Security and Defense: Waging war on the legal front

Security and Defense Wa

By YAAKOV KATZ
While the cannons have long gone silent and the air force bombardments of the Gaza Strip have ceased, the IDF is still at war, says Judge Advocate-General Brig.-Gen. Avichai Mandelblit. The war that Mandelblit refers to is being fought on a new battlefield which he calls the "legal front" and is the place where the IDF meets dozens of NGOs and countries that are out to deter Israel from defending itself in the future. "There is definitely a strategic decision that was made by different organizations and even above them to attack Israel on the legal front," Mandelblit, soon to be promoted to the rank of general, told The Jerusalem Post in a revealing and exclusive interview. "They want to deter IDF legal experts and officers from acting next time around, but I assure you that they will not succeed. We are comfortable with the way we acted and are determined, since we understand that this is part of the war, and we will carry on fighting." These militant words come unexpectedly from the bearded, soft-spoken religious officer who has climbed the ranks since entering the IDF in the 1980s. Considering the unprecedented number of anti-Israel reports published since Operation Cast Lead in the Gaza Strip earlier this year accusing Israel of war crimes, Mandelblit is without a doubt at the forefront of a real war. But he has no problem firing right back. "From an initial review of the [Goldstone] report, it is clear that it is biased, astonishingly extreme, lacks any basis in reality and is a sharp deviation from the mandate given to the mission," said Mandelblit. The radical content in the report, he continued, justifies Israel's decision not to cooperate with Goldstone and his team. "The baseless claim in the report that Cast Lead was planned and launched to intentionally harm the civilian population in the Gaza Strip and to punish it... effectively illustrates the radical distortion and one-sided character of the report and proves, in my opinion, that the decision not to cooperate with the mission was the right one," he said. One example of the flaws in the report is the mission's use of outdated Israeli documents in its investigation. In one case, the mission claimed that the judge advocate-general (JAG) hierarchy was not an independent body. This assertion was based on a part of the Military Code passed in the 1980s which required that military court verdicts be approved by a higher authority. The only problem, he said, is that this law was changed several years ago. The mission decided to ignore that change. Mandelblit was appointed to his current position in 2004 and has since served under three chiefs of General Staff. As the IDF's most senior legal adviser, Mandelblit is a permanent member of the General Staff and sits in on the most sensitive internal military discussions that range from diplomatic issues to targeted killings. Following the Second Lebanon War, Mandelblit made several changes to JAG, primarily by installing legal officers in almost every single IDF division. He says that he was surprised by two questions posed to him by commanders during the 2006 war against Hizbullah. The first was whether it was permissible to shoot at a mosque if a Hizbullah operative was gathering intelligence on IDF troops from its minaret. The answer, he said, was obviously yes. The second question was whether soldiers - who did not have food or water - were allowed to take supplies from homes and supermarkets or was such conduct considered looting. The answer to this question, as well, was that soldiers in dire need of food and water could take from the villages. After realizing that commanders were not as familiar with what was permissible and forbidden according to the rules of war as they should be, Mandelblit decided to hold specialized courses in international law for field commanders. In addition, legal advisers have been "attached" to commanders to assist them in making operational decisions in real time and during fighting. These advisers, Mandelblit said, assist the commanders in drawing up enemy targets. While refusing to provide details so as not to expose classified operations, Mandelblit revealed that there were several targets which legal advisers said were forbidden to attack during the Gaza operation. At the same time, he said, there were targets they said the IDF was permitted to bomb, but were not hit due to operational and moral considerations. "Theoretically every target that is usually protected because it is of a civilian nature but is now used for military purposes - to store weapons, snipers or conduct surveillance - loses its protection for the time period that it is being used for military purposes," he explained. A lot of these issues, he admitted, fall into a "grey zone" and are not easily defined. Asked about IDF claims that the Hamas leadership hid in Shifa Hospital during the operation, Mandelblit said that theoretically "when there are terrorists, and especially the terror leadership, in a place then it becomes a legitimate target." Israel's experience in fighting in densely populated urban centers in the Gaza Strip and Lebanon has forced the IDF to develop some of the most sophisticated systems for warning civilians to flee their homes. During Cast Lead, for example, the IDF dropped millions of flyers to warn civilians of imminent operations. It also made more than 250,000 phone calls to homes and cellphones to urge residents to flee, and the IAF even developed a special stun bomb that was dropped on buildings before bombing them to scare the residents into leaving. MANDELBLIT HAS met with a number of legal advisers for foreign militaries since the operation and has explained these different IDF procedures. In July, he flew to the UN in New York to participate in a conference sponsored by the US Judge Advocate-General and DePaul University. There he gave a presentation on Cast Lead. In general, Mandelblit splits up the NGOs that write reports about the IDF into two categories - those with concrete questions which actually assist the IDF in some cases, and those which are clearly out to get Israel. In July, for example, Human Rights Watch, the International Red Cross and Breaking the Silence all published reports slamming Israel. Following the operation, Mandelblit met with Chief of General Staff Lt.-Gen. Gabi Ashkenazi and the two agreed that JAG would investigate every single complaint filed against the IDF, many of them from the NGO reports themselves. Mandelblit rejected criticism - that also came up in the Goldstone report - that he is not objective and that as a general he is incapable of effectively prosecuting soldiers who have committed war crimes. As proof of his capabilities, he points to decisions he made to launch investigations based on testimonies from NGO reports, including one investigation that was based on the controversial anonymous testimonies published by Breaking the Silence. The IDF is currently reviewing more than 100 complaints it has received regarding its activity during the operation - some of them from NGO reports - and he has already ordered the Military Police to launch 24 criminal investigations. Nine of them are probes into allegations that troops deliberately opened fire at Palestinian civilians. One example is the Abed Rabbo family from Jabalya, who military policemen met with earlier this month at the Erez crossing to collect testimony regarding claims that troops shot and killed two young girls who were waving a white flag. Other investigations have been launched into allegations of looting and beating of detained Palestinians. "I am determined to investigate all of these cases," Mandelblit said. "If we find evidence to back up the allegations, I plan to use all the legal tools at my disposal." One case, which has already been through court-martial, involved a Givati Brigade soldier who stole a Palestinian credit card and withdrew money from Israeli ATMs. He was charged with looting and sentenced to seven-and-a-half months in prison. One of the fears now is that if the Goldstone report gets to the UN Security Council and is then referred to the International Criminal Court in The Hague, IDF commanders could become wanted men abroad. So far, following an initial review of the report, the IDF has not yet found a need to change its policy and enforce new restrictions on officers traveling overseas. It is still waiting for the response of European countries to the report; problems may arise since some countries hold to a universal jurisdiction legal system. Until last year, for example, the IDF had stopped sending officers to study in UK universities after Maj.-Gen. (res.) Doron Almog, a former OC Southern Command, was almost arrested at Heathrow Airport in 2005. An arrest warrant had been issued by the Bow Street Magistrate's Court at the request of a pro-Palestinian Muslim group. The warrant, one of the first of its kind issued in Britain on charges of war crimes, alleged that in 2002 Almog had ordered the demolition of 59 Palestinian homes in Rafah. Mandelblit said that while the arrest threat still exists, he has yet to forbid an officer from traveling to specific countries. "In general, we give advice and take precautionary measures," he explained. The close relationships cultivated between Israel and the European governments have also succeeded in curtailing some investigations, most recently in Spain, where in July the National Court decided to close a judge's investigation of the 2002 IAF bombing in Gaza City that killed leading Hamas terrorist Salah Shehadeh. Mandelblit explained that most European countries first ask Israel for information regarding a case they have received a private complaint about or are considering investigating. While refusing to divulge numbers, he said that there have been several requests from European governments on specific IDF operations during Cast Lead. "There were several requests since Cast Lead, and we provided answers which satisfied them," he said. He also said that some countries and NGOs have forgotten that while international law can be restricting, it is not supposed to prevent a country from winning a war. "War is horrible and painful and international law comes to set things in order," he said. "But is not meant to tie our hands behind our backs. You are still supposed to win the war." This interview with Mandelblit was conducted in two parts - before the report of the UN fact-finding mission led by South African Judge Richard Goldstone was published on Tuesday, and afterward.