IDF rewrites the laws of war

A ‘targeted assassination’ of international law

We Israelis can blame allegations of war crimes on global anti-Semitism, or we can take a tough look on the way we have waged armed conflict over the past decade.

By Michael Sfard | 4 August, 2014

Israelis are surprised. Did I say surprised? Downright shocked. Even before the dust from the fighting has settled, even before this “most just of all wars” has ended, even as the most moral army in the world is still mired in Gaza – there is already talk of war crimes and an international investigation.

We, who didn’t carpet-bomb even though we could have, who dropped fliers and made phone calls and knocked on the roof; we, who agreed to the humanitarian cease-fire that Hamas violated; we, who took more precautions than any other nation would have done – we are once again being accused of war crimes. Once again, the same old song is being sung: decisions about opening an international investigation, talk of the International Criminal Court, fear of arrests in Europe. And we don’t understand why we deserve all this.

It is possible to console ourselves by accepting the explanation that the [Israeli] television journalists keep repeating to us: that the world is anti-Semitic and two-faced and supports Hamas. But this would constitute a regrettable evasion of the tough questions. It would constitute an effort to flee the pointed discussion Israeli society ought to be holding about the way we have waged armed conflicts with our enemies over the last decade.

Since the Second Lebanon War of 2006, the Israel Defense Forces has adopted an extremely problematic combat doctrine for conflicts that take place in urban areas with dense civilian populations, and in which the enemy is seen as an illegitimate terrorist entity (Hezbollah in Lebanon and Hamas in Gaza). This combat doctrine is supported by a legal theory developed by the IDF’s international legal division, which interprets the laws of war in a manner that is shockingly different from their accepted interpretation by experts in the field worldwide. Its direct result is massive civilian casualties and the destruction of civilian neighborhoods.

This combat doctrine consists of two elements, each of which is a declaration of war against the fundamental principles of the laws of armed combat. The first element redefines what constitutes a legitimate target for attack, such that it now includes not only classic military targets (bases, combatants, weapons stockpiles and so forth), but also facilities and objects whose connection to the enemy organization is nonmilitary in nature. Under this innovative definition, the IDF’s target bank has expanded to include “symbols of the Hamas government” (offices, policemen, the parliament building), which were targeted during Operation Cast Lead in early 2009, and houses belonging to Hamas commanders and operatives, which have been targeted during the current Operation Protective Edge. Dozens and perhaps hundreds of civilians have been killed in assaults on such structures.

The second element is even more far-reaching: It holds that when fighting in urban areas, we are entitled to treat the entire area as a legitimate target and bombard it via air strikes or artillery shelling – as long as we first warn all the residents of our intention to do so and give them time to leave. The IDF first used this method in Beirut’s Dahiya neighborhood during the Second Lebanon War. Before bombing, the army dropped fliers telling the residents to leave. Then the bombs were dropped, and most of Dahiya’s houses were destroyed.

This doctrine was applied, to varying degrees, in Operations Cast Lead and Protective Edge as well, primarily in Gaza City’s Shujaiyeh neighborhood. It does not take into consideration the question of whether the prior warning given the population is effective – i.e., whether the population can in fact leave, whether solutions have been found for the elderly, the ill and the children. Nor is it accompanied by the creation of a safe corridor through which people can flee to someplace that won’t be fired on, and where civilians have what they need to survive.

The terrifying result of this combat doctrine, in both Cast Lead and Protective Edge, was piles of bodies of women, children and men who weren’t involved in the fighting. During Protective Edge, the IDF itself, via its spokespeople, claimed that Hamas was preventing the population, both by force and by threats, from fleeing the areas slated to be bombed. Yet even this fact didn’t abort the bombings.

The IDF’s lawyers, who provide legal support for this combat doctrine, are conducting a “targeted assassination” of the principles of international law: the principle of distinction, which requires differentiation between military targets (which are legitimate) and civilian targets (which aren’t); the principle of proportionality, which forbids attacking even a legitimate target if the anticipated harm to civilians is excessive in comparison to the military benefit from the target’s destruction; and the need to take effective, rather than merely symbolic, precautions.

Even so, none of this would lead to international investigations if there were at least an Israeli mechanism for conducting inquiries that met international standards, as international law gives priority to investigations and trials by the state in question. But, as the reports of countless Israeli human rights organizations have shown, the IDF’s in-house system of investigations and prosecutions has been a failure: Parts of it are neither independent nor professional; it’s horrendously slow; and it’s incapable of dealing with questions related to policies set and decisions made by senior officers.

The Turkel Commission – appointed by the previous government to examine whether Israel complies with international requirements for investigating suspicions relating to possible violations of the laws of war – adopted the recommendations of Israeli human rights organizations and, about a year and a half ago, issued 18 recommendations for major changes in the IDF’s investigative policies. But these recommendations were buried by means of the well-known method of setting up an “implementation committee.”

In this situation, the army’s past and present legal advisors are not only legalizing an immoral form of combat; they are pushing Israel into international investigations and perhaps even indictments.

So there’s no reason to be surprised. Preventing harm to civilians has always been the purpose and the raison d’etre of the laws of war. Therefore, Hamas’ firing of missiles at civilians is undoubtedly a war crime. But for the same reason, the bombing of Hamas operatives’ private homes (“so that when they emerge from their bunkers, they’ll see what a price they have paid”), and the use of artillery and aerial strikes aimed at densely populated civilian areas raises suspicions that the laws of war were violated. And these suspicions must be investigated.

The writer is the legal advisor of the Yesh Din organization.