision).
16 Petition, supra note 7, at 7^10.
17 Petition, ibid. The petitioning organizations are: B’tselem ç 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 IDF’s 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 B’tselem. 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, B’Tselem stated
that over 1,000 civilians protesting against the Wall have required medical
attention since 2004 due to injuries from‘rubber’ 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, B’Tselem 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 army’s 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 IDF’s 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®ion¼TER (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).
29 www.nrg.co.il/online/1/ART1/590/452.html (visited 24 January 2009) (in Hebrew).
6 of 21 JICJ (2009)
of soldiers.31 According to B’Tselem, 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 B’Tselem and Hamoked ç 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)
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 detainee’s 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).
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,
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, Kupres›kic¤ (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 man’s 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 humanely’and 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
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 village’s 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
Blas›kic¤ 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, Blas›kic¤ (IT-95-14-A), Appeals Chamber, 29 July 2004, x665.
62 Blas›kic¤, 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, Blas›kic¤ (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 state’s 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 between‘torture’and ‘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 persons’and 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 victim’s 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,
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,
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 MAG’s 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 MAG’s 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). Israel’s 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 (state’s complementary notice and response by
affidavit). Available online at http://www.acri.org.il/pdf/petitions/hit7195mashlima.pdf (visited
24 January 2009) (in Hebrew).
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 state’s 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 a‘serious attack on human dignity’85 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 Blas›kic¤, 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’); Blas›kic¤, supra note 65, x203; Opinion and Judgment, Tadic¤ (IT-94-1-T), Trial
Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator 15 of 21
reflect ç and advance ç 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
IDF’s 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
defendant’s acts ç dealing blows by a rubber club on‘exhausted, 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 Blas›kic¤, 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. Kupres›kic¤, 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 population’and 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 state’s 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
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 army’s top
echelon, which includes illegal easing of the military’s 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 ç
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 B’Tselem and the ACRI against
the MAG concerning the latter’s 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 MAG’s 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 MAG’s 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 Spokesperson’s response toYesh
Din’s 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
107 Supra note 36, at 30^31.
108 HC 9594/03, B’Tselem 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 ç an attack against civilian population ç 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
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 Adviser’s 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 ç and the order it supports ç remains
The Israeli HCJ should accept its invitation and overturn the MAG’s 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 Hitler’s Foreign Policy Adviser, of war crimes for his memorandum justifying
Nazi ‘preemptive strikes’against 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,
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).
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