The Kafr Qasim Massacre and its Hidden Meaning
The brutal massacre of innocent Palestinian villagers, citizens of Israel, in Kafr Qasim is one of the most traumatic events in Israeli history. From October 1956 to this day, this massacre is raising troubling questions, some of which remain unanswered to this very day. How can we explain the contradictory, equivocal response of Prime Minister David Ben Gurion? What is the legacy of the famous ruling of Justice Benjamin Halevy on a “manifestly illegal order”? What are the dangers lurking in the future?
And what has “Operation Mole” to do with the above?
29 October, 1956, began as a normal day in Kafr Qasim, a small Israeli-Arab community in the “Triangle”, a border zone between Jordan and the young state of Israel. Ali Salem Sarsur, who only one month before began his studies as a freshman in an elementary school, asked him mom to buy him a notebook in her way back from work. She agreed. Actually, Ali’s mother did not feel like going to work that day. Fatefully, a friend asked her to come and help as a personal favor. Ali, however, never received his notebook. His mother was cold bloodedly murdered by Israeli border policemen, commanded by Lance Corporal Shalom Ofer, in the most horrendous organized massacre in Israeli history.
Ali did not know, nor could he know, that the seeds of his personal tragedy were sown at that very morning. October 29 was the first day of the Suez War, and the government considered a preemptive strike against the Hashemite Kingdom of Jordan. The memory of the 1948 war was still fresh in mind, and the Israeli Arabs were perceived by many as a “fifth column”. The Triangle, adjacent to the Jordanian Border, was considered a sensitive area. Therefore, it was constantly patrolled by border policemen, whose “trigger happiness” was widely known. In fact, infiltrators were often shot at sight. Army regulations were yet to specify the concept of an “illegal command”. In 1948, atrocities from both sides were not uncommon, in addition to frequent expulsions of Arabs by the victorious Jewish forces.
A culture of violence, crystallized during a war conceived by most as a “struggle for life and death”, was slow to disappear even after ceasefire agreements were reached in 1949. In August that same year, for example, a southern platoon kidnapped a Bedouin girl at the desert. The platoon commander, known to us only in his first name, Moshe, asked the soldiers to vote “what to do with her”. After a quick deliberation it was decided to make her the platoon’s sex slave. The little girl was brutally raped by many of the soldiers, and later shot by Moshe and his troops in order to cover the crime. “She was washed”, writes Lavi Aviv in Haaretz, “her hair was cut and she was raped, no one knows how many times. Then she was executed and buried near the military outpost.” “A terrifying horror,” wrote David Ben Gurion, Israel’s founder and its first prime minister, in his diary. Moshe, the platoon commander, was condemned to fifteen years in jail, though he actually served much less. The affair, all in all, did not come to the attention of the public.
The prevailing military culture of the time was chaotic with little regard to abstract concepts as the rule of law. Brotherhood in arms was important, Arab lives had little worth, and the feeling of existential danger justified brutal behavior. The Arab villagers were subject to the arbitrary whims of military administrators, with little rules and regulations to bind them.
In the morning of October 29, the brigade commander Colonel Yissachar Shadmi decided to impose a curfew on the Arab villages near the Jordanian border, in order to prevent them from “abetting the enemy”. Based on the same fear, the army drafted a top-secret plan christened “Operation Mole”. According to the plan, the Arabs of the Triangle were to be evacuated to “enclosures” in central Israel until the end of the war. Distant rumors on the plan reached the officers of the Border Police, some of which erroneously understood it as a scheme to expel the Triangle Arabs to Jordan.
Writers from the Israeli radical left, such as Gadi Elgazi, had later argued that the massacre was in fact the first stage of “Operation Mole”. This analysis is based on later testimonies by some of the defendants, who argued that they followed a state-sanctioned scheme, only to be “thrown to the wolves” by an ungrateful establishment. However, that is probably untrue. “Operation Mole” did not sanction expulsion into Jordan, let alone a massacre, and was in any case annulled one day before the massacre. Nevertheless, its poisonous influence reached far and wide, and facilitated a feeling, among some of the soldiers, that they have the right to implement “unusual measures”.
Major Shmuel Malinki, the battalion commander, ordered his subordinate officers to shoot any Arab who will dare to break the curfew, women and children included. Some of his company commanders, clearly shocked by his cruelty, were rudely silenced when trying to challenge the order. The source of the fateful order, however, was not Major Malinki but his commander, Colonel Shadmi. When asked by Malinki what to do with returning workers who were oblivious to the curfew and hence came back late from their fields, Shadmi answered with the Arab phrase “Allah Yerahmo” (may God have mercy on their soul). Malinki had passed the order verbatim to his company commanders, and even added that women and children must be shot as well. The wounded, he hinted, should be “finished off”.
The curfew began at 17:00. As expected, many farmers, who were oblivious to the orders, came back later from their fields. In most sectors, Malinki’s own officers disobeyed his commands. One of them, Captain Yehuda Frankental, explicitly contradicted Malinki’s order, and told his subordinates not to shoot anyone regardless of the circumstances. Instead, he ordered, the soldiers should just “escort the Arabs to their homes”. Frankental even prevented trigger happy officers from shooting, and personally saved many villagers from certain death. Other officers were not as brave, but nevertheless found ways to circumvent the order.
Not so at Kafr Qasim, where two fanatical Arab haters, Lieutenant Gabriel Dahan and Lance Corporal Shalom Ofer, were in charge. Soon after 17:00, Ofer encountered the first group of returning Arab workers. “Are you happy?” he asked them. When answered in the affirmative, he and his soldiers began to mow them down. The Israeli journalist Rubik Rosenthal, who published a well-researched study of the massacre, writes about one of the incidents:
“In the car there were fifteen workers, thirteen of them women who came back from the olive harvest. Saleh Halil Issa, a survivor of the massacre, testified on the murder of the women: ‘before the shootings there were cries, ‘mom! Mom!’, and then it began. When they were shot they cried. Their cries went on for three minutes long.’ Asad Salim Issa, who was wounded and thought as dead, told that the girls “were happily returning to the village, singing and frolicking. Later they began to cry…’ The policemen forced the driver and the workers out of the truck, and told them they are about to be killed. The women cried and implored to let the workers go. The policemen yelled: “we will kill you too.” They killed the driver, Mahmoud Masrawa from Taybeh, and the three men, Mohamed Diab Sarsur, Adballah Sarsur and Mohamed Salim Sarsur. For a time they hesitated what to do with the women, and one of the soldiers proposed to let them go unharmed. [Lance Corporal Shalom] Ofer, however, ordered to shoot them all. The policemen slaughtered them without exception, including pregnant women… old ladies and little girls… After the shooting Ofer said: ‘bang them all in the head,” and the policemen shot again the wounded and the slain.”
At the same time, A Major named Kotler passed by. Shocked by the horror scene, he ordered Ofer to stop the shooting immediately. The sergeant refused, quoting his orders. News of the mass slaughter reached Major Malinki, too. The battalion commander, who probably never expected that his orders will be followed verbatim, panicky ordered the responsible officer, Lieutenant Dahan, to stop the shooting. When the sun rose over Kafr Qasim, 49 of his sons and daughters were already dead.
The Israeli public is familiar with the massacre, mainly because of the pivotal ruling of the special court martial. The presiding judge, Justice Benjamin Halevy, condemned Malinki, Dahan, Ofer and the others to long prison terms. Some orders, he argued, should never be followed, and a soldier who follows them is liable for punishment. The words of his ruling were seminal:
“The distinguishing mark of a ‘manifestly unlawful order’ should fly like a black flag above the order given… not formal unlawfulness, hidden or half hidden, nor unlawfulness discernible only to the eyes of legal experts…. Unlawfulness appearing on the face of the order itself… Unlawfulness piercing the eye and revolting the heart, be the eye not blind nor the heart stony and corrupt, that is the measure of ‘manifest unlawfulness’ required to release a soldier from the duty of obedience.” (Gary D. Solis, The Law of Armed Conflict, Cambridge: Cambridge University Press, 2010, p.360)
The responses to Halevy’s ruling were strong and emotional. Some hailed it as the victory of Jewish morality over crime and lawlessness, while other people took pity on the murderers as the real victims. The family members of Lieutenant Dahan, it is told, hurled insults on the judge and tore their Israeli IDs in the courtroom. The public debate between the apologists and the detractors was already described elsewhere. Here, I would like to focus on some troubling questions which remain unanswered to this very day.
Did Ben Gurion have sympathy for the perpetrators?
First of all, there is the riddle of the self-contradictory response of Prime Minister David Ben Gurion. No one seriously argues that the “old man” welcomed or endorsed the massacre, but most historians emphasize his intolerable leniency towards the perpetrators, especially Colonel Shadmi and Major Malinki. Shadmi, a scion of a military family with close ties to the establishment, was condemned in imposing an unauthorized curfew and had to pay a “fine” of one Israeli pound. Ben Gurion, along with President Yitzhak Ben Zvi and the Chief of Staff, General Haim Laskov, did his best to secure an early parole for the other defendants, and even arranged a lucrative job for Malinki. Justice Halevy deprived the murderers of their rank and military honor, and demoted them to privates. Malinki’s rank, however, was later restored by Ben Gurion and the army leaders. Based on the above facts, can we conclude than Ben Gurion actually sympathized with the perpetrators, and denounced them only as a feat of public relations?
Not so, if we consider what the prime minister himself said in a cabinet meeting, only two weeks after the massacre. Even while frantically attempting to hide the Kafr Qasim massacre from the public, Ben Gurion denounced it as “an unparalleled shameful and tragic event.” In addition, he told the ministers, he was asked by “the commanders of the police” to hang the perpetrators in Kafr Qasim. “I told them,” he said, “that we do not have death penalty. And if you ask me, we were too quick in abolishing it.” Ben Gurion’s speech at the cabinet meeting was top secret, and thus could not have been intended for PR purposes. How can it be reconciled, however, with his later behavior?
One reason may lie in the events preceding the massacre. As it is well known, Ben Gurion was above all anxious to keep the honor of the government and the army intact. Therefore, he tried to hide the massacre, until it was exposed through the laborious work of leftist journalists and parliamentarians. Especially, he attempted to hide the facts on “Operation Mole”, which was shelved and never implemented. Perhaps Ben Gurion was afraid that one of the defendants will expose the shelved scheme, to herd the Arabs of the Triangle into enclosures? Was he afraid that the killers will claim that they merely followed a government plan according to their understanding? These fears were not unjustified. General Moshe Carmel, one of the most prominent commanders of the 1948 war, wrote in an incognito article that not only the soldiers, but also senior commanders have to be held liable for the Kafr Qasim massacre. In addition, Dahan and Malinki repeatedly suggested that their undertaking was only the first stage in “Operation Mole”. Indeed, if Ben Gurion’s purpose was to silence the story, he achieved it only temporarily and partially.
Chaotic Approach, Legalistic Approach
The reasons, I believe, lie much deeper. Ben Gurion’s approach to the laws of armed conflict, fashioned amidst the brutal war of 1948, was thoroughly chaotic. This approach considered strategic and tactical needs, conditions at the field, political and international restraints, ideology and emotions, but was only rarely concerned with laws, rules and regulations. A chaotic approach is naturally fickle. At the first stage, Ben Gurion was genuinely shocked and dismayed by the massacre, as shown in his cabinet speech. A chaotic approach to the laws of war can motivate a leader to verbally “hang” the perpetrators, and later pardon them because they merely followed orders, because they are soldiers, and also because some of them may have close ties with the establishment. The murder to Arabs, according to Ben Gurion, was certainly tragic and deplorable, but it was never good enough a reason to sacrifice other interest and ideological priorities. In addition there was the fear, expressed by one of Ben Gurion’s officers, that in the future “a lawyer will have to accompany every commander into war.”
And indeed, when we examine the story of the massacre, we discover that all of the actors in the tragedy behaved chaotically. No one relied on rules, laws and regulations. The murderers and perpetrators, along with the majority of officers who refused to commit such crimes, just felt that they are doing the right thing. Captain Yehuda Frankental, perhaps the real hero of the Kafr Qasim story, prevented massacre with his own hands, because he felt that the order is immoral. He had a clear sense of morality, righteousness and military honor, but neither he, nor anyone else, had a clue about the legal consequences of their actions.
The true legacy of Justice Benjamin Halevy is hence in promoting a legalistic approach to war. In his ruling, Halevy attempted to fashion criteria according to which every soldier could decide if his commands are legal or “manifestly illegal”. A soldier has to follow the law, which is naturally based on moral principles, never to shoot unarmed citizens. The severe punishments that he imposed, though shamefully mitigated by the political and military establishment, have set glaring rules for the future: thou shall not massacre civilians; thou shall not follow an order to massacre civilians. Atrocities, of course, were committed by Israeli troops also in subsequent wars, but an organized, cold-blooded massacre of unarmed civilians, as in Kafr Qasim, never repeated itself.
On the face of it, it may be naïve to argue that soldiers refrained from massacring civilians only because of a judicial ruling. However, a close reading of the testimonies shows, that the actors were not certain whether massacre of the unarmed is a crime or a duty. Even some of the officers who refused to commit murder were ashamed of their conduct in court. For all of these perplexed military men, Justice Halevy clarified what is the norm. Simultaneously, he legitimized the conduct of the soldiers who refused to shoot, and removed the shield of “following orders” from the perpetrators. The Army Chief of Staff, General Haim Laskov, whose responsibility for the outrageous paroles of the perpetrators was considerable, nevertheless reinforced the effect of Halevy’s ruling in a famous “order of the day”, in which he denounced the massacre and echoed Halevy’s doctrine of a “manifestly unlawful order.” Thus, the legalistic approach to war was allowed to take root in the Israeli armed forces.
We can see, therefore, that the Kafr Qasim massacre was followed by a struggle between two approaches to the rules of war. One chaotic, represented by the paroles given by Ben Gurion, the president and the Chief of Staff, and the other legalistic, as shown in the ruling of Justice Halevy. Even now, fifty five years after, these two approaches co-exist in Israeli political and military thinking.
Dangers looming in the Future: Murderous Legalism
It is impossible to conclude this article, without expressing some grave fears for the future. Supposedly, these who wish to forestall future massacres should reinforce the legalistic approach, while limiting the chaotic one to the possible minimum. However, in certain circumstances, legalism could be more dangerous and murderous than a chaotic state of affairs. Israel has never reached this abyss, but all of us know, based on our recent history, what happens when a country harnesses its legal institutions to promote an organized project of mass murder. The legalistic approach could, under certain circumstances, undergo a mutation and turn to be much more dangerous than its chaotic counterpart. The later can lead to horrendous, but relatively limited acts of violence. The former can result in organized mass murder at a bigger scale. Hence, there is nothing more destructive than murderous legalism.
Unfortunately, such a tendency for murderous legalism already exists in some parts of the religious fundamentalist right in Israel. Some of its advocates are already fed up with attempts to bypass the Israeli rule of law, to ignore it or to fight against it. Rather, they plan to change the underlying legalistic attitude from the ground up, in a way that will permit the state to “fight enemies” without any limits. Emmanuel Shilo, the editor of the religious fundamentalist newspaper Besheva, writes, for example, that we need “truly religious” jurists, guided by “religious professional etiquette .” Be that the case, he muses, “our enemies will no longer enjoy the protection of the law” (emphasis is mine).
Shilo, as we can see, hopes for a new legal system, in which “our enemies” will no longer enjoy the “protection of the law”. He does not recommend to commit massacres, but rather to expel “family members of terrorists.” However, depriving the “enemy”, or anyone who is perceived as such, from the protection of the law is a highly dangerous slippery slope.
Other fundamentalist, right winged ideologues espouse a much harder line. For example, the notorious racist Chief Rabbi of Tzfat, Shmuel Eliyahu, proposed to replace “revenge ” by individuals with a state-sanctioned revenge. Children of terrorists should be “hanged on a tree“, and in order to stop the rockets from Gaza, “even one million people should be killed.”
Things, however, go from bad to worse. Other fundamentalist activists, or so it seems, hurry to translate the general schemes of Rabbi Shmuel Eliyahu into a concrete plan of action. Moshe Feiglin, an extreme right winged activist in the ruling Likud Party and a candidate for its leadership, wrote that “The Arabs here are an enemy. All of the Arabs, regardless of age and sex, from both sides of the green line (1967 borders). True, there are some good people among them, as there are bad people in the Jewish population. However, this struggle is not criminal but national, and therefore the question is not personal.” In another article, he makes clear that “there are no innocent Arabs… we are at war, and during war individuals pay the price of the national policy. Innocent people do not exist in wartime, even not in schools and hospitals.” Feiglin, in other words, argues that mass massacre of civilians is not only possible, but also legal and desirable. His murderous legalism does not merely circumvent the humanistic legalist approach of Justice Benjamin Halevy, but attempts to infiltrate it and to change it from within.
Could it be, that in the future “our enemies” will really not enjoy any protection by the law? Would we really live in a state, where enemy civilians are considered fair game, even children in schools and patients in hospitals? In that case, the law will turn into a tool for mass murder. True, the attempt to mutate Israeli legalism is still rejected by the majority of Israelis, even in the religious right. However, too many people support it throughout Israeli society. The black flag of Kafr Qasim massacre still looms over us, its shadow dark and threatening than ever.
Posted on March 3, 2012, in Uncategorized and tagged Ben Gurion, border police, humanitarian laws, IDF, illegal command, Kafar Qusum massacre, Kafr Qasim massacre, manifestly illegal command, suez war, the rules of war. Bookmark the permalink. 4 Comments.