1.1 Recent Developments in Law and Politics, the Israeli Occupation, and the Military Legal System
Since around the mid-1990s the role of law and the question of legality have been gaining prominence in Western militaries and their involvement in situations of warfare (Dunlap 2001a, b; Lohr and Gallotta 2003; Kennedy 2006; Dunlap 2009). Brigadier General Charles Dunlap pointedly observes, âsavvy American commanders seldom go to war without their attorneysâ (Dunlap 2001a, p. 6). The Israeli military has seen a similar shift. Perspectives are divided about the meaning and significance of the Israeli engagement with international law. Persistent voices are arguing that law merely serves as lip service, a tool in the hands of political powers. These voices range across the political spectrum, from Alan Dershowitz, a prominent legal scholar and right-wing supporter of Israel, who referred to international law in a 2013 conference as âa construct in the mind of a bunch of left wing academicsâ (Dershowitz 2013), to critics from the left arguing that Israel has been politicising law in a manner emptying it of its original intents and substantive values (Ben-Naftali and Michaeli 2003; Ben-Naftali and Shany 2004; Ben-Naftali et al. 2005; Falk 2009a; Ben-Naftali 2011). Others simply argue that the increased involvement of lawyers in Israelâs military affairs reinforces the argument that it adheres to law (Weiner and Bell 2009; Cohen 2010). In this vein the US Joint Chiefs Chairman Martin Dempsey reported in 2014 that a team of officers and commissioners was sent to learn the Israeli military legal methods (Bernstein 2014). Finally, and as one might expect, the Israeli armyâs legal practitioners stress the legality of this institutionâs operations, which is assumed to be reinforced by the growing involvement of lawyers in the armyâs activities (Ronen 2009; Mendelblit 2009).
Recent Israeli military attacks and the involvement of lawyers in these attacks have raised questions about lawâs role in these events. The 2008/9 offensive in Gaza, then Israelâs most destructive attack in the occupied Palestinian territories (OPT) since its 1967 seizure, and an offensive that involved legal practitioners more extensively than ever before, is a key occasion within this discussion. The 2008/9 offensive, dubbed by Israeli authorities Operation Cast Lead, was launched on 27 December 2008 and lasted three weeks. The exact number of lives lost in Gaza is still disputed. Human rights organisations estimate that the number of fatalities was close to 1380, among them at least 760 civilians. Thousands more were wounded (Amnesty 2009; PCHR 2010; BâTselem 2011). The attack also resulted in the vast destruction of buildings and extensive damage to the Gaza Stripâs infrastructure. In comparison with past strikes in Gaza, the ratio of casualties between Palestinian civilians in comparison to one Israeli soldier had increased drastically, from six at the time of the first Intifada (1987â91), nine in the second Intifada (2000âroughly 2005), 33 after Israelâs 2005 âdisengagementâ from the Strip, and 86 during Operation Cast Lead (Levy 2010).
The legal responses to the offensive in Gaza included no fewer than three UN committees and investigation bodies, an abundance of academic analysis and human rights non-governmental organisations (NGOs)â writing (for example, Cohen 2009; Gearty 2009; Goldstone et al. 2009; Human Rights Watch 2009; Sharp 2009; Weiner and Bell 2009; Shandi 2010; Wells-Greco 2010; Kot 2011). Some accounts were particularly interested in the reconciliation of this operationâs extended reliance on international legal practice on the one hand and its extreme violence on the other (Blau and Feldman 2009; Weizman 2009, 2011). Notably, while the involvement of lawyers reached a peak in this operation, their close engagement with operational decision-making was no novelty for the military establishment. By 2009, the processes pushing forward the incorporation of legal practice in battle had been in motion for nearly a decade (Cohen 2011). Moreover, in more general historical terms, law has been a key element in Israeli socio-political settings, grounding the legitimacy of the Zionist project.
The Military Advocate General Corps (MAG Corps) is the military establishmentâs legal system. As described in its mission statement (MAG Corps), its goals and responsibilities include law enforcement in the armed forces; supervising the disciplinary procedures in the military; providing legal defence to soldiers standing trial in a military court; providing legal advice to units and command authorities throughout the military; and providing legal advice on international and operational legal issues. In institutional terms, the MAG Corps is subject to the authority of the civil Attorney General and the Ministry of Justice rather than to the armyâs chain of command. The military legal system retains considerable influence and power in relation to the civil legal authorities. Notably, the Ministry of Justice does not have a branch or department focused on supervising the armyâs legal decisions. Instead, this role is divided between several bodies, none of which maintains a specific specialty in this area (Roytman 2013). The diffusion of authority within the civil authorities means that, by and large, despite the formal hierarchy, the Israeli civil legal system distances itself structurally from supervising the MAG Corps and the armyâs conduct (Benvenisti 2011; Shany et al. 2011).
However the military legal systemâs unprecedented close engagement with operational decision-making in the attack in Gaza, this action by and large has not prompted a substantive discussion on the position of law and lawyers in war. Moreover, the military legal system is one of Israelâs key institutions responsible for the application of international law in the OPT, but despite of this institutionâs position and the great interest in the legal aspects of Israelâs occupation, accounts of its work are scarce. This scarcity is surprising, even when taking into account the obstacles of military secrecy and limited access to data. Questions about the role of lawyers in military and government warfare-related policies were, for example, the centre of debate in the USA following the discovery of the Torture Memos, in which lawyers approved violent interrogation methods as part of the Bush administrationâs War on Terror (Rhode 2000; Bilder and Vagts 2004; Weisberg 2004; Clark 2005; Sands 2008). By and large, there was no noteworthy parallel debate in Israel. Rather, in response to questions about Operation Cast Leadâs legality, military legal practitioners defended their work and stated, for example, that the deaths of civilians, even if there are many, is no proof of a violation of law (Blau and Feldman 2009; Mendelblit 2009). In view of lawâs increased involvement in war and the counter-intuitive statements made by its military-legal practitioners in Israel, rejecting a connection between the deaths of civilians and the legality of actions, study and analysis of lawâs contemporary relationship with war are all the more necessary.
International law entered the work of the Israeli military not least as a result of the 1967 War, a landmark event which began the Israeli occupation of the West Bank and Gaza. Within the MAG Corps, the main body dealing with this law is a unit founded in 1968, soon after the occupation. On its establishment this body was called the International Law Division, but some 20 years later it improved its status and was reorganised as the International Law Department (ILD), a body that included several divisions.
Law provides the vocabulary for many arguments and actions in and about Israel and the OPT. These legal activities are varied, ranging from the armyâs own legal practice and its critique, the Boycott Divestment and Sanctions (BDS) movement, through human-rights-based appeals (or threats of appeals) to the High Court of Justice as well as various international legal forums, state-initiated legal âcounter-terrorismâ measures, and the codification of legal restriction on Israeli NGOs opposing the occupation and its various policies. International law has played a key part in the Israeli occupation, consistently since its very beginning, gaining it the title of âthe most legalized occupation in world historyâ (Kretzmer 2002; Ben-Naftali 2011).
The role of law in this context, however, has not been constant. A chief turning point in Israelâs legal practice emerged in 2000. At this time the Israeli military complex fundamentally altered its premise of action by shifting its handling of the OPT from the legal framework of âlaw enforcementâ to that of International Humanitarian Law. This legal change was prompted by the second Intifada, the Palestinian uprising, and in both practical and conceptual terms it has led to a novel array of legal policies and debates. From the perspective of the militaryâs legal system, the turn to international humanitarian law significantly widened legal practitionersâ leeway to act under law. This change had been controversial and was made possible by the more legally permissive atmosphere of the War on Terror. This legal framework provided the toolkit the military used in its 2008/9 offensive in Gaza. The International Law Department Commanding Officer, Daniel Reisner, 1 describes this legal change, the opposition it faced and places its acceptance in an international political context:
International Humanitarian Law, the laws of war, is made up of treaty, customary and case law. Treaty law relies on states signing and ratifying treaties, and customary law is the general âcustomâ and is considered obligatory regardless of a particular stateâs voluntary acceptance of it. The collection of cases decided in courts adds to these laws. The legal body of treaties is constructed in a lengthy and politically complex process and does not readily undergo revision. The c...When we started to define the confrontation with the Palestinians as an armed confrontation, it was a dramatic switch, and we started to defend that position before the Supreme Court. In April 2001 I met the American envoy George Mitchell and explained that above a certain level, fighting terrorism is armed combat and not law enforcement. His committee [which examined the circumstances of the hostilities commencing in 2000] rejected that approach. Its report called on the Israeli government to abandon the armed confrontation definition and revert to the concept of law enforcement. It took four months and four planes [the September 11th attacks] to change the opinion of the United States, and had it not been for those four planes I am not sure we would have been able to develop the thesis of the war against terrorism on the present scale. (Reisner, in Feldman and Blau 2009)