After all the controversy and war crimes allegations following last summer’s Gaza war, Defense Minister Moshe Ya’alon said Tuesday that “I can still look at myself in the mirror.”
Ya’alon was speaking at a Shurat Hadin – Israel Law Center conference in Jerusalem, where he addressed the hot-button issues of lawfare, the Boycott, Divestment and Sanctions campaign, and general efforts to delegitimize Israel.
The defense minister started off with “the good news,” which he said was that Israel’s enemies “can’t wipe it out by conventional warfare.”
But the “bad news,” he continued, was that those enemies had “moved on to terror, trying to develop weapons of mass destruction and other tools: delegitimization, BDS and lawfare,” which would “keep challenging us.”
Ya’alon recounted targeting decisions in which he was involved when it first became apparent that Hezbollah was purposely placing weapons in civilian homes in Lebanon.
The defense establishment had a “dilemma of what to do with it,” he said. “If we don’t intercept the rocket-launchers in advance, civilians will be hurt, if not killed. If we hit the launchers, it will hurt or kill Lebanese civilians.”
He said a “long, deep discussion” regarding the “moral and legal considerations” took place before the final decision to strike the rocket launcher.
“Later we were blamed for collateral damage and killing civilians,” he said. But he maintained that the IDF had done what it had to do then, “did it again in the Gaza Strip, [and] will do it in any round of hostilities in the future.”
At the same time, he said that sometimes the IDF worked so hard to avoid civilian casualties that it gave extensive warnings to people to leave an area, and thereby “loses tactical surprise – but we still do it.”
Of course, he said, “we should be ready to be judged by our own prosecutors, military courts and our own Supreme Court,” so as to help defray international “allegations against us.”
Ya’alon also returned to whether the IDF legal division should open a criminal investigation into the summer war’s “Hannibal Protocol” incident – the incident with the largest number of alleged Palestinian civilian casualties.
While he said he respected the independence of the legal division and the attorney-general, he implied that with his experience as a commander, he would not open a criminal investigation into the incident.
If there was no chance of a conviction, then opening a criminal investigation would be a mistake, he said.
Ya’alon stated that criminal cases should be filed for looting or clear violations of the rules of engagement, but that otherwise there should be very few criminal cases regarding IDF operational conduct, and that those should be handled delicately.
Earlier at the conference, a panel discussed Israel’s current predicament as it faces a preliminary examination from the International Criminal Court.
US Army lawyer Prof. Geoffrey Corn asked why these tribunals weren’t “composed of military experts, like military tribunals after World War II.”
He said that other military commanders, as opposed to “civilian judges,” could best judge whether their counterparts had violated the law of armed conflict.
Corn added that the ICC “should be focused on snipers purposely shooting civilians,” and less on “complicated fog-ofwar battlefield decisions.”
Amichai Cohen, dean of Kiryat Ono College, expressed concern that the ICC would likely intervene in alleged IDF war-crime cases because it had been aggressive in intervening in cases in Libya and Kenya.
He said that the ICC prosecutor seemed to interpret its status as a court of last resort narrowly.
While some interpret the ICC’s mandate as enabling it to intervene in war-crime cases only when the defendants’ countries were making no move to try them, he asserted that the ICC was prepared to intervene even when those countries were making certain efforts, as long as they had not specifically advanced war-crime cases or charged their nationals with crimes similar to those the ICC would prosecute.
Northwestern University’s Prof. Eugene Kontorovich, meanwhile, attacked the ICC prosecutor for accepting “Palestine” as a state. He said the prosecutor was taking its direction from the UN General Assembly, leading to its own politicization.
He also complimented Shurat Hadin on its recent US lawsuit win against the PA, which he said could put pressure on President Mahmoud Abbas to worry about similar allegations arising against him personally before the ICC.