How IDF legal experts legitimized strikes involving Gaza civilians
by Yotam Feldman and Uri Blau
http://www.haaretz. com/hasen/ spages/1057648. html
The idea to bombard the closing ceremony of the Gaza police course was
internally criticized in the Israel Defense Forces months before the
attack. A military source involved in the planning of the attack, in which
dozens of Hamas policemen were killed, says that while military
intelligence officers were sure the operation should be carried out and
pressed for its approval, the IDF’s international law division and the
military advocate general were undecided.
After months of the operational elements pushing for the attack’s
approval, the international law division gave the go-ahead. In spite of
doubts, and also under pressure, the division also legitimized the attack
on Hamas government buildings and the relaxing of the rules of engagement,
resulting in numerous Palestinian casualties. In the division it is also
believed that the killing of civilians in a house whose residents the IDF
has warned might be considered legally justified, although the IDF does
not actually target civilians in this way.
Many legal experts, including former international law division head
Daniel Reisner, do not accept this position. “I don’t think a person on a
rooftop can be incriminated just because he is standing there,” he said.
One reason for the international law division’s permissive positions is
its desire to remain relevant and influential. Sources involved in the
work of the Southern Command said that its GOC, Maj. Gen. Yoav Gallant, is
quite suspicious of legal experts and has a reputation of not attaching
much importance to their advice. The Southern Command’s legal adviser was
not invited to consultations before the attack, and was compartmentalized
when it came to smaller forums. It was actually during the action in Gaza
that consideration for his opinions grew.
The legal addendum to Operation Cast Lead’s order shows the way the IDF’s
legal experts legitimized the army’s actions: “As much as possible and
under the circumstances of the matter, the civilian population in a target
area is to be warned,” it states, adding “unless so doing endangers the
operation or the forces.”
The addendum orders commanders to be extremely cautious in the use of
“incendiary weapons” (for example, phosphorus bombs), but does not
prohibit their use: “Before using these weapons, the the military advocate
general or international law division must be consulted on the specific
case.”
A source who served in the division in the past says it is “more liberal
than the attorney general and the High Court petitions department.” “The
army knows what it wants, and pressure was certainly brought to bear when
legal advisers thought that something was unacceptable or problematic, ” an
operational military source said.
According to a senior official in the international law division, “Our
goal is not to tie down the army, but to give it the tools to win in a way
that is legal.”
