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Guest Writer: Lawfare and the threat of human rights

Speaking with high-school students recently, Israeli Defence Minister Moshe Ya’alon averred that Breaking the Silence—an NGO made up of Israeli Defence Force (IDF) veterans who collect testimonies from discharged soldiers who have served in the Occupied Palestinian Territories—was committing treason. Considering that treason is one of the few crimes in Israel that can result in a death penalty, Ya’alon’s accusation is worth dwelling on.

Undoubtedly, the defence minister’s comments are intended as a threat to Breaking the Silence, because he himself feels threatened. Yet, given the fact that the military censor clears all of Breaking the Silence’s testimonies before they are made public, Ya’alon’s response could not have been spurred by the fear that the veteran group will actually disclose military secrets. This, then, begs the question, why does he feel threatened?

An examination of Breaking the Silence’s latest report on the 2014 Gaza War, which includes 111 testimonies provided by around 70 soldiers who participated in the fighting during the Israeli offensive, might shed some light on this. A typical incident described by an infantry soldier reads as follows:

There was this one time when I looked toward some place and I was sure that I saw someone moving. Maybe I imagined it, some curtain blowing, I don’t know. So I said, “I see something moving.” I asked [permission] to open fire toward that spot, and I opened fire and [the other soldiers] shot at it with a barrage…

Question: What were the rules of engagement?

There weren’t really any rules of engagement… They told us: “There aren’t supposed to be any civilians there. If you spot someone, shoot.” Whether the person posed a threat or not wasn’t even a question; and that makes sense to me. If you shoot someone in Gaza, it’s cool, no big deal. First of all because it’s Gaza, and second because that’s warfare. That, too, was made clear to us – they told us, “Don’t be afraid to shoot,” and they made it clear that there are no uninvolved civilians.

One of the IDF’s two basic military doctrines is to try to guarantee zero risk for its troops, and the soldiers’ testimonies detail how this doctrine was translated into actual warfare strategies. According to the 2014 report, the region was “softened” by artillery fire for several days before the ground forces invaded. Aircraft and helicopters pounded Gaza from the air, while massive artillery fire was deployed from within Israel. This, then, helps to explain why out of the 2,133 Palestinians who were killed during the 2014 Gaza campaign, 1,489 were civilians. It seems safe to assume, therefore, that the vast majority of civilians who died were not killed by infantry but by the IDF’s pre-invasion bombardment.

After the Gaza Strip was “softened” by artillery for nine days, the troops marched in. This is where the IDF’s second doctrine, the Dahieh doctrine, came into play. This is named after the Beirut neighbourhood that Israel transformed into rubble in 2006. Gabi Siboni from the Institute for National Security Studies in Tel-Aviv has explained the logic behind it, noting that the IDF needs “to

act immediately, decisively, and with force that is disproportionate to the enemy’s actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes. The strike must be carried out as quickly as possible, and must prioritise damaging assets over seeking out each and every launcher.”

Again, the 2014 report sheds crucial light on how these doctrines are transformed into strategy. In one testimony, we learn that part of the purpose of the Dahieh doctrine is to produce the “day after” effect.

There was a humanitarian ceasefire that went into effect at 6:00. I remember they told us at 5:15, “Look, we’re going to put on a show.” It was amazing, the air force’s precise timing. The first shell struck at exactly quarter past five and the last one struck at 5:59 and 59 seconds. It was crazy. Fire, nonstop shelling of [a] neighbourhood [east of Beit Hanoun]… Nonstop. Simply nonstop. The entire Beit Hanoun compound in ruins.

Question: When you saw this neighbourhood on your way out, what did you see?

When we left it was still intact. We were sent out of Beit Hanoun ahead of the ceasefire, ahead of the air force strike.

Question: And when you went back in [after the air strikes], what did you see of that neighbourhood?

Nothing. Absolutely nothing. Nothing. Like the opening scene in “The Pianist”. There’s that famous image that they always show on trips to Poland [organised trips for Israeli high school students to visit Holocaust memorial sites] that shows Warsaw before the war and Warsaw after the Second World War. They show the heart of Warsaw and it’s this classy European city, and then they show it at the end of the war. They show the exact same neighbourhood, only it has just one house left standing, and the rest is just ruins. That was the image.

It is precisely testimonies like these that Ya’alon is afraid of; not because they shame him personally or reveal military secrets, but rather due to their potential legal implications. The defence minister, it should be stressed, is not troubled by what Israeli courts might do, since these state courts have historically upheld the legality of IDF wartime strategies. Rather, he is anxious that the testimonies will be used as evidence in European courts which exercise universal jurisdiction in criminal suits brought against Israeli military and government officials.

As far back as 2001, Ariel Sharon, the then Israeli Foreign Minister, was indicted by a Belgian court in relation to the well-known war crimes committed against Palestinian refugees in the Sabra and Chatila refugee camps in Beirut in 1982. Since then, news reports have suggested that scores of lawsuits have been submitted to European courts in several states against Israeli politicians, high-ranking military officers and heads of intelligence agencies. While not one of these cases has ever led to a conviction, the Israeli government has taken precautions by assigning experts in international law to accompany combat military units, as well as advising former politicians and IDF officers to refrain from travelling to certain European countries.

From the Israeli government’s perspective, the human rights organisations in Europe which submit petitions to national and regional courts are involved in “lawfare”, a compound term which combines law and warfare and is defined as the use of law for realising military objectives. Lawfare refers to the attempt on the part of individuals and groups to file suits in international courts against state violence emanating from the so-called global war on terrorism, practices that include torture, extra-judicial executions and the bombing of civilian urban infrastructure.

The Israeli group that first became aware of the universal jurisdiction threat was NGO Monitor, the founder of which, in 2004, penned an article entitled “NGOs Make War on Israel”. According to NGO Monitor, so-called “NGO superpowers” are leading the lawfare campaign against Israel and are resorting to universal jurisdiction to pursue litigation in European, North American or Israeli courts.

Moshe Ya’alon is concerned that the evidence of Israel’s breaches of international law and systematic violations gathered by Breaking the Silence (and other local human rights NGOs) — with the support of international funding — is exceeding the boundaries of the domestic debate. The Israeli defence minister is threatened precisely because the accusations of abuse are piling up into an immense archive proving state-orchestrated violence, an archive that can no longer be contained within the state’s legal, political and symbolic (but still not defined) borders. The fact that the testimonies about Israel’s rights-abusive policies have the potential to transcend the state’s borders is what renders them treason.

The twisted irony is that Ya’alon does not really have much to worry about. Following the ghastly Paris and Brussels terrorist attacks and the preposterous connection that politicians of different stripes are making between Palestinian resistance and terrorism in Europe, it seems highly unlikely that any European court will try an Israeli soldier or politician in the foreseeable future. As Islamophobia gains momentum, and such “connections” become part of the official narrative, the threat of lawfare is receding, leaving the Israeli politicians and military free to continue to act with impunity.

Professor Neve Gordon is the author of Israel’s Occupation (2008 UC Press) and (with Nicola Perugini) The Human Right to Dominate (2015, Oxford University Press). Follow Neve on Twitter.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.

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