Prof. Ruth Gavison vs. International Humanitarian Law

I have been sitting on this way too long. Sol Salbe was kind enough to translate an article from Haaretz, untranslated on their website, that fits into my recent theme -- the struggle of some Israeli academics against international human rights organizations and institutions. The last post was about Gerald Steinberg's NGO Monitor. This one is about law professor Ruth Gavison's criticism of International Humanitarian Law before the Winograd Commission, which is investigating the government's handling of the Second Lebanon War.

The article is long but worth going through. A companion article, by ultra-rightwinger Caroline B. Glick, has a different perspective on international humanitarian law. Basically, she assumes that everything Israel does is moral (because we are Jews, right, and she is, too), and so anybody who criticizes Israel (not from the right, of course) is immoral. So Caroline is worried that unwarranted concern with international humanitarian law may be tying the hands of the Israeli government. This is the 'we-lost-the Lebanese-war-because-we-were-stabbed-in-the-back-by-the-lawyers' claim.

You mean you don't know about Ms. Glick, one of the most famous "journalists" in the world because in the heady days of the Iraq war,she "scooped" all her colleagues by reporting the discovery of an Iraqi plant that manufactures weapons of mass destruction? This was huge news until it was discovered that Glick fabricated the whole thing. Of course, any responsible news agency would have sent her to hell for letting her biases manufacture a cock-and-bull story. But since she works for rightwing tabloids which aren't exactly known for their journalistic ethics, she stayed on. Now she is the deputy managing editor of that yellow rag for the Anglo-Israeli subculture, the Jerusalem Post, and works for a neocon think-tank in DC -- both ideal outlets for her rare talents.

Anyway, please notice how former head of the Association of Civil Liberties in Israel, Ruth Gavison, and possibly a future Supreme Court Justice, wants to do away with -- oh, sorry, "modify the application of" -- International Humanitarian Law.

When it comes to her contempt for international humanitarian law and its institutions, Gavison out-Dershowitzes Dershowitz. She argues that international humanitarian law prolongs conflicts because states are hampered in their ability to come to a decisive conclusion. Wouldn't it be better for civilians to have a nasty, brutish, and short war instead of a long, protracted conflict conducted according to Hoyle?

The mind boggles.

Ruth and Caroline, rest assured. No lawyers, government or military, hampered Israel's military activities during the Second Lebanese war, nor will they ever do so. Like any good lawyer, the attorney general and the IDF judge advocate office will always see their job as protecting their client's tukhes -- nothing more.

I am not making this up. Read on.

Are the rules of war worth having?

Meron Rapaport

The testimonies to the Winograd Commission, which were suddenly released for publication out of nowhere, are reminiscent of a marathon runner who arrives at the starting line after the race has been run and everyone has gone home. They are simply not related to anything real. MK Zahava Gal-On of Meretz took up the cudgels and fought for a full release of the transcript. The commission objected. Bagatz (the High Court of Justice) concurred with Gal-on. The Commission remained adamant and Bagatz went to water. Eventually there was an agreement that sections of the testimonies would be released after being vetted and censored by the commission itself. The commission has carried out that task at its own pace – so much so that it has already developed a reputation for tardiness. Comparing the released testimonies to cold spaghetti is unfair to cold spaghetti,

On Tuesday 18 December, precisely eleven months after they were given, two testimonies were released, that of the Attorney-General [Menachem] Meni Mazuz and the Military Advocate General Avihai Mandelblit (who had resigned in the meantime). Their testimonies dealt with the legal aspects of the Lebanon war. It is hard to make the case that the commission members made it tough going, at least to go by the published excerpts. (Certain sections of the testimonies were deleted, although not as much as from other testimonies.) The central question that preoccupied the commission members was not whether the IDF had struck at Lebanese civilians without sufficient reason. Nor were the commissioners concerned with the issue of possible IDF transgression of international law. No, the commissioners wanted to know whether the law officers had tied the hands of the IDF during the war.

Mazuz and Mandelblit set them at ease and assured them they had not interfered [with operations]. The commission members concurred. They acknowledged that none of the other officers who testified before them had complained about the law officers getting in their way. At any rate, the commission’s transcript suggests that Israelis view international law as a flexible concept.

Commission member Professor Ruth Gavison reported that some ministers put forward proposals “that on the surface seemed to be not quite in accord with international law” (maybe she had Haim Ramon’s and Eli Yishai’s proposals to flatten Bint Jbail in mind). But in their testimony, the two ministers stated that their proposals were indeed in line with international law. “They adopted the need to argue that they operated within international law”, said Gavison, and it is hard to tell if she is expressing satisfaction or cynicism.

Gavison is the central protagonist of these testimonies. She asks most of the questions. She also shows a profound theoretical interest in what’s allowed and what’s forbidden in war. Her curiosity is not accidental. It is derived straight from her background. Two of the commission’s members – Menachem Einan and Haim Nadel – are former generals. Professor Yehezkel Dror has always dealt with systems, not people. But Gavison used to be the president of the Association of Civil Rights in Israel, and these are the kind of matters that interest her. This led to an interesting exchange between her and Mazuz.

Gavison raises a question that has troubled her for some time: “War is an attempt to resolve a conflict through force. Sometimes it is better for all sides if the conflict is resolved quickly rather than lasting for decades… If there is no resolution, then perhaps in the short run fewer people are killed, but the corollary is that we do not eventually arrive at a stable situation and further years of calm.”

International law, as it stands now, for all its limitations, actually prolongs conflicts, argues Gavison. “A situation exists in which the legal system is the very system that inhibits a quick resolution to a conflict,” says the former president of the Association of Civil Rights in Israel. “… An argument can be made that on some occasions it is permissible to take steps that will result in higher civilian casualties in the short run, not on the simplistic level, but on the deep fundamental level of the functioning of international law.” In short, Gavison is wondering if one should not permit, legally speaking, a higher civilian casualty toll in order to hasten the end of a war.

Mazuz appears startled. “I’m not familiar with any fundamental concept in international law that will lead one to the view that seeing the laws of war are hindering the fighting sides, the limitations of these laws should be eliminated in order to ensure a clear outcome, even if the means to achieve this…”

Gavison: “Not necessarily give up altogether, but a modification is a possibility.”

Mazuz: “This implies giving up on some of the principles. I am unfamiliar with this viewpoint. The predominant tendency in international law is to move in the opposite direction of a tightening of the rules and imposing increasingly stricter limits.” According to him there is an increased emphasis on the prevention of civilian casualties rather than the opposite direction. He subscribes to this direction. That’s the way a law-abiding states ought to behave, in his view. In addition he observed that past wars, those took place before international law began to crystallise about a century ago, were neither fast nor clean, on the contrary, they were the very opposite.

Gavison remains perturbed: “We are not about to get into a seminar here, but I must confess that I find your analysis rather difficult to comprehend,” she tells Mazuz. According to her, international law is political and it is biased and therefore troublesome. “The rule of law in the context of international jurisprudence is something that can be used rhetorically but adopting it as an actual stance runs the risk of a strategic threat.” Like the minister who wanted to flatten Bint Jabil, Gavison wants to address the world with international law, but not actually adopt it,

Given that this was the committee’s prevailing attitude, it is no surprise to discover that both Mazuz and Mandelblit quickly skip over the difficult moral and legal questions raised during the Lebanon war. There are barely two or three sentences devoted to the question of civilian fatalities. Mandelblit says that “he does not have a clue” why there are no clear data as to the number of fatalities. Mazuz “surmises” that “hundreds of Lebanese civilians” were killed in the IDF’s bombardments. The question of Israel’s massive use of cluster bombs, which a few months later led to an internal investigation within the IDF, does not rate a mention at all in the January testimonies. In the material that is not blanked out, only one operational incident gets examined in detail, and that is the bombardment of Kafr Kana. On that score, Mazuz says: “The incident complies in an enhanced way with the full gamut of international law.”

If Mazuz sounds philosophical and contemplative, Mandelblit is positively smug. He explains the innovative work of the military advocate-general to the commission’s members. In other word,s the MAG’s office came up with the notion of defining the Second Intifada as an “armed confrontation” which in turn removed some of the constrictions on IDF operations. This “innovation,” treated as if it were the product of a high-tech start-up outfit, has now been adopted around the world, says Mandelblit. Gavison compliments him. “Israel is doing pioneering, sacrosanct work” in this field,” she says.

According to Mandelblit’s testimony, he was not exactly run off his feet with work during the war. He had to explain to the Chief of Staff that artillery fire directed towards a town centre was illegal under international law because of the “indiscriminate nature” of civilian casualties. But that was a purely theoretical explanation. “I don’t think that they (the IDF) want to attack civilian targets, there is no such thing. I don’t think that you’ll ever hear of the State of Israel attacking civilian or prohibited targets.”

Gavison and the rest of the commission’s members put the brakes on slightly. Maybe it would be better, they argued, for the MAG to move aside altogether during war, and thus commanders would be able to act freely. Afterwards the MAG would be able to punish them appropriately, if applicable. Naturally Mandelblit soothes them down. Matters already operate in this fashion anyway. He, as the Military Advocate General, moved aside during the war. “And therefore during the war I did not wear my law-enforcement hat. My role is to help the IDF win. Like every other IDF officer… During the war only advice was provided, no other thought was contemplated about just how to assist the operational units.” So now, to paraphrase the Hebrew, how do you go about catching those who fired cluster bombs on towns and villages in south Lebanon?