Real vs. memorex: Israel, asymmetric warfare and the laws of war

I just attended an amazing first time conference called “Towards a New Law of War” by Shurat Ha’Din, the legal organization dealing with “lawfare” and other tactics used to cast a very negative light on Israel and its conduct during war with terror organizations such as Hamas and Hezbollah. These legal issues also encompass the current debate as to whether Judea and Samaria are “occupied” or “disputed”.

The basic premise of the conference is to address the emergence of “non-state” actors (though “non-state” is somewhat misleading since, for the most part, these non-state terror organizations are being sponsored and funded by States, such as Iran), asymmetric warfare and the use of civilians and their homes as part of a military and political strategy. Based upon these emerging realities, the Laws of War need to be reconsidered – realities much different from the post-WW II experience in which these laws were birthed. It is also critical to examine the underlying assumptions and realities of accusations of Israel (as well as Hamas and other terror groups) related to “war crimes”, “human rights violations”, “illegal occupation” since these are not actually universally accepted or defined terms yet are used with impunity and, quite often, incorrectly by NGOs and other organization that believe they are the keepers of the “human rights” family jewels.

I thought this whole area was important enough that we became one of the sponsors of the event. The speakers are a who’s-who of international law including top international law professors, mainly from the U.S. and Israel, a Brigadier General and former commander of the Green Berets, Israel’s Minister of Defense and IDF lawyers. With over 500 attendees, this conference is now considered the most important and largest gathering on this subject and it is planned as an annual event.

Let me give you a few take-aways from the conference:

1. The Laws of War are subject to wide interpretation even though advocates would like to convince you that they understand how the Laws of War are applied and whether Israel violates these laws. Because there are almost no court rulings and no Common Law, the Laws of War are really about “commonly accepted principles” among law professors and military advocates. So when someone says: “this action is a war crime” you must be skeptical because the Laws of War a subject to context and perception (as well as ideology). Terms such as “proportionality” are very nuanced and situational and declarations by alleged “experts” are just opinions. Now these opinions do have political motivations – which also add an additional layer of concern. Due to political nature of these opinions, especially when espoused by journalists and NGOs, this ends up being very damaging to the legitimacy and operational capability of the IDF.
2. There is a wide degree of divergence among scholars and military practitioners as to what constitutes the Laws of War and appropriate conduct in various circumstances.
3. It is very clear that Israel’s military takes the Laws of War seriously for a number of reasons. Most important is Israel’s internal need and the value of consistent and cohesive military behavior which is important to every commander. Former Chief of Staff Benny Gantz made this very strong point.
4. Though the International Criminal Court will present some difficulties, my sense from the speakers is that the PA and HAMAS have a lot more to fear of the ICC though we will need to be very diligent to observe bias and prejudice against Israel by the ICC prosecutor or the court. A number of pronouncements by the ICC Prosecutor are wrong as a matter of law and precedent such as whether the PA’s application of membership in the Rome Treaty is even legal at this time since the PA is not a State.
5. Every time a NGO or Human Rights attorney condemns Israel for war crimes without proper research or context they do enormous long term harm to the country. Shame on them!
6. There is a serious conflation and inappropriate (since it is subject to much debate and dispute) use of the Laws of War with Human Rights Law. Again, you will hear lots of noise on how Human Rights law is a critical component of the Laws of War. This is very dubious assertion and is a position advocated of many Israeli Left-wing international law professors in Israel with very negative long term impact on Israel. (A few of these professors are waking up to understand the negative impact of these questionable opinions.) This helps the Left in the U.S. and Europe to condemn Israel for Human Rights violations, when, in fact, the Laws of War with criteria such as proportionality and combatants offer clear examples of where Civilians are either legitimate targets or permitted collateral damage. This subject is not simple and again calls into question NGOs and the Left, with sloppy thinking and analysis, trying to combine the two in “innovative” ways in order to judge Israel as a criminal State.
7. Nothing annoyed me more personally than the issue of Occupation as a Law of War. Everything that I understand about this subject informs me that it is 1. Complex 2. Unclear and 3. In dispute. So nothing is more disingenuous then when Israeli International Lawyers, including those in Senior Israeli Military Advocate positions declare with complete assurance that “the world” acknowledges that the Judea and Samaria are “occupied” as opposed to “disputed”. Feel free to research this dichotomy – suffice it to say that I believe it is sloppy thinking and weak-kneed to state that if the “world” says so it has to be true.   The world also said that Zionism is a form of Racism. Is this true? And the list goes on. So, I find it disheartening to see sophisticated Israeli advocates with exposure to the international stage stating a position that is both 1. In dispute and 2. So damaging to Israel’s legitimacy.

What can you do to help? First of all, support Shurat Ha’Din with whatever means you have, financial and personal resources. Learn more about what are the issues around the Laws of War and Israel’s compliance to it. Do not accept in silence when someone accuses Israel of war crimes. Be an educated advocate so you can call their bluff.