Israel will consult legal advisers on future military action

The announcement that Israel will consult legal advisers before and during future conflicts suggests that Israel has undergone an internal assessment of the Gaza war and is hoping to improve conduct and preclude attempts at war-crimes charges.

Amir Cohen/Reuters
Israeli soldiers in basic training walk together along Zikim beach, just outside the northern Gaza Strip, Tuesday.

After an overwhelming attack on Gaza by Israeli forces a year ago, the Israeli army was accused of contravening laws of war – including shelling of civilians with white phosphorus munitions, and destroying civil infrastructure like water purification and sewage plants, and even targeting a relatively remote egg farm that supplied much of Gaza.

Israel has insisted that the Israeli Defense Forces contravened no war-crimes laws in trying to stop Hamas missile attacks in its "Operation Cast Lead," as the war was called -- and it has refused the kind of self-review needed to block prosecutions of war crimes, either by third-party national courts or the International Criminal Court (ICC) at The Hague.

Yet a new directive by Israel’s military chief of staff, Lt. Gen. Gabi Ashenazi, ordering future military operations to be attended by legal advisers, suggests that Israel has undergone some kind of internal assessment of the war, and is attempting either to improve conduct in future military operations or preclude future attempts at war-crimes charges.

“New rules suggest that Israel is trying to show, under the principle of command responsibility, that military leaders under battle are aware of their responsibility, and that subordinate soldiers are aware of principles set forth in the Geneva Conventions,” says Mark Ellis, director of the International Bar Association in London. “I applaud the step toward responsibility, though it would not create immunity for Gaza."

The announced policy comes at a time when Israeli opposition leader Tzipi Livni, who was foreign minister during the Gaza operation, recently canceled plans to visit London following issuance of an arrest warrant by a British court, which used the legal claim of “universal jurisdiction” to prosecute war crimes. And last week, fearing arrest warrants in Great Britain, several Israeli military officers canceled a trip when British authorities said they could not guarantee the officers would not be arrested.

Legal advisers would be consulted during battle

Under the new rules, the Israeli army would consult legal advisers not only during planning stages, which Israel says it did ahead of Gaza last year, but also during battle.

Under international law, a state can block war-crimes prosecution if it shows “good faith” in conducting self-review of its behavior. So far, Israel has said it is satisfied that its behavior in the Gaza war, which inflamed Arabs and drew severe criticism in Europe, was appropriate.
Yet the determination of a need to improve IDF operations, coming after Israeli soldiers, in a movement called “breaking the silence,” were critical of the army’s behavior, indicates that Israel has in fact reviewed its operations and has found that it fell short of its professed satisfaction that illegal or excessive military acts did not occur, some analysts say.

Reports from Gaza after the conflict, which included a UN report authored by eminent jurist Judge Richard Goldstone of South Africa (himself Jewish) suggest that of some 1,400 deaths of Palestinians in Gaza, the civilian toll was as high as 900 persons, including many children. Israel suffered 13 casualties. The report recommended that both Israel and Gaza authorities formally investigate allegations, and that, lacking this, that the Security Council take it up.

Israel did not cooperate with the Goldstone Report, as it is known, forcing the Goldstone team to enter Gaza from Egypt. Israeli officials and media have decried the report as biased. The UN General Assembly voted to refer it to the Security Council, but the US did not; the US House of Representatives on Nov. 3 voted 344 to 36 to condemn the report. Earlier, the Obama administration pressured Palestinian leader Mahmoud Abbas to seek to suspend immediate action on the report's recommendations.

ICC chief prosecutor Luis Moreno-Ocampo has begun a preliminary investigation into the Gaza war. Analysts like Mr. Ellis argue that the ICC is unlikely to try any Gaza case, since Israel is not a signatory to the Rome Statutes that govern jurisdiction, and that the court cannot of itself “recognize” Gaza as a state. It would require the Security Council to “refer” the case to the ICC, as in the recent example of indictments against Sudan, for a prosecution to move forward.

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