Rule of Law: Ready for a fight

As yet it is unclear what the post-Gaza legal playing field will look like, but having learned from the Goldstone Report and the Turkel Commission, Israel is better-prepared than ever.

By
September 11, 2014 23:12
Beit Hanun gaza

A Palestinian looks out from the remains of his house in Beit Hanun, a town in the northern Gaza Strip.. (photo credit: REUTERS)

Any time Israel uses ground forces, as opposed to just air strikes, the UN will greet it with a new Goldstone- like report and investigation – at least, that is what a former IDF top official has told The Jerusalem Post.

Because of the current legal atmosphere and Hamas’s systematic use of human shields and urban settings to maximize civilian deaths on its own side, such UN investigations are unavoidable, the source said.

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So, what is the difference between air strikes and ground forces? As long as the recent Gaza war involved air strikes alone, there were still complaints from some sectors, but the criticism was limited and certainly did not come from stalwart allies like the US.

Air strikes may not be perfect, but they are far more exact in terms of technology and the kind of munitions employed than artillery shelling, which in war after war, have been shown to lead to costly errors.

Moreover, a large volume of air strikes get vetted and often approved by the IDF’s highly specialized international law division, with lawyers present both in the war room at IDF headquarters and at forward headquarters, sometimes even in real-time.

Shelling, on the other hand, is often an immediate response to rocket fire or an attack on ground forces.

There is certainly no time to consult with lawyers, and sometimes not even to consult with the generals at forward headquarters.

Most of the damage to sensitive civilian targets indeed came from shelling – in some cases, already acknowledged as misfires intended to hit nearby Hamas operatives.

The controversial and aggressive “Hannibal Procedure” of more blanket-like ground forces fire, which it appears the IDF used to try to rescue what it thought was a kidnapped soldier (or at least to kill his captors), is unlikely to come into play without ground forces. (The lone, extremely rare case would be a damaged aircraft from which the pilot ejects, but is captured.) Certainly, the massive spike in international criticism and the harsh US censure came following ground forces strikes.

THIS CHASM in response to IDF actions is also apparent in the treatment of 2012’s Operation Pillar of Defense, in which ground forces were not employed, vs Operation Cast Lead in 2008-2009 and this summer’s Operation Protective Edge.

Cast Lead brought about the Goldstone Report, and a broad three-year fight to bring Israeli soldiers before the International Criminal Court; Protective Edge appears destined to bring about a similar “Schabas Report,” and another push to bring Israel before the ICC.

Pillar of Defense invited much more moderate condemnation, no similar sustained UN effort to investigate (though there were still many lower-impact reports), no serious new push for the ICC and virtually no US criticism.

The IDF’s sole published statistics on Pillar of Defense are from April 11, 2013, and note the army closed initial investigations in 65 out of 80 incidents without opening full criminal investigations.

The Post has learned exclusively that even in regard to up-to-date statistics on the 2012 Gaza war, fewer full criminal investigations were opened than the five that have already been opened in the two weeks following Protective Edge.

No matter what the angle, any future government decision to use ground forces in combat is fraught with much higher international legal stakes.

This is part of the reason many used to explain why Prime Minister Binyamin Netanyahu was initially hesitant and resisted calls from his right flank to broaden the ground invasion.

WITH THE future dangers of using ground forces clear, what is the outlook on Israel’s fight to defend its recent past operations? It depends on who you ask.

According to a lineup of human rights groups – B’Tselem, Yesh Din, Human Rights Watch, Amnesty International and likely the UN Human Rights Council investigation headed by William Schabas – Israel’s legal situation is bleak.

They claim Israel does not meet international standards for self-investigation, and that it ignored the recommendations of its own quasi- independent Turkel Commission – which gave 18 recommendations for how Israel could improve its own investigations (while giving the IDF investigations an overall passing grade).

They believe the only answer is to bring Israeli soldiers before the ICC.

Israeli officials across the board seem surprisingly far more calm and confident about surviving the situation without any ICC intervention than they did post the 2008- 2009 Gaza war.

They say the state learned a lot from fighting the Goldstone Report, has made huge improvements in its investigations, is implementing all or almost of the Turkel recommendations, and will therefore leave the ICC no basis to intervene, since it only intervenes if a state does not self-investigate adequately.

Some disagreements concern the structure of the investigations themselves.

The IDF has unveiled a new fact-finding apparatus composed of teams with legal and expert military training, none of which were involved in the operations being investigated.

They focus on collecting information for the IDF’s top lawyer, to make a much quicker than usual decision about whether to open a full criminal investigation into a war crimes complaint.

This is night and day from the much slower past decisions on whether to fully investigate, and appears to be based much less on operational debriefings by the officers involved in the incidents, which focus purely on how to improve military operations.

But critics say that even if the operational debriefings – which are still ongoing parallel to the more legally focused fact-finding assessments – are not slowing down decisions, they are still tainting evidence by letting soldiers conform their narratives.

Israel would respond that its new apparatus is more advanced than any in the world in its independence and impartiality, and even more efficient than Australia’s self-investigating apparatus – which the Turkel Commission praised – since Israel is devoting far more human resources toward quick decisions.

Some disagreements are on interpreting bedrock principles of the law of armed conflict. Can the IDF conduct an air strike or shell a civilian residence with civilians inside, if a Hamas terrorist is also there and using the house as an unofficial command center? Critics would say no – and that the IDF must send in soldiers to individually sort out who is a civilian and who a combatant.

The IDF says yes – and that if the military advantage of hitting the Hamas terrorist is greater than the anticipated harm to civilians, then attacking by air or artillery is allowed, especially in light of Hamas’s systematic booby- trapping strategy.

ICC prosecutor Fatou Bensouda has signaled she is ready to take a case by “Palestine,” if the Palestinians decide to join the ICC.

But she does not have the final say, as any decision she makes about investigating Israel can be appealed to an ICC pretrial chamber – without even getting into the numerous other legal and diplomatic obstacles to bringing Israelis before the ICC.

In sum, the playing field is dynamic.

Israel has no guarantees going forward and the Palestinians have likely overcome some legal barriers to getting to the ICC, but the Jewish state’s legal establishment has never been more advanced, or more ready for a fight.


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