Legal Affairs: Military versus civilian culture

Abuse of Palestinians raise question of whether we want a militarized society.

By DAN IZENBERG
July 9, 2009 20:33
Legal Affairs: Military versus civilian culture

burbag nilin shooting bound 248.88. (photo credit: Courtesy)

 
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Two affairs involving allegedly abusive treatment of Palestinians by IDF soldiers that have made headlines in recent weeks address issues regarding Israeli society and its values that go far deeper than the incidents themselves. One of the cases involves Lt.-Col. Omri Borberg, a battalion commander who is suspected of ordering, or pretending to order, one of his soldiers, Staff-Sgt. L., to fire a rubber bullet at close range at a bound and blindfolded detainee, Ashraf Abu Rahma, in Nil'in. The other involves graphic testimony by the commander of the Kfir brigade, Col. Itai Virob, regarding his soldiers' treatment of Palestinians in routine operations in the West Bank. Virob took the stand in court-martial proceedings against a soldier in his brigade who was on trial for severely beating a man without cause. For the incident involving Abu Rahma, Borberg and L. were indicted by the army on charges of conduct unbecoming a soldier, the least severe criminal charge in military law. For his testimony on behalf of the soldier charged with beating Palestinians, his superiors reportedly decided not to promote Virob, for the time being at least, even though according to his age - 42 - and experience, he should have been a candidate for advancement. The Borberg affair is well-known and simple to explain, since it concerned a single incident, no matter how outrageous it might have been. Virob's testimony is not well known and has far wider implications, since he described a culture and methodology of military occupation, not only as he sees it, but also as he enforces it and inculcates it in his troops. According to Energy, Ma'ariv's Internet news site, Virob told the military court that "our mission is to upset the balance of the neighborhood, village or particular location to obtain intelligence or to cause a hostile element inside the village to make a mistake as a result or reaction to our force's operations and thereby obstruct his plan and expose him. "The obstruction operations include various levels. The first is entering the village. Jeeps drive to the entrance to the village at top speed. The very entry into the village can obstruct the plans of the assailant. The second level is to use pressure by throwing stun grenades, break-ins into several houses or institutions in the village, detention of inhabitants, seizing roofs, etc." Former Shimshon battalion commander Lt.-Col. Shimon Harush explained to the court that this mode of behavior was used when general information was received that an attack was being planned in the village, but there was no specific information about who was involved. In another part of his testimony, Virob told the court: "The use of violence and aggression, which will prevent an escalation and the need to use greater violence, is not only permitted, it is often obligatory. A blow, a shove, even when the people are not involved in the operational situation in such a way as to advance the achievement of the mission, is absolutely okay." Although both Borberg and Virob hold senior field commands, it could be said that their conduct or outlook is idiosyncratic and not representative of the army's thinking as a whole. Indeed, when there are reports of brutality or sadism by soldiers at checkpoints and border crossings, the army's routine response is that these incidents are exceptions to the rule. But the fact that the senior command, specifically Defense Minister Ehud Barak, Chief of General Staff Lt.-Gen. Gaby Ashkenazi and Judge Advocate-General Brig.-Gen. Avihai Mandelblitt, have taken relatively light measures against the two officers raises the question of whether their conduct is part of an overall military value system that clashes with, or dominates, civilian values. One might get that impression by reading the High Court of Justice verdict on the petition filed by four human rights organizations and the Palestinian victim of the shooting by Staff-Sgt. L. Justices Ayala Procaccia, Elyakim Rubinstein and Hanan Meltzer ruled unanimously that the indictment of Borberg and L. on the charge of conduct unbecoming a soldier did not reflect the gravity of the action and therefore could not stand. Procaccia, the presiding justice, wrote that the shooting incident was both a legal and moral travesty. "The actions of the battalion commander, according to his own version of the events, are not in keeping with the accepted standards of behavior of a soldier and an officer in the IDF and they inflict serious harm on the human rights of a person in military custody," she wrote. "[Borberg's] behavior indicates severe cruelty to a detainee who was bound and blindfolded, in an attempt to put him in a position of being frightened that he might be killed or seriously wounded from the shooting that is about to take place at him from close range, without his having any chance to defend himself. "This conduct involves the humiliation and degrading of a person who is in a state of total helplessness and hopelessness. It conveys an extremely negative message to his subordinates who look up to him as a role model who is meant to lead and instruct them regarding their military actions, but also their moral behavior. His conduct constitutes a moral failure both as a human being and a military man, even if we assume that he did not mean to actually cause the Palestinian any physical harm whatsoever." At no point in her ruling did Procaccia state that the Borberg incident, or the fact that he was not indicted on more serious charges, reflected a moral culture in the army which conflicted with that of civil society. On the contrary, she quoted from military court decisions in previous years which had also demanded that detainees under IDF custody be treated properly. But the statements she made in this case were worded so sharply and unequivocally that they could not help but contrast with statements made by military officials on the same subject. On the other hand, there are reports that IDF field commanders have expressed bitterness over the High Court ruling, for which they blame the human rights organizations. These commanders have reportedly warned that the petitions could adversely affect relations between the organizations and the IDF. The unnamed officers allegedly charged that the human rights groups had launched an "exaggerated attack" on the army. Another indication of the army's attitude towards the Borberg affair came from Amnon Strashnov, one of a handful of senior officers who has bridged the gap between military and civilian life as a senior legal official. He has served as both IDF judge advocate-general and Tel Aviv District Court judge during his career. Strashnov is highly critical of the High Court decision regarding Borberg on legal grounds, saying that it is not the role of the High Court to consider the facts of a case, and therefore it could not judge whether the charge against the officer as determined by Mandelblitt was proportionate to the facts or not. At the same time, however, he made it clear that the question of what charge should be leveled against Borberg - and consequently how grave his act was - was not important enough for the High Court to deal with. "The court's intervention was extreme, exceptional and unnecessary," Strashnov told The Jerusalem Post. "The High Court decision will oblige the military court to try [Borberg] for a crime calling for a punishment of three years in jail instead of one calling for as sentence of up to one year in jail, plus the possibility of demotion. I don't think this matter is important enough for the High Court to intervene in." The question of the values and morality, as well as the legality, of military conduct will reach the High Court again following a petition filed by two human rights organizations, Yesh Din and the Association for Civil Rights in Israel, demanding that Ashkenazi, Mandelblitt and OC Central Command Maj.-Gen. Gad Shamni immediately relieve Virob and Harush of their commands and indict them on criminal charges. The petitioners acknowledged that Ashkenazi and Shamni criticized Virob and Harush for their testimony in court but said the fact that they had not taken any measures against them indicated that they had done so for no other reason than to look good in the eyes of the public. The cases involving Borberg and Virob bring to mind the police investigation of New Profile on allegations that its Web site incites to evasion of military service and provides assistance in obtaining an exemption from military service by deceit. Organization leaders have denied these charges, saying that they provide information and spiritual and emotional support to those who have already decided not to serve. Underlying these New Profile activities, whatever their nature, is the belief of the organization that the country is currently "a soldiers' state" and a "militarized society." According to the charter of New Profile, "We, a group of feminist women and men, are convinced that we need not live in a soldiers' state. Today, Israel is capable of a determined peace politics. It need not be a militarized society. While taught to believe that the country is faced by threats beyond its control, we now realize that the words 'national security' have often masked calculated decisions to choose military action for the achievement of political goals." One leader of New Profile, Diana Dolev, told the Post that although the High Court decision on Borberg was important, it would not change the country's militaristic mentality. "Based on past experience, I don't think the ruling will filter down through the ranks of the army," she said. "This type of decision is alien to the civilian and the military echelons. I am afraid the Supreme Court is perceived as being cut off from the people."

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