While I was pondering the war crimes in Ukraine, one crime was committed right under my nose
Me and lawyers Michael Sfard, Dan Yakir and Hassan Jabareen [Adalah] were chosen by Baron Munchausen, the Honorary President of the Red Cross, to be sent to Ukraine and find out if the warring parties are complying with the humanitarian laws of war. There is no one like us who understands the laws of war and peace, knows how to distinguish between occupied territory and the battlefield, between combatants and uninvolved civilians, between security needs and looting, between rape and the love between a man and a woman.
We acquired our extraordinary knowledge through the hundreds of petitions we submitted to the Supreme Court in Jerusalem. Although compared to the courts in Washington, Paris, Geneva and Brussels, our Supreme Court looks like a rural court in a remote kolkhoz, but in fact, it is the only court in the world that deals with international law issues almost every day.
We packed a small emergency suitcase, including Schwarzenegger’s book on the laws of war, Yoram Dinstein’s book “International Law Part II”, (I have lost my copy of Part I), an armband with the words “Red Cross Guard” inscribed in Russian, and a visor cap marked with a fluorescent Red Cross emblem that glows in the dark. At the last minute, we were deprived of fellow lawyer Hassan’s company, due to an urgent hearing in an important petition in the Supreme Court. We will meet again. We flew in a twin-engine plane that frightened the night sky and landed in Khmelnytsky Oblast, Ukraine. From there we made our way in a noisy truck to the combat zone in Kharkiv. Through the gaps in the truck’s tarpaulin cover we saw mass graves, we saw destroyed civilian buildings, we saw burnt vehicles, we saw the bodies of children and adults who died in fire, cold and starvation.
“Up to here,” said the weasel moustache driver, a covert Red Cross worker, stopping the truck with screeching brakes. We descended carefully down the dangling ladder, straight to the coop of clucking chickens. Michael waved at them with the Fourth Geneva Convention, Dan held the Treaty of Rome, and I shooed away a rooster with a swollen comb using the Hague Convention of 1899, which is always been close to my heart because it forbids the firing of bullets from balloons.
“Take us to your Supreme Court,” we asked a young Ukrainian woman, adorned in a floral kerchief, who approached us to see who had landed in her backyard. “We will seek a Habeas Corpus order and a Mendemus to stop killing civilians.” The Ukrainian lady summoned reservists in battle uniform, who were eating chocolate-coated energy bars at a small buffet in a petrol station without petrol. Armed with bayoneted Czech rifles, the soldiers led us to the Red Cross plane, which was parked on the edge of the runway. Count Munchausen was waiting for us on the plane. “Give us your report,” he commanded us. “Listen,” we said, “no one obeys the provisions of the Geneva Convention or the humanitarian provisions of international law. This is not Geneva, we were told, this is Mariupol, this is where children play football with bare skulls. Israel is probably the only country which deals, sulkily, with protecting civilians in occupied territories.”
When we returned, Hassan was waiting for us at Ben Gurion Airport with an ashen face. “What’s wrong, Hassan?” We asked, and he told us about HCJ 8008/20. On 16 July 2014, the eighth day of Operation Protective Edge, IDF forces identified suspicious figures on the beach in Khan Yunis in the Gaza Strip. The figures were near a container used to store weapons which was attacked on the previous day by IDF forces. Under these circumstances it was decided to attack the suspicious figures from the air. As part of the attack, one missile was fired at the container, and as a result, apparently, one of the suspicious figures was hit. After the shooting, the other figures began to run in the direction of the exit of the compound, and additional shooting was directed at them, and they were hit. In the court’s word, “unfortunately, it turned out in retrospect that as a result of the attack, four children, members of the Bachar family, who were in the compound, were killed.”
Unfortunately, and in retrospect Ismail Bachar, 9, Ahad Bachar, 10, Zakaria Bachar, 10, and Muhammad Bachar, 11, were all killed on a summer day on the beach in Gaza. Their average height was 1.38m [4’6”]. The Military Advocate-General decided not to open an investigation and ruled that the incident took place in an area recognised as the Hamas naval compound, and against this background the expectation was that Hamas operatives would gather in the compound to prepare for fighting against the IDF. Therefore, IDF forces assessed that the suspicious figures observed in the compound during the incident were Hamas operatives. The attack was aimed accurately at the suspicious figures, while adhering to the principle of proportionality and using precise ammunition that was not expected to cause damage to nearby buildings or civilians.
The verdict was delivered while we were on a secret mission in Ukraine. The Supreme Court rejected the petition filed by Hassan Jabareen and Muna Haddad on behalf of the remainder of the Bachar family, the Adalah — The Legal Centre for Arab Minority Rights in Israel, the Al Mezan Centre for Human Rights and the Palestinian Centre for Human Rights. The court relied mainly on a closed doors hearing held without the petitioners with their consent. What did the state representatives explain solely to Chief Justice Esther Hayut and Justices Yitzhak Amit and Alex Stein? We can guess that they whispered that it was indeed during the swimming season in July, on the Gaza beach, and the suspects were particularly short and wore swimsuits, and that the second missile that killed three of the children was launched after they began fleeing. However, reliable sources said while the Hamas naval force had not yet been established it had already began recruiting exceptionally short-stature people to crew the pocket submarines that Hamas planned to acquire from the marine short stature people living in the Seychelles. The miniature submarines would be targeted at the beaches of Tel Aviv and Bat Yam disguised as jellyfish where they would mercilessly burn swimmers. So why did they fire a missile and kill the three children who escaped? So that they will never tell.
The petition was denied, everything is clear and what else is there to investigate? As usual, the court regrets the disappointing result — they killed children and not short-stature combatants. The judges even lit a small flashlight in the closing line of the judgment: “In the circumstances of the case and in view of the unfortunate consequences of the incident — no court costs will be imposed on the petitioners.”