I have been following the events on the Gaza border from far, sitting comfortably in my favourite chair, watching the TV news and reading the news in print.
That France, the European Parliament and the various emanations of the United Nations and their anti-Israeli heads are accusing Israel of using disproportionate force against the Gazans, is no new,That’s their specialty.
As a military type once pointed out, you cannot win wars by using proportionate force.
And let’s face it, Hamas is waging war albeit an unconventional type; a guerilla fight of sorts but a war nevertheless, for the end result being sought is to kill as many Israelis and destroy as much Israeli property and strategic assets as possible.
At all events, what would be the permissible proportionate force in this instance? Israeli soldiers throwing bigger stones across the border? Lighting bigger fires in Gaza? Throwing bombs a little bigger than the Gazans? Waiting for the battle to end for the day to dig out and neutralise the bombs planted by the fence? And, after it is all said and done, who is going to decide whether the IDF respected the proportionality scheme?
On the other hand, to the best of my knowledge, no one even hinted at, let alone addressed the question as to the kinds of personal hell(s) the soldiers at the front experience in this type of conflict?
Granted, Israeli soldiers are trained to think and act in a self-disciplined manner and they are expected to perform their assigned tasks in accordance with the standing orders.
And, if the foe has been warned, clearly and in advance, of the consequences of doing certain things and yet they decide to put themselves in harm’s way, then surely, it is fair for the soldiers to carry out their duty and shoot to incapacitate the trespassers particularly when the trespassers happen to be terrorists employed by Hamas, or others throwing fire bombs; planting them by the fence, trying to break it or burning tires to impair the vision of the soldiers or sending kites with explosives over the fence.
But, as we all know, soldiers are not programmed robots: in the performance of their orders, they have their instincts, minds, hearts, souls and personal values to contend with. And I am sure that more than a few of them must feel a sense of revulsion and horror when for a variety of reasons beyond their control, the targets accidentally die instead of being incapacitated.
I would take it one further and say that they may well experience painful self-punishing feelings for killing or maiming deliberately a human being despite the fact that in the circumstances at hand, the killing or maiming is completely justified.
I have no doubt that given a choice, the average soldier would rather fight a military foe than the “civilian” Gazans who allow themselves to be simply used or are used as human shields; or who are foolhardy amateur soldiers eager to prove their courage and valour who seek to carry out Hamas’ orders.
Conflicts, like the present one, take their toll.
And in and for all of this, what does the IDF soldier, working in these types of situations, get from their fellow citizens to help them alleviate their mental, psychological burdens with which they have to perform their duty?
Well, for one,a bunch of Jewish Israelis enter closed military areas against the rules to harass and insult the soldiers by calling them assassins, murderers, terrorists while looking for compromising photo-ops to cause them public embarrassment in the international and local fora.
And while this is going on near the front line, another bunch of Israelis, clowning as champions of the human rights, in this instance the rights of the Gazans, not in one but in five NGOs no less ( which I gather are all recipients of large donations from anti-Israeli European sources), along with, of all things, the Gaza based Al Mezan Center for Human Rights applied to the Israeli High Court of Justice to challenge IDF’s “open-fire” rules on the Gaza front, seeking an order or a declaration to the effect that Israel’s response to the Gaza protests must follow the rules of engagement for law enforcement officers (police officers), who are barred from using lethal force unless they face imminent danger to “life and limb”. Needless to say that if the applicants succeed in obtaining the decision they seek, this will have serious adverse implications for the defence of all the areas contiguous to borders or lines of demarcatio with the Palestinians.
Frankly, I am baffled by the fact that the High Court accepted to hear the case in the first place.
In Canada, as in many Commonwealth country jurisdictions, this is contrary to the general principle that, save otherwise specifically provided by law, courts refuse to get involved to judge the merits of the cases brought forward by applicants , while all the outstanding matters/complaints are being investigated by the appropriate government body and the analysis of the facts, the legal issues raised by the facts and the conclusions remain to be published.
It is only then that person or persons with an interest in the outcome of the investigation,recognised at law, who are dissatisfied with the analysis and conclusions of the investigatory body, is generally entitled to apply to the High Court for a judicial review of the report of the investigatory body, to seek the Court to set aside the report in whole or in part and issue some form of remedial relief suitable to the case at hand.
In the present case I very much doubt that the Court can issue a ruling on the application while the conflict is ongoing;the key issues raised by the applicants are largely fact driven and those facts cannot be fully established while the conflict is on-going.
Furthermore, a) the IDF already commenced its investigations of the allegations of wrongful behaviour by soldiers made to date; b) the IDF has yet to i) conclude its investigations and issue its findings and conclusions as well as, ii) issue as it is its general practice, after every major conflict, a report that analyses the critical events and the conduct of the IDF in terms of its compliance with national and international laws governing military engagements, and finally, c) inevitably the State Comptroller’s Office, that assesses the IDF’s report and findings in order to issues its own analysis and conclusions cannot do that at the moment.
Finally, with the ICC closely watching the events, at the end of the day, surely what the Israeli Superior Court may or may not say or decide on the substantive issue, at this stage of the conflict is immaterial.
My original hunch based on Canadian law, was that the Court would decline to render judgment on the merits of the substantive issues raised by the applicants and either put the matter out of the judicial forum altogether or in abeyance for the foreseeable future.
However, after reading the latest news about the Court’s rather curious treatment, not to say more, of the Commander of the IDF Operations Department Major General Nitzan Alon who wished to submit to the Court a classified report setting out facts,which the Court rejected and decided to proceed without a statement of facts on which the parties agreed, I now dread the outcome of the proceedings.
In the meantime, I have yet to read or hear about Israeli civilians mass demonstrating every week-end, their solidarity with the soldiers; their support for them, and in the process, express their gratitude for the tough and critically important service they are performing for the protection of Israel.
I am sure the soldiers will be very gratified by this kind of mass therapy and encouragement.