Are Israeli Leaders Indictable for War Crimes?

by Elias Davidsson

Editor’s note: Gumshoe’s article on  Julian Assange and War Crimes, by Mary Maxwell sparked this response from human rights scholar Elias Davidsson. It is a piece that he wrote in 1992 and revised a quarter century ago, in 1994. It outlines crimes attributable to the then Prime Minister of Israel, Yitzhak Rabin. It was never taken up.

There have been calls by non-governmental organisations and eminent citizens for the trial of individual leaders, for their alleged participation in war crimes. More and more people recognize the importance of holding individual public leaders responsible for their deeds and failings.

Since the Nurnberg and Tokyo trials of the 1940s in which the leading World War II criminals were tried, no judicial body of any country has been willing to initiate legal measures for the apprehension and trial of the world’s leading war criminals, in spite of States’ legal obligations to do so.

The Israeli-Arab conflict, or more correctly the Zionist-Palestinian conflict, has lasted for almost a century. In the course of this conflict, many acts of violence were committed by both sides. But not every act is defined in international law as a war crime or a crime against humanity.

Only the most odious crimes are considered as offences against Mankind, which all states, individually and collectively, are required to repress. The Geneva Conventions of 12 August 1949 and their Additional Protocols of 1977, provide a list of such crimes.

The present memorandum provides evidence about the responsibility of Mr. Yitzhak Rabin. It also includes a preliminary legal discussion about the acts in question, the responsibility of Mr. Rabin [1922-1995] and the duties of states to prosecute.

1. Mr. Rabin Was Responsible for Ethnic Cleansing/Deportation in 1948 

On 12 July 1948, Lt. Colonel Yitzhak Rabin, Chief of Operations Operation Dani, issued the following order to Yiftah Brigade headquarters:

“1. The inhabitants of Lydda must be expelled quickly without attention to age. They should be directed towards Beit Nabala.”

The implementation of this order is described in the authoritative book The birth of the Palestinian refugee problem, 1947-1949″ by Israeli historian Benny Morris (Cambridge University Press, 1987) and more in detail in Michael Palumbo’s book The Palestinian catastrophe: The 1948 expulsion of a people from their homeland, Quartet Books (1987).

The authors estimate that approximately 50,000 civilians (Arabs) were expelled from Lydda and Ramleh under Mr. Rabin’s orders. As a prelude to the flight hundreds of civilians were killed by Israeli soldiers. Many more died in the ensuing ‘march to exile’.

Although Zionist leaders claimed that the expulsions were based on military necessity, the fact that the refugees were not allowed to return and declarations by Zionist leaders about the necessity to reduce the number of Arabs in the incumbent Jewish state lend credence to the claim (by Palestinians) that the expulsions were part of a master plan of “ethnic cleansing”.

The deportation of civilians constitutes a Crime against Humanity under Article 6(c) of the Nürnberg Charter and a grave breach of the Fourth Geneva Convention of 12 August 1949, as specified in Article 147 thereof. The unjustifiable delay in the repatriation of the inhabitants of Lydda and Ramleh (who have never been allowed to return) constitutes a grave breach of the First Additional Protocol.

2. Mr Rabin Ordered in 1967 the Destruction of 3 Villages and the Expulsion of Their Inhabitants

In the 1967 war between Israel and Jordan, Yitzhak Rabin was Chief of Staff of the Israeli Defence Forces. In this short war some 5,000 inhabitants from three villages in the Latrun triangle between Tel Aviv and Jerusalem (Emwas, Beit Nuba and Yalou) were expelled by the Israeli army and their villages totally destroyed.

An Israeli soldier, Amos Kenan, who took part in the expulsions, described these acts in a report sent to all Israeli Members of Parliament. According to press reports, including one in Jerusalem Post of 24 October 1991, Mr. Yitzhak Rabin admitted in Canadian TV having given the order to destroy the villages.

The inhabitants of these villages were never allowed to return and rebuilt their village nor bury their dead in the lands of their former village.  The unjustifiable delay in the repatriation of the inhabitants of the above three villages constitutes a grave breach of the First Additional Protocol to the Geneva Conventions of 12 August 1949 (article 85.4).

In addition, the Geneva Conventions as well as their additional protocols prohibit “at any time and in any place whatsoever….collective punishments”. It is submitted that the destruction of these villages – every single house in them – constitutes ‘collective punishment’ within the meaning of the Conventions.

3. Mr Rabin Urged Israeli Soldiers to Break the Bones of Palestinian Youngsters

In mid-January 1988, Mr. Rabin, then Israeli Defense Minister, announced a policy to restore order in the Occupied Territories by “force, might, beatings”. More specifically, he urged Israeli soldiers to summarily (and viciously) beat Palestinian demonstrators. Israeli soldiers implemented this policy, breaking the hands or arms of many demonstrators with methodically directed blows, using sticks and stones.

In some cases, Palestinian youngsters were rounded up from their homes, brought to remote areas, and there, while a couple of soldiers held them, had their bones smashed. The international outrage called forth by a 40-minute long TV-film secretly shot, and showing how Israeli soldiers smash the bones of a Palestinian youth, compelled the Israeli government to halt these extra-judicial and inhuman punishments.

Israeli soldiers, charged for using excessive force and brought to trial in Israel, have testified that the orders for these practices originated from above, including from Yitzhak Rabin. Although the Israeli press published numerous testimonies, which all mention Mr. Rabin as the instigator of these practices (e.g., Ha’aretz, 9. April ) Mr. Rabin was never asked to testify in court. No inquiry was initiated regarding his role in these policies.

4. Yitzhak Rabin Ordered in 1993 Indiscriminate Attacks of Civilian Population Centers in Lebanon

The Sunday Times, 1 August 1993, reported under the heading “Rabin’s war”:

“Late yesterday, he [Rabin] called off his personal seven-day war in southern Lebanon.… Rabin’s War – Operation Accountability – has killed at least 130 and sent hundreds of thousands of Lebanese fleeing towards Beirut…. Southern Lebanon had become a land without people…. About 80 villages have been hit.”.

According to the London-based Middle East International (MEI) of 6 August 1993, the

“majority of casualties were civilians. At least 55 towns and villages were very heavily damaged, including Nabatiya, a major regional center of Lebanon with a normal population of around 100,000. [This seven-day bombardment of southern Lebanon was] “expressly designed (as Mr. Rabin himself announced) to render South Lebanon ‘uninhabitable’ and to create a tidal wave of refugees so huge that it would destabilise the government in Beirut and bend it to Israel’s will ….”

According to Lebanese government estimates (reported in MEI):

“Some 400,000 people – mainly Shi’ite Muslims – fled their homes in panic, with about half of them converging on Beirut and its southern suburbs. While some had families and friends to go to, others arrived with only the clothes they stood in, and had no money to fend for themselves”.

Both the Hague Conventions of 1907 and the Additional Protocol I to the Geneva Conventions of 12 August 1949 contain specific provisions that prohibit attacks on civilian populations. It specifies as a ‘grave breach’ (war crime) “making the civilian population or individual civilians the object of attack” as well as “launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects”.

Further details are provided by the Protocols, all of which lead to the conclusion that the Israeli attack on South Lebanon constituted a ‘grave breach’ of international humanitarian law. The individual who bears the primary responsibility for the Israeli operation against South Lebanon is Yitzhak Rabin, in his double capacity as Prime Minister and Minister of Defense.

LEGAL DISCUSSION 

Are the facts allegedly attributed to Mr. Rabin true? Are the sources trustworthy? What is the evidence that Mr. Rabin had anything to do with these acts ? Do the acts under consideration constitute prosecutable crimes under international law?

Another set of questions would deal with the problems involved in bringing a person such as Mr. Rabin to trial. Although it is true that in many situations, it is impossible to bring about the prosecutions, it is nevertheless of public utility to expose leaders’ crimes as widely as possible, isolate such people politically and morally and cause small but significant changes of policy.

Such publicity would at least prevent war criminals traveling between world capitals in total impunity and be feted as peace heroes, as Mr. Rabin has been. It might be argued that in some circumstances, an individual charged with war crimes, might voluntarily seek due process, either to clean his name, or to avoid extra-judicial retribution.

The Authenticity/Reliability of the Evidence

In all above cases there has been a wide coverage given by the press and in scholarly works to the acts committed.  In the first two cases (expulsion from Lydda and Ramleh and expulsion from the 3 villages around Latrun), there is no controversy about the fact that the population of these two towns was expelled. A disagreement persists regarding the aim of the expulsion. Israel maintains that the expulsions were carried out because of military necessity.

From the point of view of international humanitarian law, it does not matter why a civil population is deported. Such deportations are prohibited in all circumstances and constitute war crimes.

Furthermore, if it were true that the expulsions were carried out because of military necessity, the expelled would be allowed to return to their homes, once the hostilities ended. But Israel has not only refused to allow such return but allowed Jewish immigrants from other countries to permanently occupy the abandoned houses in Ramleh and Lydda and planted a park on the land of the villages destroyed in 1967.

Ample evidence has been published in 1988 in the Israeli press and the international press about acts of beatings and breaking of limbs by Israeli soldiers. Such evidence also includes visual documentaries, testimonies by Israeli soldiers and testimonies of victims. There is no controversy about the fact that such acts were carried out.

The last case, regarding the massive attack on South Lebanon, was reported in the international press. The effect of the attack was documented in great detail, particularly the flight of hundreds of thousands of civilians from their homes in South Lebanon and their plight.

Mr. Rabin’s Personal Involvement in the Above Acts

As to Mr. Rabin’s personal implication in the above acts, this has never been questioned by anyone. As quoted above, Mr. Rabin has publicly acknowledged to have ordered the commission of the first two actions (1948 and 1967).

While Mr. Rabin did not yet explicitly admit to have urged Israeli soldiers “to break the bones” of Palestinian demonstrators, his declared policy in 1987/88 to crush the Palestinian uprising by “force, might, beatings” and the numerous testimonies in Israeli courts by Israeli IDF personnel implicating Mr. Rabin in such punishments [can be used] to charge him with instigating and condoning these acts.

As for the IDF attack on South Lebanon in 1993, it can be assumed that it was committed under direct orders from and permission by Israel’s Prime Minister and Minister of Defense, Mr. Yitzhak Rabin. Although one might argue that other Israeli nationals, primarily leaders of the IDF, were implicated in this gross violation of international law, this does not mitigate Mr. Rabin’s primary responsibility for this act.

— End of Elias Davisson’s article —

ADDENDUM, by Mary W Maxwell

Sharon and Olmert

Rabin had two terms as Prime Minister: 1974–77 and 1992 until his assassination in 1995. Why was he assassinated? Who knows?  Maybe it was because someone was afraid that Davidsson’s ideas would spread around.

I recall the embarrassing moment when Ariel Sharon had to cancel a meeting in Brussels, as people in Belgium were planning to capture him for war crimes.  The signatories to the Geneva Conventions agree that if the responsible country won’t prosecute its leaders, another country should feel obliged to do so.

From the Guardian, November 28, 2001:

“Israel flatly rejected the right of a Belgian court to try its prime minister, Ariel Sharon, for war crimes as the judges yesterday began considering whether they had jurisdiction in the explosive case.

“Officials said the appeal court would reach a decision in January on whether to investigate Mr Sharon’s role in the massacre of hundreds of Palestinians in Lebanon in 1982, when he was Israel’s minister of defence.

“Mr Sharon has avoided visiting Belgium since the complaint was filed in the summer by 23 survivors of the killings, under a controversial law which allows Belgian courts to prosecute foreigners for human rights violations committed abroad.”

The Appeals Court in Belgium ruled against bringing a case.

Alas.

Elias Davidsson has pointed out to me that:

“It is the obligation of the Signatories of the Geneva Conventions to initiate legal procedures, either in domestic courts or through a collective mechanism under UN auspices, for the prosecution of war criminals. This duty is absolute and cannot be waived – legally – by political or other considerations.”

Lately, another ex-PM of Israel got into trouble This is from Jewish Telegraphic Agency, July 25, 2019:

“Ehud Olmert canceled a trip to Switzerland after the former Israeli prime minister was warned that he would be arrested on suspicion of war crimes.

“Olmert had been scheduled to travel to Switzerland on Monday, but was warned over the weekend by Israeli defense and justice officials that he would be detained for questioning upon landing…. Officials said his detention would cause great embarrassment to Israel.

“Olmert was prime minister during the 2006 Second Lebanon War and the three-week Gaza military operation known as Cast Lead that started in late December 2008.

“He reportedly told the officials that he would tell the Swiss that Israel was fighting terrorist organizations – Hezbollah and Hamas, respectively — during the wars.”

I have heard that Henry Kissinger is also very cautious about traveling. I’ll bet Donald Rumsfeld is, too.

Bottom line: the sins of your past may catch up with you.