Ben-Naftali and Zamir have recently published an article in the Journal of International Criminal Justice titled ‘Whose ‘conduct unbecoming’? The shooting of a Handcuffed, Blindfolded Palestinian Demonstrator’. The work considers the case of HCJ 7195/08 Abu Rhama et al. v Military Advocate General – the petition in the case is available in English. The case of this 27-year old Palestinian demonstrator who was handcuffed, blindfolded, detained and then shot at from less than 2 meters away whilst being held by the soldiers following a command given by the officer in charge, symbolizes many other such instances. This story has reawakened the focus on the non-enforcement of the law and the lack of access to justice for Palestinians who wish to pursue their right to receive a remedy and to see that the perpetrator that has violated their rights and most basic freedoms is prosecuted and punished appropriately.
The work commences by placing the incident in the context of Israeli Defense Forces (IDF) conduct towards Palestinian demonstrators and detainees. It proceeds to outline the applicable normative framework of IHL and ICL; namely, the application of the principle of human dignity in IHL, and inhuman and degrading treatment as war crimes. Finally, the paper examines the policy of tolerance towards systematic violence and its implications and the possibility of such conduct by the occupation forces to amount to a ‘crime against humanity’. In this light, it concludes by considering at brief the significance of both the doctrine of universal jurisdiction and the role of the HCJ in such cases. The abstract reads as follows:
“The article focuses on the decision of the Israeli Military Advocate General (MAG) to charge an officer who ordered the shooting of a handcuffed, blind-folded 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.”
In this context, it merits to also recall the report, titled ‘Exceptions’, published by Yesh Din, an organization of volunteer human rights lawyers, which exposes the IDF’s failure to enforce the law on soldiers, and includes data on incidents in which indictments were filed against soldiers accused of committing criminal offenses against Palestinians and/or their property. The report covers the time period between the beginning of the Second Intifada in September 2000 until the end of 2007.
Yesh Din’s report is based on empirical data, indictments and rulings provided by the IDF, which have also been organised in an online document library. Its findings show that out of 1,246 investigation files opened by the MPCID (Mlitary Police Criminal Investigations Department) from the start of the Second Intifada in 2000 until the end of 2007, only 78 (6%) led to indictments against one or more soldiers. Of the thousands of Palestinian civilians killed, perpetrators were convicted in only 4 cases.
A critical question that should be asked in the context of a discussion of this legal issue is whether an occupying power with a poor human rights record in the administration of the territory concerned could/should be expected (or even hypothetically seen as being capable), on both a legal and moral level, to adequately fulfill its international legal obligations and facilitate the law enforcement process for its own agents, both in the field and in the commanding ranks. The fact that practice has shown otherwise should not be undermined, and could, notwithstanding the clear cut legal obligations, strengthen the obligations of other international, state and non-state actors to stand up to their roles and mobilize the international community for the purpose of filling certain otherwise irreconcilable normative, as well as operative, gaps.