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When law is the target: Israel’s campaign will whitewash war crimes everywhere

In 2011, and in response to accusations of war crimes during the final months of conflict with the Tamil Tigers two years previously, the Sri Lankan government convened a conference where then-Minister of External Affairs G. L. Peiris declared that “the entire body of international law must be revisited.” Human Rights Watch called the event “a public relations exercise to whitewash abuses.”

This week, a new conference will take place in Israel on a familiar-sounding theme: “Towards a New Law of War.” According to conference organisers Shurat HaDin, the goal of the event “is to influence the direction of legal discourse concerning issues critical to Israel and her ability to defend herself.”

A new conference targets the laws of war

Shurat HaDin is an organisation that uses courts around the world “to go on the legal offensive against Israel’s enemies.” The group has conducted work at the request of the Israeli government, and received intelligence from Mossad. Its track record includes an unsuccessful lawsuit against Jimmy Carter, failed legal action against a pro-BDS Australian academic, and threats to Oxfam.

The conference is based on the idea that in an “age of terrorism”, the laws of war “must evolve” to meet “new challenges.” Attendees will “exchange ideas regarding the development of armed conflict legal doctrine favourable to Western democracies engaged in conflict against non-traditional, non-democratic, non-state actors.”

Speakers at the conference are lawyers, military and former-military figures, and academics – almost all of them from the US and Israel. They include senior Israelis such as Defense Minister Moshe Ya’alon, cabinet secretary Avichai Mandelblit, and former IDF chief of staff Benny Gantz.

Other contributors include former US deputy commander David Friovich, as well as former British army commander and well-known Israel advocate Richard Kemp, a familiar face at such gatherings (indeed, he speaks more than once during the two-day conference).

The topics of discussion reveal the context motivating organisers, namely Israel’s deteriorating international image in the light of repeated assaults on the Gaza Strip, especially last year’s unprecedented slaughter.

In the briefing for a panel on “proportionality”, Shurat HaDin says the 2014 Gaza war “evidenced just how sensitive the international community and world media are to the images of dead civilians.” It goes on: “Increasingly, and dangerously, large portions of the Western public and world media have come to assume that any civilian casualties are unacceptable and unlawful.”

Tellingly, there is also a panel on the International Criminal Court (ICC), which will discuss how “Israel and other Western states…find themselves increasingly being threatened with war-crimes prosecutions as their military forces act to defend their civilian populations against terrorist threats.”

Even before last year’s Gaza offensive, Israel was anxious about the threat posed by potential ICC investigations, and in February 2014, an official revealed that substantial resources within the Ministry of Foreign Affairs and Justice Ministry, among others, were already devoted to the issue.

The danger of accountability

During the Second Intifada, Israeli forces committed numerous violations of the Laws of Armed Conflict (LOAC), including during ‘Operation Defensive Shield’ in the West Bank in 2002. There were further war crimes accusations following repeated attacks on Gaza, including in 2006, 2008/’09, and 2012 – as well as similar claims when Israel bombarded huge swathes of Lebanon in 2006.

The Israeli reaction, as noted by academic and activist Jeff Halper, was to adopt “a bold and aggressive strategy: alter international law.” This was a strategy shaped by the politics of the Washington-driven, post-9/11 ‘war on terror’; Israel’s argument for ‘revisiting’ the LOAC fitted nicely with a US government that was busy detaining so-called ‘enemy combatants’.

Louise Arbour is former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda. In 2011, as the then-president of the International Crisis Group (ICG), she gave a speech about recent attacks on the laws of war.

The debate, she described, is rooted in “the growth of international criminal law”, citing the ad hoc tribunals for the former Yugoslavia and Rwanda, “the daring moves of national magistrates operating under the framework of universal jurisdiction”, and “the creation of the ICC.”

Thus, Arbour concluded, “the recent criticisms mounted against the laws of war reflect less their inadequacy than their increased effectiveness.”

For Israel then, it is not about the supposed anachronisms of international law, but rather the looming prospect of accountability – and the Shurat HaDin conference is just the latest in a long line of initiatives motivated by similar concerns that have emerged in the last decade or so.

Another example of these efforts is the partnership between the International Institute for Counter-Terrorism (ICT) at Herzliya’s Interdisciplinary Centre (IDC) and the University of Syracuse, which began with the aim of bringing scholars together “in an effort to modify international law to better suit the realities of modern warfare.”

Revealingly, the idea for the initiative was born out of the 2006 Lebanon war, and according to ICT director Boaz Ganor, the goal was “fine-tuning the Geneva Conventions and Hague protocols.” Ganor added: “we have the moral right to reexamine [the Geneva Conventions], especially in light of the current threats to both of our countries [the US and Israel].”

A participant in the ICT-Syracuse working group ‘Old Battlefields/New Laws‘, Hilly Moodrick-Even Kehn, is also speaking at next week’s Shurat HaDin conference. The website for the project states that “non-state groups waging…campaigns of terrorism” leave “the defending state with little choice but to respond in ways that inflict heavy civilian casualties.”

Shortly after the UN Human Rights Council’s ‘Goldstone report’ was published in September 2009, detailing Israeli war crimes in the Gaza Strip, Israeli Prime Minister Benjamin Netanyahu instructed relevant government bodies to embark on a “worldwide campaign to amend the international laws of war to adapt them to the spread of global terrorism.”

The context was the prospect of Israeli officials facing “war crimes trials abroad.” Backing Netanyahu’s initiative, then-Defense Minister Ehud Barak said a change in the international laws of war was “in the interest of anyone fighting terrorism”, and would give the army “freedom of action.”

As Amnesty International said concerning ‘Operation Cast Lead’, “the Israeli army’s definitions of legitimate targets and proportionality are not consistent with the requirements of international humanitarian law.” Israel’s solution is to try and change those requirements.

In her 2011 speech, Arbour noted that while “critics allege that international law fails to take into account many issues pertinent to today’s conflicts”, in fact, “many of these issues are expressly addressed – just not in the way critics would like.” Thus the calls for revisions, she concluded, “stem more from the desire of certain states to legitimise their recent violations of humanitarian law than from any real concern with bringing the law up to date.”

A new impetus

The diplomatic and legal fallout of Israel’s assault on the Gaza Strip last July-August has given fresh impetus to the attack on international law (in the name of protecting its integrity, of course). These efforts have included “multinational forums” on waging warfare in “the modern age”, such as February‘s ‘International Legal Conference on International Law in Contemporary Armed Conflicts’.

In December, meanwhile, the Tel Aviv-based Institute for National Security Studies hosted the third international conference on ‘Challenges of Warfare in Densely Populated Areas.’ Again, speakers included senior Israeli political and military figures – but there was also participation and even co-sponsorship by the International Committee of the Red Cross (ICRC).

Jacques De Maio, ICRC Head of Delegation to Israel & the Occupied Territories, spoke to attendees about the work the ICRC does in engaging with state and non-state actors. He also said, pointedly, that “the cost of the war in Gaza – in terms of human and infrastructure toll – demonstrated that the Parties failed to comply with IHL [international humanitarian law].”

A recent attempt to salvage ‘Brand Israel’ is the work of legal scholar Michael Schmitt, who has published a blog post and journal papers on the IDF’s “targeting practices and application of the LOAC”, following a trip to Israel where he and a colleague were granted access by the army to various (carefully selected) locations and senior officials.

Revealingly, Schmitt himself admitted that the origins of his ‘research’ was through his friendship with a number of senior IDF officials, and their question to him ‘Why is it they don’t love us?’ In other words, anxiety over Israel’s increasing global isolation prompted the invitation to their friend to come and ‘investigate’ for himself’.

In fact, Schmitt’s blog post, papers, and lecture reveal the weakness of the IDF’s position. The case for the defence is based on non-legal (and irrelevant), politicised explanations of ‘context’, or worse still, confirms that the IDF privileges combatant safety over that of the opposing civilian population, inverting the proper legal position where civilian lives should take priority over those of combatants.

The end goal

Shurat HaDin’s conference comes as, in their own words, “the IDF is facing the threat of war crime prosecutions from many directions.” This is the overwhelming driver behind the stated desire “to bring the laws of war into the 21st century.”

Their efforts, however, are hindered by the sheer transparency of the exercise. Professor Iain Scobbie, renowned expert ad chair of international law at the University of Manchester, is under no illusions about what is taking place.

“The initiative for seeking changes in the law of armed conflict”, he told me, “comes from States who want to redefine the law in order that they can pursue policies which could be seen to be at odds with established doctrine but which they wish to clothe in legal justification.” He added: “Israel and the US are chief among this.”

Human rights activists are also worried. “Instead of weakening the laws of war”, Kristyan Benedict, campaign manager at Amnesty International UK, told me, “legal & military minds could better protect civilians if they clearly opposed all direct attacks on civilians and other serious violations of IHL, including indiscriminate and disproportionate attacks by Israeli forces.”

Another senior academic and expert in public international law said that those arguing for a change in the existing LOAC are relatively isolated, including amongst military lawyers on both sides of the Atlantic. To change something like the Geneva Conventions, the professor said, is effectively impossible – “the Israelis are not going to be able to get anywhere with it.”

But perhaps it’s not so much a change in the law that is being sought, but how it is interpreted. After ‘Operation Cast Lead’, Daniel Reisner, former head of the international law division (ILD) in the Military Advocate General’s Office, was frank about how he hoped things would progress.

If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries….International law progresses through violations.

Similarly, in a “moral evaluation” of the 2008/’09 Gaza massacre, Asa Kasher, author of the IDF’s ‘Code of Ethics’, expressed his hope that “our doctrine” will ultimately “be incorporated into customary international law.” How?

The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, then the greater the chance these principles have of becoming a valuable part of international law.

Now Israel’s strategy becomes clearer. At the February conference, Danny Efroni, the IDF’s Military Advocate General, acknowledged that “there is no substitute for LOAC”, but that its “interpretation and implementation must be in accordance with the imperative realities of the modern battlefield.”

It is this “interpretation and implementation” that Israel hopes to influence, based on the way in which – as the Shurat HaDin conference material states – the “law of war is mainly unwritten and develops on the basis of state practice.”

Israel’s assault on the laws of war takes aim at the core, guiding principles in IHL – precaution, distinction, and proportionality – in order to strip them of their intended purpose: the protection of civilians during armed conflict. If successful, the victims of this assault will be in the Occupied West Bank and Gaza Strip, Lebanon – and in occupations and war zones around the world.

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