BICOM

Key Points

• The United Nations commission set up to investigate the Israel-Hamas conflict which took place in the Gaza Strip at the turn of 2009 published its report last week. The report challenges Israel’s ability to hold itself to account for the actions of its military.
• However, Israel has a functioning ethical code pertaining to the planning, conduct and scrutiny of its military operations. It also has a legal and judicial system of checks and balances which has a great deal in common with many other democratic states. Both of these systems are being used.
• If this system is not considered adequate, this opens deeper questions about how the international laws of warfare relate to the changing realities of conflict. These are issues which do not just relate to Israel, but also to other democratic states confronting non-conventional military threats. Israel seeks to be judged by the same standards which apply to other democracies.

Introduction

Last week, a UN Fact Finding Mission set up by the Human Rights Council and led by Justice Richard Goldstone, published its 575-page report on the conflict between Hamas and Israel in Gaza from 27 December 2008 until 18 January 2009.[i]  The report accuses both sides of actions amounting to war crimes and recommends the UN Security Council demand that they conduct investigations or that the case be referred to the International Criminal Court at The Hague. Israel has strongly criticised the report.[ii]  Hamas has issued contradictory responses.[iii]  The US has expressed deep reservations, and questions have been raised in some sections of the media as to whether the report was misdirected.[iv]

This analysis looks beyond the concerns about the conduct of the inquiry and the anti-Israel bias in the UN Human Rights Council and assesses the Israeli system’s ability to hold itself to account. This is pertinent because for Israel to be subject to universal jurisdiction over allegations of war crimes, it has to be shown to have not dealt with allegations internally.[v]  This applies to Hamas also, but there are no real expectations of Hamas respecting international law. As such, this piece focuses on how Israel has been and is continuing to investigate its own conduct in the Gaza conflict.

Israel’s Gaza Operation

The objective of Israel’s military operation in Gaza at the turn of 2009 was to restore quiet to its southern communities in the face of rocket and mortar fire.  This followed Hamas’s escalation of the intensity and range of its attacks in late 2008, breaching the tahdiyeh (temporary ceasefire) brokered by Egypt over the summer.

Israelis politicians and generals were undoubtedly challenged in Gaza by the complexity and difficulty of fighting a non-conventional enemy in a dense urban environment.  Whilst each conflict has its own unique set of circumstances, there are legitimate parallels here with the US-British-led wars in Iraq and Afghanistan.  Meeting the demands of international law, specifically the Law of Armed Conflict, has been central to strategic planning and operations carried out in each of these theatres.[vi]  The overriding challenge has been to avoid widespread civilian casualties when targeting militant groups that are tactically deploying within the local population – including in schools, hospitals and mosques – to protect themselves.

These issues feed into an international debate about amending the laws of warfare to reflect 21st century realities – such as asymmetrical combat, counter-insurgency and combating terrorism.  This debate has resurfaced in Israel following publication of the Goldstone report.[vii]  It is interesting that NATO officials have expressed interest in greater cooperation with Israel, partly due to its experience of fighting this kind of modern warfare.[viii] 

But these issue aside, international law as it exists today is enshrined in the military training and rules of engagement of many countries’ armed forces, including that of the Israel Defence Forces (IDF).[ix]  The IDF has a strong Code of Ethics.  Known as ‘The Spirit of the IDF’, this is a concept instilled in every Israeli soldier and commander, no matter what unit he serves.[x]  Core principles include the supreme value of human life and ‘Purity of Arms’ which strictly regulates circumstances in which weapon use is permitted.[xi]

Throughout the Gaza conflict, legal experts were involved with the planning and implementation of IDF operations.  UK and Canadian lawyers are on hand in much the same way in their armed forces.[xii]  In Israel, these lawyers are members of the Military Advocate General (MAG) Corps, whose task it is to oversee and enforce the rule of law throughout the IDF and give legal advice to all divisions of the military.  Legal officers are not constrained by rank when providing guidance to other more senior commanders.  Under Israeli law, the MAG has an independent status in relation to all legal issues.[xiii]  A recent Haaretz interview with the current MAG, Brig. Gen. Avichai Mandelblit, illustrates the tensions which crop up in his relationship with Israel’s military and judicial institutions owing to his autonomy.[xiv]  He in turn is supervised by Israel’s (civil) Attorney General, with whom he regularly consults.

Decisions taken by both these legal offices, as well as IDF activities, are subject to judicial scrutiny and review by Israel’s internationally respected Supreme Court, whose remit was established under British rule during the Mandate years (1922-1948).[xv]  The IDF’s efforts to comply with its humanitarian obligations during the Gaza conflict were reviewed by the Supreme Court, at the request of NGOs, even whilst the fighting was ongoing.

Subsequent investigations: an ongoing process

As has been witnessed in the conflicts in the former Yugoslavia, Iraq and Afghanistan, operational mistakes are part and parcel of every conflict.[xvi]  And sadly, despite all Israel’s actions to ensure that it operated within the rule of law in Gaza, there is always a danger of unintended civilian casualties in a complex combat situation between a modern state army and a guerrilla force.  The IDF does not claim to be perfect, and Israel has accepted with regret that such incidents occurred.[xvii] The question is not whether mistakes were made, as mistakes in war are inevitable. The question is whether harm caused to civilians was intentional or avoidable, and whether Israel was following international law in its engagement and conduct.

The IDF has committed itself to fully investigating all allegations of misconduct, and has already looked at more than 100 allegations, and 23 investigations have been opened by the Military Police, most of them still underway.[xviii]  So far, one soldier has been convicted and is serving a seven and a half month sentence for looting.  New investigations are looking at more serious cases where individuals were allegedly shot at whilst carrying white flags or where local civilians were reportedly used to enter suspect houses, a practice banned by the Supreme Court in 2005. Despite the tense relationship generally considered to exist between NGOs and the military, the IDF has explicitly recognised the role of B’Tselem and others in helping to establishing contact between the Military Police and Palestinian witnesses for them to investigate complaints.[xix]

In addition, as part of the response to accusations against the IDF, Chief of Staff Gabi Ashkenazi commissioned five major field enquiries shortly after the conflict into various aspects of the operation.  They have focused on: incidents involving UN/international facilities; incidents involving shooting at medical infrastructure and crews; certain incidents in which many civilians were harmed; the use of munitions containing white phosphorous; and destruction of private property and infrastructure by ground troops.[xx]  The results of these inquiries, summaries of which have been published[xxi], are subject to legal review by the Military Advocate General and Israel’s civilian Attorney General. The MAG’s decisions can be appealed at the Supreme Court by any affected party, Israeli or Palestinian, or by an NGO.

Israel’s judicial system has been widely recognised internationally, including by senior British Army officers, for its ability to hold the military to account. [xxii]  The credibility of Israel’s Supreme Court has also been noted in House of Lords and European Court of Justice cases.[xxiii]  Earlier this year, Spain rejected jurisdiction over a case involving a strike on a senior Hamas operative, Salah Shehadeh, in 2002, on the basis that Israel was investigating the incident itself and that Israel’s system is independent and impartial.[xxiv]

Where next?

A Haaretz editorial last week and some Israeli commentators have argued that the gravity of the Goldstone report, and the strength of Goldstone’s personal reputation, warrant an Israeli commission of inquiry led by a senior judge.[xxv]  There are prominent precedents. The Winograd Commission Report on the 2006 war with Hezbollah is the most recent. The Kahan Commission into the Sabra and Shatilla massacres in Lebanon in 1982 was another high profile example.[xxvi]  Israel’s body politic has proved capable of launching such investigations in the past. It has a judicial system to handle such inquiries which is internationally recognised as comparable with that of other democracies.

Since the IDF operation last winter, the Gaza border has been quiet, and so most Israelis do not doubt that the military operation to stop Hamas’s rocket attacks was successful and justified. As such, there is no widespread demand in Israel for a full-scale public inquiry into the conflict in the same way that there was in Britain over the Iraq war.  Furthermore, the British government’s commitment to an inquiry came after most British forces had been withdrawn from Iraq this year, to avoid revealing sensitive information that could endanger troops in theatre. With the ongoing danger of the situation in Gaza reigniting at any time, Israeli politicians similarly would have to consider the impact of a public inquiry on troops in a future confrontation. 

Conclusion

The asymmetry of contemporary warfare relates not only to the disparity of military power but also to the reality that states are bound to the rule of international law whilst guerrilla forces abuse these laws as a weakness of the enemy to be exploited.  Behind the Goldstone report is a wider debate about how armies in democratic states confront non-conventional enemies, and the suitability of international laws of warfare to the modern asymmetric battlefield.  It is remarkable that so early on in the new life of the International Criminal Court, that a UN commission  is calling into question the very principle of the ICC legislation, which is to ensure individual nation states use a robust system of investigation and judicial oversight and ensure the spirit of the ICC is upheld. To say that Israel cannot be trusted to investigate itself, despite the fact that it has a system that stands comparison to other democratic states, risks undermining the basis of this important international system. Israel has a credible system in place for ensuring that it operates according to high professional military standards and investigates allegations of misconduct and operational errors.  Like any system, it is not perfect, and like other modern nation states, Israel tries to take stock and learn lessons for dealing with future threats. Ultimately, Israel seeks to be held to account for its military operation in Gaza in the same way that other Western democracies are held to account when they go to war.

 

 

 

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[i] The full report can be found at the UN Human Right Council website.

[ii] ‘Israel’s analysis and comments on the Gaza Fact-Finding Mission Report’, Israel Ministry of Foreign Affairs, 15 September 2009.

[iii] ‘Haniyeh: World must back Goldstone’s Gaza report’, Maan News Agency, 20 September 2009; Louis Charbonneau, ‘Evidence of Israel, Hamas war crimes in Gaza: U.N.’, Reuters, 15 September 2009.

[iv] ‘US: Goldstone Report unfair to Israel’, AFP, 18 September 2009; ‘Goldstone on Gaza: Opportunity missed’, Economist, 17 September 2009; David Landau, ‘The Gaza’s Report’s Wasted Opportunity’, New York Times, 19 September 2009.

[v] See Richard Goldstone, ‘Justice in Gaza’, New York Times, 17 September 2009; Aviad Glickman, ‘Experts: Goldstone report may lead to private lawsuits’, YNet News, 15 September 2009.

[vi] The Law of Armed Conflict is often used interchangeably with International Humanitarian Law.

[vii] For further reading, see David Wippman and Matthew Evangelista (eds) (2005), New Wars, New Laws? (New York: Transnational Publishers); Aluf Benn, ‘Herzog calls for legal authority to defend Israel internationally’, Haaretz, 18 September 2009.

[viii] Tommy Steiner, ‘The NATO example’, Haaretz, 18 September 2009.

[ix] See, for instance, ‘Senior Officers From 60 Countries Work On Integrating International Humanitarian Law into Military Operations’, International Committee of the Red Cross, 6 August 2007; ‘Canada: Law of Armed Conflict at the Operational and Tactical Levels, Joint Doctrine Manual’, Chief of Force Development, 13 August 2001; United States: ‘IC-1 to U.S. Air Force Directive 51-401, Training and Reporting to Ensure Compliance with the Law of Armed Conflict 3.1, 17 December 2008.

[x] The Code of Ethics and the “The Spirit of the IDF” can be found in English here: http://dover.idf.il/IDF/English/about/doctrine/ethics.htm

[xi] ‘Purity of Arms’: “The IDF servicemen and women will use their weapons and force only for the purpose of their mission, only to the necessary extent and will maintain their humanity even during combat.  IDF soldiers will not use their weapons and force to harm human beings who are non-combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property.”  In addition, IDF soldiers are familiarised with the laws of warfare through a range of educational means, including software which other militaries have expressed interest in using for their own training purposes.  For further details, see the IDF Code of Ethics and ‘Operation Cast Lead: Humanitarian Aspects’, Israel Defense Forces, April 2009.

[xii] In the UK, for example, British Army legal advisers usually sit at the divisional level, and a legal adviser is generally on the staff of the theatre air commander.  IDF legal advisers were present at the divisional level in the Gaza operation also.  In the US marines, legal advisors sit at the battalion level as well.  The Manual of the Law of Armed Conflict (1996), UK Ministry of Defence; ‘Canadian Law of Armed Conflict at the Operational and Tactical Levels, Joint Doctrine Manual’, Chief of Force Development, 10 June 2005; Amos Harel, ‘With all legal guns blazing’, Haaretz, 18 September 2009.

[xiii] For details of the separation of powers within the Israeli military justice system, see ‘The Operation in Gaza – Factual and Legal Aspects’, Israel Ministry of Foreign Affairs, 29 July 2009; ‘Operation Cast Lead’, Israel Defense Forces.  For further reading on this issue, see Stuart A. Cohen (ed.) (2000), Democratic Societies and their Armed Forces: Israel in Comparative Context (London: Frank Cass); Lisa Hajjar (2005), Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (London: University of California Press).

[xiv] Amos Harel, ‘With all legal guns blazing’, Haaretz, 18 September 2009.

[xv] For further details, see David Yahav (ed.) (1993), ‘Israel, the “Intifada” and the Rule of Law (Israel: MOD Publications) and in particular Chapter 5: Judicial Review of the Military Government by the High Court of Justice.

[xvi] See the BBC interview with British Army Colonel Richard Kemp held during the Gaza war, BICOM Military Analysis: https://www.bicom.org.uk/videos/bbc-news–military-analysis

[xvii] Peres tells Ban ‘we made mistakes in Gaza’, Yitzhak Benhorin, YNet News, 5 June 2009. See also BICOM Briefing: IDF Inquiry in allegations relating to Operation Cast Lead, 24 April 2009

[xviii] ‘The Operation in Gaza – Factual and Legal Aspects’, Israel Ministry of Foreign Affairs, 29 July 2009; ‘Operation Cast Lead’, Israel Defense Forces; Amos Harel, ‘With all legal guns blazing’, Haaretz, 18 September 2009.

[xix] Amos Harel, ‘With all legal guns blazing’, Haaretz, 18 September 2009.  Notably, the Goldstone report relied on the submissions of Israeli and other NGOs to a large extent, a factor that has led to criticism of the report: ‘Goldstone Report: 575 pages of NGO “cut and paste”‘, NGO Monitor, 16 September 2009.  Another issue concerns the way in which information was obtained from Palestinian witnesses.  For a useful insight using translations from Arabic, see Col. (res.) Jonathan D. Halevi, ‘Blocking the Truth of the Gaza War: How the Goldstone Commission Understated the Hamas Threat to Palestinian Civilians’, Jerusalem Center for Public Affairs (9: 10), 18 September 2009.

[xx] ‘The Operation in Gaza – Factual and Legal Aspects’, Israel Ministry of Foreign Affairs, 29 July 2009; ‘Operation Cast Lead’, Israel Defense Forces; Amos Harel, ‘IDF: UN Gaza report biased, radical and groundless’, Haaretz, 17 September 2009.

[xxi] BICOM Briefing: IDF Inquiry in allegations relating to Operation Cast Lead, 24 April 2009

[xxii] Colonel Kemp also commanded British forces in Afghanistan in 2003.  In a BBC interview given during the Gaza conflict, he commented: “I don’t think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza….The Israeli army operates under a strict code of conduct, and are [sic.] answerable to the Israeli government and to the Israeli courts.  If it turned out that there was a deliberate crime committed I have no doubt that people would be held to account…”, BICOM Military Analysis: https://www.bicom.org.uk/videos/bbc-news–military-analysis

[xxiii] See, for instance, Judgments, UK Parliamentary Business, Parliament, June 2005; Opinion Of Advocate General Poiares Maduro, Case C‑415/05 P, European Court of Justice, 23 January 2008.  Criminal investigations through the courts-martial system in Israel are also similar to those in the UK and several other countries.  See descriptions of US, Canadian, and United Kingdom court martial systems in Victor Hansen (2008), ‘Changes Made in Modern Military Codes and the Role of the Military Commander: What Should the United States Learn From this Revolution’, Tulane Journal of International & Comparative Law (16).

[xxiv] ‘The Operation in Gaza – Factual and Legal Aspects’, Israel Ministry of Foreign Affairs, 29 July 2009; ‘Operation Cast Lead’, Israel Defense Forces; Amos Harel, ‘With all legal guns blazing’, Haaretz, 18 September 2009.

[xxv] The Human Rights Council was described in last week’s Economist as “an anti-Israel outfit”. ‘Goldstone on Gaza: Opportunity missed’, Economist, 17 September 2009.  Editorial, ‘A committee of enquiry is needed’, Haaretz, 17 September 2009; Ze’ev Segal, Better late than never, Haaretz, 21 September 2009.

[xxvi] The 1982 Kahan Commission Report found that the IDF did not perpetrate the massacres at the Sabra and Shatila refugee camps during the first Lebanon war but was indirectly responsible.