If Israel had a club for its top international law experts from the last few decades, lawyer Daniel Reisner would be one of its godfathers.
Reisner, who headed the IDF’s International Law Division from 1995 to 2004 and continues to be involved in various government initiatives behind the scenes, spoke to The Jerusalem Post recently about his IDF experience and his current challenges.
He also spends at least around 80 percent of his time on private sector work relating to international law, defense and homeland security at the law firm Herzog Fox & Neeman.
He headed the IDF’s International Law Division when it shifted its approach to Palestinian violence from a law-enforcement paradigm to an armed-conflict approach.
The shift meant the IDF could be far more aggressive in responding to Palestinian violence, but it also meant that more Palestinians got hurt or killed and the IDF became more vulnerable to foreign prosecutions for alleged war crimes, just as the International Criminal Court was founded.
Despite his endorsing the IDF responding with greater force to Palestinian attacks, Reisner strongly defends the country’s commitment to comply with international law.
His explanation of why is complex.
Though Israel has decided to voluntarily comply with many major international conventions and protocols, even those it hasn’t signed, “we had every excuse in the world not to do so,” he said.
Hamas, Hezbollah and other Israeli adversaries “don’t play by these rules, because they don’t care,” he said, noting Israel could have argued that it does not need to grant international law protections to those who ignore and abuse the system.
But Reisner is firmly in favor of Israeli compliance with international law even when fighting terrorist groups that ignore it, because, “we can’t define legal and moral standards by our enemy, we need to be who we are, not who they are.”
Another crucial reason, said Reisner, was that compliance “strengthens our capability to look the world in the eye and ask: What do you want us to do? What would you have done differently?” Questioned about whether Israel’s efforts would be enough to save it from intervention from the ICC, he responded, “I think it places us in a much better position than if we had been following the rules less. I think we have a coherent position. We have very intelligent, capable and knowledgeable lawyers advising” the IDF.
Addressing the question of potential ICC war-crimes investigations of Israelis head-on, he stated, “Let’s make it clear, Israel has a mechanism which ensures compliance with the rules and investigates noncompliance, while the other side has a policy of violating the rules and giving violators a prize.”
It would be unconscionable if in such a situation only Israel would face ICC intervention and not Hamas, he said.
Considering a situation where the court proceeds with prosecutions against both Israeli soldiers and Hamas fighters, Reisner told the Post that “this is the type of compromise which the ICC may be looking for.
“It’s more complicated than that, it’s not necessarily a good idea, I’ve heard it justified on the Left. I don’t agree. We are in a better position to withstand such challenges than if we had acted differently.
“I am also very proud of my country for making these decisions, which were not trivial under the security threat. We hold the rule of law as paramount, despite everything you hear,” he continued.
Why and when did the shift to more aggressive rules of engagement with the Palestinians occur? Reisner tells a story of how he and other top legal officials had “lengthy discussions about the second intifada.
“We asked, ‘What is this and what law applies?’ We realized the world has changed. The question we needed to answer was: Did the law change as well?” He continued that in July 2000 he spoke to the head of IDF operations, working for then-deputy IDF chief of staff Maj.-Gen. Uzi Dayan. “I was [prime minister Ehud] Barak’s lawyer for the peace process. If it works, it works,” he said, explaining, however, that the IDF needed to be prepared for all eventualities. “The problem was if Camp David [II] failed, we were probably going to war.” This was four months before the second intifada broke out, he noted.
Reisner described an incident in an attack on Joseph’s Tomb in Nablus, when Palestinian Authority policemen started firing on IDF soldiers. Under the rules of engagement at the time, the soldiers “didn’t know if they were allowed to shoot back.”
The deputy IDF chief of staff was convinced there was a problem, and new rules were drafted, explaining that they came about as a result of the situation being transformed into one of armed conflict, with a notation that they would go into effect only when the IDF chief of staff “decided that an armed conflict had erupted in the West Bank and Gaza.” He added that the attorney-general also signed off on the shift.
When the second intifada broke out full force, then-IDF chief of staff Lt.-Gen. Shaul Mofaz signed the order, stating that an armed conflict now existed. “On that day we went to war with the Palestinians, and I think in retrospect, we were right,” said Reisner.
Regarding where international law should go from here and how equipped it is to deal with fighting asymmetric warfare, Reisner has some nuanced views.
On the one hand, he expressed frustrations with what he views as randomness in what does and does not get on the banned-weapons list once you go beyond biological and chemical weapons.
He also said that the law of proportionality, deciding what attacks are permissible, is far too vague to be useful, and leads to experts on different sides talking past each other.
On the other hand, he does not think it is realistic for Israel to make an open push to change the rules.
“Any idea Israel comes up with will be converted, subverted and diverted by other elements. It’s not that I don’t think that international law has problems. It has a lot of problems.
But because of Israel’s complex diplomatic position, I don’t think it’s realistic that Israel could lead a change in international law that would make sense.”