Rule of Law: The IDF’s legal warriors
Combating the lawfare challenge, Goldstone, flotillas and the future.
Judge Richard Goldstone. Photo: Denis Balibouse /Reuters
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.
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
“Lawfare” mostly refers to the strategy of using – or misusing –
the law as a substitute for traditional military means to achieve an operational
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.
and many Western nations view these phenomena as an abuse of international law
in general and of the doctrine of “universal jurisdiction”
(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
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
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
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
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.
gives all IDF officers an initial background in the legal
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
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,
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
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.
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
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
This is a much more complicated challenge than what armies
faced in the past to defend their nations and exacerbates the lawfare
The problem is further compounded by some who allow themselves
to be co-opted into indirectly furthering the agenda of some terror
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.
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.
ignore these principles and jump to conclusions about war crimes allegations
without doing the necessary legal assessment or examining the facts and the
Asked if advances in weaponry and smart-bombs had
made complying with the laws of war easier, the officers demurred.
said that key principles of the laws of war, like proportionality, will always
be relevant and require careful training to comply with.
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
REGARDING THE recent explosion of lawfare issues following
the Goldstone Report and the May 2010 flotilla, the officers were
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.
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
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
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