How to get away with genocide: legal issues arising from the Tantura massacre

The 1948 Nakba (File)

Alya Zoabi

Mondoweiss  /  February 4, 2022 

Who bears responsibility for the Al-partTantura massacre, and how should they be held accountable?

In the early stages of 1948, a week after the British mandate left Palestine, the village of Tantura was targeted by the Israeli militaries. A recent documentary revealed the story of the massacre including testimonies from several IDF veterans affirming that a massacre involving up to 200 Palestinian victims had taken place at that time. 

This story has been told before. In 1998, the MA student Teddy Katz wrote his master’s thesis at Haifa University and “proved” that the Alexandroni Brigade committed a massacre in the Palestinian village Tantura. In return, Katz faced a severe defamation lawsuit filed by the veterans of the brigade. Professor Ilan Pappe, who was a professor at the University of Haifa, supported Katz and publicly confirmed that his research met all the academic criteria. The situation created a media firestorm and resulted in the disqualification of Katz’s thesis, and the resignation of Pappe from Haifa University. 

Some thought that burying Katz’s thesis also buried the Palestinian Nakba, but when the dead have a story to tell the living need to listen, even if it takes 70 years.

The testimony of the Alexandroni soldiers confessing that they committed war crimes and buried Palestinians in a mass grave raises many ethical questions that I’m not interested in tackling since morality isn’t something the Israeli military is known for. Instead, I will look at the legal aspects that arise from the case.

According to international criminal law a war crime is defined as a violation of the laws of war including intentionally killing prisoners of war, torture, take hostages, unnecessarily destroying civilians’ property, deception, rape, pillaging, committing genocide or ethnic cleansing. If you are still unaware that the Israeli military committed all of the above during and after the Nakba, continuing to today, then I’m not sure you’re watching the right channel or reading the right newspaper. 

Some are demanding to put the 90-plus-year-old soldiers on trial since they admitted to committing war crimes under the command of the Israeli army; the argument being that the massacre was their individual responsibility and they should pay for it. However, the Alexandroni Brigade is an Israeli defense force elite infantry brigade, and thus the state of Israel is legally responsible for the confessed actions of its soldiers. According to the Geneva Convention that Israel has signed and ratified, the actions as individuals or as agents of the armed forces that act under the state’s commands are considered state responsibility. Hence, political and military authorities have an obligation to take all necessary measures to ensure that the obligations foreseen by humanitarian law are respected (GCI Art. 49; GCII Art. 50; GCIII Art. 129; GCIV Art. 146; and API Arts. 80.1, 86, and 87).

Another question that arises from the case of Tantura is whether Israel should be punished for committing war crimes 74 years after committing them. As defined by the Charter of the Nuremburg International Military Tribunal of 1945 on the prevention and Punishment of the Crime of Genocide, there is no statute of limitations on war crimes or crimes against humanity. This means that a state that commits such crimes can be charged at any point in time, and there is a significant responsibility on state parties to do all they can to help investigate the accused country. This has be seen in cases dealing with Nazis who managed to stay under the radar for years and have been convicted and punished for their crimes once they were found.

Many others are calling for an international commission to investigate the massacres committed by Israel in the Palestinian village of Tantura in 1948. MK Ahmad Tibi has requested that the remains of the bodies be removed from the mass grave, and buried according to Islamic Sharia law. This mass grave of Palestinian victims is still being used as a parking lot, and no investigation has been opened regarding this matter. Israel continues to ignore its obligations to ensure dignified management of the dead with consideration for humanitarian forensics. This is one way the state of Israel has continued to breach international human rights laws in the Tantura case until this very moment.

In addition, according to the Sharia laws the burial of the deceased is a collective obligation (far kifāyah) on the Muslim community. Decent burial is necessary to allow families and loved ones to visit the graves. Such concerns remain relevant today. The rule in Islamic law is that every dead body should be buried in an individual grave. It should be noted here that in the case of multiple burials, bodies must be placed respectively side-by-side with suitable space between each.

Finally, the British Army’s operations in Palestine before the period in question were mainly directed against militant Arab groups who were opposed to mass Jewish immigration. The departure of the mandate without introducing alternative international forces led to a civil war that began a week after the the UN declaration in November 1947 adopting the partition plan for Palestine. This raises the question of whether the UN and the world community bear a responsibility in the harming of Arab civilians who were left defenseless against the Jewish paramilitary forces.

It may be the time to turn a critical eye towards the countries that acknowledged the existence of a civil war and massacres in Palestine back then yet refrained from interfering.

Alya Zoabi is the Legal and Parliamentary Coordinator of the Mossawa Center, advocating for the civil and democratic rights of Palestinian Arab citizens of Israel in the Knesset and Israeli government