Israel worries over intense 'legal war'

Amir Mizroch , THE JERUSALEM POST

The defense establishment is concerned at intensifying legal campaigns in foreign courts that aim to deter Israel from using force against Hamas and Hizbullah. . Reeling from four damning reports in one week from human rights organizations about the IDF's conduct in Operation Cast Lead, the sense among senior defense officials is that the "legal front" against Israel is growing at an alarming rate.

There is also a palpable urgency within the legal and defense establishments to thoroughly and professionally investigate allegations of war crimes against the IDF, not only because this has been standard practice, but also in an effort to ward off foreign lawsuits, investigations and arrest warrants against officers.

Officials are calling for an increased appreciation throughout the government of the complexities of fighting and winning asymmetric wars within the boundaries of international humanitarian law. There is also a certain level of frustration within the defense establishment at the disconnect between what is believed here to have been a carefully thought-out operation, where huge efforts were invested in minimizing harm to Palestinian civilians, and the growing tide of international accusations of war crimes emanating from the offensive against Hamas six months ago.

"There is a war being waged against us in the legal sphere. Its aim is to delegitimize Israel and to create deterrence against a possible use of force in Gaza and Lebanon again," a senior defense official told The Jerusalem Post.

The Post has also learned that, increasingly, legal officers, as well as soldiers from the IDF Spokesman's Office, are taking part in operational planning for possible future conflicts, at the highest levels.

"The last Gaza war is not over yet. It is being fought on another front for now. It is not just in Spain, England and Belgium. Lawyers and jurists in many countries, some of them Arab, some Jewish, are using legal means to attack Israel.

"There are hundreds of petitions, cases, legal opinions and actions cropping up across the world. The phenomenon is very wide and growing. The other side has a lot of money that comes from countries and people not friendly to Israel. This is another front in the war, and if we don't realize it we'll have a problem," the senior defense source said.

To counter this legal offensive, the IDF Military Prosecutor's unit has steadily increased its involvement across all levels of the army, in an attempt to give commanders the tools to be able to win wars while staying within the bounds of international humanitarian law. Legal officers have been attached to commanders from the Brigade level up and are present when the target banks are drawn up, where questions are asked about whether the target is purely military or has a dual purpose.

Legal officers work closely with commanders to give "dynamic interpretations" of international humanitarian law during combat. That means they need to get as close as possible to commanders, but to also take care not to get in their way too much. It's a delicate but crucial balance. The final decisions are still in the hands of the commanders, sources said.

"The best way to deal with the legal onslaught is to check every complaint and investigate every accusation. There is no need to be afraid of the truth. If someone did commit a crime, he will pay for it, and it's best he pays for it here in Israel rather than abroad, where he could be at the mercy of legal systems hijacked by political activists," the official said.

This week, Spain's highest court rejected a petition by a local judge to investigate senior Israeli officials involved in the targeted killing of Salah Shehadeh, the commander of Hamas's military wing, in 2002. The court found that the Israeli probe into the attack, which killed Shehadeh, his deputy and 13 civilians, was sufficiently serious - planners had been given intelligence that only Shehadeh and his wife were at home - and that there was no need for the Spanish legal system to get involved.

The ruling is seen in Israel as first and foremost a victory for Spain, which has been increasingly embarrassed by the activism of some of its judges. It is also, however, being seen here as a warning that pro-Palestinian groups across the EU are finding attentive ears among the judiciaries of certain European countries. Furthermore, because of the makeup of the EU, there is now the possibility of issuing a continent-wide arrest warrant. So it is quite possible that someone on a private trip in Czechoslovakia may be picked up for an arrest warrant issued in Spain. There is the potential of widespread abuse of universal jurisdiction by anti-Israeli activists, the defense official warned.

The IDF has faced a barrage of war crimes allegations and potential charges this week. Former Hague court judge Richard Goldstone started off the week by collecting evidence in Gaza against Israel for the UN Human Rights Council. Next, a Gisha report slammed Israel's policy of not allowing Palestinians to exit the Gaza Strip. Then the Red Cross criticized Israel for the continued blockade of Gaza.

The next day, a Free Gaza ship tried to run the blockade and was apprehended by Israel Navy commandos. The activists onboard the Spirit of Humanity said that Israel was violating international humanitarian law by not allowing them to deliver medicine and toys to Gazans. That same day, Human Rights Watch slammed Israel for the indiscriminate killing of civilians in Gaza through the use of airborne drones.

And finally, on Thursday, Amnesty International released a mammoth 117-page report accusing Israel of war crimes during Operation Cast Lead.

The problem with these and other reports, according to defense officials, is that they group all of the IDF's actions in Gaza into one bundle, which paints a grim picture of alleged disproportionate use of force, instead of investigating alleged incidents one by one.

"There was absolutely no policy to break international law during the fighting in Gaza. There was a policy to operate within the boundaries of the law," the official said.

There are dozens of internal IDF probes into Cast Lead that are still to be completed, but the sense in the defense establishment is that even if there were individuals who acted in unlawful ways, there are no recorded or proven instances of war crimes.

"This approach puts all of the IDF's actions together in one picture and argues that there are 1,400 people killed on the other side, with just under one third being civilians, a few hundred people [figures that Israel vehemently disputes, insisting that most of the dead were combatants] while Israel lost in total 13 people, most of them soldiers in friendly-fire incidents, so this is not proportional. In addition, look at all the devastation you left there. This approach has many proponents.

"This approach also says that because Israelis are in trauma over seeing soldiers return in body bags, the IDF exaggerates its use of force in order to protect its soldiers. This is what we're fighting against. We think it is more fair to check individual instances to see whether or not we behaved according to the rules," the official said.

"It is untenable, in this day and age, to be ostracized, to be like al-Qaida, to have no alliances and no friends. In the past it was harder to explain this to officers in the field. Since the Second Lebanon War, and especially since Operation Cast Lead, the penny has dropped.

"In legal terms, nothing has changed. The IDF has always operated according to international law. What has changed is that now even a company commander is aware of the legal implications of his actions. Officers are sent to the school for military law where they are taught the dos and don'ts of war.

"Just as officers are taught to navigate, to attack, to use weapons, they are also taught to fight within the bounds of international law. This is part of modern warfare, a language that the whole world speaks in, except for certain groups in the Arab world," the senior official said.

"For Hamas and Hizbullah, who fight within their civilian populations, it's a win-win situation: Either you don't attack them and they win, or you do attack them, their civilians are killed, they reap the dividends in the realm of public opinion, your legitimacy is eroded, and that makes it harder for you to continue fighting. After Kafr Kana II [when Israel killed civilians in an errant strike in south Lebanon in 2006], US Secretary of State Condoleezza Rice effectively grounded the IAF for 48 hours," the official said.

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