Sunday, October 12, 2014

The Battlefield of Israel’s Legal Wars

...In the regional conflict, the legal battlefield is becoming an ever-present and significant part. Daniel Reisner believes that the bad news for Israel is that one major legal loss in this “front” could have a “domino effect”, the eventual scope of which we cannot even guess

Daniel Reisner..
10 October '14..

When I first enlisted into the IDF as a young junior legal officer, almost thirty years ago, wars were generally waged on two “fronts”: the actual physical battlefield; and the political battlefield. And as a certain 19th century Prussian General once noted, the former is often a continuation of the latter, just by other means.

Obviously, conflicts today still include these two arenas. However, they have been joined (not to say superseded) by several new battlefields, the foremost of which is the public opinion/media “front”. In modern armed conflicts, “winning” has become as much a matter of public perception as it is a question of actual achievements on the ground. Worse still, if an event is widely reported as having occurred, the fact that it actually never took place in the real world may be of little relevance (if you want a relatively recent example, search online for the still-available BBC and Guardian reporting of the alleged “Jenin massacre” in 2002, which even the UN later admitted never happened).

Since its establishment over 60 years ago, and in spite of overwhelming odds, Israel has consistently defeated its enemies on both the physical and political battlefields. However, over the last two decades, with the advent of global media, Israel has (for a variety of reasons) consistently lost the public opinion battle with its neighbors.

Losing this battle has some serious consequences, all of which can be clearly seen today. Thus, as a result of their (probably accurate) concern of losing popular support among voters, there are today almost no European political leaders willing to openly support Israel (although, in private, many do voice pro-Israeli positions). Similarly, calls for anti-Israeli boycotts, sanctions and divestments are being increasingly heard throughout Europe, all fueled by media representation of Israel as the “bad guy” in the Middle-Eastern conflict.

Perhaps the least known, yet possibly most dangerous, side effect of Israel’s losing the international public opinion “front” is the increasing willingness of international and national judicial organs to consider launching legal proceedings related to alleged Israeli violations of the laws of armed conflict. The fact that some serious legal professionals are actually entertaining such an option, at the same time that ISIS (also known as ISIL) is busy murdering and beheading captives who refuse to convert to fundamentalist Islam; Boko Haram continues to kidnap young Nigerian girls for the same reason; and almost 200,000 civilians are claimed to have been killed in the ongoing Syrian civil war, in which almost unprecedented brutality has been exhibited by all warring factions, is a stark testament to the incredible power of the anti-Israeli media in shaping the beliefs and agenda of well-meaning people.

Unfortunately, this phenomenon is not entirely new. In fact, for the last fifteen years, every military operation or war in which Israel has been engaged with its neighbors has generated a follow-on “wave” of attempted legal proceedings against Israel, Israelis, Israeli companies or even foreign companies and individuals somehow related to Israel. And while the good news is that not one significant case has been lost to date (in fact, there have been some quite remarkable Israeli legal victories in various fora, all of which were naturally not widely reported), the bad news is that one major legal loss could have a “domino effect”, the eventual scope of which we cannot even guess.

What this means is that we have to be fully aware of the fact that all of Israel’s actions during military operations (including the recently ended Operation protective Edge) will undoubtedly undergo extensive post-conflict review by a wide range of interested parties, some truly neutral and objective, others clearly biased towards reaching the conclusion that Israel must have done something wrong, and full of conviction that it is their job to find out what that was.

I am often asked why Israel, which is consistently faced with enemies who show little or no respect for legal or moral values, continues to place such an emphasis on complying with the laws of armed conflict (more commonly referred to today as International Humanitarian Law – IHL). I explain that there are actually three reasons for this apparently irrational Israeli behavior:

First – from a purely legal perspective, international law does not allow one party to a conflict to cease to comply with the relevant rules, solely due to the fact that the other party is violating them. In other words, the fact that Hamas consistently commits blatant violations of all international legal norms, amounting to severe war crimes, does not entitle Israel to disregard these same rules.

Second (and in my opinion more important), Israel has made a legal and moral decision to adhere to the relevant laws and norms of international law, in spite of the serious challenges such behavior generates in the Middle-East. Fighting terrorism “with one arm tied behind our back” (a term coined by the Israeli Supreme Court) is not, as some critics would allege, a sign of weakness. On the contrary – it is a testament to the commitment of the people of the State of Israel to maintain our own values, even when all around us people appear to be losing theirs.

Finally – the military and legal authorities, all too keenly aware of the fact that, immediately once the fighting dies down, voices will clamor for international investigation of alleged wrongdoings, recognize the necessity of ensuring (and being able to retroactively prove) that IDF operations fully complied with all relevant norms.

For all of these reasons, during the mid-90’s I initiated a process of integrating military lawyers into the IDF operational decision-making processes. Today, IDF lawyers specialized in laws of armed conflict are deeply involved in all stages of military operations. At the initial planning phase, their involvement could include commander training, participation in the drafting of mission orders and taking part in the compilation of approved target lists. During actual combat operations, such lawyers would participate in IDF HQ targeting cells while, in the field, IHL qualified lawyers are embedded at the Division level, providing commanders with on the ground real-time support. Post conflict, the focus shifts to investigation of all incidents concerning which allegations of misconduct have been raised.

It is fascinating to note that while Israel has made such a concerted effort to ensure IHL compliance, Hamas appears to be making an equally serious and intentional effort to violate the very same rules, while confronting Israel with almost impossible legal and moral dilemmas.

Among the more difficult challenges faced by Israel and its lawyers during the recent operation “Protective Edge” I would mention the following (please note that this is not an exhaustive list): How to respond to rocket, mortar, live-fire and tunnel attacks all originating from within, next to or under occupied civilian homes and premises? How to react to the continuous Hamas use of protected facilities, such as mosques, schools and hospitals, to mask and hide military activities and stockpiles? Should Israel provide advance notice of impending attacks, so as to enable the civilian population to leave the area? In this regard, it is important to note that providing such notice obviously takes away the crucial element of surprise.

Additionally – Hamas publicly threatened its own population not to vacate areas of impending attacks, in order to force Israel to choose between conducting military operations in a civilian-rich environment (thus probably increasing civilian casualties) and foregoing the attacks entirely.

Now that the actual fighting has ended, the next-stage dilemmas are no less challenging. First – how best to investigate specific incidents concerning which allegations of wrongdoing have been raised? The Turkel Commission, established in 2011 by the Israeli government following the Mavi Marmara incident, submitted a long list of recommendations in this regard, all aimed at ensuring that Israeli investigations conform to equivalent practices in other western states. Second, whether or not to cooperate with the “Commission of Inquiry on Gaza” recently established by the UN’s Human Rights Council? Israeli confidence in the objectivity and neutrality of this commission was justifiably shaken when it became apparent that the commission’s mandate was clearly biased (e.g. repeated references to Israeli attacks in Gaza, but no mention of Hamas and its unlawful attacks against Israeli civilian population centers); that the international expert chosen to head the committee was on public record stating that Israeli leaders should be prosecuted for war crimes; and the fact that none of the chosen commission members has any military or security background.

No matter how Israel decides to answer these, and other, challenges, one can rest assured that any Israeli decision will be challenged, first in the public opinion arena, and later in the legal battlefield which is becoming an ever-present part of the regional conflict.


Until 2004 Col. (res.) Adv. Daniel Reisner served as the head of the IDF’s international law department. Today, he serves as the international law and defense partner at the law firm of Herzog, Fox and Neeman in Tel-Aviv. One of his specialist areas of focus is representing international and Israeli clients targeted by anti-Israeli groups

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