Journal of International Criminal Justice Advance Access originally published online on March 3, 2009
Journal of International Criminal Justice 2009 7(1):155-175; doi:10.1093/jicj/mqp012
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Whose ‘Conduct Unbecoming’?
The Shooting of a Handcuffed, Blindfolded Palestinian Demonstrator
*Professor Orna Ben-Naftali is the Dean of the Law School, The College of Management Academic Studies, Israel. She is also a member of the executive board of B’tselem, the Israeli Information Center for Human Rights in the Occupied Territories. [obennaft{at}colman.ac.il]
**Noam Zamir is a research fellow at the Concord Center for the Integration of International Law into Israeli Law, the Law School, The College of Management Academic Studies, Israel. [sonicnoam{at}gmail.com]
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Abstract |
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 Top Abstract 1. Introduction2. The Factual Framework3. The Normative Framework:...4. Policy of Tolerance...Notes |
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The article focuses on the decision of the Israeli Military Advocate General (MAG) to charge an officer who ordered the shooting of a handcuffed, blindfolded Palestinian demonstrator, and the soldier who executed the order, for ‘conduct unbecoming’. It advances the following propositions: (i) from the perspective of the applicable international law, the facts of the case qualify the shooting as a war crime; (ii) said decision of the Israeli MAG is indicative of a policy of tolerance towards violence against non-violent civilian protest against the construction of the Separation Wall; (iii) the implication of such policy is twofold: first, it might transform ‘conduct unbecoming’ — which as a matter of law is a war crime — into a crime against humanity; second, it may well be construed as an invitation to the international community to intervene through the exercise of universal jurisdiction.
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1. Introduction |
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TopAbstract1. Introduction2. The Factual Framework3. The Normative Framework:...4. Policy of Tolerance...Notes |
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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 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 ‘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’ — 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.
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2. The Factual Framework |
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TopAbstract1. Introduction2. The Factual Framework3. The Normative Framework:...4. Policy of Tolerance...Notes |
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A. The Facts of the Incident
On 7 July 2008, during a routine demonstration against the construction of the Separation Wall in Nil’in, a village in the West 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
The incident was filmed by Salaam Amira, a 15-year old girl from Nil’in, from her home.11 On 20 July B’tselem, the Israeli Information Center for Human Rights in the Occupied Territories, 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 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 unbecoming’.20
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 the Wall 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 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 least 10 of whom were protesting against the construction of the Wall.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’ 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 area without 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 least 16 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 ill-treatment 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 — 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) 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 all-too-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 Mr Abu Rahma is undertaken in the following section.
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3. The Normative Framework: International Humanitarian Law and International Criminal Law |
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The treatment of Mr Abu Rahma, from the moment of his apprehension and up to his shooting, makes for a textbook example of a war 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
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 ... .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 as War 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 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.
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 guide.58
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 hostilities.62
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 Bla
ki
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 contravening the fundamental principle of humane treatment, in particular those which constitute an attack on human dignity.65Another 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.68The 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 Br
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.71 When 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 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.75The 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 long-lasting.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’.
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4. Policy of Tolerance towards Systematic Violence and its Implications |
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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 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 appropriate.
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 system.
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 practices.
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 humanity.
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 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 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 — 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 ‘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 action97It 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 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 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 Military Appeals Tribunal.103
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 convictions.106
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 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
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 credible.118
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 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.
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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 court-martial 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.
2 G. Filbert and A.G. Kaufman, Justice and Procedure in the Sea Services (3rd edn., Annapolis, Maryland: Naval Institute Press, 1998), 112.
5 On human dignity see O. 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 a Wall 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 a Wall, supra note 6, at 181–193.
9 Ni’lin is a Palestinian village located 17 kilometres west of Ramallah in the central West Bank. In May 2008, work began on the construction of the Separation Wall in the village's land. The route of the Wall — 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 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, ‘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 Law 1981 (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 — 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?id=15); 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?page=about.us&lang=en).
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).
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 Other Arabs of the Occupied Territories, 13 August 2008, A/63/273, 
89–91.
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).
23 Available online at www.btselem.org/english/statistics/casualties_data.asp?Category=28®ion=TER (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 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).
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).
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).
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, 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 a Wall, supra note 6, 105–106; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226, at 240; O. Ben-Naftali and Y. Shany, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’, 37 Israel Law Review (2003–2004) 17–118.
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 American Journal of International Law (2007) 459–465, at 463–464.
47 Construction of a Wall, supra note 6, 101.
48 HCJ 769/02 (2006) Public Committee Against Torture in Israel v. Government of Israel, 18, 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, Tadi (ICTY-94-1), 2 October 1995, 112, 127; Judgment, Kupreki (ICTY-95-16-T), Trial Chamber, 14 January 2001, 521; 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 of War (Geneva: International Committee of the Red Cross, 1958), 200.
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 224.
54 Pictet, supra note 50, at 222.
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.
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, Naletili and Martinovi (IT-98-34-T), Trial Chamber, 31 March 2003, 245–246.
60 Pictet, supra note 50, at 596; See also Judgment, Delali et al. (IT-96-21-T), Trial Chamber, 16 November 1998, 516–534.
61 Judgment, Blaki (IT-95-14-A), Appeals Chamber, 29 July 2004, 665.
62 Blaki, ibid., 595; Judgment, Limaj, Bala and Musliu (IT-03-66-T), Trial Chamber, 30 November 2005, 231; Judgment, Strugar (IT-01-42-T), 31 January 2005, 261.
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).
65 Judgment, Blaki (IT-95-14-T), Trial Chamber, 3 March 2000, 155.
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. Dörmann, L. Doswald-Beck and R. Kolb, Elements of War Crimes Under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge: Cambridge University Press, 2003), 66–69.
67 Delali et al., supra note 60.
68 Kud
a v. Poland, ECHR, 30210/96 (26 October 2000), 90–94.
69 HCJ 7195/08 Abu Rahma et al. v. the MAG, at 27 (the state's response to the petition).
70 Judgment, Branin (IT-99-36-T), Trial Chamber, 28 November 2003, 521.
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 Law Journal (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, 119.
74 Elements of Crimes, supra note 64, at 140.
75 Judgment, Kunarac, Kovac and Vukovi (IT-96-23 & 96-23/1-A), Appeals Chamber, 12 June 2002, 161.
76 Judgment, Aleksovski (IT-95-14/1-T), Trial Chamber, 25 June 1999, 56–57.
77 Judgment, Kunarac, Kovac and Vukovi (IT-96-23 & 96-23/1-T), Trial Chamber, 22 February 2001, 501.
78 Kunarac, Kovac and Vukovi, supra note 75, 162.
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 Press, 2006). Israel's Military Justice Law is no exception: it does not refer to War 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.
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).
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., New York: 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).
88 International Law Commission, Report of the International Law Commission on the Work 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 Blaki, supra note 65, 206; see also Judgment, Kayishema and Ruzindana (ICTR-95-1-T), Trial Chamber, 21 May 1999, 123.
89 Kunarac, Kovac and Vukovi, supra note 77, 429. See also Judgment, Akayesu (ICTR-96-4-T), Trial Chamber, 2 September 1998, 580 ([Systematic means] ‘thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources’); Blaki, supra note 65, 203; Opinion and Judgment, Tadi (IT-94-1-T), Trial Chamber, 7 May 1997, 648; 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.
91 Harlan Veit (Jud Süss) 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. Kupreki, supra note 49, 564 (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.
97 Elements of Crimes, supra note 64, at 116, fn 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 Vukovi, supra note 75, 98, at fn 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, fn 6.
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, 16 (visited 24 January 2009) (in Hebrew).
105 It should be stressed that these statistics are based on the IDF Spokesperson's response to Yesh 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?page=criminal4&lang=en (visited 24 January 2009).
108 HC 9594/03, B’Tselem v. MAG. The text of the petition is available online at www.acri.org.il/Story.aspx?id=1014 (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.
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 Law Association (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 a War 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 Expert Witness 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 Nuremberg Military Tribunals Under Control Council Law No. 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. Göring (IMT 1946) in Trials of the Major War Criminals Before the International Military Tribunal, Vol. 1 (1947), 223, at 286 (convicting Joachim von Ribbentrop 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.
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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