Command Responsibht) and a Case Study of the Criminal Responsibility of Israeli Military Commanders far the Pogrom at Shatila and Sabra

• Author: by Lieutenant Commander Weston D. Burnett
• Pages: 03

The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It IS the very essence and reason for his being. When he violates this sacred trust, he not only profanes his entire cult but threatens the very fabric of international society The traditions of fighting men are long and honorable. They are based upon the noblest of human traits-sacrifice.

-From she order of General of the Army

Douglas MacArthur, Jr. confirming the death sentence of General Yamashita'

1. INTRODUCTION

In Dubno in the Ukraine on Ocsober 5, 1942:

Without screaming 01 weeping these people undressed, stood around in family groups, kissed each other, said farewells and waited for a sign from another SS man, who stood near the pit, also with a whip in his hand. During the fifteen minutes that I stood near I heard no complaint or plea for mercy. I watched a family of about eight persons, a man and a woman both about fifty with their children of

'Judge Advocate General's Corps, United States Navy. Currently assigned rn 8" Instrucfor. C I V ~ Law Dlvulon, Naval Jusrlce School Newpon, Rhode Island, 1883 to present Formerly aswed to the Adminirfiatire Law Dlvlaon. Office of The Judge Adrocare General, U.S. Navy 1878.82, Na\al Ahr Station. Cuhi Point, Philippine Islands, 1877-78. Naval Legal Sense Offlce. Subic Bay, Phhppne Islands, 1878.77. LL M , George Wsshvlgfon Unwerslf), 1883, J D , George Washington L'mremty 1975. B A , Vanderbllf Unlverslty. 1872 Member of the bar of the Commanwealrh of Vlranla Theoplnionsandconcluiionrex~ressedmthlsanlelearefho~eof thenufhor

and do not neeesJanly renect the llews of the haval Jurtlce School, the Depnnmenf af the Uavy, or my other riovernmenial agency

IOrder of General Douglh. MacAnhur confirming death sentence of General TamayukIYnmarhlfa, February6, 1846, reprintedtr2L Frledman(ed 1,TheLawof War A Dacumentarv Sfudv 1608.48 110771

about one eight and ten, and two grown-up daughters of about twenty to twenty-four. An old woman with snow-white hair was holding the one-year-old child ~n her arms and singing to it and tickling it. The child was cooing with delight. The couple were looking on with tears in their eyes. The father was holding the hand of a boy about ten years old and speaking to him softly. the boy "as fighting his tears Th? father pointed to the sky, rtroked his head. and seemed to euplam something to him At that moment. the SS man at the pit shouted something to his comrade. The latter counted off about twenty persons and instructed them to go behind the earth mound. I %ell remember a girl, slim and with black hair. who as she passed close to me, pointed [to] herself, and said, "Twenty-three" I walked around the mound and found myself confronted by a tremendous grave. People iwie closely wedged together and lying on top of each ocher EO

that only their heads were visible. Kearly all had blood running over their shoulders from their heads. Some of the people shot were still limbering and moving. Same were lifting their arms and turning their heads to show that they were still alive. The pit was dreads two-thirds full. I estimated that It already contained about 1.000people. I looked for the man who did the shooting. He was an SS man. who sat at the edge of the narrow end of the pit, his feet dangling into the pit He had a tummy gun at his knee and was smakmg a cigarette. The people, completely naked, went down some steps which were cut in the clay wall of the pit and clambered over the heads of the people lying there, to the place to which the SS man directed them They laid down in front of the dead or injured pen-pie; some caressed those who were still alive and spoke to them in low voice. Then I heard a senes of shots. I looked into the pit and saw that the bodies were twitching or the heads lying motionless on top of the bodies which lay before them. Blood WBS running away from their necks.?

The disturbing and evocative image depicted here brings home only too vividly the horror of the holocaust. In the years immediately followmg World War 11, the Allied Powers in the war cnmes trials at Nuremberg, Tokyo, and elsewhere assessed criminal responsibility for the war crimes committed against noncombatants. Particular at- 'P Cahocarerai. Nurembzrg-The Facts, The Law and The Conaequences 81-87

(18481

tention was devoted in those trials to the responsibility of German and Japanese military commanders for crimes committed by troops under their control.

The Germans and the Japanese, though, have not been the only ones capable of slaughtering innocent noncombatants. In Vietnam in 1969, the story leaked that American military personnel in the village of Son My on March 16, 1868 had engaged in wholesale slaughter of "on-combatants, as illustrated by the following passage

Then Meadla and several other soldiers took a group of civilians-almost exclusively women and children, some of the children still too young to walk-toward one of the two canals on the outskirts of Xam Lang. "They had about seventy, seventy-five people all gathered up. So we threw oum in with them and Lieutenant Calley told me, he said, 'Meadlo, we got another job to do.' And so he walked over to the people and started pushing them off and started shooting."

Taking his cue from Galley, Meadlo and then the other members of this squad "started pushing them off and we started shooting them. Sa altogether we just pushed them all off and just started using automatics on them. And somebody toid us to witch off to mgle shot so that we could save ammo. So we switched off the nngie shot and shot a few more rounds."

And all the time the Vietnamese at the canal were screaming and Dleading with the Americans for mercy.8

The atrocities at Son My led to a vat outpaunng af legal writings in the United States concerning the responsibility of senior Amencan commanders in Vietnam for war cnmes committed by American troops.' A popularly held perception at that time was that a military commander under international law was absolutely liable for the war crimes of his subordmates.6

aR Hammer. One Mornmg m the War The Tragedy at Son My 134-31 (1870)

With the end of the Vietnam War, the issue of command respansibility quietly dipped from public gaze only to resurface once again in IQSZ. On 18 September 1982, reports began to filter out of Beirut that a Christian militia force had been introduced by the Israeli Defense Forces (IDF) inlo the Palestinian refugee camps of Shatila and Sabra in West Beirut and that a massacre of 800 Palestinians had ensued. Fmm within the refugee camps:

There were only the sounds of mourning and the bodies, sprawling heaps of corpses: men, women and children. Some had been shot in the head at pointblank range. Others had had their throats cut. Some had their hands tied behind their backs; one young man had been castrated. Middle-aged women and girls as young as three, their arms and legs grotesquely splayed, were draped across piles of rubble. Portions of their heads were blown away One woman was found clutching an infant to her body; the Same bullet that tore through her chest had also killed the baby. Said a Lebanese Army officer. "There is so much butchem the mind cannot comprehend it 'le

Nor can the mind readily forget it. The Specter of a mini-holocaust was to prove particularly troublesome to the State of Israel, the self-proclaimed home for the Jewish wctims of the holocaust

As news of the massacre spread, the Israeli government tried i m tially to deny responsibility for the deaths. The Israeli Cabinet issued a statement branding the suggestion that the Israeli Army had done anything, but intervene to halt the massacre, a blood libel.' The government took out a full page advertisement in the .Vew York Times and Washington Post stressing Israel's ~nnocence.~

A military

spokesman claimed that Phaiangist Christian militia forces had broken into the Shatila camp and started the killings, at which time Israeli troops intervened and stopped the massacre

Later, when news reports of the Israeli role in the Phalangist entry into the refugee camp surfaced, the Israeli Chief of Staff stated. "The IDF had no knowledge until Saturday morning of what was go- b' Dod-Oh, Mu Oad'"nme. Ocf. 4, 1882. at 20, cot 2 [hereinafter elfed as God-Vmhmgton Past, Sepf. 30, 1882. at AI, COI 4'Crisu 41 ConscirncS, Time, Oct 4, 1882. at 16, COI.

3 [heremafter clred %! Crrslr of ~ % N e w L a b a m C ~ ~ , n r n e

Oh, My Cod']

Conseieneel

New Lebanon Cmal

Sep 27, 1982 at20,col I lherelnafterclredaJme

ing on. We don't pve the Phaiangists orders and we're not responsible for them. The Phaiangists are Lebanese and Lebanon is theirs and they act as they see fit."1° The Defense Minister later stated. "[lln my name and an behaif of the entire defense establishment. . . no one foresaw-nor could have foreseen-the atrocities committed in the neighborhood of Sabra and Shatila.""

Both the claim of lack of control over the Phalang5'sts and the claim of lack of knowledge as to the killings and their foreseeability met with some skepticism. lsraeii opposition Labor Party leader Shimon Peres declared: "You don't have to be a political genius or a famed commander. It is enough to be a country cop in order to understand from the outset that those militia which were emotional more than ever fallowing the murder of their ieader [Bashir Gemayel], were likely to commit atrocities against innocent The Arab press carried suggestions that Israel had ordered, or at least know. ingly participated in, the actual slaughter.13

The Soviet Union issued a statement which compared the carnage in Beirut with the mmsacre at Babi Yar in 1941 of about 200,000 persans, mostly Ukranian Jews, by Nazi troops and concluded that "what Israel is doing on Lebanese soil is genocide. Its aim is to destroy the Palestinians as a nation.""

The leader of the Palestinian Libetation Organization, Yassar Arafat, subsequently spoke on British...