Articulating dilemmas

Military and legal professionals have discussed the challenges the country faces.

By SETH J. FRANTZMAN
Scene of a rocket attack 521 (photo credit: REUTERS)
Scene of a rocket attack 521
(photo credit: REUTERS)
As the third anniversary of Operation Cast Lead approaches, Israel seems to be wrestling with questions about the best way to carry out military operations in line with international standards. Two weeks ago there was a book launch for a volume called The Goldstone Report “Reconsidered”: A Critical Analysis, put out by NGO Monitor. Last week, several hundred people gathered at the Institute for National Security Studies (INSS) at Tel Aviv University for a conference on “Challenges of Warfare in Densely Populated Areas,” jointly hosted by the INSS and the International Committee of the Red Cross (ICRC). The local buzz surrounding the ramifications of Cast Lead and current dilemmas armies face worldwide is evidence that Israel continues to face the prospect of dealing with international legal issues in its struggle against terror.
Andrew Bell, the ICRC armed forces delegate who helped arrange the conference, believes it is important for Israeli institutions to work closely with his organization. For this reason, he and the INSS invited Gen. Stanley McChrystal, former head of the allied mission in Afghanistan, to be the keynote speaker. McChrystal, Bell explained, “had a working relationship with our head of delegation, and it is a classic example of working together.”
The majority of the conference featured Israelis discussing dilemmas in fighting terror. Brig.-Gen. (res.) Moshe “Chico” Tamir, wearing a striped shirt that emphasized his bulk, addressed the crowd about his role in fighting terror cells in the West Bank. A 28-year IDF veteran whose career ended prematurely when he tried to hush up an incident involving his son’s use of an IDF vehicle, he tried to explain to the assembled guests what fighting terrorism involves. “Terrorists are like water...You have to mop up the area, and terror cells are very hard to deal with.”
He emphasized that in Operation Defensive Shield in 2002, the main priority had been to cleanse the territory of terrorists. “The rule of thumb is that it is a ratio of one to one with civilian casualties to terrorist casualties. When you bring in more troops, the ratio rises.”
Tamir also stressed that the conflict situation in the West Bank or Gaza could not be compared with what the US army encountered in Iraq or Afghanistan. “There you have the Green Zone [where foreign civilians live], and here the situation is different. Here you have Sderot and... Hamas intentionally waits until 8 a.m., when the school buses make their rounds, to fire their mortars.”
AMOS YADLIN, a former head of the Military Intelligence Directorate, spoke at the conference about the correct balance between protecting Israel’s civilian population and risking the lives of soldiers.
“The main question is how you deal with the terrorist who hides within the civilian population and hits civilians in the State of Israel,” he stated. “Another dilemma is whether it is correct to endanger our troops to avoid affecting the civilians.”
Yadlin presented several theories and models. “When you know the Just Warfare Doctrine, there is a distinction between just war and the just way of acting. For instance you can conduct an unjust war in a just manner, and you can conduct a just war in an unjust manner.”
But his most insightful point, arousing great interest in the crowd, was his question about whom Israel must protect first in times of war.
“To whom are we more obliged – the soldiers, the citizens or the civilians of the enemy?” he asked. “Between our civilians and their civilians, ours come first. But what about between our soldiers and their civilians, who are not involved in terror?”
The original conference schedule called for Tamir to be followed by Prof. Asa Kasher, one of the authors of the IDF’s Code of Ethics. But Kasher had demanded to be the last speaker on the panel. This change meant that Prof. David Enoch of Tel Aviv University, whose discussion was more critical of the IDF, spoke next so that Kasher could rebut what he said.
Enoch, visibly perturbed by the change, gave a perfunctory discussion about the question of harming civilians, asserting that “anyone who doesn’t think their [Palestinian] children are similar to our children is not moral.” He discussed a variety of theoretical situations in which Israel might send its soldiers to be harmed in order to prevent harm to Arab civilians.
“There are two possible easy solutions,” he explained. “One is to give absolute priority to the civilians on the other side over your own soldiers… and you should risk your soldiers always to prevent any harm to their civilians. The other view is that any risk to their civilians is justified by protecting your soldiers. You cannot defend morally either extreme solution.”
He asked the audience to imagine a situation in which a gang of criminals had taken over a building in Tel Aviv, and to imagine protecting Arab civilians the same way Israeli civilians are protected.
“I think there is something important in this test, [in saying] that Gaza or Ramallah is the same as Tel Aviv in terms of treatment of civilians – but I wouldn’t adopt it.”
Enoch was adamant that the right choice was to encourage IDF commanders to overemphasize the importance of not needlessly harming enemy civilians to protect the lives of IDF troops.
KASHER, WHO at 71 years of age stands with a slightly bowed head when he speaks, gave an emphatic response to Enoch’s claims.
“I don’t accept the Tel Aviv test, I don’t think we need to behave in Gaza the way we behave in Tel Aviv. In Tel Aviv we have mechanisms to look after the people... we don’t have this responsibility in Gaza because we do not have effective control of Gaza.” Kasher was particularly incensed about the prospect of risking the lives of IDF soldiers. He argued that since the IDF is a citizens’ army, the soldier deserves the protection due to any Israeli civilian rather than being seen as some random mercenary fighter.
After the dust-up between Enoch and Kasher, and a spartan lunch that was grabbed up as quickly as it was served, the conference reconvened with a discussion about the laws of war. Knut Doermann, a principal member of the ICRC, explained that while there is a perception that international law as it relates to armed conflict is a relic of the time of conventional war, when it was crafted 70 years ago it did in fact take into account the notion of guerrilla warfare as well.
“Compliance with the rules is based on the information the commander had at the time of attack… so analyzing a situation based on hindsight is not helpful; it is about what the commander did at the time.”
Col. (ret.) Pnina Sharvit-Baruch followed Doermann’s discussion with a plea that Israel not see international law and the rules of war as something to be worked with or changed.
“The way is through the existing law with adaptations. I disagree with the argument that there need to be more restrictions [on the army]. I also disagree with those who say they should be more flexible.”
It is interesting that her comments were in favor of the existing framework of the laws of war considering the fact that in 2009 her invitation by Tel Aviv University to teach a class on international law was met with outrage by numerous left-wing faculty who called her a war criminal and accused her of sanctioning the murder of children in her former role as head of the IDF’s International Law Division.
ONE OF the more unusual discussions at the conference was provided by Prof. Christian De Cock, Chief of NATO’s International Law Section. In a jargon-filled speech, De Cock breezed through a discussion of how the bombing of Muammar Gaddafi’s Libya was carried out. “We began operations against a state, so it was according to the traditional principles [of war] between two states, but the Libyans changed their tactics to irregular warfare.”
De Cock emphasized that his unit interpreted international legal concepts broadly. “We analyzed the guidance on ‘direct participation’ in hostilities. If you participate then you are part of the conflict; we felt that nonmilitary groups were legitimate targets. We disagree in the idea that [someone] ceases to be part of the group when they are no longer engaging in conflict. [In fact] you are a legitimate target on a 24/7 basis in the conflict; that is how we interpreted the engagement of mercenaries and other individuals.”
Gen. Stanley McChrystal, speaking via video conference, wrapped up the conference with a short admonition about why harming civilians worked against US policy in Afghanistan. McChrystal, a former special forces commander reputed to have carried his own personalized nunchakus with him, came across as pleasant but firm.
“If you think back in history, armies have been a great danger to civilians – not only in battle, but just the existence of the military force… It is hard to accept the kinds of things we accepted before, such as the firebombing of Dresden or Tokyo.”
He spoke about his experience in Afghanistan. “The Afghans want us to win but at what cost [to them]? We realized, as the Soviets had, that the perception in the mind of the people was important. We needed to interact [in a sensitive way, even when it came to how] we drove our vehicles and how we had checkpoints in a respectable level in line with their culture. Reducing civilian casualties is key, so we came up with ‘courageous restraint.’”
McChrystal did not articulate what his policy entailed, perhaps due to time constraints. However despite the perfunctory performance, Andrew Bell felt the conference was a great success and one that could be followed up on in the future. He stressed that he looks forward to the day when Israel is able to develop a similar working relationship with the ICRC as McChrystal developed in Afghanistan. He said that he thinks it is imperative that Israel come to view the International Red Cross and its rules of warfare, rather than as an anathema against it, as something that can be worked with and in future adapted to the Israeli reality. ■


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