...Civilian and military leaders who seek to secure Israel are now being subordinated to lawyers whose primary concern is the enemy. This is a recipe for disaster. At a time when the threats against us quickly change, grow and change again, we need political and military leaders who are courageous, creative and willing to take calculated risks. But due to our leaders’ unwillingness to challenge our imperial legal guild, we find ourselves at this dangerous juncture with no means of adjusting to strategic shifts.
13 June '14..
The Middle East is rapidly changing. Indeed, it is convulsing. After generations of stasis, where strong, despotic central governments ruled with an iron fist and everyone knew who he was and who he was not, today everything – borders, regimes, identities – is in flux.
Take Iraq. Last week, residents of Mosul lived under Iraqi government control. On Tuesday, they lived under al-Qaida control.
Today national governments throughout the Islamic world are incapable of defeating strategically minded and aggressive jihadist militias like al-Qaida and proxy forces for the likes of Iran.
The most prominent example of an organization that is strategically flexible and capable of evolving and learning is Hezbollah. Since Iran founded the Shi’ite terrorist organization in 1982, Hezbollah has operated on multiple levels simultaneously.
Today it is an international terrorist organization with cells throughout the world. It is Iran’s foreign legion. It is a member of the Lebanese government.
It controls south Lebanon. And it fields its own formidable military force that now serves as the core of Syrian dictator Bashar Assad’s military forces in the Syrian civil war.
All of these disparate tasks require an enormous capacity for organizational flexibility and learning.
This brings us to Israel.
Leaving aside Iran’s nuclear weapons program, Hezbollah is the greatest looming threat Israel faces. In his address this week before the Herzliya Conference, IDF Chief of General Staff Lt.-Gen. Benny Gantz said that Hezbollah has the sixth most powerful military in the world.
Not only does it have a missile arsenal capable of destroying strategic targets in Israel including air force bases and electrical stations, Hezbollah’s experience in Syria has provided its commanders with the capacity to carry out sophisticated ground operations unlike any Israel has seen.
Yet according to an article published in the latest issue of the IDF’s journal Ma’arachot by IDF intelligence officer Lt.-Col. N., the IDF’s assessment of Hezbollah’s war-fighting strategy remains frozen in time.
According to N., Israel’s preparations for a future war with Hezbollah have been focused on improving its responses to Hezbollah’s operations in the Second Lebanon War eight years ago. In that war, Hezbollah was unfettered by military commitments in Syria or elsewhere. It had all the time in the world. And so, its goal was to wait Israel out and maintain the capacity to continue attacking it with missiles and rockets until the last moment of the fighting. That is, Hezbollah’s aim was to win the war by not losing it.
And as N. explains, Hezbollah accomplished its mission.
Since then, Israel has focused its efforts and resources on preventing Hezbollah from repeating its achievement by developing the means to destroy hundreds of targets at the same time.
The problem, N. explains, is that Hezbollah has moved on. Hezbollah is not the same organization it was eight years ago. It has new capabilities and new responsibilities. There is no reason for Israel to assume that Hezbollah will operate by the same playbook today that it used in 2006.
Based on speeches by Hezbollah commanders in recent years in which they called for a conquest of the Galilee, and given their expanded responsibilities and capabilities in Lebanon and Syria, N. argues that Hezbollah may prefer a short war involving a combination of missile assaults on military targets and a ground invasion of the Galilee.
N. pointed to a number of vulnerabilities in Israel’s defenses that owe to some degree to our leadership’s focus on winning the last war rather than adapting to our to enemies’ changing capabilities and developing a full spectrum of options for defeating them.
His article has received wide attention. But it is far from clear that his wake-up call will be heeded.
Adapting the IDF’s strategic concept to one capable of confronting Hezbollah today requires the IDF’s senior commanders to be flexible and willing to take risks. Yet Israel’s General Staff is conservative, rigid and, most importantly, risk averse.
N. wrote that most IDF officers and soldiers were deeply disappointed and distressed about Israel’s performance in the 2006 war with Hezbollah, because they recognized that the IDF’s failure to defeat Hezbollah rendered the jihadist force the victor.
But one faction of Israeli society viewed the war as an out-and-out victory. That faction is the legal fraternity.
Due to the widespread outrage over the war’s progression, then-prime minister Ehud Olmert was compelled to form the Winograd Commission to study the military and political leadership’s stewardship of the war.
In testimony before the Winograd Commission, then-attorney-general Menahem Mazuz extolled the war as “the most ‘lawyerly’ in the history of the State of Israel, and perhaps ever.”
It wasn’t that IDF commanders put legal considerations ahead of operational and strategic goals. It was worse than that.
According to Mazuz, the generals and the political leaders limited their goals from the outset to what they hoped would conform with perceived legal restrictions. This restraint, he bragged, was “the result of a sort of education and internalization that have taken place over the years.
“I remember periods when there was a great deal of friction with the senior military level regarding what is allowed and what is prohibited. But today I think there is more or less an understanding of the rules of the game, and I can’t identify any confrontation… or… demands to ‘let the IDF win.’” According to then-IDF military advocate-general Brig.-Gen. Avi Mandelblit and Mazuz, legal advisers were present at all levels of command in all the relevant service arms and in the security cabinet.
At each level the lawyers were asked to judge the legality of all the proposed targets and planned operations before they were carried out. And as the two explained, in their decisions, these lawyers were informed not by the goal of winning the war but by their interpretation of international law.
Law professor Ruth Gavison, who was a member of the commission, found their testimony deeply disturbing.
“I find this analysis harsh,” she chided. “I think that you have ignored the fact that international law is plagued with problems of selective enforcement and that the application and use of international law in the context of international conflicts is very biased and very political…. Therefore, [reliance on international law] seems to me to be a position that is possible to argue on a rhetorical level, but to internalize it as a real position, that looks to me like a strategic danger.”
Unfortunately, Gavison’s warning fell on deaf ears. Not only has the power of radicalized lawyers with a distorted view of the laws of war not been rolled back in the intervening years. It has expanded, to the point where today, staff officers in the military refuse to carry out lawful instructions from the government.
For instance, according to Haaretz, on Sunday Prime Minister Binyamin Netanyahu was scheduled to meet with the heads of the military government’s Civil Administration of Judea and Samaria to consider ways of sanctioning the Palestinian Authority, which is now led by a Fatah- Hamas government in material breach of the agreements the PLO signed with Israel.
The civil administration was supposed to present recommendations for such sanctions for Netanyahu’s approval. But last Thursday, the civil administration’s staff officers rebelled. At a preparatory meeting, they decided to offer the prime minister no recommendations. According to Haaretz, among other things, they said they couldn’t sanction the Palestinians because it is their duty to help them. They further argued that sanctions “will be difficult to defend from a legal standpoint.”
In other words, radicalized staff levels of the IDF openly defy the government when it tries to provide for the common defense by taking action against Israel’s enemies. They then justify their actions by hiding behind amorphous and contrived legal restrictions.
And this is just the tip of the iceberg. Consider the long-term consequences of the Mavi Marmara incident.
In May 2010, IDF naval commandos boarded the Turkish ship Mavi Marmara to prevent it from unlawfully breaching Israel’s maritime blockade of Hamas-controlled Gaza.
Terrorists aboard the ship attacked the soldiers with knives, clubs and other weapons with the intent of killing them. The soldiers defended themselves and killed nine terrorists.
The blame-Israel-first crowd, otherwise known as the international community, accused Israel of committing war crimes.
Rather than simply reject the slanderous accusation, led by the legal fraternity, Israel played along.
As a consequence, Israel formed the Turkel Commission charged with determining whether Israel’s system of investigating charges of war crimes meets the requirement of international law.
In the event, in February the commission submitted a 1,000-page report to Netanyahu. It concluded that Israel’s system does abide by the requirements of international law.
Yet, despite this fact, it recommended removing the authority to investigate war crimes allegations from the IDF and transferring it to the attorney- general and the military advocate-general who would no longer be subordinate to the IDF chief of General Staff.
Moreover, the commission recommended that Israel’s political leadership and General Staff be held criminally culpable “for violations committed by their subordinates, if they do not take all reasonable measures to prevent these violations or do not bring those responsible to justice when they find out about violations after the fact.”
The strategic implications of the Turkel Commission’s recommendations are earth shattering.
They mean that from now on, when defending Israel from its enemies, both government ministers and generals will be at the mercy of a self-appointed, radical, unaccountable legal fraternity whose interpretation of the laws of war has but a glancing relationship with the laws of war.
As Mazuz explained its interpretation back in 2007, “The laws of war, or international humanitarian law doesn’t concern itself with relations between two states, but with the relationship between civilians and states. That is, it places the two warring states on one side of the divide and the citizens of the two states on the other side, and the goal of international law is to protect the citizens of the two states and to say: You’re big kids. You want to fight, go fight, you have rules… and the rules aim to minimize as much as possible the consequences of the war.”
In other words, just as the civil administration officers argued, following international law means caring more about enemy populations than you care about your own. Civilian and military leaders who seek to secure Israel are now being subordinated to lawyers whose primary concern is the enemy.
This is a recipe for disaster.
At a time when the threats against us quickly change, grow and change again, we need political and military leaders who are courageous, creative and willing to take calculated risks. But due to our leaders’ unwillingness to challenge our imperial legal guild, we find ourselves at this dangerous juncture with no means of adjusting to strategic shifts.
Caroline B. Glick is the author of The Israeli Solution: A One-State Plan for Peace in the Middle East. This article was originally published in the Jerusalem Post.
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