A moral imperative to refuse illegal military orders

Nuremberg set a precedent so that no one can ever use the excuse of “following orders” when it comes to carrying out immoral commands.

By DAVID BEDEIN
Naftali Bennett 370 (photo credit: Marc Israel Sellem/The Jerusalem Post)
Naftali Bennett 370
(photo credit: Marc Israel Sellem/The Jerusalem Post)
Naftali Bennett’s statement about the refusal to carry out IDF orders to demolish Jewish or Arab communities must be placed in proper perspective.
Israel is one of the few nations that mandate the refusal of an order by soldiers who deem directives as being contrary to the moral grain of their consciences.
The Jewish State applies the letter and law of the moral code that emerged from the Nuremberg Trials, which established the principle that a soldier cannot use the excuse that “he was following orders” if the orders are either illegal or immoral.
There are several precedents in Israel in which the Nuremberg principles were applied. Take the tragedy in 1956 that took place in the Israeli-Arab village of Kfar Kassam while Israeli troops were engaged in full scale combat with Egypt.
After a curfew had been imposed on the village, a truckload of Kfar Kassam villagers violated it and returned from work after dark. The local IDF commander gave an order to open fire on the curfew-breakers. More than fifty villagers were shot to death by IDF troops.
The IDF conducted an investigation and determined that the IDF officer in question had issued an illegal and immoral order. Every IDF soldier involved in the operation, down to the lowest private, was indicted by the IDF court and convicted of carrying out an illegal and immoral order, in what came to be known as the Kfar Kassam massacre.
A second precedent can be ascribed to the activism of late Israeli writer, Amos Kennan. While I was a student at the University of Wisconsin in the seventies, I interviewed Kennan so I heard his account firsthand.
Following the 1967 war, Kennan served as a reservist in an IDF unit north of Jerusalem. A senior IDF officer gave Kennan an order to demolish Arab villages in the Latrun area where Kenann's unit was based. Kennan refused the order. Facing possible court martial, Kennan took matters into his own hands and galvanized support from all walks of Israeli life to oppose the order. As a result, the order was rescinded.
Kennan wrote a seminal piece entitled “A Letter to all Good People” that was published in Yedioth Ahronoth and later in English in the October 1968 issue of Midstream Magazine, a publication of the World Zionist Organization. In it, Kennan postulates the following: “The action that I undertook was in flagrant violation of any military law. According to military regulations I should have been court-martialed. I have not idea what would have been the sentence of a Red Army soldier were he to violate national and military discipline in such a manner.”
After the village demolition orders were revoked by the IDF, Kennan added that he asked for and received permission from the IDF to visit every area that Israel acquired after the 1967 war, to make sure that no orders like that would ever be issued again.
In passionate support of Kennan’s assertion that Israel cannot demolish communities, Prof. Eliav Schochetman, dean of the Shaari Mishpat Law College, testified in the 2005 Knesset Parliament Law Committee that any decision of Israel to demolish Arab or Jewish communities would represent a clear “human rights infraction which violates Israel's own ‘Basic Human Rights Law’.” This law governs Israeli democratic institutions in matters of human rights and civil liberties in much the same way that the US Bill of Rights ensures that the US government can never trample on the human rights and civil liberties of American citizens.
In his testimony, Schochetman also noted that the then-government’s decision to demolish Jewish communities (in accordance with the new roadmap) represented a blatant violation of the 1948 Universal Declaration of Human Rights (UDHR), to which all democratic governments are adherents.
Schochetmen further added that Israel's decision to expel entire communities also represented a violation of international human rights law. He cited Clause 9 of UDHR, which mandates that it is illegal for sovereign governments to expel their own citizens and ethnic minorities from their homes, from their private properties or from their farms. Since the only group that Israel now slates for expulsion is Jews, it should be recalled that the government of Serbia was held liable for international prosecution at the International High Court of Justice in The Hague, under the charge of "ethnic cleansing," after leaders of Serbia singled out one ethnic minority for expulsion solely based on religion.
Prof. Schochetman also brought forward clauses from the San Remo Treaty (ratified by the League of Nations in 1923 and again by the newly formed United Nations in 1945) which provided international recognition of the right of Jews to purchase and dwell in the "Jewish Homeland," defined by both international bodies as any land which lies anywhere east of the Jordan River.
Following Schochetman's testimony at the Knesset, the Law Committee was unable to find a single law professor in Israel who could or would contradict Schochetman's assessment. It was clear to all experts of the law that the government's intention to destroy and exile entire communities would indeed represent a massive human rights violation.
In addition, the handover of IDF army bases to the Arab entity in Gaza – defined by Israel itself as a hostile entity – was another blatantly illegal move. 
After the April 18 version of the disengagement plan was rejected by the Likud referendum on May 2 2004, former prime minister Ariel Sharon's government added another clause and the plan was subsequently ratified on June 6, 2004. The final version mandated that all properties from evacuated Israeli communities would be transferred to "a third, international party which will put them to use for the benefit of the Palestinian population that is not involved in terror." However, the document that was submitted to the World Bank did not include this clause. In the end, the Sharon government ignored the most sensitive security aspect of its own law, and handed over IDF army bases and the assets of the Katif Jewish communities to terror organizations.
In clearly illegal cases such as the above, not only does a soldier reserve the right to refuse an order, it is morally incumbent upon him to do so.
The writer is Director of Israel Resource News Agency at the Center for Near East Policy Research.