IDF Lawyers Now Coming Under Fire for Their Counsel During Gaza Conflict

By Nathan Jeffay

Published March 25, 2009, issue of April 03, 2009.
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Rarely has the appointment of a law lecturer led to so much controversy. Students will now be learning law “from someone who helped justify the killing of civilians,” a Tel Aviv University lecturer complained to Haaretz after learning that Pnina Sharvit-Baruch is now a fellow faculty member.

After her appointment in January, the university came under pressure from inside and outside to reverse its decision. The reason for the controversy was that until shortly after the Gaza operation, Sharvit-Baruch headed the Israel Defense Forces’ international law division.

For some, this role made her a symbol of everything they abhor about the IDF’s conduct. More important, it made her the person who wields the rubber stamp that gives the IDF a mark of legitimacy. For others, however, she represented the force of law within what claims to be the most moral army in the world.

The controversy surrounding legal instruction within the IDF has surfaced again in recent days, following the release of a critical United Nations report and the emergence of allegations by soldiers that misconduct and serious violations of the army’s rules of engagement took place in the recent Gaza campaign. A March 24 report by Physicians for Human Rights also detailed allegations that Israeli soldiers had “repeatedly” acted in violation of international law, the IDF’s own code of ethics and “basic human values.”

The soldiers making the allegations painted a picture of an army lacking red lines. One said in his testimony that he sensed an attitude among comrades that “inside Gaza you are allowed to do anything you want, to break down doors of houses for no reason other than that it’s cool.”

Among Israel’s legal minds, there is concern that while army lawyers are unlikely to have sanctioned the kind of conduct being alleged, they may have created a permissive atmosphere that was conducive to such misdeeds. “When you employ very fine distinctions that are hard for even lawyers to implement, it creates conditions more liable to abuse,” Hebrew University law professor Yuval Shany told the Forward.

The debate in some ways mirrors the controversy that has emerged in the United States over the role played by such government attorneys as John Yoo, whose legal opinions radically narrowed the definition of torture. This allowed American authorities to expand the kinds of physical and psychological punishments, including water boarding, that they could inflict on prisoners taken captive during the government’s war on terror. Critics charge — and Yoo denies — that this also helped create the atmosphere in which soldiers at Abu Ghraib eventually abused and tortured Iraqi prisoners as captured in pictures that shocked the world in 2005.

Orna Ben-Naftali, dean of the law faculty at the College of Management, claims that in the past decade, international law within the IDF has become bankrupt. “My impression is that the interpretation [of international law by IDF lawyers] is so open-ended that it risks turning law into an institution of power rather than an institution that limits power,” she said. “And if law does not serve to limit power, it has become bankrupt.”

Those criticizing the IDF tend to deem the investigation getting under way in response to the soldiers’ allegations — an internal army probe — to be inadequate. The Association for Rights in Israel, together with 10 other Israeli human rights groups, pointing to the “unaccountability of internal military investigations,” have called on Attorney General Menachem Mazuz to reconsider his refusal to establish an independent investigative body to examine the military’s actions during the Gaza campaign.

The IDF said it was unable to comment on general issues related to its legal positions by press time. But it has rejected charges of misconduct in a recent U.N. report, such as the allegation that Israeli soldiers used Palestinian civilians as human shields.

The suggestion that IDF lawyers have become more flexible in the past decade is not limited to the army’s critics. The IDF’s defenders acknowledge and justify this.

“We find ourselves more and more involved in fighting terrorist organizations hiding behind civilians, and realize that we should implement the old rules in a more flexible way,” said Emmanuel Gross, a former senior chief district judge within the IDF.

The Israel media have published examples — unconfirmed by the IDF — of army activity that appears to employ increasingly liberal counsel. And the recently released report by Physicians for Human Rights cited cases in which, it claims, the IDF conduct clearly violated international law.

A report in Ma’ariv claimed that new rules of engagement have been adopted, under which soldiers can enter buildings using bulldozers instead of doors and under which once an area has been leafleted and people asked to leave, “those remaining can be regarded as suspicious.” Critics say such warnings are of no use in crowded Gaza, as it is unclear to civilians where they are supposed to run.

Gross, who is now a law professor at Haifa University, said besides believing that advice at the top has become more flexible, he is “under the impression that maybe some commanders on guard interpret restrictions in a more flexible way, so if you are facing danger to your soldiers, you don’t take that danger.”

For Gross, these shifts are justified responses to the new challenges facing the IDF; for critics like Shany, they translate to a lowering threshold of suspicion for opening fire and are a cause for concern. “The formula [that] appears to have been struck between military concerns and humanitarian concerns could be immoral and illegal,” he said.

Sharvit-Baruch declined to be interviewed for this article, but her predecessor, Daniel Reisner, said those suggesting that increased effort to avoid IDF causalities means decreased concern for civilians are mixing apples and oranges. He told the Forward: “One should differentiate between the questions [of protecting civilians and protecting troops]. Must you endanger your own soldiers?”

Reisner’s analysis of the state of legal advice in the IDF clashes sharply with that of Shany, Ben-Naftali and Yehuda. Reisner said that the IDF has never been as concerned with law as it is today, and that lawyers are exceedingly cautious.

Between 1995 and 2004, when Reisner headed the international law department, the IDF went from a situation where lawyers were uninvolved in operational matters to a situation where they were deeply involved. The 2006 Lebanon War and the Gaza operation were the first two major conflicts where IDF lawyers — whose role is advisory — were embedded in commands on the ground.

“My feeling is that the army as a whole took unprecedented steps [in the Gaza operation] to adhere to the laws of war,” Reisner said. “I definitely do not see a decline in the care taken by the military lawyers.”

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