IDI Researcher Attorney Eli Bahar discusses the central role that members of Israel's system of legal counsel play in formulating the rules of what is permissible during warfare in real time, during the fighting, in order to ensure that Israel's citizens will not be ashamed of themselves after the fighting ceases.
The major military operations that Israel has waged during recent decades have all been variations on the theme of the fight against terrorism. These include Operation Protective Edge, Operation Pillar of Defense, Operation Cast Lead, the Second Lebanon War (2006), the Second Intifada and the concurrent Operation Defensive Shield, and the many military operations that took place between these operations, known in military jargon as the "battles between the wars." The most striking feature of these operations was combat of varying degrees of intensity within civilian populations, a reality in which the military action relied on—and was often contingent upon—the existence of high quality, reliable intelligence. In addition, in cases in which the conflict involved Palestinian terror organizations, the fighting had an inherent complexity due to Israel’s responsibility for the humanitarian situation of a civilian population that is largely subject to Israel's control over key aspects of its life and welfare.
The complexity of this situation directly impacts one of the key factors that enable Israel to engage in political and military operations: the degree of internal and international legitimacy of its actions. Israel's "credit line" of legitimacy for its military operations is in a state of flux, and fluctuates from moment to moment during the course of a military operation. An additional factor that plays a significant role is the ongoing trend of criticism of Israel by the international community and the image of Israel as an occupying force. This kind of criticism decreases Israel’s line of credit and international support for Israel's military operations from the outset. This trend has been going on for years.
Israel's senior political and military echelon must work within these complicated circumstances, both in setting goals and in determining the means to achieve them. In this kind of complex situation, goals cannot be achieved without clear boundaries defining which military tactics are permissible and which are prohibited. To a great extent, and contrary to what one might think, in order for the Israel Defense Forces and the defense and intelligence organizations that work with it to be "allowed to win," there must be clear rules defining what can and cannot be done—rules that will conserve the reserves of legitimacy that are necessary to enable the state to function. And as stated previously, legitimacy is a resource that is, in fact, fairly limited at the outset, even before the first shot is fired.
Without minimizing the extreme responsibility of Israel's military commanders, the key player responsible for formulating the rules of what can and cannot be done during warfare, and which is largely responsible for implementing the rules in practice, is Israel's system of legal counsel, with all of its components: First and foremost, the Attorney General, followed by the Military Advocate General, the IDF's International Law Department, and, more covertly, the legal advisor of the Israel Security Agency (Shin Bet). These players must address very serious questions such as: Can the homes of terrorists be attacked and if so, under what circumstances? How should the principle of proportionality be applied when harm to civilians is expected? Is it really permissible to raze a residential neighborhood after providing an evacuation warning if the evacuation has not actually taken place? Is it permissible to cut off electricity and water to the civilian population in a combat zone? These and other questions require intensive, first-hand, real-time involvement by the legal advisors of the various defense systems.
The age-old debate on whether "every commander needs to be accompanied by a lawyer" or whether legal advisors should be left out of the operational decision-making process and should only examine operations post factum—an argument that reverberated in the report of the Winograd Commission on the Second Lebanon War—was settled long ago as a result of the growing importance of international law and the increasing complexity of today's combat zones. For the most part, any senior commander with eyes in his head should demand to be accompanied by a lawyer who can assist in identifying the legitimate operational options in a given situation and can serve as an integral part of the decision-making process. This is worthwhile even if the legal authority will hold up a stop sign in some cases and nix certain suggestions and concrete plans of action. Senior commanders who welcome such input understand that being advised by legal counsel does not detract from their own authority or command responsibility and does not reduce their independent obligation to comply with the laws of war and to follow their conscience; rather, legal counseling is an essential mechanism that is intended to prevent complications, loss of legitimacy, and the ensuing damage to Israel’s operational ability.
Understanding the central role of legal advisers in situations of warfare is essential. Actually being able to implement their role in real time is the heart of their jobs, and is even part of the responsibility of the Attorney General. Delineating what is permissible and prohibited and stating this publicly at the actual time of the fighting, in a voice that is loud and clear, is first and foremost the responsibility of the Attorney General, who serves as the supreme legal authority for the entire legal system, including the military. In order for this policy to be implemented, the Attorney General must insist on close and intense involvement of the legal divisions of the IDF and of the Israel Security Agency in military operations themselves, and on the examination of the operations in real-time, based on an independent and professional perspective.
A proper understanding of the importance of the role of the legal system during the actual time of combat, and the unwavering fulfilment of this role according to binding legal norms, are vital for the functioning of this system, which is intended to ensure that Israeli citizens will be able to look at themselves in the mirror without being ashamed on the day after the fighting ceases.
Adv. Eli Bahar is a Research Fellow in IDI’s Democratic Principles project and is the former Legal Advisor to the Israel Security Agency (Shin Bet).