This is a cross-post by Marc Goldberg
It started off this morning with a tweet:
Even I rolled my eyes at this one. Of all the massacres and evil perpetrated against Israel I was loath to to hear, talk or learn about one perpetrated by my own. But then, like a fool, I clicked on thewikipedia link anyway and the plot thickened.
On this day in 1956 Israeli Magav (Border Guard) soldiers killed 48 Arab civilians. In all honesty with all the death and massacres that have been endured and perpetrated here in Israel and the Middle East (there’s a far larger one happening as I write these words) one that happened 57 years ago is no more or less likely to elicit anything from me than one that happened 10 years or 100 years ago.
But this one is different.
The legal ruling emanating from the court case surrounding the Kfar Qassim massacre changed the IDF code of conduct forever after. It established a way of viewing orders that gave added weight to thePurity of Arms of the IDF; namely that every soldier has the right, even the duty to refuse to obey an order they find to be an “illegal order”.
This all stems from the concept of a “Superior Order”, a legal defense dealt with in a major way during the Nuremberg Trials. The superior order is where the defendant claims that they were merely following orders in perpetrating their crime and therefore should be absolved of the charges against them. It is the defense adopted by Adolph Eichmann in his trial in Jerusalem. Lieutenant Dohan, commanding the force that murdered the civilians in 1956, used this defense also.
In the case of the Kfar Qassim massacre the border guards had been ordered to impose a curfew on the residents of the village. The senior officer of the region declared that anyone in breach of curfew should be shot. This was imposed while many residents were working in the fields, upon their return home they were shot out of hand despite having had no idea that such a curfew had been imposed upon them.
In the trial that followed the court ruled that the orders given that were so clearly beyond the pale that the soldier actually was obliged not to follow them but to ignore them. Judge Benjamin Halevy issued a ruling that has reverberated around the world in cases of this kind, he said that;
“The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’.
The essence of his words were incorporated into the values of the IDF where they have remained ever since. Halevy went on to be one of the 3 judges at the Eichmann trial and eventually to a seat in the Knesset.
I shudder to think of the number of times I technically could have murdered Palestinians in the West Bank and claimed that I was simply following exactly this curfew order. It was clear to me that the order was there to protect my safety and that common sense and nuance had to be invoked in the enforcement of it.
I have no doubt that Halevy and the sober rationale he produced for seeing the black flag over blanket orders filtered its way through to me serving in the IDF 46 years later and others serving today. Rulings such as this created soldiers who could tell the difference between an order they should obey and one they shouldn’t.
It’s worth remembering just how much blood was shed for this to become a part of the doctrine of the IDF and soldiers who found themselves incapable of distinguishing when they should pull the trigger and when they should not.
You can read the rest of Marc’s post here