Some are claiming that in recent years, the IDF has become "overly legalistic," in other words, that the specter of prosecution and trial hampers the freedom of action of the military's top brass, the commanders in the field, and the soldiers themselves, as well as their ability to function when they face complex operational challenges. This claim is mainly voiced in the context of the IDF's war on terrorist organizations, who themselves flagrantly violate the rules of war, intentionally attacking civilians and hiding behind human shields.
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The truth is that fighting armed terrorist organizations is much more complicated – legally, as well – than fighting other armies, and that applying international law's rules of war to this kind of battle demands some creative thinking. This is mostly because the other side does not see itself as obligated to international law and tries to leverage the asymmetry of the two sides' commitment to it to improve its ability of achieving its goals.
However the reasoning behind laws of war applies to clashes with terrorist entities, as well. Therefore, the IDF uses their four main principle in its operations: the principle of necessity, which means that military force is exercised only when there is a military purpose in doing so whose focus is protecting the security of the country and its citizens and defeating the enemy; the principle of humanity, which requires that unnecessary suffering be avoided; the principle of distinction, under which an assault distinguishes between military targets and soldiers and civilians and civilian objects; and the principle of proportionality, which acknowledges that assaults on military targets could cause collateral damage to civilians and civilian objects but seeks to ensure that the collateral damage is not excessive in relation to the military advantage resulting from the action.
Unlike the incorrect way in which some critics of international law perceive it, the laws of war acknowledge the needs of countries to fight and defend themselves – against terrorist organizations, too – and seek to prevent or reduce damage that is unnecessary from a military standpoint.
Moral advantage is also a weapon
The IDF is careful to uphold the principles laid out above, not only because doing so anchors its ability to defend itself against lawsuits in the International Criminal Court and other foreign courts, but not only because of the need for international legitimacy to use force, which directly affects the country's ability to import appropriate weapons. The IDF upholds them, first and foremost, because the laws of war align with our own moral codes, which obligate the IDF, as an army in a democratic state, to the rule of law.
It could be argued that in a specific situation, not adhering to the laws of war could lead to greater success in the war on terrorism and in securing deterrence, and reduce the danger to Israel in the short term, but the cost of doing so would be insufferably high. It would harm uninvolved persons, as well as our ability as a people to face ourselves. The moral advantage actually increases Israel's power in the long run.
Mistakes happen, and will continue to happen
In fighting Palestinian terrorism, especially in the rounds of violence with the Gaza Strip, the IDF is shown to implement moral principles and the rules of law in an impressive manner, certainly to no lesser degree than other western armies. Relatively few uninvolved civilians are harmed, and the vast majority who are functioned, knowingly or unknowingly, as human shields.
The head of UNRWA in the Gaza Strip infuriated Hamas and was forced to resign after remarking at the IDF's precision during Operation Guardian of the Walls in May. In fighting Hezbollah in Lebanon, after the group turned countless civilian buildings into military targets (using them as missile warehouses, outlooks, or headquarters), the law allows the IDF to treat them as military targets, accordingly. The number of civilian casualties could be a lot bigger here, but that's because the fighting can be expected to be on an unprecedented scale. The ways of reducing collateral damage that work in Gaza are unfeasible in Lebanon. And that in and of itself is not a violation of international law.
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Upholding the laws of war in each and every case is a humane action that needs to be carried out anew each time, depending on the context. If there is any suspicion that the law was intentionally ignored, the instance must be investigated honestly. However, during war there can be mistakes and errors, some of which might cause unintentional harm to civilians on the other side. Sometimes mistakes are the result of combat requirements being underestimated and too much caution. For example, in the incident in which Border Police Staff Sgt. Barel Hadaria Shmueli was killed, it's possible that the orders did not correctly assess the demands of the situation.
In any case, there is nothing new in applying the laws of war to the war on terrorist organizations. Legal advisors have been taking part in Israel's war on terrorism for decades, and even if the nature of their involvement changes over time, ultimately they were and still should be part of the process, and advise. That is accepted practice in all western armies, and it should be. The final decision lies with the commanders, and it should take into account the legal counsel they receive.
Too easy
In this context, in recent years we have faced two massive challenges. One is the enemy's increasingly sophisticated methods. Among other things, this includes activating groups that portray themselves as human rights organizations, but actually are branches of terrorist organizations (for example, some of the groups Israel recently declared to be terrorist entities with links to the Popular Front for the Liberation of Palestine). Others operate with blatantly anti-Israel motives.
The second goal is the ease with which the enemy is able to enlist new media and some of the media establishment to promote its goals – primarily, slandering Israel and chipping away at its legitimacy. For years, radical left-wing entities throughout the world have been investing considerable means in slandering Israel, able to do so in part by taking advantage of the new reality in which areas of conflict are replete with tools of documentation that can be used to manipulate.
The international system, motivated by political considerations, mostly accepts the double standard of morality that this asymmetry expresses. While Israel is required to meet stringent standards and the former chief prosecutor of the ICC decided to open an investigation against it, no one truly expects the Palestinians to follow their laws of war, even though the ICC investigation is supposedly looking to Hamas' war crimes, as well. Moreover, according to the Palestinian narrative, the battle against Zionism justifies any form of war, including terrorism. And although the Palestinian Authority pays fat salaries to terrorists, it is seen as a legitimate partner in negotiations.
The IDF should continue to operate according to the law, but Israel must also recognize how vital it is for its to improve its abilities in the fights for western public opinion through an emphasis on our morality and our strong commitment to the law. The goal should be to increase the IDF's freedom of operation and restrict our enemies' freedom to operate.
