Security and defense: Taking the law into battle

IDF debates injecting legal advisers into attack cells, and other legal changes following last summer’s Gaza war.

By YAAKOV LAPPIN, YONAH JEREMY BOB
IDF FORCES operate inside the Gaza Strip during Operation Protective Edge (photo credit: IDF SPOKESMAN’S UNIT)
IDF FORCES operate inside the Gaza Strip during Operation Protective Edge
(photo credit: IDF SPOKESMAN’S UNIT)
The IDF is contemplating the question of whether to place its international law advisers in critical control rooms that receive intelligence on targets and order attacks during conflicts, senior sources told The Jerusalem Post in recent days.
The revelation comes as the IDF engages in an intensive process – generally out of the public view – focused on legal and operational changes it should make as part of lessons learned from last summer’s war in Gaza.
Officers from the IDF’s Operational International Law Department closely instruct and train commanders on how to act on the battlefield, but this dialogue does not cross into control rooms during conflicts.
The legal operational officers are tasked with the mission of ensuring the military remains within the confines of the Geneva Conventions and other international norms as at the same time, Israel’s principal foes – Hamas and Hezbollah – follow a doctrine of using civilian neighborhoods and buildings as military bases from which to launch indiscriminate attacks on Israeli civilians. They are only too pleased to use noncombatant casualties on their side to try to score legal and PR points against Israel.
During battle, it is up to operational commanders to utilize the prior training and advice they have received from the IDF’s legal experts, to make decisions on whether a target can be struck or not. On numerous occasions during recent conflicts, the commanders have ruled out attacks – even when attacking them would have been consistent with international law.
During peacetime, the IDF builds up lists of enemy targets, and has sufficient time to determine with its legal advisers if attacking them is in line with international law. During battle, however, the IDF adds new targets in real-time, and here, commanders must use their own judgment in opting whether to strike.
They do not always have legal advisers- hand or reachable to assist them in this process, and must use their past training and consultations to make decisions on artillery, air strikes or other forms of attack. Regional IDF commands and territorial divisions have control rooms where new targets are sent during battles, and from which orders are sent out on which targets to hit.
Although the IDF may have more physical and “on-call” legal advisers in relative numbers to deal with international law targeting issues than any other military, currently, legal advisers are not present at these critical sites. This is in contrast to some other Western armies, such as that of the US, which do assign legal advisers within more local attack cells.
A recent major article that included one of the US’s preeminent military law experts, former Air Force lawyer and Naval War College international law director Michael Schmitt, emphasized this point. Schmitt’s article came after receiving special insider access from the IDF, and was overwhelmingly positive regarding IDF compliance with the law of armed conflict in general.
However, Schmitt found the absence of lawyers within the local attack cells “curious,” adding, “It would seem that a MAG [Military Advocate-General] officer in the targeting cells would be no less valuable than those serving in the Operational Law Apparatus for deliberate air targeting.”
Schmitt continued that he was impressed with the confidence of non-lawyer commanders in being welltrained by regular courses from the lawyers, in applying the law of armed conflict in real-time themselves.
Yet, he said, this confidence “if not properly channeled and monitored by legal advisers, could become counterproductive.”
“It’s not an easy decision [whether to place operational legal advisers there or not],” said a senior source from the international law branch.
There are substantive reasons why Israel might continue to have a different practice from some other Western countries like the US in this particular area.
The officer pointed out that the US is involved in conflicts all over the world, in multiple time-zones, thousands of miles from the Pentagon in Washington. It may just be impossible for a military so vast and spread out to get timely legal advice for conducting operations without having more local legal advisers.
In contrast, IDF headquarters is hours or less from the fronts with Hamas, Hezbollah and the West Bank, and the IDF’s forward commands in the North and the South, which are even closer, do have legal advisers stationed there.
Put simply, the argument could be that the IDF can get its commanders the legal advice they need without having to station lawyers in the most local attack cells, because of the proximity of the frontline.
The source also said that a spreadout military like that of the US might need legal advisers based in numerous foreign countries to handle a range of disciplinary, fiscal and other legal issues, which the IDF simply does not encounter since it is not the world’s police force.
One unresolved question is if lawyers’ presence in local attack cells would slow down the sensor-to-shooter cycle, which the IDF has worked so hard to shorten.
“We are mulling this over,” revealed the source. Senior IDF brass are continuously weighing the issue. “There is a balance we are still seeking,” the source said. “This is a discussion that we have to have with the IDF’s commanders; they understand the dilemmas.”
“War is the kingdom of uncertainty.
Attack is a matter of proportionality,” the officer contended.
Operational legal advice must keep pace in rapidly changing combat environments, the source stressed, describing this as a “real challenge. Looking at Syria, look at Gaza. In the region, regimes are falling and new actors are emerging. The environment is changing, bringing new complexities to the reality of the battlefield; this requires daily updates on our part.”
Possible incorporation of lawyers into local attack cells is not the only change under debate. The IDF is studying last summer’s 50-day Operation Protective Edge, searching for new lessons to take away from the legal-operational perspective, though these can- not be detailed for security reasons.
The source emphasized that the evaluation process is constant and self-motivated to enable the IDF to maintain its highest standards, even beyond legal requirements.
The international law department, which includes a school that trains senior officers, continuously focuses on questions like who can be attacked, where and under what circumstances. It does so under intense scrutiny, particularly from a highly critical international community and the UN Human Rights Council, guided by pro-Palestinian sentiment that is eager to condemn Israel’s military engagements.
Irrespective of those forces, the sources said, the IDF’s first commitment is to its own moral code.
“This is an ongoing dialogue,” the source asserted. “The IDF goes well-beyond what is necessary by legal standards, to satisfy its own moral standards.” In fact, he added, some officers were found to mistakenly believe that they could not strike certain targets they are, in actuality, entitled to attack under international law.
The officer did say, however, that some of the changes include granting permission for battlefield actions that was not granted in the past. The changes will not revolve merely around adding new restrictions, he pointed out.
In the midst of the battle for public opinion and with the International Criminal Court and the UNHRC both investigating the IDF’s conduct during the war, the IDF has publicized three reports regarding its over 120 investigations of incidents from the Gaza war.
But decisions on some of those key cases are also still outstanding. No determination has been announced as to whether there will be a criminal investigation into the August 1 Hannibal Protocol incident, in which the IDF killed between 29-140 Palestinian civilians while trying to prevent the capture of one of its soldiers – despite the operational investigation into the incident being completed in mid-April.
The Post has learned from various sources that with time on the clock running out, Israel is at the moment weighing publicizing a decision on all or parts of the case.
The issue as to whether the publicize the decision arises before a UNHRC report on the Gaza war on June 29 that is expected to be negative; the IDF is also weighing whether supplemental investigative actions are necessary.
The consequences of preemptively providing a decision versus a wait-and-see approach loom large.
For the IDF’s international law advisers, Operation Protective Edge did not end with the firing of the last bullet. It continues into today, and looks set to rage into the future.