By Elias Davidsson
October 1992. Revisions in December 1992 and December 1994
A number of Member States of the United Nations have declared their interest and support for the establishment of an International Criminal Court under United Nations auspices to deal with international crimes such as war crimes and crimes against humanity. A Special Court to deal with War Crimes committed in ex-Yugoslavia has been established under UN auspices and has began functioning. There have also been calls by non-governmental organisations and eminent citizens for the trial of individual leaders, such as Saddam Hussein, Pol Pot, George Bush and John Major, 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, not only politically and morally, but also legally. International law provides some opportunities in this direction, which have not been used yet.
Such opportunity presents itself in the Geneva Conventions of 12 August 1949. By signing these Conventions, each Signatory State undertook "to search for persons alleged to have committed, or to have ordered to be committed, [such] grave breaches, and [shall] bring such persons, regardless of their nationality, before its own courts." A Signatory may also avail itself of the possibility, under certain conditions, of handing such persons to another Signatory State for trial.
Since the Nurnberg and Tokyo trials 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. States, including those claiming to support human rights, shield leading war criminals from prosecution or provide them with shelter. Individuals such as Pol Pot of Kampuchea, Saddam Hussein of Iraq, Assad of Syria, Pinochet of Chile and Mobutu of Zaire, are often, and probably with justification, labelled as enemies of Mankind. But none of them has ever been formally charged by any Signatory of the Geneva Conventions, in spite of ample evidence of their responsibility for international crimes. Other gross human right violators (such as the leaders of Haiti) have been offered shelter in third countries where they escape prosecution.
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 of violence committed in a military conflict is defined in international law as a war crime or a crime against humanity. The difference lies both in the nature of the crime, its extent, whether it is systematic or sporadic and whether violence was committed against non-combatants, to name a few criteria. 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, Israeli national and currently Prime Minister of the State of Israel, for acts committed under his orders and which are defined in the Geneva Conventions of 12 August 1949 and their Additional Protocol I of 1977, as ‘grave breaches’, the technical term for war crimes. The memorandum also includes a preliminary legal discussion about the acts in question, the responsibility of Mr. Rabin and the duties of states to prosecute.
1. Mr. Rabin Was Responsible for Ethnical Cleaning / 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. Yiftah [Brigade headquarters] must determine the method and inform [Operation] Dani HQ and 8th Brigade HQ. 2. Implement immediately." The order was signed "Yitzhak R[abin]."
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) [pages 207-210] and more in detail in Michael Palumbo’s book "The Palestinian catastrophe: The 1948 expulsion of a people from their homeland", Quartet Books, London/New York, 1987 [Chapter VIII: The Lydda Death March].
These publications offer further evidence about Mr. Rabin’s implication in this event. The authors estimate that approx. 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 planned ‘transfer’ policy by the Zionist authorities, in other words a master plan of "ethnical 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 to the Geneva Conventions of 12 August 1949 (article 85.4).
Article 85.5 of the First Additional Protocol to the Geneva Conventions of 12 August 1949 specifically refers to grave breaches as ‘war crimes’.
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 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 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 (i.e. Ha’aretz, 9. April, 1. July, 3. July 1990, Jerusalem Post of 25 July and 30 June 1992), Mr. Rabin was never asked to testify in court. No inquiry was initiated regarding Mr. Rabin’s role in these policies.
Article 147 of the Fourth Geneva Convention of 12 August 1949, specifies as one of the grave breaches (war crimes) "inhuman treatment….wilfully causing great suffering or serious injury to body or health". Protocol I Additional to the Geneva Conventions of 12 August 1949 (1977), lists among the acts which remain "prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:": "Violence to the….physical or mental well-being of persons, in particular….(iii) corporal punishment."
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 with a normal population of around 100,000."
According to the editorial of the same issue of MEI, 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. Thus Additional Protocol I 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.
There are a number of legal questions that must be settled before charging Mr. Rabin for participation in war crimes. Among these questions we can mention the following: 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. These problems are of a similar nature to those encountered today by the UN Tribunal on War Crimes Committed in Ex- Yugoslavia. These questions will not be dealt here as they are premature. However it is necessary to deal, if only summarily, with a widely held opinion, according to which the whole question of the prosecution of war criminals is a non-starter, because it is impossible to bring the leading war criminals to trial due to their political status or their country’s sovereignty. Although it is true that in many situations, it is impossible to bring about the prosecution and apprehension of the leading world war criminals, it is nevertheless of public utility to expose their 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 that war criminals could travel 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 of war crimes, might voluntarily seek due process, either to clean his name, or to avoid extra-judicial retribution.
The Authencitiy/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. There may be disagreement between observers as to the number of victims and to details regarding the conduct of hostilities.
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 expulsion 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 appear as prima facie evidence to charge him of 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.
The Legal Status of the Above Acts under International Law
Some Israeli legal scholars argue that the acts described above cannot be described as ‘war crimes’ as they are grossly different in extent and intent from the war crimes committed by the Nazi regime. According to this view, only the most outrageous types of ‘war crimes’, as committed in World War II, would qualify for universal jurisdiction. Such a narrow interpretation of international humanitarian law is widely challenged because this would in practice nullify the intent and spirit of the Geneva Conventions. Such interpretation would thus be incompatible with the provisions of the Vienna Convention on the Law of Treaties. The fact that the Geneva Conventions have been violated with impunity by numerous states, has never been considered by legal scholars as a practice diluting the letter and spirit of the Conventions.
The Geneva Conventions prohibit deportation both of groups and of individuals in all circumstances. The expulsion of 5,000 or 50,000 civilians from their homes falls clearly under this heading. The Nuremberg Principles, on the base of which Nazi war criminals were convicted, define the "deportation … for any … purpose of civilian population of or in occupied territory" as War Crime. These Principles define further the "deportation and other inhuman acts done against any civilian population….when such acts are done….in connection with any crime against peace or any war crime", as Crime against Humanity.
There has been some controversy about the legal nature of exactions committed by Israeli soldiers against Palestinian demonstrators, particularly the beatings under custody. To beat a person he must be already under custody. He thus must first be apprehended and therefore does not represent any imminent danger to those detaining him. Any extra-judicial attack or punishment upon his person constitutes a gross deviation from recognized human rights norms (which require that due process determine a defendant’s culpability and punishment). The Geneva Conventions of 12 August 1949 are not as specific as the Additional Protocol I of 1977, which proscribes ‘corporal punishment’, although not as a ‘grave breach’. The final legal determination of this offence would have to be carried out by judicial authorities.
As to the attack on South Lebanon, international law is quite explicit about the prohibition of attacking civilians. The fact that Hizbullah forces launched attacks against Israel from these areas does not relieve Israel from the duty to observe the rules of warfare when launching retributive attacks. In launching and committing the massive attacks on populated areas in South Lebanon and causing hundreds of thousands of people to flee their homes, the Israel Defense Forces clearly and grossly violated the laws of warfare. Article 85, paragraph 3 (a) and (b) of the Additional Protocol I to the Geneva Conventions of 1949 specify such attacks among the ‘grave breaches’ (war crimes), if such attacks were committed "wilfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health".
Do State Leaders Enjoy Immunity Against Prosecution?
It is generally believed that State leaders are immune from legal prosecution with regards to international humanitarian law, but this is incorrect. The international community has accepted that a limited number of crimes are so odious that their perpetrators are considered enemies of Mankind. Such crimes include piracy, slavery, genocide, international terrorism and war crimes, to name a few. It is the right and duty of all nations to search and bring to trial individuals who have committed such crimes, regardless of nationality and status. The Nuremberg Principles, established in 1945 and incorporated into positive international law since then, state:
"The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law" (Principle III. "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible for him". (Principle IV).
Evidence provided by Israeli historian Benny Morris indicates that some Israeli leaders and government members, such as Minister Shitrit, were shocked by the expulsions from Lydda and Ramleh in 1948 and wanted to stop them. Mr. Rabin choose to implement the expulsions by all means in spite of such reservations.
There is ample evidence publicly available regarding the responsibility of Mr. Yitzhak Rabin, currently Prime Minister of the State of Israel, in instigating and ordering acts defined as war crimes in international law. Summary of this evidence has been provided in this memorandum as well as a short legal discussion.
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. In practice, leading war criminals, such as Mr. Rabin, have not been prosecuted but feted. In today’s world, it seems that one must have committed the most heinous war crimes to be awarded the Nobel Prize for Peace. UN members are perceived as acting in concert to shield war criminals. Such gross, systematic and persistent derelictions by UN member states and signatories of the Geneva Conventions, undermine the moral and legal authority of these states to ensure international equity and peace. If the lawkeepers are themselves criminal or help to shield leading criminals from prosecution, their legitimacy as lawkeepers must be challenged for the sake of world peace and justice. Such challenge can be moral, legal, political or military, depending on the circumstances.
Human rights’ and peace organisations who wish to see the rule of law supersede the law of the jungle in international affairs and all those who struggle for democracy, public accountability and justice, should therefore avail themselves of the evidence provided here to publicize Mr. Rabin’s deeds and press for his apprehension and prosecution, wherever he is to be found. The author of these lines welcomes any critical comments as well as further evidence regarding this issue.
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