Israel announced in May that it was launching Operation “Gideon’s Chariots,” a new extensive ground operation in Gaza. Haaretz reported on the final plans for the operation, which were presented to the senior commanders who would lead the campaign. The plans outlined several goals, including “defeating Hamas,” demobilizing the area, and returning Israeli hostages, a goal relegated to the last place on the list. But another distinct aim was also articulated: “concentrating and moving the population.”
This objective is not about temporary concentration and evacuation to minimize harm to non-combatants during the execution of the purported goal of “defeating Hamas,” but rather concentration and evacuation as an objective in and of itself. It is a measure of control that may even create conditions for “voluntary” migration.
Following the publication of the military’s plans, Moshe “Bogy” Ya’alon, former chief of staff of the Israel Defense Forces (IDF), said in an interview with journalist Lucy Aharish, “Evacuating the entire population? Call it ethnic cleansing, call it transfer, call it deportation, it’s a war crime.” He added, “They’re sending the soldiers to commit war crimes.”
We wrote this essay to give Ya’alon’s words legal backing and expansion. We felt compelled to fulfill our human, conscientious, and civic duty, as Israelis – and as Zionists – who have expertise in areas related to the IDF’s “concentration and movement of the population” order.
A Crime Against Humanity
International law recognizes the need – sometimes even the obligation – to evacuate residents from a war zone, and states that such an evacuation may be considered legal, provided that four necessary requirements are met. First, the evacuation must be carried out in order to protect the evacuated population, while fulfilling a pressing military necessity. Second, there must be a commitment that it is a temporary evacuation, for the duration of the fighting only, and that at the end of it the evacuees will be allowed to return to their homes. Third, the evacuation order must define areas where the evacuated population is protected and can receive basic humanitarian assistance. Finally, safe passage of the evacuees to those protected areas must be allowed through defined humanitarian corridors, while allowing civilians sufficient time to reach them and ensuring their movement.
An evacuation order that does not meet all of these conditions constitutes deportation and/or forcible transfer, which is prohibited under international law (see here, here, here and here). The order to “move a population” issued by Israel does not meet any of these conditions, making the operation a war crime: the order is not meant to protect the evacuated population while fulfilling a pressing military necessity; it lacks a commitment to allow the evacuees’s return at the end of the hostilities; it does not ensure temporary protection in an area where the evacuated population can receive basic humanitarian assistance; and does not secure the passage of the evacuees until they safely reach the temporary protected area. If this wasn’t clear from the order (or from its silence), its aim was explained by Prime Minister Netanyahu who asserted in the Knesset on May 11, 2015: “We are demolishing more and more [of their] homes, they have nowhere to return to. The only obvious result will be the desire of the Gazans to emigrate outside the Strip. Our main problem is in the receiving countries.” As the International Criminal Tribunal for Yugoslavia found (inter alia in Prosecutor v Naletilić & Martinović (Trial Chamber Judgment, 31 March 2003)), the prohibition of unlawful deportation or transfer constitutes a grave breach of the IV Geneva Convention of 1949 and hence a war crime. Moreover, since the order constitutes “part of a widespread or systematic attack directed against any civilian population,” it fits the definition of a “crime against humanity” as stipulated by the Rome Statute for the International Criminal Court.
In this way, the order meets the high bar of constituting a manifestly unlawful order. Article 34M of the Israeli Penal Code states that a person who acts on the order of a legally authorized official, which he was legally obliged to obey, will be exempt from criminal liability for the act, “except if the order is manifestly unlawful.” In other words, those who carry out this order will be forced to bear criminal liability for its execution. Indeed, while our focus here is on Israel’s domestic criminal law, it bears noting that the Rome Statute for the International Criminal Court as well as the criminal codes of many countries specifically note that the defense of superior orders is not available for orders to commit crimes against humanity because such orders are manifestly unlawful.
Although these crimes are grounded in international law, they are directly applicable in Israeli law, because they reflect customary international law which constitutes an integral part of Israeli law without the need for incorporating legislation. In fact, the “Winograd Commission” (an Israeli-government-appointed commission of inquiry, charged to review the preparation and conduct of the Israeli military operations during the war against Hezbollah in 2006) has expressed reservations about using international law as reference for the manifest illegality of orders due to “the fear [that] international law (or the danger of being put on criminal or military trial) will paralyze soldiers from discharging their missions and from carrying out action that would enable fulfillment of the mission” given the fact that “international law on these subjects is unclear and indeterminate, and because the mechanisms for its enforcement are lacking and in some cases politically biased.” That the prohibition of forced deportation is not “unclear or indeterminate” is attested by that fact that already in 1950, the Israeli Knesset promulgated a law that stipulated that “deportation and other inhumane acts committed against any civilian population” constitute crimes against humanity, and that “deportation to forced labour or for any other purpose, of civilian population of or in occupied territory” constitutes a war crime.
Therefore, there is no moral or legal obligation to obey the order, but more importantly: there is a moral – and legal – obligation to disobey it. It is not the violation of the order, but rather compliance with it that will express a refusal to obey the law on the part of the IDF, starting with the chief of staff who endorses the order, all the way down to the soldiers who carry it out in Gaza.
Addendum
According to reports (here, here) Israel’s government is planning to set up a “humanitarian city” — euphemism for a large concentration camp for the civilian population, with the purported goal of isolating them from Hamas terrorists, while providing “mechanisms to encourage voluntary emigration” to unknown destinations. According to these reports, the IDF Chief of Staff resisted this plan, but Netanyahu instructed him to prepare one, for Netanyahu to see “when he returns from Washington” later that week. We believe this plan to be morally and legally unconscionable. We believe it to be especially shameful given the only possible justification for Zionism: providing a shelter for people persecuted for their nationhood after being uprooted, concentrated and deported from their countries.
