Well, it's been a while.
And things are, of course, no different. The wagon is still careening off the cliff and no one seems to have packed parachutes.
I finally decided to meander through the many posts that didn't make it.
I found this one and thought of the soldiers now coming forward and telling of the atrocities they did commit while invading and occupying Gaza for a month. They, themselves are coming forth - and now it's in the news, now it's being listened to - it sure didn't when it was happening.
Is this thier out? Is this the 'legal' way to conclude, given the outright testimonies of both solider and civilian, that war crimes were never committed?
It could well be.
Hence, I'm throwing this up out of the memory hole:
(Yes it's the full piece - because this is exactly the kind of stuff that gets flushed).
Consent and Advice
On the first day of Operation Cast Lead, the air force bombed the graduation ceremony of a police course, killing dozens of policemen. Months earlier, an operational and legal controversy was already swirling around the planned attack. According to a military source who was involved in the planning, bombing the site of the ceremony was authorized with no difficulty, but questions were raised about the intent to strike at the graduates of the course. Military Intelligence, convinced the attack was justified, pressed for its implementation. Representatives of the international law division (ILD) in the Military Advocate General's Office at first objected, fearing a possible violation of international law.
"This was a very large group of people who at that moment were ostensibly civilians and the next day would become legitimate military targets," says an operational source. "You take these dozens of policemen and put them in your gunsights. That certainly came up in all the discussions and soul-searching."
Over the course of several months, the operational echelons, particularly Military Intelligence, kept up the pressure on the army's legal staff. In the end, ILD authorized the air strike as it was carried out. The "incrimination" of the policemen (that is, justifying an attack on them) was based on their categorization as a resistance force in the event of an Israeli incursion into the Gaza Strip; not on information about any of them as individuals.
"Underlying our rationale was the way Hamas used the security forces," says a senior ILD figure. "Actually, one can look at the totality as the equivalent of the enemy's armed force, so they were not perceived as police. In our eyes, all the armed forces of Hamas are the equivalent of the army, just as in the face of the enemy's army every soldier is a legitimate target."
Experts in international law term the justification for the bombing raid problematic. "In a properly run state, attacking policemen as though they are soldiers is prohibited," says Prof. Yuval Shany, who teaches public international law at the Hebrew University of Jerusalem. "When we are dealing with a government like Hamas, in which the boundaries between the different forces are not clear, the police force may have a combat role. But if you follow that line, there is not much that differentiates them from [Israeli] reservists or even from 16-year-olds who will be drafted in two years. You have to draw the line and restrict attacks to those in active service. This is not the only case in which the IDF offered a flexible interpretation of the law. The army attacked the infrastructure of the Hamas government and hit ministries. But unless you can show that there was military equipment in those offices, an attack on structures that do not serve a military purpose is a violation of the rules of war. The buildings are civilian sites and must not be attacked."
However, after entertaining initial doubts, ILD authorized the bombing of Hamas governmental targets. "As we understand it," says a senior figure in ILD, "the way Hamas operates is to use the entire governmental infrastructure for the organization's terrorist purposes, so that the distinctions are a bit different. We adjust the targets to the case of a terrorist regime."
Civilian on the roof
The ILD is based in a neglected building in the Kirya, the defense establishment compound in Tel Aviv. The unit consists of about 20 officers who hold a legal education. The department has existed in its present form and name since the start of the 1990s. Until then the unit was known as the International Law Branch, or 'Debil' in the Hebrew acronym, a word that means imbecile, until a senior officer in the unit demanded a change of name.
ILD takes pride in the influence its officers exerted on the character of the war in Gaza. For example, the unit induced the IDF to warn people before their homes were bombed by means of a procedure known as 'knock on the roof'; echoing the 'knock on the door campaign' in Israel in which funds are raised to fight cancer; in which munitions are fired harmlessly at roof corners. Sources in the unit say they tried to draw lessons from the warnings that were given in the Second Lebanon War. According to human rights organizations, the civilians in Lebanon were not told which places were safe and the roads on which they fled were bombed and became death traps. Once a warning is issued, say senior ILD officers, a strike against civilians who are bodily defending a structure can be validated as though they were combatants. Other legal experts dispute this. Among them is Colonel (res.) Daniel Reisner, who headed ILD until about five years ago. In his view, as he told Haaretz after Operation Cast Lead, such civilians retain their civilian status. I don't think you can incriminate someone who is standing on a roof just because he is there," Reisner said. "Possibly the attack on him will be considered legitimate -collateral damage," but he will not be a target."
A senior ILD figure explains: "The people who go into a house despite a warning do not have to be taken into account in terms of injury to civilians, because they are voluntary human shields. From the legal point of view, I do not have to show consideration for them. In the case of people who return to their home in order to protect it, they are taking part in the fighting."
What about a civilian who positions himself in front of a tank?
"If someone stands in front of a tank in order to block its progress, he is participating in warfare." But he says that in practice, the IDF does not attack civilians in such cases.
ILD's permissive posture comes as no surprise to jurists who monitor the unit's legal opinions. According to one of them, the unit is considered -more militant than any other legal body in Israel, and is ready to adopt the most flexible interpretations of the law in order to justify IDF operations." Pressure from operational elements and an understanding of their considerations on the part of ILD appear to affect the unit's legal opinions. "The army knows what it wants. For the operational echelon things are very clear," says an IDF operational source. "When the legal advisers thought something was objectionable or problematic, they definitely came under pressure to produce a positive bottom line."
"Our goal is not to fetter the army, but to give it the tools to win in a lawful manner," says an ILD officer. Reisner, the unit's former commander, says he understands why it has acquired a reputation for permissiveness: "We defended policy that is on the edge: the "neighbor procedure" [making a neighbor knock on the door of a potentially dangerous house], house demolitions, deportation, targeted assassination; we defended all the magic formulas for dealing with terrorism. In that sense, ILD is a body that restrains action, but does not stop it. The army says, "Here is a magic formula, is it within the bounds of what is possible? To which I will reply, I am ready to try to defend it, but I am not sure I will succeed. If it's white I will allow it, if it's black I will prohibit it, but in cases of gray I will be part of the dilemma: I do not stop at gray."
The dilemma of the gray areas and ILD's attempts to discover untapped potential in international law may perhaps explain the unit's great enthusiasm for providing legal advice to the army and the glint in advisers' eyes when certain terms roll off their tongue: 'proportional equilibrium,' 'legitimate military target,' 'illegal combatants.' 'What we are seeing now is a revision of international law,' Reisner says. '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. If the same process occurred in private law, the legal speed limit would be 115 kilometers an hour and we would pay income tax of 4 percent. So there is no connection between the question 'Will it be sanctioned?' and the act's legality. After we bombed the reactor in Iraq, the Security Council condemned Israel and claimed the attack was a violation of international law. The atmosphere was that Israel had committed a crime. Today everyone says it was preventive self-defense. International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal moulds. Eight years later it is in the center of the bounds of legitimacy."
Did the attacks of September 11 influence your legal situation?
"Absolutely. 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 confrontation in the territories] 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 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."
One of the core reasons for ILD's permissive approach may be its desire to preserve a modicum of relevance and influence in periods when the atmosphere in the General Staff and the territorial commands is particularly militant. A former senior commander notes that in the period when Daniel Reisner; an articulate, charismatic officer; headed the unit, its staff, and above all Reisner himself, acquired a respected status within the IDF officer corps. By the same token, the influence of the current staff, under the command of Colonel Pnina Sharvit-Baruch, is not self-evident. Sources involved in the work of Southern Command note that the commanding general, Yoav Gallant, is quite suspicious of the advisers and is known as a 'wild man,' a 'cowboy' or a 'sheriff' in terms of the importance; meaning lack of importance; he attaches to legal advice. The legal adviser to Southern Command was not invited to the situation appraisal ahead of the Gaza offensive and was excluded from smaller planning forums. Yet it was actually Operation Cast Lead that led to something of an improvement in relations between ILD and Gallant.
Ahh well, read it and weep. This is their out.
Twist and shout!