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In
January 1988, barely one month into the Intifada uprising against
Israeli occupation of the West Bank and Gaza Strip, Col. Yehuda
Meir ordered troops under his command to round up twenty Palestinian
men from Hawara and Beita, two Arab villages in the West Bank, bind
them in handcuffs and blindfolds, and break their bones. The unit
commander reporting to Meir passed on the order to his troops, but
told them he did not require them to comply. Some soldiers refrained
from doing so, but others carried out the order with such zeal that
they broke their truncheons. The defense minister at the time, Yitzhak
Rabin, publicly spoke of the need to “break the bones of Intifada
rioters."
Although Meir was not present during the incident, he was the superior
commanding officer in the area.
It took some months before military police, following a request
by the International Committee of the Red Cross (ICRC), launched
an investigation. The army chief of staff summoned Meir and offered
him the choice: to appear before a disciplinary military court for
a severe reprimand and discharge from the army, or to face a court
martial. Meir accepted the first option, under which he was to go
to work for the State security service until he could begin retirement
on his colonel’s pension.
When word of the behind-the-scenes deal became public, the Associ-ation
for Civil Rights in Israel petitioned the Israeli High Court of
Justice, demanding that Meir be court-martialed.
The High Court ruled unanimously that Meir should be tried in a
special military tribunal for torture, intentionally causing bodily
harm, grievous assault—all, incidentally, grave breaches of
the Geneva Conventions—and unbecoming conduct.
"These actions outrage every civilized person, and no lack
of clarity can cover it up" Justice Moshe Bejski said. "Certainly,
if the order is given by a senior officer, that officer must be
aware that the morality of the Israeli Defense Forces forbids such
behavior."
Following the High Court's decision, Meir went on trial before a
special military tribunal in Tel Aviv in April 1991. He was found
guilty, demoted to private’s rank, and deprived of his colonel’s
pension.
Meir’s case points to two critical issues of international
humanitarian law (IHL). Can obedience to superior orders be a defense
against allegations of war crimes? And how far up the chain of command
does "command responsibility" reach?
The answer to the first question is that a claim of superior orders
cannot serve as a defense against an allegation of grave breaches
or other serious violations of IHL. It should be noted, however,
that the illegality of the orders was blatant and undeniable in
Meir’s case. In other cases, the illegality may not be so apparent,
and a war crimes prosecution may fail if the subordinate is not
shown to have acted "willfully" in the sense of knowing
or having reason to know that the order was illegal. In addition,
although a claim of superior orders cannot serve as an affirmative
defense, it may be part of a claim of duress—such as a threat
to execute the subordinate for failure to carry out orders—that
may be offered in mitigation.
The second issue is how far up the chain of command responsibility
may extend for ordering a war crime. Article 86 of Additional Protocol
I to the 1949 Geneva Conventions states: "the fact that a breach
of the Conventions or of this Protocol was committed by a subordinate
does not absolve his superiors from penal disciplinary responsibility
as the case may be if they knew, or had information which would
have enabled them to conclude in the circumstances at the time that
he was committing or was going to commit such a breach and if they
did not take all feasible measures within their power to prevent
or repress the breach."
This rule applies to officers. Therefore command responsibility
extends as high as any officer in the chain of command who knows
or has reason to know that his subordinates are committing war crimes
and failed to act to stop them. Although Israel has not ratified
Additional Protocol I, it is clear from Israeli Supreme Court practice
that its domestic law embraces these internationally recognized
standards for superior orders and command responsibility.
Under the 1998 statute of the new International Criminal Court,
a military commander is liable for crimes that he "knew or
should have known" about under circumstances at the time, and
only for those crimes committed by forces under his "effective
command and control." He is liable if he "failed to take
all necessary and reasonable measures" to prevent and repress
such crimes that subordinates "were committing or about to
commit" or for failing to report such crimes to proper authorities.
Various cases have raised difficult questions, starting with the
famous Yamashita case heard by the International Military Tribunal
in Tokyo following World War II. This Tribunal held a senior enemy
commander to what many critics, including a dissenting U.S. Supreme
Court opinion, thought to be an extraordinarily high standard of
responsibility for actions of subordinates, even under circumstances
where Admiral Yamashita had lost almost all command, control, and
communications over his subordinates. In practical terms, command
responsibility is not taken to extend as far up the chain of command
as might logically be implied, that is, to commanders in chief,
and is generally confined to officers in some meaningful supervisory
capacity.
Meir argued in his own defense that he was acting in accord with
his understanding of orders given by his superiors. The tribunal
rejected his argument. The judges concluded that political and high-ranking
military officials had not given orders to break bones. Consequently,
the State prosecutor's office decided not pursue charges against
Ehud Barak, the chief of staff at the time, Rabin, the minister
of defense, or Maj. Gen. Yitzhak Mordechai, the commanding officer
of the central zone.
Officers and soldiers who carried out Meir's orders in the Hawara
and Beita affair were tried in special military courts. Their arguments
that they were merely "obeying orders" were rejected and
they served time in prison.
(See Arab-Israeli wars; willfulness)
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