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Consent and advise: Yotam Feldman and Uri Blau analyse the use of law by Israel's international law division

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  • abe.hayeem
    Now the questions keep coming - how will Israel wriggle out of these war crimes? Abe ... Consent and advise http://www.haaretz.com/hasen/spages/1059925.html By
    Message 1 of 1 , Jan 30, 2009
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      Now the questions keep coming - how will Israel wriggle out of these war

      Consent and advise


      By Yotam Feldman and Uri Blau / Illustration by Yael Bogen

      On the first day of Operation Cast Lead, the air force bombed the graduation
      ceremony of a police course, killing dozens of policemen. Months earlier, an
      operational and legal controversy was already swirling around the planned
      attack. According to a military source who was involved in the planning,
      bombing the site of the ceremony was authorized with no difficulty, but
      questions were raised about the intent to strike at the graduates of the
      course. Military Intelligence, convinced the attack was justified, pressed
      for its implementation. Representatives of the international law division
      (ILD) in the Military Advocate General's Office at first objected, fearing a
      possible violation of international law.

      "This was a very large group of people who at that moment were ostensibly
      civilians and the next day would become legitimate military targets," says
      an operational source. "You take these dozens of policemen and put them in
      your gunsights. That certainly came up in all the discussions and

      Over the course of several months, the operational echelons, particularly
      Military Intelligence, kept up the pressure on the army's legal staff. In
      the end, ILD authorized the air strike as it was carried out. The
      "incrimination" of the policemen (that is, justifying an attack on them) was
      based on their categorization as a resistance force in the event of an
      Israeli incursion into the Gaza Strip; not on information about any of them
      as individuals.

      "Underlying our rationale was the way Hamas used the security forces," says
      a senior ILD figure. "Actually, one can look at the totality as the
      equivalent of the enemy's armed force, so they were not perceived as police.
      In our eyes, all the armed forces of Hamas are the equivalent of the army,
      just as in the face of the enemy's army every soldier is a legitimate

      Experts in international law term the justification for the bombing raid
      problematic. "In a properly run state, attacking policemen as though they
      are soldiers is prohibited," says Prof. Yuval Shany, who teaches public
      international law at the Hebrew University of Jerusalem. "When we are
      dealing with a government like Hamas, in which the boundaries between the
      different forces are not clear, the police force may have a combat role. But
      if you follow that line, there is not much that differentiates them from
      [Israeli] reservists or even from 16-year-olds who will be drafted in two
      years. You have to draw the line and restrict attacks to those in active
      service. This is not the only case in which the IDF offered a flexible
      interpretation of the law. The army attacked the infrastructure of the Hamas
      government and hit ministries. But unless you can show that there was
      military equipment in those offices, an attack on structures that do not
      serve a military purpose is a violation of the rules of war. The buildings
      are civilian sites and must not be attacked."

      However, after entertaining initial doubts, ILD authorized the bombing of
      Hamas governmental targets. "As we understand it," says a senior figure in
      ILD, "the way Hamas operates is to use the entire governmental
      infrastructure for the organization's terrorist purposes, so that the
      distinctions are a bit different. We adjust the targets to the case of a
      terrorist regime."

      Civilian on the roof

      The ILD is based in a neglected building in the Kirya, the defense
      establishment compound in Tel Aviv. The unit consists of about 20 officers
      who hold a legal education. The department has existed in its present form
      and name since the start of the 1990s. Until then the unit was known as the
      International Law Branch, or 'Debil' in the Hebrew acronym, a word that
      means imbecile, until a senior officer in the unit demanded a change of

      ILD takes pride in the influence its officers exerted on the character of
      the war in Gaza. For example, the unit induced the IDF to warn people before
      their homes were bombed by means of a procedure known as 'knock on the
      roof'; echoing the 'knock on the door campaign' in Israel in which funds are
      raised to fight cancer; in which munitions are fired harmlessly at roof
      corners. Sources in the unit say they tried to draw lessons from the
      warnings that were given in the Second Lebanon War. According to human
      rights organizations, the civilians in Lebanon were not told which places
      were safe and the roads on which they fled were bombed and became death
      traps. Once a warning is issued, say senior ILD officers, a strike against
      civilians who are bodily defending a structure can be validated as though
      they were combatants. Other legal experts dispute this. Among them is
      Colonel (res.) Daniel Reisner, who headed ILD until about five years ago. In
      his view, as he told Haaretz after Operation Cast Lead, such civilians
      retain their civilian status. I don't think you can incriminate someone who
      is standing on a roof just because he is there," Reisner said. "Possibly the
      attack on him will be considered legitimate -collateral damage," but he will
      not be a target."

      A senior ILD figure explains: "The people who go into a house despite a
      warning do not have to be taken into account in terms of injury to
      civilians, because they are voluntary human shields. From the legal point of
      view, I do not have to show consideration for them. In the case of people
      who return to their home in order to protect it, they are taking part in the

      What about a civilian who positions himself in front of a tank?

      "If someone stands in front of a tank in order to block its progress, he is
      participating in warfare." But he says that in practice, the IDF does not
      attack civilians in such cases.

      ILD's permissive posture comes as no surprise to jurists who monitor the
      unit's legal opinions. According to one of them, the unit is considered
      -more militant than any other legal body in Israel, and is ready to adopt
      the most flexible interpretations of the law in order to justify IDF
      operations." Pressure from operational elements and an understanding of
      their considerations on the part of ILD appear to affect the unit's legal
      opinions. "The army knows what it wants. For the operational echelon things
      are very clear," says an IDF operational source. "When the legal advisers
      thought something was objectionable or problematic, they definitely came
      under pressure to produce a positive bottom line."

      "Our goal is not to fetter the army, but to give it the tools to win in a
      lawful manner," says an ILD officer. Reisner, the unit's former commander,
      says he understands why it has acquired a reputation for permissiveness: "We
      defended policy that is on the edge: the "neighbor procedure" [making a
      neighbor knock on the door of a potentially dangerous house], house
      demolitions, deportation, targeted assassination; we defended all the magic
      formulas for dealing with terrorism. In that sense, ILD is a body that
      restrains action, but does not stop it. The army says, "Here is a magic
      formula, is it within the bounds of what is possible? To which I will reply,
      I am ready to try to defend it, but I am not sure I will succeed. If it's
      white I will allow it, if it's black I will prohibit it, but in cases of
      gray I will be part of the dilemma: I do not stop at gray."

      The dilemma of the gray areas and ILD's attempts to discover untapped
      potential in international law may perhaps explain the unit's great
      enthusiasm for providing legal advice to the army and the glint in advisers'
      eyes when certain terms roll off their tongue: 'proportional equilibrium,'
      'legitimate military target,' 'illegal combatants.' 'What we are seeing now
      is a revision of international law,' Reisner says. 'If you do something for
      long enough, the world will accept it. The whole of international law is now
      based on the notion that an act that is forbidden today becomes permissible
      if executed by enough countries. If the same process occurred in private
      law, the legal speed limit would be 115 kilometers an hour and we would pay
      income tax of 4 percent. So there is no connection between the question
      'Will it be sanctioned?' and the act's legality. After we bombed the reactor
      in Iraq, the Security Council condemned Israel and claimed the attack was a
      violation of international law. The atmosphere was that Israel had committed
      a crime. Today everyone says it was preventive self-defense. International
      law progresses through violations. We invented the targeted assassination
      thesis and we had to push it. At first there were protrusions that made it
      hard to insert easily into the legal moulds. Eight years later it is in the
      center of the bounds of legitimacy."

      Did the attacks of September 11 influence your legal situation?

      "Absolutely. When we started to define the confrontation with the
      Palestinians as an armed confrontation, it was a dramatic switch, and we
      started to defend that position before the Supreme Court. In April 2001 I
      met the American envoy George Mitchell and explained that above a certain
      level, fighting terrorism is armed combat and not law enforcement. His
      committee [which examined the circumstances of the confrontation in the
      territories] rejected that approach. Its report called on the Israeli
      government to abandon the armed confrontation definition and revert to the
      concept of law enforcement. It took four months and four planes to change
      the opinion of the United States, and had it not been for those four planes
      I am not sure we would have been able to develop the thesis of the war
      against terrorism on the present scale."

      Individual approach

      One of the core reasons for ILD's permissive approach may be its desire to
      preserve a modicum of relevance and influence in periods when the atmosphere
      in the General Staff and the territorial commands is particularly militant.
      A former senior commander notes that in the period when Daniel Reisner; an
      articulate, charismatic officer; headed the unit, its staff, and above all
      Reisner himself, acquired a respected status within the IDF officer corps.
      By the same token, the influence of the current staff, under the command of
      Colonel Pnina Sharvit-Baruch, is not self-evident. Sources involved in the
      work of Southern Command note that the commanding general, Yoav Gallant, is
      quite suspicious of the advisers and is known as a 'wild man,' a 'cowboy' or
      a 'sheriff' in terms of the importance; meaning lack of importance; he
      attaches to legal advice. The legal adviser to Southern Command was not
      invited to the situation appraisal ahead of the Gaza offensive and was
      excluded from smaller planning forums. Yet it was actually Operation Cast
      Lead that led to something of an improvement in relations between ILD and

      At first the impression was that the forces were taking great liberty in
      demolishing homes and uprooting vegetation. Soldiers reported that they were
      destroying whole streets and neighborhoods. This was contrary to the
      directive contained in the legal annex to the General Staff order for
      Operation Cast Lead: 'Where an operational alternative exists that will meet
      the military need while minimizing the scale of damage to non-involved
      property, that alternative is to be chosen.'

      To ILD it appeared that some field commanders did not grasp that they were
      subject to intra-IDF review. The unit therefore pressed for a more orderly
      set of tools for receiving authorization to carry out demolitions and
      'flattening' (hisuf, a newspeak word from Hebrew for 'expose,' meaning the
      leveling of large areas, both built-up and agricultural, to flush out people
      in hiding or for other reasons'). In other cases, ILD staff expressed their
      concern over the delay by troops in evacuating wounded Palestinians,
      including some who had been trapped in their homes for days.

      In practice, the legal unit's approach did not always have an effect on the
      field forces. The legal annex to the General Staff order spelled out the
      principles of international law, explained the essence of war crimes and
      demanded an investigation of every case of a suspected war crime. The
      document directed commanding officers to take a particularly cautious
      approach in the use of cluster bombs, 'incendiary' munitions (such as those
      containing phosphorus), antipersonnel mines and booby traps. "Before using
      these weapons, the military advocate general or the ILD must be consulted in
      each specific case," the document stated.

      There was quite comprehensive legal advice provided by ILD personnel to the
      General Staff in the operation's planning stages and in the course of its
      execution. ILD staff regularly attend the 'operations and sorties' meetings
      held on Wednesdays under the head of the operations division or the
      operations directorate. The legal advisers receive the list of proposed
      targets and the relevant intelligence material ahead of the meeting, prepare
      a visual presentation of their remarks and voice them in the time allotted;
      usually between five minutes and a quarter of an hour; for a discussion of
      the target. Targets were discussed more frequently during the fighting in
      Gaza, notably in the operations division and in the High Command. The ILD
      staff at Southern Command was beefed up, and legal advisers were also sent
      to the Gaza Division. They were involved in authorizing 'chance' targets
      (such as squads that fired Qassam rockets?), in which the decision to attack
      was made at the field level in the course of combat; they also authorized
      orders and tried to help commanding officers who were trying to decide about
      operational alternatives.

      "This format of operative advice would seem to run contrary to the
      recommendations contained in Chapter 14 of the Winograd Report on the
      management of the Second Lebanon War: At the same time, we are concerned
      that the growing reliance on legal advice in the course of a military
      operation is liable to shift the responsibility from elected officials and
      commanding officers to advisers, and is liable to adversely effect both the
      essence of the decisions and the operational activity," the report states.
      Despite the explicit reference to 'elected officials and commanding
      officers,' the senior staff of ILD maintain that as they understand it, the
      recommendation refers to legal advice at field level. Prof. Ruth Gavison,
      who is believed to be the author of this section of the report, declined to

      The legal annex to the operational order stated that "as far as possible in
      the circumstances, the civilian population in the area of a legitimate
      target is to be warned." But this is immediately followed by a validating
      disclaimer: This can be avoided if it is liable to endanger the action or
      the forces. ILD personnel also authorized an easing of the rules of
      engagement in Gaza. The results of that policy can be seen in the large
      number of civilian casualties and may also account for the use of a mortar,
      which is considered a 'statistical weapon' (meaning that it is inaccurate),
      against a target next to a United Nations Relief and Works Agency school, in
      which Palestinians were sheltering. According to the IDF investigation, the
      mortar shell was 30 meters wide of the target and hit the building itself,
      killing some 40 people, according to Palestinian reports. Subsequently the
      IDF hit two more UNRWA structures.

      UN Secretary General Ban Ki-moon, who visited the area shortly after the
      cease-fire, termed the attack on UN institutions an 'outrage' and called for
      an investigation. According to senior ILD personnel, the large number of
      Palestinian deaths, including hundreds of children, the vast destruction
      wreaked on populated areas and the testimonies about indiscriminate attacks
      do not necessarily call into question the operation's legality.

      "If there is intensive combat," says a senior figure in the unit, ?and you
      call in air support, it is possible that many civilians will be hurt, and
      therefore [sic] the numbers will not annul the legality of the action if you
      did what you are obliged to do ... If we warn and they shoot from a house,
      it is not unjustified, from a legal point of view at least, to return fire
      only because more civilians are liable to be hurt [sic].?

      When you hear officers say that 'cautiousness is aggressiveness' or hear the
      GOC Southern Command call for setting Gaza back 10 years, don't you see a
      disparity between international law and events on the ground?

      "The troops are in an area in which combat is extremely complicated. Not
      only is it a crowded, densely built-up area, but the terrorists are located
      in the most populated areas, and on top of that there are explosive devices,
      tunnels and booby traps everywhere. In this situation, and with the form of
      combat against them different from combat against a military enemy who meets
      you in the field, the way to move forward is to use force that produces
      results: if the building is boobytrapped and you shoot at it, the effect is

      If you had known that 11 people would be killed together with Hamas senior
      figure Nizar Rian in the air force attack on his home, would you have
      authorized the action?

      "From what I know, prior warning was given and people left the house. They
      apparently returned despite the warning at a stage when it was impossible to
      change the attack. If I had been asked beforehand and that outcome had been
      known, I would have said not to attack, because the target was actually his
      house, which served as a command post and an arms depot, and not the person

      Standing the law on its head

      "Beyond the general summation by ILD; that Southern Command respected
      international law; Pnina Sharvit-Baruch and her staff are not eager to
      volunteer even the most basic information about the details of the legal
      advice they provided or how they provided it. Repeated requests to interview
      the legal adviser of Southern Command, Lieutenant Colonel Avi Kalo, and the
      divisional advisers were turned down. In response to a request for
      clarification from Haaretz about the advice given by ILD in matters such as
      allowing the evacuation of wounded people, the use of phosphorus in areas
      populated by civilians and attacks on hospitals and mosques, an ILD officer
      stated: "We examined the list of questions you submitted, and regrettably,
      at this stage, we cannot add any details on these subjects beyond what you
      have been told."

      The dean of the Faculty of Law in the College of Management, Prof. Orna
      Ben-Naftali, is convinced that international law; her field; is bankrupt,
      and the results of the IDF operation in Gaza only reinforce this opinion.
      "Today, this discipline is utilized only to justify the use of force," she
      says. "It has ceased to exist, because there is a clear inconsistency
      between the rules and the reality to which they are applied. Distinctions
      between types of conflicts or between civilians and combatants no longer
      exist in the field, and one can put forward weighty and serious reasons that
      will justify almost any action. The implication is to validate the use of
      almost unlimited force in a manner that is totally at odds with the basic
      goal of humanitarian law. Instead of legal advice and international
      humanitarian law minimizing suffering, they legitimize the use of force."

      According to Ben-Naftali, the application of international law in the
      territories, and in the Gaza Strip in particular, lays the groundwork for
      war crimes, in which, in her opinion, the legal advisers themselves are
      culpable. "It is a reasonable assumption that the legal advice validates
      offenses while ignoring the context in which they are perpetrated," she
      says. "A situation is created in which the majority of the adult men in Gaza
      and the majority of the buildings can be treated as legitimate targets. The
      law has actually been stood on its head. It has ceased to fulfill its
      purpose, and so we have to admit that it has gone into dissolution
      procedures ahead of bankruptcy."

      A different approach is taken by Prof. Gabriella Blum, a former ILD officer
      who now teaches at Harvard Law School and specializes in the laws of armed
      conflict. "As long as you accept the paradigm of the rules of law," she says
      by telephone from the United States, "the division into those who are
      involved and those who are not involved is right in a war against terrorism
      and also in a war against another state. The question is how to translate
      this in a specific case. Is a power station a legitimate target when you are
      fighting Syria? Apparently it is. In certain circumstances a calculation
      will have to be made of how much it contributes to the military effort and
      how much it contributes to the civilian population, and the same calculation
      has to be made in connection with Hamas ... Just because one can make
      cynical use of all kinds of distinctions in their application does not mean
      the distinctions should be scrapped. They need to be adapted. The question
      is how to do that."

      Where have all

      the bachelors gone?

      In 2002, a team headed by Major General Amos Yadlin considered the laws of
      war as they apply to targeted assassinations. The team, which included the
      commander of ILD at the time, Daniel Reisner, and the IDF house philosopher,
      Prof. Asa Kasher, was asked to address the following situation: "Assume that
      there is a terrorist in Gaza and you know that the terrorist is a
      Palestinian male bachelor between the ages of 18 and 45 and that tomorrow he
      is for certain going to kill an Israeli male aged between 18 and 45, and
      there is only one opportunity to kill him: by means of a missile, which will
      definitely succeed. How many Palestinian bachelors aged 18-45 do you agree
      to have die, with certainty, from the missile?"

      The bizarre phrasing of the question was intended to neutralize the
      uncertainty that attaches to decisions in such cases and to examine the
      participants' unadulterated moral attitude. The team members jotted down
      their response on a piece of paper; they ranged from zero to 'as many as
      needed' (no end). The average number of permitted collateral deaths was 3.14
      (pi). Maybe it is not surprising that the outcome generated by the question
      was an irrational number.

      Reisner relates that his response was two people. If you formulate the
      question differently and ask whether I agree to sacrifice an Israeli man for
      three Palestinians, the answer might be different, but eight, for example,
      doesn't seem right to me. I learned a few things from that exercise: that
      young people tend toward higher numbers than older people, that people with
      families tend to give higher numbers than bachelors, that a correlation
      exists between political outlook and the number given. In the Shin Bet
      security service, by the way, there are those who say zero. I don't know
      what the right answer is, but I know that the question has to be asked
      before an attack. If the commander asked the question and answered it based
      on a test of reasonableness; the task of the legal expert has been fully
      carried out.

      Reisner joined ILD in 1985 and headed the unit for 10 years. He is currently
      a partner in the law firm of Herzog, Fox & Neeman, heading its Public
      International Law and Homeland Security division. This story, he says,
      attests to the considerable flexibility that the laws of war allow,
      particularly the tests of proportionality; the damage inflicted on military
      targets and collateral damage to civilians. Reisner cautions against cases
      in which the judgment of the legal expert might replace the moral judgment
      of the commander, who in the last analysis bears responsibility for his
      actions. He cites, in this connection, a case in which a decision was
      required within 15 minutes about whether to carry out an operation that was
      liable to harm civilians: "A senior army figure entered the room and the
      first thing he did was point at me and ask, ?Has he authorized it already?"
      That was a rare case in which I gave them a speech about how the decision
      was theirs, along with the responsibility. Even then, though, I told them
      what I tended to think."

      At the end of the 1990s, and more particularly since the start of the second
      intifada in 2000, ILD officers began to take part regularly in meetings
      about targets and operational plans. According to Reisner, the desire to
      have the legal experts take part in the discussions stemmed from a change in
      the approach to IDF activity in the territories; it was recategorized from
      policing to military action; and also from the changes in international
      norms and the plans to establish the International Criminal Court, the first
      permanent war crimes tribunal, where the first trial opened this week.

      "The commanders hear about this and say, "I might find myself in that court;
      where is my lawyer?" So it becomes natural for the military to put lawyers
      in places where they have never been before," Reisner says. He notes that
      the most dramatic shift in operative legal advice began when Israel started
      to assassinate Palestinians openly.

      "Until then we could say, "We didn't do it, but that guy was a real shit."
      We could ask who fired the missile and whose helicopter it was,? Reisner
      says. "But after the assassination of Thabet Thabet [the secretary general
      of Fatah in the Tul Karm area, who was shot to death in December 2000]
      allegations began to be voiced; "You shot a civilian in cold blood; that is
      a crime?"; and we were called upon to come up with a legal formulation.
      Effectively, the question was whether we could treat terrorists like an army
      and use our force against them openly. We wrote a revolutionary opinion,
      stating that above a certain level fighting terrorism is analogous to war
      and that, subject to very specific rules, we will authorize such attacks.
      The opinion was assailed in the High Court of Justice, but was endorsed."

      How did it work in practice?

      ?In the first discussions about targeted assassination, a very strange
      feeling came to the fore. The officers didn?t understand why lawyers were
      present, what they were doing there. I used to go alone. I was senior enough
      so that no one would tell me to leave, but you had to make them feel that we
      were not there to replace them. In time there were interesting developments.
      They became familiar with all the [legal] tests and would repeat our
      mantras, so much so that we felt superfluous. We instructed them to the
      point where they could make decisions without us.?

      How many times did you express sweeping opposition to an army proposal?

      "There was one case when I told a senior officer: "Beyond this it is not
      legal, and if you do it, it is probable that I will have to launch legal
      proceedings against you. We cannot allow you to do this?; and he did not do
      it. Generally, the conception is that the lawyer outlines the limits. He
      makes it clear to the commander where the red lines are beyond which he must
      not go, and that everything he does within the red lines is his
      responsibility. Because we are the army's lawyers, we will try to defend
      cases in gray areas."

      A month ago, Attorney General Menachem Mazuz said that his office was
      preparing to cope with possible suits abroad against Israeli figures in the
      wake of the Gaza operation. In the case of a violation of the laws of war or
      the perpetration of war crimes, the possibility exists that responsibility
      will also be imputed to the military commander's legal advisers. Thus, for
      example, the British jurist Philippe Sands argues in his recent book
      "Torture Team" that the legal advisers to former U.S. secretary of defense
      Donald Rumsfeld bear responsibility for the torture of prisoners they
      permitted at the Guantanamo detention center and in Abu Ghraib prison in
      Iraq. They will now have to consider carefully whether to visit any of the
      countries whose laws recognize universal judicial jurisdiction (which
      applies to crimes committed outside their borders).

      "I have no doubt that to a certain extent, everyone who takes part in making
      a decision, the lawyer included, is a partner to the decision," Reisner
      says. "Three years ago I gave a talk at Cambridge University. While I was
      there I got a phone call from the legal department of the Foreign Ministry.
      They said they just wanted to let me know that there were no threats to put
      me on trial in England. I asked them why they were suddenly cautioning me; I
      am usually the one who tells that to others. They told me. "You have a high
      profile and we decided to check whether you were under threat.
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