December 19, 2015
A Lonely Lawyer
BY NOW EVERY ISRAELI has seen the TV clip several times – showing a 14-year
old Arab girl being shot dead near the central market of Jewish Jerusalem.
The story is well known: two sisters, 14 and 16 years old, have decided to
attack Israelis. The clip, taken by a security camera, shows one of them,
clad in traditional Arab garb, jumping around on the sidewalk, brandishing a
pair of scissors.
The whole thing looks almost like a dance. She is jumping around aimlessly,
waving the scissors, threatening no one in particular. Then a soldier aims a
pistol at her and shoots her. He runs to the girl and kills her while she is
lying helplessly on the ground. The other girl is grievously wounded.
The soldier was lauded for his bravery by the Minister of Defense, a former
army Chief of Staff, and by his present successor. Throughout the political
establishment, not a single voice was raised against the killing. Even the
opposition was silent.
THIS WEEK one person raised his voice. Avigdor Feldman, a lawyer, informed
the Attorney General that he was going to apply to the Supreme Court, asking
it to open a criminal investigation against the soldier. He wants the court
to order the authorities to investigate all cases in which soldiers and
civilians have shot and killed “terrorists” after they had already become
unable to act.
In today’s Israel, this is an act of incredible courage. Advocate Feldman is
no crackpot. He is a well-known lawyer, prominent especially in the field of
I got to know him when he was still at the start of his career. He was still
a “stageur” – a lawyer who has finished his studies but is not yet a fully
licensed advocate – working in a friend’s office. He represented me in
several minor court cases, and even then I was struck by his sharp mind.
Since then, Feldman has become a prominent civil-rights lawyer. I have seen
him several times pleading in the Supreme Court, and noticed the reactions
of the court. When Feldman speaks, the judges stop their day-dreaming and
doodling and follow his arguments with rapt attention, interrupting him with
sharp questions, obviously enjoying the judicial jousting.
Now Feldman has done what nobody else has dared to do: taking the army by
the horns and challenging the high command.
In Israel, that is close to lèse majesté.
SINCE THE beginning of October, Israel has been experiencing a wave of
violence that has not yet acquired an official name. Newspapers call it a
“wave of terrorism”, some speak of “the intifada of the individuals”.
Its outstanding characteristic is that it lacks any organization. It is not
planned by a group, no orders are transmitted from above, no coordination
between cells is necessary.
Some Arab teenager takes a knife from his mother’s kitchen, looks for a
uniformed person in the street and stabs him. If no soldier or policeman is
available, he stabs a settler. If he sees no settler around, he stabs any
Israel he can find.
If he drives a car, he just looks for a group of soldiers or civilians
waiting by the road and runs them over.
Many others just throw stones at a passing Israeli car, hoping to cause a
Against such acts, the army (in the occupied territories) and the police (in
Israel proper or in annexed East Jerusalem) is almost helpless. In the two
earlier intifadas and in between, the security organs incredibly caught
almost all perpetrators. This was achieved because the acts were committed
by groups and organizations. Almost all of these were sooner or later
infiltrated by Israeli agents. Once one of the perpetrators had been caught,
he or she was induced to inform on the others – either by bribes, “moderate
physical pressure” (as our courts call torture) and such.
All these proven measures are quite useless, when a deed is carried out by a
single person, or by two brothers, acting on the spur of the moment. No
spies. No traitors. No prior signs. Nothing to work on.
The Israeli security services have tried to work out a typical profile of
such perpetrators. To no avail. There is nothing common to all or most of
them. There were several 14 year old teenagers, but also a grandfather with
children and grandchildren. Most did not appear in any anti-terrorist
database. Some were religious radicals, but many others were not religious
at all. Some were females, one a mother.
What pushed them? The official Israeli stock answer is: sedition. Mahmud
Abbas incites them. Hamas incites them. The Arab media incite them. Almost
all these “incitements” are routine reactions to Israeli actions. And
anyway, a young Arab does not need “incitement”. He sees what’s going on
around him. He sees terrifying nightly arrests, Israeli troops invading
towns and villages. He does not need the lure of the virgins awaiting the
martyr in paradise.
SINCE THERE is no immediate remedy, politicians and other “experts” fall
back on “deterrence”. Foremost method: summary execution.
This was first discovered in April 1974, when an Israeli bus was hijacked by
four inexperienced Arab youngsters. It was stopped near Ashkelon and
stormed. Two of the four were killed in the shooting, but two were captured
alive. Three photographers took their pictures alive, but later the army
announced that they were also killed in the fighting.
This was a blatant lie, protected by army censorship. As the editor of
Haolam Hazeh magazine, I threatened to go to the Supreme Court. I was
allowed to publish the photos, and a giant storm erupted. The chief of the
Security Service (Shin Bet or Shabak) and his assistants were indicted, but
pardoned without a trial.
In the course of the scandal, a secret directive came to light: the then
Prime Minister, Yitzhak Shamir, had issued an oral directive saying that “no
terrorist should remain alive after committing a terrorist act”.
Something like that must be in force now. Soldiers, policemen and armed
civilians believe that this is an order: terrorists must be killed on the
Officially, of course, soldiers and others are allowed to kill only when
their own lives or the lives of others are in direct and immediate danger.
According to the laws of war, as well as Israeli law, it is a crime to kill
enemies when they are wounded, handcuffed or otherwise unable to endanger
Yet almost all Arab perpetrators – including the wounded and the captured –
are shot on the spot. How is this to be explained?
Most frequently, the facts are simply denied. But with the proliferation of
security cameras, this becomes more and more impossible.
An argument often used is that a soldier has no time to think. He has to act
quickly. A battlefield is no courtroom. A soldier often acts instinctively.
Yes and no. Very often indeed there is no time to think. He who shoots first
stays alive. A soldier has the right – indeed, the duty – to defend his
life. When in doubt, he should act. No one needs to tell me that. I have
But there are situations when there is no doubt at all. If a handcuffed
prisoner is shot, it is clearly a crime. To shoot a wounded enemy, lying
helplessly on the ground, like the girl with the scissors, is disgusting.
These are clearcut cases. If the Minister of Police (now called Minister for
Interior Security) says in the Knesset that the girl-killer had no time to
think – he lies.
I dare to say that this minister, Gilad Ardan, an aggressive he-man who did
his glorious army service as a desk officer in the army personnel
department, has a bit less battle experience than I. What he said in the
Knesset is rubbish.
The soldiers shoot and kill because they think that their superiors want
them to. Probably they have been told to do so. The logic behind this is
“deterrence” – if the perpetrator knows that he is going to be killed for
sure, he may think twice before doing it.
There is absolutely no evidence for this. On the contrary, the knowledge
that he or she, the perpetrators, are probably going to be shot on the spot,
just pushes them on. Becoming a shahid, a martyr, will make their family and
the entire neighborhood proud.
Ah, say the deterrers, but if we also destroy the house of the perpetrator’s
family, they will think twice. Their family will beg them to abstain. Sounds
Not at all. There is absolutely no evidence for this, either. Quite the
contrary. Becoming the parents of a shahid is such an honor, that it
overrides the loss of the family home. Especially if funds provided by Saudi
Arabia and the other Gulf states will pay indemnities.
It is the clearcut opinion of the security experts that this kind of
collective punishment does not work. On the contrary, it creates more
hatred, which will create more shahids. In short, counter-productive.
The top army and security service commanders do not hide their opposition to
these measures. They are overruled by politicians and commentators who seek
SUMMARY EXECUTIONS and collective punishments are, of course, diametrically
opposed to the international Laws of Warfare. Many Israelis despise these
laws and ignore them. They believe that such naive laws should not hinder
our army in the defense of our country and us.
This argument is based on ignorance.
The laws of warfare were initiated after the 30-year war, in the first half
of the 17th century, which brought untold misery to central Europe. When it
was finished, two thirds of Germany was destroyed and the one third of the
German population wiped out.
The originators of the laws, in particular a Dutchman called Grotius,
started from the sensible assumption that no law will hold if it prevents
the prosecution of war. A nation fighting for its life will not observe any
law that hinders it doing so. But in wars, a lot of atrocities are committed
which serve no military purpose at all, just out of hatred or sadism.
It is these acts – acts that serve no military purpose – that are forbidden
by the international laws of war. Both sides suffer from them. Killing
prisoners, letting the wounded perish, destroying civilian property,
collective punishments and such help no side. They just satisfy sadistic
impulses and senseless hatred.
Such acts are not just immoral and ugly. They are also counterproductive.
Atrocities create hatred, which creates more shahids. Dead prisoners cannot
be interrogated and provide no information, which may be essential for
forming new strategies and tactics. Cruelty is just another form of
Our army knows all this. They are against. But they are overruled by
politicians of the more detestable kind, which we have in abundance.
CONNECTED WITH this subject is the persecution of an organization called
“Breaking the Silence”.
This was formed by soldiers who, upon their release, started to publicize
their experience in the occupied territories, things they did and things
they saw. This has become a big operation. Their meticulous adherence to the
truth has gained the respect of the army, and testimony given by them is
respected by the army General Attorney’s office and often acted upon.
This has now led to a furious incitement campaign against the group by the
demagogues of the extreme Right. It has been accused of treason, of
“besmirching our boys”, of aiding and abetting the terrorists and such. Many
of the accusers are former office soldiers and shirkers, who accuse former
This week the Rightist demagogues furiously attacked the President of
Israel, Reuben Rivlin, for committing treason. His crime: he appeared at a
political conference organized in New York by the liberal Israeli newspaper
Haaretz, where Breaking the Silence was also invited.
Rivlin is a very nice, very humane person. As President he is insisting on
full equality for Arab citizens. But he also entertains very right-wing
opinions and objects to giving up an inch of “Eretz Israel” territory for
peace. Yet no right-wing politician has come to his aid against the wild
Breaking the Silence does not stand alone. Fascist groups – I use the term
with some hesitation – accuse many peace and human rights organizations of
“treason”, citing the fact that several of them do receive donations from
European governments and organizations. The fact that Israeli right-wing and
downright fascist organization receive vastly more money from Jewish and
Christian Evangelist organizations abroad does not matter.
ALL THIS shows how courageous Advocate Feldman is in his efforts.
As we say in Hebrew: All honor to him.