JERUSALEM — A decision by Israel to take legal advice during combat marks a belated acknowledgment that its international standing has been badly wounded by last year's bombardment of Gaza.
Israel now realizes it can no longer ignore criticism of alleged war crimes, which it denies. Still, the move by chief of staff Maj. Gen. Gabi Ashkenazi’s — involving increased participation of army legal advisers in real time — is a limited step and perhaps a largely cosmetic one.
According to the decision, legal officers will be involved in battle decision-making and a greater emphasis will be placed on educating officers in the rules of war and international law. The officers reportedly did take part in the planning of the three-week operation launched in Gaza in late December 2008 but reportedly were rarely consulted after it was launched.
“It seems that the army has concluded that the world wants to see us do something,” said Yossi Alpher, former director of the Jaffee Center for Strategic Studies. But, he added: “This may just be for show.”
It is no coincidence that Ashkenazi took his decision days after Israeli officers were forced to cancel an official visit to Britain because London could not guarantee they would not face arrest under universal jurisdiction provisions for alleged war crimes in Gaza.
Last month, a London court issued an arrest warrant against the Israeli opposition leader and former foreign minister, Tzipi Livni, for alleged war crimes in Gaza. The warrant was rescinded after it emerged that Livni had cancelled her trip.
But beyond the universal jurisdiction threat is Israeli embarrassment over the report last year of a U.N. team headed by Richard Goldstone, a South African jurist. The probe found both Israel and Hamas guilty of war crimes. But it leveled most of its criticism at the Israel Defense Forces for alleged abuses during the three-week conflict that took the lives of an estimated 1,400 Palestinians and 13 Israelis. Israel said it launched the operation in response to Hamas rocket attacks on its southern towns.
The report, which alleged that the Israeli military justice system does not meet international standards, was endorsed by the U.N. Human Rights Council and theoretically has paved the way for prosecutions of Israeli officers at the International Criminal Court. It charged there was strong evidence of “grave breaches” by Israel of the Fourth Geneva Convention, including willful killing, torture or inhuman treatment willfully causing great suffering or serious injury and extensive destruction of property. It also alleged use of civilians as human shields by the Israeli troops.
The government boycotted the inquiry rather than present its case on the grounds that the probe’s mandate was biased.
Ashkenazi’s decision, as well as the army advocate-general’s meeting with U.N. and U.S. officials recently, appear to be a step away from the “to hell with world opinion” approach.
But it is certainly worlds away from the state commission of inquiry demanded by Israeli doves or the investigations the Goldstone commission said would be needed to obviate referral to the ICC. An inquiry commission was never a realistic possibility because the overwhelming majority of the Israeli public views the war as a justified response to years of rocket fire. They believe Hamas is responsible for the civilian casualties on the grounds that it used the civilian population as human shields. No politician considering re-election would support a state probe or even anything more than mild criticism of the army.
The apparently cosmetic nature of Ashkenazi’s order appears rings true in his reluctance to move the legal advisers physically closer to the action — say, in battalion headquarters, as is the case with many Western armies — keeping them instead in divisional headquarters.
Moreover, Israel’s leading human rights organization, B’tselem, argues that the problem is not the degree of involvement of the army lawyers but their legal interpretations. It has called on Israel’s attorney-general to investigate “the involvement of army legal echelons in approving attacks on targets that were not legitimate targets.” The military denies that illegitimate objectives were targeted.
“Adherence to the principles of international law such as proportionality does not necessarily stem from inserting the legal people,” said B’tselem spokeswoman Sarit Michaeli.
Indeed, judging from the pronouncements at the time of the war, it seems that the high toll in Gaza was less a function of how involved the army lawyers were than of the mindset of Israel’s leaders.
More than two weeks into the war Livni told Israeli radio that Israel was deliberately “going wild” in its use of military force in order to restore its deterrent capability. “We have proven to Hamas that we have changed the equation,” Livni said. “Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on it, it responds by going wild — and this is a good thing.”