Mondoweiss / April 26, 2022
The ruling in the Bakr boys’ case is further evidence that Israel is unable and unwilling to investigate and prosecute soldiers and commanders for war crimes against Palestinians.
The massacre of the four Bakr boys (aged 10-11) who were playing soccer on the beach in Gaza in 2014 is one of the most notorious single events within the 51-day Israeli onslaught on the besieged Gaza enclave.
Two days ago, another bomb landed upon their memory: the bomb of impunity, delivered by the Israeli Supreme Court.
On Sunday, a petition by three Palestinian human rights orgs (Adalah – The Legal Center for Arab Minority Rights in Israel, Al Mezan Center for Human Rights and the Palestinian Center for Human Rights) to reopen the probe into the incident was rejected by the court. The petition dates to 2020.
The court accepted wholly the logic of the Attorney General (AG), who accepted wholly the logic of the Military Advocate General (MAG), that this was just a “tragic” mistake, but not one that demanded further accountability.
In its ruling, the Supreme Court concluded that the killing of the boys “did not veer away from lawfulness or from army orders” and was conducted under the principles of “distinction” and “proportionality”. Alas, the act of “distinction” was not possible to carry out with any care: “it was not practical to engage in further acts in order to examine the targets which were identified as suspicious.” Why suspicious? Because that area of the beach was deemed as some kind of Hamas military area.
The court exercised extreme understanding and forgiveness for the military:
This court has repeatedly emphasized the uniqueness of the combat operation, which is characterized by high intensity, which requires the military forces to make quick decisions on the ground and to take risks under conditions of uncertainty.
With such “unique” circumstances, the court did not even consider it necessary to address the flaws in the probe that were pointed out by the petitioners. The petitioners note:
The petitioners presented evidence showing extensive flaws in the probe conducted by the Israeli investigative authorities and many contradictions in the testimonies and investigation. The Court, however, ruled that it sees no reason to intervene in the AG’s decision, and did not address the substance of any of the petitioners’ arguments regarding the flaws in the probe.
And there is a systemic conflict of interests here:
The Court also rejected the petitioners’ arguments of conflict of interest inherent in the dual role of the MAG: the MAG provides legal advice to the army before and during military operations, and at the end of the fighting, he also decides whether or not to open a criminal investigation and how to conduct it.
The petitioners contended that “in this ruling, the Supreme Court essentially gives full license to the Israeli military to kill civilians with the widest impunity. Rather than assessing the military’s decisions during combat, the Court gave general statements as to the wide scope of discretion of the MAG and the AG.”
This egregious whitewash mechanism is Israel’s argument against international prosecution by the International Criminal Court (ICC). The ICC’s mandate is based upon the idea that it takes action when the state under investigation is unable or unwilling to investigate its own alleged grave violations. But Israel claims to have a fully functioning judicial system.
The Israeli Supreme Court ruling in the Bakr boys’ case is further evidence that Israel is unable and unwilling to investigate and prosecute soldiers and commanders for war crimes against Palestinian civilians. This fact highlights the pressing need for independent, effective investigations, to hold all perpetrators to account. This case clearly illustrates the Israeli military’s indiscriminate, lethal assaults on Palestinian civilians during the 2014 Gaza war, in which over 550 children were killed, and the mobilization of the Israeli legal system to defend Israeli aggression, affording total impunity and discretion to the Israeli military. This case is further proof of the need for international actors, including the International Criminal Court, to hold Israeli leaders accountable.
We know that Israel is not alone in this impunity. The USA acts in much the same way and has a similar attitude concerning the ICC, claiming that it can manage itself, so the ICC should keep away. Thus, it gives itself impunity for grand war crimes such as the Iraq war. But now that Russia has invaded Ukraine, Putin is quickly declared a war criminal by Joe Biden (who himself voted for the unlawful Iraq invasion). Israel is counting on USA to back it with impunity. It’s a one big club of impunity, and as long as there’s Russia to condemn, this story shouldn’t make big noise, as it were.
Raji Sourani, General Director of The Palestinian Centre for Human Rights, commented:
Recently, many states, including the United States and European countries, took immediate action against Russian forces’ attacks on Ukrainian civilians, voicing their condemnation and imposing sanctions. However, when Israeli forces kill Palestinians, those countries continue to back Israel. We have an obligation to ensure that the Bakr children and all children, women, elderly and civilians, targeted and killed by Israeli forces are not forgotten.
Personally, I will never forget the photos of those children in the sand with twisted limbs. The words “distinction” and “proportionality” sear through that memory with an unbearable screech of indifference, cynicism and callousness. It’s the same with the many dozens of obliterated families. Just in that summer, 142 Gazan families lost three or more members. Israeli journalist Amira Hass writes in “Obliterated Families”:
The erasure of entire families was one of the appalling characteristics of the 2014 assault. These were no errors or mistaken personal choices on the part of a pilot or a navigator or a brigade commander. This was policy.
Even when it came to combatants, “some of the non-civilians killed – namely combatant members of the armed organizations – were not killed in battle but under the same civilian circumstances where their relatives were also killed: in their beds, in their own homes, during the fast-breaking meal, in their residential quarters,” Hass reports. “[T]he systematic action and the silence both show that Israel finds it ‘legitimate’ and ‘proportional’ to kill entire families: if one of their members is a Hamas fighter, if a weapons stash is held nearby or in their home, or for any other similar reason.”
And so, the Bakr boys were obliterated, because they played soccer on the Gaza beach and exited a container that was thought to be a Hamas command and control center, or weapons stash, or something like that. And as “tragic” as it is, Israel’s most moral army cannot be chided for legitimate and proportionate misjudgments. That is the logic and the reality that will prevail, as long as Israel is not held to account. More Palestinian children will die proportionate deaths as the pilots – the best and the most moral – will return to their legitimate families and sleep tightly in their iron dome of denial, believing that there will never be a price to pay, since Palestinian blood is as cheap as it gets, and even the Supreme Court says so.
Jonathan Ofir is an Israeli musician, conductor and blogger/writer based in Denmark