Fighting wars in a minefield of lawyers

Former top IDF international law head emphasizes the legal battles the military faces in choosing targets.

Gantz with reservist paratroopers 370 (photo credit: IDF Spokesman)
Gantz with reservist paratroopers 370
(photo credit: IDF Spokesman)
In the thick of Operation Pillar of Defense, former head of the IDF International Law Division Col. (res.) Liron Libman told The Jerusalem Post on Sunday that the impact of lawyers on IDF operations has never been stronger.
Libman explained, as he had in a recent speech at a Tel Aviv University conference, that the law has become so institutionalized as a value and an operational consideration that “frequently IDF generals would decide not to take military actions” even where Libman might have indicated “that the action would not violate international law.”
He said that the IDF high command understands that today’s “wars are fought in a minefield of lawyers.”
In his approximately three years as the senior international law expert for the IDF, his battles included the Goldstone Report and the 2010 Mavi Marmara flotilla. He also continually integrated the IDF’s approximately 20 international lawyers, plus additional reserve-lawyers, into every aspect of the planning and execution process of IDF operations.
According to Libman, even though an IDF general might have known that some actions were allowed, he might “decide to achieve a goal a different way or use a less powerful munition to strike a target,” to avoid giving legal “ammunition” to those trying to delegitimize Israel’s right to self-defense.
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Libman said that “while some old reserve commanders might still wonder what a lawyer is doing around them,” the “regular commanders and all of the new commanders” were totally accustomed to the role of lawyers in waging a war.
Asked about what the current international lawyers are doing, Libman indicated that there were “meetings throughout the day,” much like any large institution, “to coordinate between the many apparatuses of the IDF all of which have a different focus.”
He added that “it was a havaya” (“experience”) to be working with top generals like former IDF chief of staff Lt.- Gen. (res.) Gabi Ashkenazi and getting to contribute to something he really believed in. He felt that sometimes, when he found himself to be the only lawyer in the room, that he was accorded a special “position of respect” for his professional expertise.
Asked what would happen if he and a senior commander disagreed on an operational issue, Libman said “it almost never happened,” since they were usually communicating about the same principles “on a regular basis and knew where each other stood.”
In theory though, he said that unresolved disagreements could be decided by a consensus of the IDF chief of staff and the IDF Judge Advocate-General, and could be ultimately referred to the attorney-general.
Libman also emphasized a dichotomy of roles for international lawyers and commanders of fighting units during wartime operations like Pillar of Defense.
On one hand, he said, all high command personnel deal with all issues. On the other, the IDF chief of staff, the head of the international law department and other top officials plan and focus on the problems and scenarios expected “for the next day,” and coming days of operations. Meanwhile, other high command officials and mid-level international lawyers, including those stationed on the southern front, deal with the immediate legal issues “in real-time.”
Libman said that it was likely that in the present case of the IDF striking around 1,000 targets in only a matter of days, most targets had been studied and approved by the international law department as valid targets “prior to the operation.”
At the same time, Libman also focused on the dynamic nature of the legal situation in the field.
He said that frequently he, or other lawyers, would need to return and review a preselected target and change its categorization.
Sometimes earlier intelligence might indicate that there were few civilians nearby and that a target appeared to be important Hamas weaponry.
Yet, later, if the intelligence was contradicted, the target could be removed from the approved list for not meeting the proportionality test; namely, having a great enough military value relative to the expected harm to civilians.
There were also cases where earlier reports had indicated that a site contained relatively unimportant Hamas weaponry.
Later, intelligence revealed crucial weaponry onsite, making the target legitimate, even if originally the IDF thought it was off limits.
Most of the time, Libman said, the key advice his department would give was about whether a site “could be defined as a military target or not.”
Once a target was defined as military, the role of the international lawyers shifted more towards “giving general guidance of what considerations a commander should take into account in making his own decision” about what was proportional, since he was more of an expert in the military goals and intelligence.
Still, Libman said that one of the reasons for the success of integrating lawyers into the decision-making apparatus of the IDF before, during and after operations, was that the lawyers have transformed themselves to a degree. They have accomplished this by investing significant time in “learning about military tactics, munitions and strategy, to better speak a common language with the commanders.”
Libman briefly analyzed the killing of Hamas military head Ahmed Jabari.
He said that while frequently a lawyer would prefer airstrikes at night to lower the chance of civilian casualties, Jabari was such a high value military target and the “window for targeting him was likely so small” that a lawyer would have to understand the need to jump at the chance “if it happens at all.”
Libman also noted that in the IDF video publicly distributed, the attack on Jabari appeared to be “delayed by at least a few seconds from when his car was closer to some other cars and bystanders until he was farther away from those bystanders.”
One topic Libman took issue with was some of the current political reactions to the conflict.
Libman said that it was “irresponsible” for politicians to be making unbalanced statements about destroying and punishing Gaza “just to garner electoral favor,” and that they should leave the fighting to the IDF.
He said that such irresponsible statements “could later come to haunt the IDF, as they could be used by groups to try to delegitimize the IDF’s right of self-defense,” and characterize it in a negative light – even if the politicians were only representing themselves.
Libman said that an international lawyer’s job was to navigate the “gray areas” that characterized many disputed aspects of the law of armed conflict, always striving to be in keeping with the “spirit of the law.”
It was crucial, Libman said, that the IDF adhere to and “guard our [country’s] values,” since success could only be achieved in this and future operations by defending the “value we place on human life.”