Rule of Law: The IDF’s legal warriors

War today is a complicated legal business.

The “enemy” does not always play by the rules (in the Israeli context, reports indicate that they more often than not violate the laws of war intentionally), and sometimes, IDF sources infer, the “referees” or self-appointed referees seem to have an agenda to undermine the IDF’s ability to defend the state.

Recently, senior officers in the IDF Military Advocate- General’s Corps spoke to The Jerusalem Post about some of the challenges facing the State of Israel in the arena known as “lawfare,” how they try to combat the phenomenon and what to expect in the future.

“Lawfare” mostly refers to the strategy of using – or misusing – the law as a substitute for traditional military means to achieve an operational objective.

Some examples that have been seen in the past include attempts by well-known actors to file claims against Israeli politicians and soldiers in different international or foreign courts for alleged war crimes.

Israel and many Western nations view these phenomena as an abuse of international law in general and of the doctrine of “universal jurisdiction” specifically.

(This doctrine allows the prosecution of individuals from one country in foreign courts for certain war crimes even if the crimes did not occur in the country where the courts are sitting.) Universal jurisdiction, the IDF sources say, has been abused in an attempt to restrict Israel’s ability to defend itself by raising the specter of international war crimes trials every time the IDF engages in an operation, even where there is no legal or factual basis for such accusations.

The meeting with the IDF officials came shortly after one of them had addressed a group of foreign students engaged in international law issues at an international law conference run by the activist organization StandWithUs.

The officers indicated that they believed the conference was an important opportunity to present the IDF’s views on international law and the challenges it faces currently and to let them discuss the issue of lawfare with many of the foreign students who are on tracks to work in areas where the lawfare battles will play out, including international courts and NGOs.

Some of the main challenges the officers say they are facing are: enhancing laws of war training for combat officers; disinformation problems by parties that seek to undermine the IDF; new operational challenges; and struggling with actual war crimes claims and potential claims around the world.

CURRENT IDF policies involve select, specially trained active and reserve lawyers from the Military Advocate-General’s Corps, accompanying and providing legal guidance to the IDF before, during and after they engage in military operations.

Before IDF officers lead soldiers into battle, they are required to receive training in the laws of war, including review of such principles as necessity, distinction, proportionality and humanity.

This gives all IDF officers an initial background in the legal principles.

During exercises, and even in the midst of actual operations, legal advisers are present both at the General Staff level as well as at forward headquarters.

The presence of legal advisers during exercises especially helps legal advisers and combat officers become familiar with the dilemmas that each of them face, and further facilitates the process of addressing practical compliance issues with international law.

Most importantly, stated the officers, IDF officers are committed to the highest legal and ethical principles for their own sake – in addition to the fact that they know that their conduct will be carefully reviewed and, if violations are found, prosecuted.

Indeed, the Military Advocate-General Corps and the IDF in general has not hesitated to file disciplinary or even criminal proceedings in those few cases when evidence was found that soldiers had committed violations.

IN DESCRIBING the new operational challenges, the officers discussed the difference between traditional warfare, in which the division between military and civilian targets is clear, and the asymmetric warfare used by many of Israel’s foes, in which they intentionally mix the categories of military targets and civilians.

This creates an a-symmetry between the state that abides by the laws of armed conflict and the terror organization, which by its very nature abuses and violates international law.

These terror organizations, the officers asserted, intentionally and systematically violate the laws of war by both attacking Israeli civilians and affirmatively endangering their own civilians by launching attacks from their homes and places of refuge.

According to news reports, Hamas headquarters during Operation Cast Lead was in a Palestinian hospital, risking the lives of all of the people who were hospitalized.

Some of Israel’s opponents go even further and use “human shields,” forcing civilians to stand between them and Israeli troops in a firefight.

This is a much more complicated challenge than what armies faced in the past to defend their nations and exacerbates the lawfare problem.

The problem is further compounded by some who allow themselves to be co-opted into indirectly furthering the agenda of some terror groups.

This phenomenon occurs due to the fact that many actors show up at a battlefield after the battle is over and only get to see destroyed buildings and dead civilians left behind, without proper knowledge of the context of the operation, its security objectives and the factual circumstances surrounding the incident.

Groups then accuse Israel of violating human rights with their only proof being the fact that civilians died and that the pictures of the battlefield look horrible.

But international law, said the officers, does not resolve whether or not a target is permitted based on what the battlefield looks like after it’s over or based on the fact that civilians died, although the latter point is part of the analysis.

The rules of proportionality and necessity essentially say that, if at the time of the decision to attack, it is assessed that there is a sufficient military advantage to be gained by attacking a target and the expected collateral damage to civilians or civilian property was not excessive, then accidental civilian deaths are not illegal, however tragic, said the officers.

Many groups ignore these principles and jump to conclusions about war crimes allegations without doing the necessary legal assessment or examining the facts and the applicable principles.

Asked if advances in weaponry and smart-bombs had made complying with the laws of war easier, the officers demurred.

They said that key principles of the laws of war, like proportionality, will always be relevant and require careful training to comply with.

The officers also noted that some positions, including that of the Goldstone Report, suggest a requirement to use precision weapons, where in fact the law of armed conflict would not require their use.

In other words, the laws of armed conflict are not easier to comply with now than they used to be, even though new weapons are more exact.

As such, the officers viewed advanced weaponry as having two sides, and as just another legal battlefield where Israel must prevent others from abusing international law principles to shackle Israel’s self-defense.

REGARDING THE recent explosion of lawfare issues following the Goldstone Report and the May 2010 flotilla, the officers were circumspect.

On one hand, they noted that the IDF and Israel’s “record has been pretty good” in pushing back at least the initial lawfare tsunami engendered by those events.

From January 2009 until April 2012 there was an almost non-stop battle jointly fought by the foreign and defense ministries, the Military Advocate-General’s Corps and a newly created branch of the Ministry of Justice to stop Palestinian Authority attempts to file indictments against Israeli soldiers and leaders in the International Criminal Court.

In April 2012, the head prosecutor connected with the ICC ruled that he could not open an investigation into any of the Goldstone Report allegations because the allegations came from the Palestinian Authority, which is not a state.

The Rome Statute, which governs the ICC, specifically limits the filing of war crimes claims to states.

The ICC prosecutor’s decision was welcomed in Israel and was perceived as accurately reflecting the legal status of the Palestinian Authority.

There were also several cases in which NGOs tried to initiate criminal proceedings against IDF officers in several states around the world, but, until now, the officers said, “no Israeli soldier or official has been indicted.”

But according to the officers, this phenomenon was not new; It was just the latest version of lawfare, dating back now nearly 10 years to attempts to try former prime minister Ariel Sharon in Belgium for war crimes as well, as other examples.

In addition, the officers noted that there are still plenty of other indictments facing soldiers and leaders around the world and, in that regard, no shortage of work for them. Nevertheless, they expressed confidence that Israel has the ability to struggle successfully with this phenomenon in general and with these accusations in particular.

In that vein, the officers expect the lawfare struggle to continue, but noted that Israel is not alone in this struggle and that this issue faces democracies around the world. Therefore, cooperation between like-minded Western countries is necessary in order to combat the lawfare phenomenon.