Law of War Conference

Second Day of Law of War Conference
by Chanoch Ne’eman 

Sivan 5775 (May 2015) Jerusalem

Some weeks ago, on the 5th of May, I attended the second day of a two day conference about law and war, organized by the Shurat HaDin Israel Law Center. Shurat HaDin has successfully sued terror sponsors such as the Palestinian Authority in US courts, when US citizens were among the victims. Shurat HaDin and America are thereby helping to teach Israelis how to make their attackers pay for their deeds, and indeed I saw recently that an Israeli court also sentenced a terrorist to pay a fine to a victim’s family, something we did not used to hear about, but that occurred just a few weeks after the New York Court ruled the PA must pay 218 million dollars to victims’ families.
The conference was held at the lovely Dan Jerusalem Hotel, near the base of Mount Scopus.
The program of the second day included three panel discussions and a talk by Defence Minister Moshe Ya’alon. The panel topics were: 1) rules of engagement in war, 2) targeted killings, 3) The International Criminal Court.
I will recount what were some highlights for me.
Panel member General David Fridovich served as Deputy Commander of US Special Operations. He said his guiding principle in rules of engagement is not to reduce a soldier’s right of self defense. Soldiers train and understand what to do in various situations. Furthermore, the publicly known Rules of Engagement (ROE), are a point of departure. There are usually supplemental ROE, which should remain classified, in order not to give the enemy a seam to exploit.
Panel member Ran Bar-Yoshafat is an IDF reserve officer. He pointed out the reality of war that a soldier is wearing a helmet, carrying a lot of weight, and often finds it difficult to think too much under those circumstances. They need simple rules which they can easily remember and train to do. He prioritized his goals in a military mission as: One – fulfill the mission. Two – protect his soldiers. Three – minimize collateral damage.
Panel member Colonel Richard Kemp had commanded British Forces in Afghanistan. Kemp said he disagreed with a statement of a US commander that the goal should be to try to win over the local population. His experience in Afghanistan led him to feel that the locals often have different mind-sets than us. They respect strength, and may not even appreciate your efforts to avoid harming them.
Gen. Fridovich also sat on the targeted killings panel. He said that when special forces train for such a mission, they train for both capturing and killing. They only kill when the subject tries to kill them. I was surprised that the General expressed the view that the result of the Bin Laden killing was only really political. And I remembered that statement some days later when the journalist Seymour Hirsh claimed that Bin Laden had been under Pakistani arrest. Who knows, but interesting.
Another interesting fact which emerged from the panel was that in the IDF the army attorneys who have a say in operations are not subject to the battle commander and therefore he can not overrule them, whereas in the US army they are under the battle commander’s command and though he consults them, he can overrule them.
The third panel was devoted to the International Criminal Court (ICC). I learned in this session that the ICC is, as Prof. Eugene Kontorovich put it, “not some Olympian Court sitting in Holland and deciding all sorts of cases.” Since it started in 2002 it has rendered three verdicts. The ICC is not connected to the UN. It is a special treaty organization, started by a treaty signed in 1998 in Rome. It has jurisdiction over its constituent states, and significantly neither the US or Great Britain has joined it. They do not want to contend with spurious criminal investigations. Asked why Israel should care about it, panel member Prof. Geoffrey Corn from Texas said ignoring it is not a good option, and that the best proactive thing Israel can do is to conduct its own credible military investigations of its operations.
The day ended with a talk from Defense Minister Moshe Ya’alon. Generally calm in demeanor, Minister Ya’alon often rises on his toes while speaking, as if to emphasize a point. He seemed to be speaking fairly extemporaneously, demonstrated also by his twice using the word “morality” when he clearly meant “morale” (“These accusations affect our soldiers’ morality.”) But I admit those words are quite easy to mix up for a non-native English speaker.
He cited several instances of frustration in having to “fight the war after the war”, i.e. the public relations war. For example, Israel waited for hostilities to start before eliminating rocket launchers which had been placed in civilian homes in Lebanon, and was still blamed for collateral damage.
For me, the most interesting thing the Defense Minister said was about the IDF battle in Jenin, during the 2005 Operation Protective Wall. Israeli soldiers entered Jenin on foot, and engaged in a fierce house to house battle, in which 23 soldiers were killed and 53 terrorists. As is known, even after this surgical operation, many in the world tried to portray the Jenin battle as a “massacre”.
Ya’alon who was IDF Chief of Staff at the time, said he received strong questions from the families of the fallen soldiers, such as, “Why did you not use artillery fire before the ground troops went in? Why did you not use air-power? Ya’alon said to the conference that those were indeed difficult questions to answer. I guess that is the closest one will get to hearing this particular former Chief of Staff turned politician say, “We made a mistake.” But unfortunately I don’t think the lesson was really internalized, based on what we saw happen in Gaza this summer. There our dear soldiers were again sent in on foot, without basic things such as turning the electricity off in Gaza first being done. I think the soldiers’ parents should have a say in the decision making process before these operations take place.
One problem at the conference was audience questions being too long-winded. I think this problem could be alleviated by having the audience members who line up to ask questions first write their question on an index card, to be approved by a conference official on site. The question should be only one sentence, and if the questioner then said something else than what he wrote, the question would be dismissed. Alternatively a conference official could read the question while standing beside the asker. Since it was Shurat HaDin’s first conference on this topic, we will cut them a little slack for that.

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