By SETH J. FRANTZMAN
Originally published in The Jerusalem Post
The 1957 film Paths of Glory, depicts an epic miscarriage of justice. Adapted from the book by Humphrey Cobb, the film tells of an attack by a regiment of soldiers during World War I. Their colonel, played by Kirk Douglas, begs that his unit not be dispatched on a suicide mission against enemy trenches. Despite his objections, many of his men are slaughtered and others refuse even to leave the trenches.
As punishment for the failure of the attack, the French general orders 100 of the men shot for cowardice. The punishment is later reduced to just three executions. In the end, these soldiers pay the price for the incompetence of their superior officers. The blame and responsibility is shifted steadily down the ranks; those finally held accountable are a corporal and two privates.
A SIMILAR theme is being played out here, although with much less deadly consequences. In November of 2010 two Givati Brigade soldiers, both staff-sergeants, were charged with overstepping authority and conduct unbecoming for forcing a nine-year-old Palestinian to open a bag they thought might be booby-trapped. According to newspaper reports, their indictment was the first involving allegations of misconduct in combat during Operation Cast Lead (other soldiers had been charged with looting).
More than 30 investigations have been launched into misconduct during Cast Lead. A military official noted: “In places where the incident exceeds the boundaries of reason, we will file indictments.”
According to Hanan Greenberg in Yediot Aharonot, the officers understand “the complaints of many soldiers who said they felt humiliated by the interrogations and the fact that their commanders did not provide support.”
Officers and soldiers have expressed annoyance at the indictments, arguing that the soldiers did not do anything that justified criminal charges. Protesters have carried signs that blame the Goldstone Report for the indictment, calling on Israel not to bend to international pressure. Yoni Lichtman, former commander of the soldiers, noted that the army had “abandoned these soldiers [and] fail[ed] to come and support them.”
The story is quite shocking. When the trial began, the soldiers faced three years in prison. The action that precipitated it all was that they had entered a house in the midst of a battle and, contrary to regulations, asked a boy to open bags and boxes. In the end the court did not sentence them to prison, but did convict them of the charges.
Now another case has come to light. A low-ranking soldier from the Givati Brigade, known only as “S,” has been charged with “killing an unknown person.”
This unusual charge stems from claims that he shot a Palestinian woman in Gaza. The woman was said to be carrying a white flag. According to S, his commander gave specific orders to shoot, without intent to kill, all those approaching his position. He claims he “aimed at the body with intent to wound, because they were continuing to approach and walking very quickly.”
Whatever the case, the body of the woman who was killed was not examined, but nevertheless the soldier was charged with killing this “unknown person.”
The commander, needless to say, has not faced charges.
IT SHOULD be readily apparent now to those called upon to serve in the IDF that if they are in a combat unit, they will be held responsible for all acts they commit, no matter the conditions and no matter the orders, because the new rule in the IDF appears to be that military prosecutors and unit commanders shift any blame to the soldiers. The treatment of grunts and NCOs is not in line with the current culture and developments in military justice.
Consider the heinous case of the Mai Lai massacre in Vietnam. In that incident, a company of American soldiers went on a rampage, killing 347 people. In 1970, two years after the massacre, 14 officers were charged and one was sentenced to prison.
In 1972 the British Parachute Regiment gunned down 13 people in Northern Ireland on “Bloody Sunday.” No British soldiers were ever charged, and an official inquiry was not completed until June 2010, 38 years later. That is British justice – ironically, the same justice system that has attempted to charge Israelis with war crimes.
In Iraq the US has charged several people in connection to abuses. Other than the charges concerning behavior at Abu Ghraib, Steven Green of the 101st Airborne was charged with raping a girl and murdering her parents at Mahmoudiyah. In a more heinous story, 12 US soldiers were charged in September with operating a “kill team” that faked attacks in order to gun down Afghans for fun. According to reports, during their drug-induced savagery, they even collected trophies, such as fingers, from the victims. In another case – the only one with some parallels to the current Israeli ones – a US Navy SEAL named Matthew MacCabe was found not guilty after having been accused of assaulting an Iraqi detainee.
In other democracies fighting insurgencies a pattern is clear; either the officers are charged or no one is, except in the most exceptional circumstances. Considering that hundreds of Arab civilians died in Operation Cast Lead, the current prosecutions can’t possibly be dealing with the most exceptional cases of conduct that harmed civilians. There are a number of theories regarding the Military Advocate-General prosecuting soldiers for the Gaza war. One is that the pressure from international NGOs, the UN’s Goldstone Report and Israeli human rights organization has forced the MAG to throw a few scapegoats to the wolves. Another is that the soldiers are guilty and must be punished for their conduct.
However the reality is more complex. First of all, the army MAG has gotten in the habit of acting more like the internal investigative division of a large police department than that of an army. That is a direct result of the army’s own actions in the territories over the years, where parts of it were tasked with policing. Years in the West Bank and experience dealing with human rights NGOs such as Machsom Watch have conditioned IDF officers and MAG to blame the lower ranks, and particularly combat soldiers. In a recent book, Rethinking Contemporary Warfare: A Sociological View of the Aksa Intifada, the authors, who conducted extensive interviews with soldiers, found that IDF commanders used the reports of human rights NGOs against their own soldiers, to the point where Machsom Watch “directly phone[s] territorial brigade commanders” and the commanders acted on their criticism. Unfortunately the IDF has gotten in the habit of placing accountability as low as possible.
The army faces a complex task in sorting out human rights complaints in the spotlight of international opinion. Trying to shift the spotlight so it shines on its most vulnerable soldiers represents a miscarriage of justice, both in the context of prevailing military legal thinking and in the context of harming those who give the most to their country.