By Zeev Segal
The new procedures formulated by Israel Defense forces Chief of Staff Gabi Ashkenazi demand that army lawyers be more actively involved in providing advice to fighting forces while war is being waged. The goal is to further anchor practices that already existed, in both the Second Lebanon War and Operation Cast Lead. In issuing these new orders, the chief of staff accepted the recommendations of Military Advocate General Brig.-Gen. Avichai Mandelblit, and the new guidelines reflect the country’s commitment to upholding the ethics of warfare.
The Supreme Court has ruled many times that the legal system that is applicable in areas under Israeli military occupation is international public law, and it is from that law that Israeli military commanders derive their authority. The state has declared, in its responses to many petitions, that it adheres to the humanitarian sections of the Fourth Geneva Convention, concerning the protection of civilians in wartime.
As the Supreme Court has made clear, in its large body of judgments: “The Israeli soldier carries in his rucksack the rules of international public law, including those concerning warfare, as well as the fundamental rules of Israeli administrative law.” These laws obligate the military to act not only within the limits of its authority, but also to exercise that authority within the bounds of reason and proportionality.
When every soldier has to carry Israeli and international law in his rucksack, as it were, he cannot do so without legal advice. But Ashkenazi was also guided by the desire to avoid hindering a military operation while it is under way, and he determined that the place of the legal advisers was at divisional and not brigade or battalion headquarters, even though that is the practice in some Western armies, including that of the United States.
Nevertheless, it has to be clear that this does not mean keeping the law off the battlefield, because otherwise it would not be possible to abide by the legal restrictions incumbent upon Israel should it need to defend itself in international forums. Presumably, it was the uproar about the Goldstone report that has augmented the IDF’s readiness to do more than what has been done in the past to ensure the legality of its operations, with an emphasis on their proportionality, particularly when it comes to the danger of harming civilians.
Ashkenazi’s orders seem to contradict, prima facie, the report of the Winograd Commission investigation into the Second Lebanon War, specifically the chapter concerning the integration of international law and the purity of arms during hostilities. Although the panel dwelled on the importance of these matters, it also warned that “the threat of international law” – or the danger that soldiers would be prosecuted – could in effect paralyze them and prevent them from carrying out their missions.
The commission did not conceal its opinion that it is better to integrate obligatory norms before taking action, while in real time, during fighting, decision makers and soldiers must be free to act, in accordance with those norms and without interference. Only after an operation, in the commission’s opinion, should the events be scrutinized and responsibility assigned if there has been a manifest departure from the obligatory norms. In its words: “It is appropriate that the fighting forces, especially the field echelons, should concentrate on fighting and not on consulting legal advisers.” And indeed, a member of the commission, Prof. Yehezkel Dror, complained in a letter to Haaretz Hebrew edition (January 8), that the chief of staff had ignored the commission’s recommendations.
It can be assumed that Ashkenazi’s latest orders were the result of a process of drawing conclusions from the events of Operation Cast Lead. Some of these events may not have occurred if there had been closer legal oversight in real time. In any event, the government is approaching the moment of truth, when it will have to decide whether to comply with the Goldstone’s call for it to independently investigate the matters discussed in his report; if it does not, the Security Council is liable to impose sanctions against Israel.
In view of the overwhelming objections among government leaders until now with respect to any proposals for setting up a state commission of inquiry, or a government investigative panel under a senior judge – it is essential to weigh at least the possibility of establishing an independent team of leading Israeli jurists specializing in military-constitutional and international law, to examine the events described in the Goldstone report, and to accompany the work of the military advocate general and his staff. This would bolster confidence in the IDF’s investigations and help ensure that in the future, in cases where it is necessary, and to the extent that it is possible, fighting will be conducted within the limits of the rule of law.