Israeli soldiers stand guard between Jewish settlers and Palestinians from the West Bank village of Burqah on December 17, 2021. Photo by Nasser Ishtayeh/Flash90

Upholding the law is not a military disadvantage



Upholding the law is not a military disadvantage

Israeli soldiers stand guard between Jewish settlers and Palestinians from the West Bank village of Burqah on December 17, 2021. Photo by Nasser Ishtayeh/Flash90

JERUSALEM – There have been claims in recent years that the Israel Defense Forces has become “overly legalistic,” or in other words that the specter of prosecution and trial hampers the military’s freedom of action. This claim is mainly voiced in the context of the IDF’s war on terrorist organizations, which themselves flagrantly violate the rules of war, intentionally attacking civilians and hiding behind human shields.

The truth is that fighting armed terrorist organizations is much more complicated – legally and operationally – than fighting regular armies, and applying international laws of war to this kind of battle demands some creative thinking. This is mostly because in this type of warfare the terrorists are not bound to uphold international law, and seek to leverage the other side’s commitment to it.

However, the reasoning behind the laws of war applies to clashes with terrorist entities, too. Therefore, the IDF uses their four main principles in its operations:

1. The principle of necessity, which means that military force is exercised only when there is a military purpose in doing so; the focus of which is protecting the security of the country and its citizens and defeating the enemy.

2. The principle of humanity, which requires that unnecessary suffering be avoided.

3. The principle of distinction, separating military and civilian facilities and people.

4. The principle of proportionality, which acknowledges that assaults on military targets can cause collateral damage to civilians and civilian objects but seeks to ensure that such damage is not excessive in relation to the military advantage resulting from the action.

Despite how they are understood and portrayed by some, the laws of war acknowledge countries’ need to defend themselves – against terrorist organizations, too – and seek to prevent or mitigate damage that is unnecessary from a military standpoint.

Moral force

The IDF is careful to uphold these principles not only because doing so anchors its ability to defend itself against lawsuits in the International Criminal Court and other foreign courts, or out of a need for international legitimacy. The IDF upholds them, first and foremost, because they align with our own moral code, which obligates the IDF, as an army in a democratic state, to follow the rule of law.

It could be argued that in a given situation abandoning the laws of war could lead to greater success in the war on terrorism and in securing deterrence, but while this might reduce the danger to Israel in the short term, the long-term cost would be unbearably high. It would harm not only innocents, but also our ability as a people to face ourselves. The moral advantage actually increases Israel’s strength in the long run.

Mistakes happen

In fighting Palestinian terrorism, especially in the rounds of violence with the terrorist groups in the Gaza Strip, the IDF has adhered to these moral principles to an impressive degree – certainly to no less a degree than other western armies. Relatively few uninvolved civilians have been harmed, and that includes the majority of those used as human shields.

The head of The United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) in the Gaza Strip infuriated Hamas and was forced to resign after describing the IDF’s precision during “Operation Guardian of the Walls” in May.

However, when it comes to Hezbollah in Lebanon, because the group has turned countless civilian buildings into military targets (using them as missile warehouses, outlooks, or headquarters), the law allows the IDF to treat them as such. As a result, in any confrontation between Israel and Hezbollah, the number of civilian casualties could be much higher. The methods used by the IDF to reduce collateral damage in Gaza are unfeasible in Lebanon. And that in and of itself is not a violation of international law.

In any case, there is nothing new in the application of the laws of war to the fight against terrorist organizations. Legal advisers have been taking part in Israel’s war on terrorism for decades, and even if the nature of their involvement changes over time, they still should be part of the process. That is accepted practice in all western armies, and it should be. The final decision lies with the commanders, and it should take into account the legal counsel they receive.

Too easy

In this context, in recent years the Israeli military has faced two massive challenges. One is the enemy’s increasingly sophisticated methods. Among other things, this includes activating groups that portray themselves as human rights organizations, but actually are branches of terrorist organizations (for example, some of the groups Israel recently declared to be terrorist entities with links to the Popular Front for the Liberation of Palestine). Others operate with blatantly anti-Israel motives.

The second goal is the ease with which the enemy is able to enlist new media and some of the media establishment to promote its cause – primarily, slandering Israel and chipping away at its legitimacy. For years, radical left-wing entities throughout the world have been investing considerable means in slandering Israel, being enabled to do so in part by the new reality in which conflict zones are replete with recording devices, offering raw material for producing manipulative reports.

The international system, motivated by political considerations, mostly accepts this double standard of morality. While Israel is required to meet stringent standards, no one truly expects the Palestinians to follow their laws of war. Moreover, according to the Palestinian narrative, the battle against Zionism justifies any form of war, including terrorism. And although the Palestinian Authority pays fat salaries to terrorists, it is seen as a legitimate partner in negotiations.

The IDF should continue to operate according to the law, but Israel must also recognize how vital it is to improve its abilities in the fight for western public opinion, through an emphasis on our morality and our strong commitment to the law. The goal should be to increase the IDF’s freedom of operation and restrict our enemies’ freedom to operate.

IDF Brig. Gen. (res.) Yossi Kuperwasser is director of the Project on Regional Middle East Developments at the Jerusalem Center for Public Affairs. This article first appeared in Israel Hayom.

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