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Lawfare: Legally justifying Israeli actions in Gaza

Andrew Williams

In any conflict a military has to deal with more than just the enemy soldiers. Sometimes it has to fight with legal opposition. The use of law as a weapon, both to stop military action and to justify it, is known as lawfare. This article looks at the use of lawfare by Israel during the Gaza conflicts of the past ten years. It includes the use of social media, warning techniques and involving lawyers in the targeting process to help prevent war crimes from occurring.

 

In December 2008 Israel launched an offensive in Gaza. Its stated goal was to stop Palestinian rocket attacks against Israel and prevent further weapons smuggling into Gaza. The three-week conflict involved Israeli airstrikes, ground assaults, and the use of bulldozers. It resulted in the damage or destruction of about 22,000 buildings and the death of about 1,400 Palestinians.



Destroyed urban areas in Rafah, Gaza 2009. Source: International Solidarity Movement

 

 



 




 

Using the law to stop war

The deaths and destruction led to international accusations that Israel had committed war crimes. Critics brought increasing international pressure against Israel to prevent further Israeli military action, claiming the Israeli military had violated the rules of war by deliberately targeting civilians and their homes. In late 2009 the UN had judge Richard Goldstone investigate the accusations of war crimes from both sides of the conflict. The Goldstone Report identified multiple violations by the Israeli military (and also by Hamas). It found that Israel violated international law in that it was too permissive with what it allowed it soldiers and airmen to attack, and that it deliberately targeted civilians.

 

Palestinian civilians and medics run to safety during an Israeli strike over a UN school in Beit Lahia, northern Gaza Strip early on January 17, 2009. Photograph: Mohammed Abed/AFP/Getty Images

 

The public relations battle

 

In face of the report international condemnation began to build against Israel’s military actions, so it sought to reduce the pressure. Israel used a social media campaign to promote its right to defend itself against the Hamas rocket attacks originating from Gaza. They continued the campaign in later Gaza conflicts such as Israel’s Operation Pillar of Defense in 2012.

Israel used social media to promote its right to self defense in the face of criticism of its offensives in Gaza.
Source: Israel Defence Force on Twitter

The destruction of homes

During the conflict, Israel destroyed buildings that are normally considered civilian targets, including houses, power stations and mosques. Israel defended its targeting practices on social media stating that Hamas had used those civilian facilities for military purposes, so they could legally be destroyed just like a military target.

Israel used social media to explain its attacks on civilian buildings.
Source: Israel Defence Force on Pinterest

 Minimising collateral damage

Israel also promoted the measures it took to minimise civilian casualties during these attacks by using ‘warning techniques’. In his writings, Professor Eyal Weizman described the use of radio, TV and megaphone broadcasts, leaflet drops and widespread SMS messages to warn people to leave their homes before destroying an area being used by Hamas.

An Israeli military officer explained that anybody who remained in the building after the warning could be legally treated as acting as a voluntary human shield, and – while not technically a combatant – they could be ignored in any considerations of collateral damage. Israel used these warnings to show it was attempting to minimise civilian casualties.

 

These examples show how Israel fought back against attempts to restrict its actions. Where critics attempted to stop Israel through the rule of law, Israel used social media to explain how it considered its actions to be legally justified.

 

Warning techniques were promoted by the IDF as a method it was using to minimise civilian casualties.

Source: Israel Defence Force on Twitter

Lawyers and the battlefield

 

In addition to publicly promoting the legality of its actions, Israel made extensive use of lawyers as advisors to its military commanders during the conflict to actively avoid committing war crimes. This was especially the case in their close involvement in choosing and approving targets for strikes, the process known as targeting. Professor Weizman provides a good description of their involvement in targeting.

 

Prior to and during a conflict, Israeli military planners would present a list of proposed targets to a special committee made up of senior military officers and at least one military lawyer. The lawyer reviews the target list to ensure the targets are legitimate. Israeli lawyers also work in the command centre to provide on the spot assessments of the legality of targets during a battle such as when providing air support to troops on the ground. 

In both types of situations they take into account information such as the importance of the target, the potential for civilian casualties and intelligence assessments of the situation. Often they will have to provide an opinion that is not conclusive. A conversation in the command centre may go along the lines of,

‘We have seen military personnel enter the building carrying weapons, therefore they are a legitimate target. The building shows no signs of being currently inhabited by civilians – we have seen no civilians enter or exit, there is no laundry hanging up outside, the blinds are shut. Under the circumstances you could legally destroy the building. However, if it turned out it was an orphanage we would be in big trouble.’



The role of the lawyer in assessing the

legality of drone strikes was portrayed

in this scene from movie Eye in the Sky.
Source: YouTube

In this case the commander then takes that advice and decides whether or not to proceed with the strike.

In both types of targeting Israeli legal advisors are involved throughout and are part of the final check before a strike is authorised. Thus, they play a key role in warfare in Israel and help to protect commanders from committing a war crime.

 

The case of Israel in Gaza shows how a military can respond to increasing international pressure and allegations of war crimes. Israel used the law to justify its actions from a legal perspective, and this reduced the legal pressure enough to allow it to continue to pursue its goals in Gaza. Lawfare and lawyers will remain a key part of its strategy in the future.