Last Thursday, the Jerusalem Center for Public Affairs, in conjunction with the Konrad Adenauer Stiftung (Foundation), sponsored a conference: “Hamas, the Gaza War, and Accountability Under International Law.”
A number of points made at that conference are worth sharing here. But I begin with what was for me a highlight:
Maj.-Gen. (res) Yaakov Amidror, chairing the session on “International Law & Military Operations in Practice,” told us a story:
Years ago, he served in Intelligence for the IDF Northern Command. After considerable effort they had finally located a key member of Hezbollah, who had been responsible for Israeli deaths and was planning more of the same. He was inside a building, and his car sat outside. They planted a bomb under his car, with intentions of detonating it when he got in.
When the mark entered his car, however, he had a child with him.
Said General Amidror: “We didn’t ask what international law said, we asked ourselves what was moral. Could we detonate that bomb with a child in the car?”
They decided they could not, and so they watched the Hezbollah terrorist (marked for another day) and the child drive away together.
Remember this, my friends, and share it widely. We are, barring none, the most moral fighting force on earth. And yet we endure the greatest number of accusations regarding our “immorality.”
And this, of course, is part of the story. International law in some instances has become a weapon, used against us by enemies. Often NGOs play a significant role here. Gerald Steinberg, who heads NGO-Monitor, described what is going on: NGOs consistently push cases against us in international forums, such as the International Court of Justice — which brought down a terrible decision regarding our security fence without even mentioning the terrorism that motivated its construction.
This applies as well to the UN — which launches biased investigations from time to time, such as the current Goldstone Inquiry, which is investigating possible Israeli “war crimes” in Gaza. During the visit of inquiry in Gaza, Justice Richard Goldstone, who heads the investigation, was accompanied throughout by armed members of Hamas.
At a national level, there is abuse of the principle of universal jurisdiction — in which a nation provides its courts with the legal jurisdiction to hear cases that involve situations completely beyond its borders. This principle was originally intended to apply to situations such as piracy on the high seas, where there was no national jurisdiction that might have pertained. Now we’re seeing things like charges brought in a Spanish court against Israeli leaders for civilian deaths caused in the course of fighting terrorism. Sometimes repeat cases are brought in multiple forums.
There are, indeed, some well-established foundations of international law — targeting civilian populations, using human shields, funding terrorist organizations are all clearly illegal. But when it comes to combating terrorism, in many ways that law is insufficient.
Among the questions to be considered is how to fight a terrorist organization that is not a state — how to determine when it is appropriate to enter the territory of another state in pursuing after such terrorists. This pertained, for example, in Lebanon: In the last war, we were fighting Hezbollah, not Lebanon. (This would change if we were to launch another operation, as Hezbollah now sits in the government of Lebanon.) Part of the answer lies with the inability of a state to control terrorists within its borders.
And there are legal issues, as well, with regard to the question of when civilians deserve protection. Says international law, when they don’t take “direct part” in “hostilities.” But what does that mean? Most terrorists, in contradistinction to forces in a standing army, are “civilians.” There is sometimes a “revolving door” phenomenon in which they rest at home during the day, and go out at night to participate in terrorism.
The Red Cross insists that the terrorist is only a legitimate target when he is perpetrating a terrorist act. We say it’s permissible to target them at any time.
Additionally there is an extra-legal, political issue with regard to defining a terrorist: there are “good terrorists.”
And then there are pragmatic considerations in terms of deterrence — how to prevent a suicide bomber from acting, for example.
What I find impressive is the seriousness with which Israel takes issues of international law.
–– Prior to a conflict, training is done of officers on issue of the law, and legal advice is provided at headquarters.
— During the conflict there is an emergency 24/7 mechanism, as well as daily meeting. The entire issue of what the role of legal advisors is during a conflict is complicated. (When do lawyers and not military people decide if an action can be taken?)
— Following a conflict, incidents are investigated and appropriate changes to rules and procedures are made.
There are four considerations as we enter a conflict:
— Military Necessity: Confronting a terrorist infrastructure.
— Necessary Distinction: Obligation to distinguish between civilians and enemy combatants.
This is vastly complicated by Hamas violations that make response very difficult. Booby-trapping residential buildings; recruiting children; using human shields, shooting missiles from civilian sites.
— Proportionality: This is a balance between over-all military objective and risk to civilians.
We use a variety of techniques to minimize collateral damage, such as early warning mechanisms and aborting attacks if the situation changes.
— Humanity: Attending to human needs.