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April 27, 2015
Israelis have long complained about double standards when it comes to their right to fight wars of self-defense. Often times there is a level of scrutiny on Israel’s battlefield operations, unmatched compared to international media evaluations of wars launched by Western countries or even the recent Saudi air campaign in Yemen. Even at a fundamental level, there are some points when Israel’s entire justification for a war of self-defense is undermined by Israel’s detractors eager to delegitimize any substantial military action takes, no matter its opponent.
These, among a host of other issues, will be up for discussion at a special two-day conference in Jerusalem next week called “Toward a New Law of War”, arranged by Shurat HaDin Israeli Law Center. The conference is a spectacle of Israeli and foreign experts from different sectors of public service, the military and the field of international law. Topics will be covered by teams of experts in panel format, including fighting in residential areas, proportionality, defining war crimes, human shields and the International Criminal Court (ICC).
What is lacking in international law that requires this conference here and now? Is it the lack of solid definitions of terms like “proportionality” and “terrorism?” Is it broader than that?
“The law of armed conflict is supposed to protect civilian lives and property,” says Nitsana Darshan-Leitner, Director of Shurat HaDin. “It is not supposed to be used as a weapon in the fight, where one side cynically uses the other side’s compliance with the law to gain an advantage.”
Darshan-Leitner says that it is not necessarily ambiguity about key concepts in the rules of war like proportionality or terrorism that need clarifying, as much as maintaining the integrity of the laws so that they are fairly applied.
She says Operation Protective Edge was just the latest reason to organize this type of event. Hamas has incorporated a cynical strategy, in her words, that seeks to pin civilian deaths on Israeli forces while obfuscating Hamas’ tactics of targeting civilians, which are a matter of fundamental strategy.
“This past summer’s war with the terrorists in Gaza evidenced everything that is wrong with the law. Hamas’ leadership used human shields, targeted Israeli civilians with rocket attacks, and attempted to utilize tunnels to conduct terror-operations against Israeli towns, knowing that if the IDF responded in kind, Israel would face massive international condemnation and allegations of war crimes against it.”
“Hamas determinedly used the laws of war, which are supposed to protect civilians, as a strategy to target and kill Jewish civilians. The current laws of war are an anachronism.”
An issue raised by many in the legal arena – not only in Israel – is that the current rules of war enshrined in the Geneva Conventions do not weigh proper consideration for the effect of non-state actors: terroristorganizations, rebel groups, separatist provinces and the like. Asymmetric warfare presents major issues where enemy fighters operate among civilians and will often wear plain clothes. Thus, without being able toidentify an enemy combatant by his uniform, a soldier will avoid an apparent civilian who is actually a legitimate target.
“We need urgently to discuss fresh ideas for removing the incentive for Hamas and other armed terrorist groups like the PLO and Hezbollah to break the law when they fight against democracies like Israel,” said Darshan-Leitner.
What this might be is an opportunity to place Israel in the complete opposite position from where it sits today: rather than a ‘pariah’ of international law where the Israeli government ignores biased UN resolutions and claims it would not be able to get a fair hearing in international courts, Israeli expertise might be in a position to actually lead major changes in international rules of war that could place Jerusalem in an enviable position in the future.
Would affecting discourse put Israel in a position to have that sort of influence?
“Israeli law professors are renowned for their scholarship in the laws of armed conflict and in International Humanitarian Law,” says Darshan-Leitner, “but we want to expose the larger theoretical world of academicdiscourse to the real world problems that commanders face.”
It is Israeli experience in these matters that is actually placing the Jewish State high above other countries in terms of scholarship.
“Shurat HaDin’s conference is unique in that it brings commanders, scholars and attorneys together to talk about what has not worked and what needs to change. We absolutely can make a difference in the direction which the law takes by bringing together scholars with commanders.”
This would only be the first event, however. When asked if Shurat HaDin foresees a series of international conferences like this, Darshan-Leitner responds in the affirmative.
“Absolutely, this will be an established annual event and the leading conference in the field. We have a truly first-rate group of panelists and moderators and a great venue for what will be a very interesting event. We are grateful for our supporters who have made this possible, and look forward to working with other groups in the future, as the renown of the conference grows.”
Darshan-Leitner added, “We are very excited to have organized this important international conference on this subject crucial to Israel’s defense and survival. Until now the terrorists have use the laws of war as a sucker’s game against democratic armies. As a result the IDF is facing the threat of war crime prosecutions from many directions. We intend to start the international discussion to bring the laws of war into the 21st century.”