Transformative Justice: Israeli Identity on Trial

Chapter 7. Between Ordinary Politics and Transformative Politics

Chapter 7 Between Ordinary Politics and Transformative Politics As we saw in chapter 5, Adolf Eichmann contended that in all his actions he had merely fulfilled his duty as a soldier to obey superior orders and therefore was legally exculpated. The court rejected this line of defense, relying on the precedent set by the Nuremberg trials that the duty to obey orders cannot be used as a defense against the charge of committing war crimes.1 However, alongside this famous precedent from international law, the Israeli court also relied on an Israeli precedent that had been determined in Military Prosecutor v. Major Melinki, better known as the Kufr Qassem trial.2 The Kufr Qassem trial opened on 15 January 1957 in the military district court in Jerusalem. On the bench sat three judges: Col. Benjamin Halevi, Lt. Col. Yitzhak Dibon, and Maj. Yehuda Cohen.3 The events leading to this extraordinary trial took place on 29 October 1956 on the eve of the Sinai war. A battalion of the Israeli Border Police was ordered to enforce an unusually early curfew that had been imposed on the Arab villages of the so-called little triangle near the border with Jordan. The battalion commander, Maj. Shmuel Melinki, in accordance with an order higher up the hierarchy, instructed his soldiers to kill anyone who remained outside in violation of the curfew, despite the fact that many inhabitants who worked outside their villages would not know about it. In one of the villages, Kufr Qassem, a massacre occurred. Upon their return home, in the hour between 5:00 P.M. and 6:00 P.M., forty-nine villagers, including men, women, elderly people, and children , were killed in cold blood.4 Many others were wounded. Eleven soldiers of the border police belonging to the unit posted in Kufr Kassem were charged with obeying a murderous order, and Melinki was charged with giving the order that had led to the massacre. Col. Yisaschar Shadmi, the Israeli Defense Forces (IDF) brigade commander 169 with whom the order to shoot anyone caught breaking the curfew had originated, was not among the accused.5 In his verdict the presiding judge, Benjamin Halevi, found the defendants guilty of murder as a result of obeying a manifestly illegal order. The Kufr Qassem massacre became a symbol of blind obedience to a large extent because of one memorable passage in the decision, which came to be known as the “black flag” test. The hallmark of manifest illegality is that it must wave like a black flag over the given order, a warning that says: “forbidden!” Not formal illegality, obscure or partially obscure, not illegality that can be discerned only by legal scholars, is important here, but rather, the clear and obvious violation of law. . . . Illegality that pierces the eye and revolts the heart, if the eye is not blind and the heart is not impenetrable or corrupt—this is the measure of manifest illegality needed to override the soldier’s duty to obey and to impose on him criminal liability for his action.6 Judge Halevi, who at the time was the president of the district court in Jerusalem, was especially drafted into the army to preside over this trial.7 As we recall, he was the judge at the Gruenwald trial who had written the controversial sentence that Kastner had “sold his soul to the Devil” by negotiating with Eichmann over the lives of Hungarian Jewry. We also saw that Halevi was later the cause of an unusual amendment to the Nazi and Nazi Collaborators (Punishment) Law, in an attempt by the government to prevent him from presiding over the Eichmann trial as well.8 However, the thread connecting the three trials ran much deeper than this, for each constitutes an important chapter in the struggle to determine the content of the Israeli collective memory and identity. The Kufr Qassem trial was a key moment in this process, since here for the first time the court was called on to recognize the immanent dangers posed to the young Israeli democracy by the lack of a legal and civilian mechanism that could integrate Arab Israelis into the collective. However, as we shall see, the trial was also a very fragile moment, immediately threatened by an attempt of the Israeli political authorities to reverse its results. In this chapter I examine how the Kufr Qassem trial contributed to opening the possibility of a more inclusive Israeli citizenship and why this opening was...