Resisting Israel’s ‘patently illegal’ policy of collective punishment in Gaza


Yesterday, Israeli human rights NGO B’Tselem began a media campaign urging Israel Defense Forces soldiers posted on the Gaza border to disobey “patently illegal” shoot-to-kill orders against unarmed protesters, as Yossi Gurvitz has reported on this site.
Gurvitz has elucidated why this move by B’Tselem is “breathtakingly brave”:
“By declaring the ROE used on the Gaza Border as patently illegal, B’Tselem is implicitly warning that not only are soldiers bound to disobey the orders, but [that] obeying them would place the soldiers in legal jeopardy of committing war crimes. This is the first time an Israeli NGO has explicitly warned Israeli soldiers that they are about to commit war crimes in advance of the act itself.”
This is a dramatic occurrence in the Israeli context. Nonetheless, I would like to focus on that phrase, “patently illegal” and explain just how murky this quasi-legal notion is when applied to Israeli reality vis-à-vis Palestinians.
Gurvitz has provided for us the historical background for the term’s coinage: The Qafr Qassem massacre in 1956:
“Patently illegal” is an Israeli military concept, coined after the 1956 Qafr Qassem Massacre, when soldiers of the Border Police murdered 47 Israeli Palestinians after receiving an order to kill anyone outside his house after an impromptu curfew was announced. The defendants claimed they were duty-bound to follow a legal order. The judges found that there are “patently illegal” orders, which may be recognized as ‘a black flag flying over the order, saying ‘it’s forbidden!’. They continued: ‘We’re not dealing with a formal, hidden or not, illegality, not one seen only by scholars of law, but a clear and obvious illegality, a certain and essential illegality of the order itself […] illegality which pierces the eye and enrages the heart, assuming the eye is not blind and the heart is not made of stone or corrupt'”.
All true, and the court is sounding quite noble and poetic there. But let us take a closer look at what actually happened in that case. It was Judge Benjamin Halevy who uttered those ominous words and coined the term ‘patently illegal’. But how did that case actually turn out for the defendants?
 
To read more, click here.

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