The Moral Imperative to Refuse an Immoral or Illegal Military Order in Israel

The statement of “Jewish home” political leader Naftali Bennet used about his refusal to carry out orders to demolish Jewish or Arab communities must be placed in proper perspective. Israel is one of the few nations which mandates that a soldier may refuse an order, if that soldier deems the directive from his commander to run against the moral grain of his conscience. Israel applies the letter and law of the moral code that emerged from the Nuremberg Trials, which established the principle that a soldier cannot say that “he was following orders,” if these orders are illegal or immoral.

Sharp precedents loom on the horizon in Israel where the Nuremberg principles were applied. There was the 1956 incident which occurred in the Israeli Arab village of Kfar Kassam, which happened while Israeli troops were engaged in full-scale combat with Egypt.  A curfew had been clamped on the village. A truckload of Kfar Kassam villagers violated the curfew, returning from work after dark. The IDF local 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 who had given this order 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 activism of the late Israeli writer, Amos Kennan. I interviewed Kennan when I was a student at the University of Wisconsin in 1970 and heard his account first hand — at a time when I was considering the status of draft resister to Vietnam. Kennan served as a reservist in an IDF unit, north of Jerusalem following the 1967 war.

A senior IDF officer gave Kennan an order to demolish Arab villages in the Latrun area where Kennan’s unit was based. Kennan refused the order. Facing possible court martial, Kennan went a step further, and galvanized support from all walks of Israeli life in opposition to this order, and the order was rescinded.

Writing in the Israeli newspaper Yediot and later in English in the October 1968 issue of Midstream Magazine, a publication of the World Zionist Organization, Kennan wrote a seminal piece titled “A Letter to all the Good People,” in which he related that:

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 no 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 in Israel, testified in 2005 at Israel’s 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” which oversees Israeli democratic institutions in matters of human rights and civil liberties, in 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 noted that this Israeli government’s decision to demolish Jewish communities, because of its new map, represented a blatant violation of the 1948 Universal Declaration of Human Rights, to which all democratic governments are adherents. Schochetmen added that Israel’s decision to expel entire communities also represented a violation of international human rights law.

Prof. Schochetman cited clause 9 of the Universal Declaration of Human Rights, 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 are 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 because of their religion.

Prof. Schochetman also recalled clauses in the San Remo Treaty that was ratified by the League of Nations in 1923 and ratified by the new 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.

After Schochetman’s testimony at the Knesset, the Knesset Law Committee could not find a single law professor in Israel who could or would contradict Schochetman’s assessment that the Israeli government’s intention to destroy and exile entire communities would indeed represent a massive human rights violation

In addition to the human rights travesty involved in an order to destroy Jewish communities, the handover of IDF army bases to an Arab entity in Gaza that was defined by the Israeli government as a hostile entity represented a clear illegal action.

Ariel Sharon’s government had added a specific clause to the final version of the disengagement plan, which was ratified by the Israeli government on June 6th, 2004, after the April 18th version had been rejected by the Likud referendum on May 2nd, 2004, which 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.” Sharon and the IDF simply ignored the law.

That is why orders to expel Jewish communities and hand over their property to the enemy would present an immoral and illegal order that must be disobeyed.

During Sharon’s expulsion and retreat process, 6,000 Israeli soldiers asked to be excused from active service, while 60,000 IDF troops carried out orders. Had 30,000 Israeli soldiers refused to follow orders, there would have been no IDF retreat and no IDF expulsion and demolition of 21 thriving Jewish communities near Gaza and 4 communities in Northern Samaria.

David Bedein is the Director of the Israel Resource News Agency at the Center for Near East Policy Research.

  • AdinaK

    There is little doubt that human and civil rights violations of loyal citizens is beyond the pale. And when a Jewish leadership dictates orders, which any other leadership would be blasted for executing, what does it say about the so called legality of said orders, as well as that of the leadership?

    Besides, the following are the bitter fruits of 'disengagement' –….

    And surely if not for said expulsion, then the following would not have borne fruit either –

    Adina Kutnicki, Israel –

  • R.C.

    I knew at the time Sharon was wrong–and everyone should have refused to act according to Sharon's orders–it would have saved innocent Jewish life!

  • SHmuelHaLevi

    Last week Mr. Bennett very much flushed the rabbit out of Mr. Natanyahu's hat. As we expected, Mr. Netanyahu will not build, he will re start "disengagement" and more.
    If anyone has still any doubts, well… Nothing one can say will change that.
    Refusing orders at that point is a moral obligation, a must. There is ample evidence of intent and the results from the Sharon disaster are just as much self evident.

  • Stephen_Brady

    The move from Gaza was the moment for a high-ranking officer to step forward, in front of the cameras, and to state his reasons for refusing to obey the order. Make it a national issue, in which most of the people would support the Army, and not Sharon. It could have even stopped the withdrawal.

    You cannot trade land for peace with the Muslims …

  • EarlyBird

    Rightly or wrongly, Sharon's decision to dismantle certain settlements in Gaza was an attempt to provide Israelis long-term peace, not to collectively punish the settlers, commit massacre or other war crimes. It must have been heart-breaking to evict settlers, but it was hardly the type of atrocity that moral soldiers must refuse.

    To suggest that IDF soldiers should have refused to carry out this specific command, therefore, is to suggest that IDF soldiers may refuse to carry out any command issued by the Knesset in good faith which they simply disagree with. It's in essence calling for a military coup for the purpose of establishing Greater Israel.

    • ziontruth

      "Rightly or wrongly, Sharon's decision to dismantle certain settlements in Gaza was an attempt to provide Israelis long-term peace,…"

      Most Israeli Jews think its timing had to do with covering a nepotism scandal in which Sharon's sons took part. But it was wrong regardless.

      "…not to collectively punish the settlers,…"

      Jews in the Land of Israel aren't settlers. The Arabs are the settlers, and they must leave all the Jewish lands they're colonizing if there is to be just and viable peace in the region.

      "…but it was hardly the type of atrocity that moral soldiers must refuse."

      It was an illegal order. Jewish Law says it is illegal to evict Jews from their homes anywhere in the Land of Israel.

      "…command issued by the Knesset in good faith which they simply disagree with."

      It's not a matter of simple disagreement, it's a matter of complying with an order that goes against the entire purpose of the Jewish State—facilitating unlimited Jewish inhabitation of the Land of Israel.

      "It's in essence calling for a military coup…"

      No, it's making sure the leaders of the Jewish State don't stray from doing the duty of the Jewish State.

      "…for the purpose of establishing Greater Israel."

      There is no "Greater Israel," there is only the Smaller, Cut-Down Israel the anti-Zionists want to reduce Israel to, to the pre-1967 borders, ethnically cleansing the post-1967 territories of all Jews, so as to set the stage to the next stage of their anti-Jewish strategy, that of swamping the remaining Jewish State with Arab colonist "returnees" (a.k.a. multiculturalism and "equal rights," just like in Western Europe).

      The anti-Zionists both Marxist and Muslims will not be satisfied with a state for the Jews in any form; therefore, any evacuation of Jewish territories is not only illegal according to Jewish Law, it is the height of folly, because it gives added incentive to the anti-Zionist effort. Arab settler-colonists out of the Land of Israel now! Outlaw Marxism now! Islam is imperialism, Marxism is treason!

      • EarlyBird

        So, why doesn't Israel just come out and finally declare all disputed territories "Israel" proper, put up its flag, and give all of its inhabitants equal rights under Israeli law? Because it wouldn't be your "Jewish State" with so many non-Jews, and would turn Israel into a de facto apartheid state, if it isn't one now.

        So why doesn't Israel simply wipe out all Arab squatters on Israel in Gaza and the West Bank? Because it would require Jews to commit a holocaust (not to mention make Israel a worldwide pariah for generations), which certainly wouldn't comport with Jewish Law.

        What to do? Probably in the mean time, however the land issue sorts out, help the Pals actually build a civil society and economy so they are not so in sway to the nut jobs. Even if Israel finally absorbs those lands, you want the inhabitants to be functional.

  • Ghostwriter

    I have no idea what the Israelis should do at this point.

  • Parenthetical Phrase

    "Orders to expel Jewish communities and hand over their property to their enemies" — sounds like the kind of thing the Nazis did.

  • The Golani Snowman

    Who is giving the atrocious orders to destroy the life and investments of Jews? It seems Netanyahu and Barak are hiding behind each other. Every time something like this happens, Jews attacking in the Israel-alloted area C, Let's hope Bennett gros real strong! Annex area C, let the 50000 arabs there choose like the Jerusalem arabs.