Consent and Advise
By Yotam Feldman and Uri Blau (click here for related article)
haaretz.com
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 soul-searching."
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 target."
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 name.
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 fighting."
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 Gallant.
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 comment.
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 greater."
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 himself."
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."