David Rivkin

Top Washington lawyer and former official David Rivkin will discuss Israel-related strategic and legal issues. Readers can send questions

David B. Rivkin, Jr., is a partner in the Washington office of Baker Hostetler LLP, a Visiting Fellow at the Nixon Center, and a Contributing Editor of the National Review magazine (more bio here). Rivkin has served in a variety of legal and policy positions in the Reagan and George H. W. Bush Administrations, including stints at the White House Counsel's office, Office of the Vice President and the Departments of Justice and Energy. While in the government, he handled a variety of national security and domestic issues, including environmental and energy policy, tax, trade and constitutional issues. Prior to embarking on a legal career, he served during the 1970s and 1980s as a defense and foreign policy analyst, focusing on Soviet affairs, arms control, naval strategy and NATO-related issues. Rivkin is a member of the Council on Foreign Relations.

He recently visited Israel with The Israel Program on Constitutional Government funded by Keren Keshet (The Rainbow Foundation). We will discuss Israel-related issues, and will start with Rivkin?s recent article in The Washington Post The Myth of Occupied Gaza.

Readers can send questions to rosnersdomain@haaretz.co.il.

Dear Mr. Rivkin,

Lately there has been increasing speculation about the Israeli strike on Iran. Since according to his eschatological beliefs Ahmedinejad is looking forward to a nuclear exchange with Israel because he believes it will trigger the return of the 12 Imam, it is obvious that Israel has no choice but to destroy the Iranian nuclear sites before Iran gets the bomb. Since the targets are many, and they are well protected and it is crucial that they be thoroughly destroyed, Israel would have to use a sequence of 5000 lb class BLU-113 bombs or tactical nuclear weapons. Would you comment on the legal point of using tactical nuclear bombs, having in mind that the US has already used an order of magnitude more powerful weapons even when the existence of the country was not at stake.

Sincerely,

Mladen AndrijasevicBe'er Sheva

Dear Shmuel:

As a matter of policy, any first use of nuclear weapons is an extremely momentous decision and can be justified only in the most dire of circumstances. Any first use of nuclear weapons by Israel would be an even more momentous decision, given the unfortunate "double standard" which the international community applies to judging all of Israel's military actions. However, given Ahmadinejad's declaratory policy of seeking to obliterate Israel, an Israeli decision to launch a preemptive strike against an entire array of Iran's nuclear targets would be justifiable in certain circumstances. (I assume that given the number of Iranian nuclear targets, their dispersal and "hardness," Israel would not have high confidence conventional strike options.) These circumstances would basically have to entail an imminent deployment of nuclear weapons by Iran, coupled with the realization that there are no other viable options left for blocking Tehran from such a deployment. While an Israeli first nuclear use against Iran would be certainly justifiable in such circumstances, you should be under no illusion as to what kind of reaction it would elicit; Israel would encounter a howl of international condemnations, boycotts, and diplomatic isolation the likes of which it has never seen. Its nuclear strike against Iran is also likely to trigger a regional nuclear arms race and precipitate many other dangerous and unpredictable consequences.

As far as the law is concerned, despite the existing ICJ advisory opinion concerning nuclear weapons, I don't believe that there is any binding norm of international law that governs their utilization or prohibits nuclear use. Thus, the normal principles of jus ad bellum -- governing the circumstances where the resort to force is legitimate -- and jus in bello -- governing the ways in which force can be used -- would apply to any nuclear use by Israel. It would have to take exceptional care to ensure that it attacks only military targets and keeps collateral damage to the minimum levels possible. I have no doubt that IDF planners will endeavor to comply fully with all of the relevant jus in bello norms.

Best regards.

David

Dear David,

These 3 questions are from readers of Rosner's Domain. Please try to respond briefly to all:

1. If Israel failed in Lebanon, why would you urge it to invade Gaza and what gives you the impression that it can succeed this time?

Israel failed in Lebanon because it conducted its military operations poorly and did not have adequate intelligence about Hezbollah's military capabilities. I have not suggested that IDF inherently cannot defeat a well-armed terrorist army.

2. If Hamas is now the half legitimized ruler of Gaza - what does it mean? why is it important?

It means that Hamas, despite its professed policy of seeking Israel's destruction (always keeping in mind that Israel is a recognized nation state and a member of the United Nations, and seeking its destruction is a violation of international law) and waging an indiscriminate terror campaign against Israeli civilians, has been granted at least a modicum of legitimacy and acceptance by a sitting Israeli government. This rewards the most extreme anti-Israeli forces and enhances their prestige among the Palestinians and within the Arab world as a whole.

3. Aren't you mistaken by applying American legal arguments to the Israeli scene? Some of the point you make about the Supreme Court do not take into account the difference between the two legal systems.

I am, of course, speaking as an American lawyer. However, in my view, the points -- about the need for a democratic basis for all exertions of judicial power and about the numerous legal and policy problems caused by the Israeli Supreme Court's unjustified reliance on the "new" international law norms -- are valid, whether made by an American lawyer or an Israeli one.

Dear David,

I will quote this time from an article published in Haaretz Monday (by Amir Oren:

"When the IDF prepares its plans, it does so with the Supreme Court in mind. The military advocate general, Brigadier General Avihai Mandelblit, recently visited Washington. One of his visits was to the office of U.S. Chief Justice John Roberts. At the end of the meeting, Mandelblit and his hosts, U.S. officers, went to the Supreme Court's souvenir shop. At the entrance they ran into Justice Antonin Scalia, who shared with the American officers stories of the wonders of the Israeli Supreme Court, which rips apart the defense establishment with rulings on the separation fence, and much more, not allowing it to operate unhindered."

You spent time in Israel recently, and thought about the way law and the courts influence strategic decisions. Do you find Israel in good shape when it comes to the relations between the legal system and the defense apparatus?

Thank you,

Shmuel

Dear Shmuel:

This is my third response. It gives me no joy to say this, but Israel is emphatically not in good shape when it comes to the relations between the legal system and the national security establishment. This is the case because the current status quo, whereby the Israeli Supreme Court has become deeply enmeshed in a host of defense policy-related issues, presents some fundamental problems. These problems already exist and are likely to become much more acute in the future. They also fall into two distinct categories.

The first problem is the matter of legitimacy, an issue of enormous importance to all democratic body polities, and of particular significance to those democracies unfortunate enough to find themselves in the middle of protracted and costly wars and counter-terrorism campaigns. Israel, of course, is precisely in such a position. While I am not an expert on Israeli law, I certainly know that Israel has no written constitution, a la the U.S., which constrains the majoritarian choices. Thus, as a technical and legal matter, the Israeli Supreme Court can only legitimately interpret Knesset-passed legislation; it cannot invalidate it, in whole or in part. Likewise, to the extent that Knesset has not seen fit to pass legislation that constrains the ability of IDF or any other entities within the Israeli government, e.g., the Ministry of Defense, to exercise their professional discretion in dealing with defense-related activities, I am aware of no legitimate basis upon which the Israeli Supreme Court would intervene to override or constrain the exercise of such a discretion. Yet, to state the obvious, this is what the Israeli Supreme Court does, day in and day out, across an entire range of defense-related activities, including fence construction, the so-called targeted killings, interrogation and detention of captured Palestinian terrorists, operations of check-points, and handling of other types of security-related issues in occupied territories, etc.

I have posed the question, and quite bluntly at that, of what the underlying legal basis is of the Israeli Supreme Court activities in this area to the Chief Justice, Dorit Beinisch; I was part of a small group of people who had lunch with her during her recent visit to Washington. She basically side-stepped the question, arguing at length instead that the Court's supervisory role was necessary, for reasons both moral and pragmatic. From a moral perspective, the Court had to ensure that majoritarian political processes in Israel did not harm human rights, a problem, in her perspective, that is particularly acute given the tremendous strains that decades of wars and terrorism have put on Israeli society. From a pragmatic perspective, she felt that the Court's involvement was essential in buttressing Israeli's international legitimacy, particularly given how much the rest of the world views Israeli national security policies. Needless to say, I found her answers to be utterly wanting and told her so in the most respectful manner possible.

For an American lawyer like myself, who venerates democracy and accountability, and believes accordingly that a written constitution provides the only legitimate basis to constrain democratic choices, the notion that the Israeli Supreme Court is playing this supervisory role merely because this is the right thing to do, is the height of judicial hubris. This is not to say that judicial checks on the workings of the political branches are not a good thing, particularly in a parliamentary democracy, which is by definition bereft of the same diffusion of power and checks and balances, inherent in a system where executive and legislative powers are wielded by separate branches of government. However, there have to be clear limits and constraints on the judicial power and these can only be found in a constitution; to base them entirely and solely upon judiciary's self-restraint violates every sound principle of political philosophy.

As to the Court's helping to buttress Israeli legitimacy, I see a reverse trend. Over the years, as I analyze and write about various international law and policy issues, I have noticed dozens of occasions in which Israel's critics readily grasped the criticisms of Israeli policy, proffered by the Court in its various decisions; I have yet to see instances where the Court's activities were cited as evidence of Israel's virtue. Indeed, I find the evidence attachment to "international law," as defined by the international NGOs, international organizations, law professors, and our European friends, displayed not just by the Court but by large segments of the Israeli elite opinion to be both naive and troubling. Very few people in Israel seem to appreciate that there has been a concerted effort by a variety of groups over the course of decades to distort the relevant public international law principles, which were traditionally quite permissive and congenial to civilized status quo powers, into a "regulatory straightjacket," designed to disadvantage traditional military powers and advantage guerilla groups. Indeed, in the last several years, law has become the preferred instrument by those who are opposed to a vigorous strategy by the U.S. and its allies of engaging and defeating jihadist forces, a phenomenon known as lawfare. In this environment, a ready embrace of the constantly evolving international "legal rules" is the worse possible approach for Israel.

My last point is this -- while Israel's Supreme Court has been acting illegitimately in extending its sway over the core military decisions, it has not been entirely oblivious to Israel's strategic predicament. To put it differently, it has not, at least so far, imposed any suicidal decisions on the IDF or the Israeli political system as a whole. This point, that the Supreme Court Justices all live in Israel, share the same burdens, and face the same dangers as the Israeli citizens, have children and friends who serve in the IDF, was made to me repeatedly by the various Israeli interlocutors, who have been defending the Court. I get this point, but I am not sufficiently reassured, both because I think that the extent of the Court's judicial review has already imposed unnecessary and counter-productive limitations on IDF's operations and because, in the long run, this relative judicial forbearance is unlikely to endure. All of this is bad news for Israel, especially since its future battles against entities like Hamas and Hezbollah are likely to be extremely bloody, involve considerable collateral damage, and be roundly condemned by the so-called international community.

Best regards,

David

Dear David,

In another article you've recently published (in the Wall Street Journal) you wrote that every US war was a "war of choice" and that "The question then, and now, is not whether war was unavoidable, but whether force is legally and morally justified in light of the circumstances".

Israel has been blamed many times in the past for starting unnecessary "wars of choice" - notably in Lebanon in 1982, and again in 2006. Do you find these allegations credible? Do you think Israel has made a mistake by attacking Lebanon two and a half years ago?

Thank you,

Shmuel

Dear Shmuel:

Let me re-state my proposition, adduced in a recent Wall Street Journal op-ed, even more broadly -- it isn't just that every U.S. war was a "war of choice," but most wars in world history were wars of choice. (There are, of course, some obvious exceptions, involving either pure wars of aggression a la Hitler, or instances where a country, invaded by an aggressor, had to fight or lose its independent identity.) I also believe -- and have written extensively about the relevant legal norms -- that, contrary to the claims of many international law professors, preemptive defense remains legally viable in today's world. To put it differently, the UN Charter, properly construed, does not limit the legally permissible use of force only to those circumstances where one's territory has been invaded or an invasion is imminent.

In the end, most decisions to unleash the dogs of war are a matter of choice. The real dilemmas are ones of policy and morality, with relevant decisionmakers posing and answering difficult questions about the consequences of action and inaction, both in the immediate future and more long-term. The calculus is always a complicated one, because of the often-conflicting imperatives and the existence of numerous uncertainties. To be sure, contrary to the musings of many war critics, these uncertainties are not inherent only to the use of force scenarios; the consequences of not using force are also almost always plagued with uncertainty.

Applying these general principles to the Israeli experience, I would say that, until recently, Israel has always demonstrated a superior statecraft and an excellent grasp of strategy. Its war-related decisions in 1956 and 1967 are almost text book examples of how to properly make strategic choices and launch successful preemptive wars of self-defense. The 1973 war was marred a bit by a set of intelligence and military failures at the outset, but Israel's subsequent decisions were excellent and did not diminish its luster as a first-rate strategic player. Indeed, in my view, demonstrating that Israel can recover from an initial military setback was a useful thing, demonstrating to its friends and foes alike Israel's ability to do well across a broad range of military scenarios. The 1982 war was, of course, much more of a mixed bag, producing years of Israeli occupation of Lebanon, an advent of a Vietnam war-style domestic political exhaustion within the Israeli society, and the rise of Hezbollah. Still, at least from the vantage point of 1982 -- which is the only analytically relevant vantage point -- I am not prepared to say that Israel's decision was an obvious blunder; the long-term consequences of its engagement in Lebanon was sufficiently uncertain and could have turned out much better. This brings us to 2006, a decision to launch a new round of combat operations in Lebanon that I consider to be a grievous strategic error. The reason for it has nothing to do with law or morality; Israel had a perfectly legitimate casus belli, following Hezbollah's attacks against Israeli territory and the killing and abduction of IDF soldiers. I also, of course, do not subscribe to the ridiculous claims that IDF's military operations in Lebanon was somehow in violation of the laws and customs of war, whether because of allegedly excessive civilian casualties or the use of cluster munitions. If anything, IDF operated with exceptional restraint and was quite conservative in how it used its military assets against Hezbollah forces, which deliberately operated out of civilian areas.

My real problem with the 2006 Lebanese war is that it was launched by Israel's military leaders without any serious appreciation of how badly it would turn out, an outcome driven by a host of factors, all of which were imminently predictable at the outset. These included utterly inadequate military intelligence about Hezbollah's capabilities, equally poor political intelligence about how the Siniora government, the Lebanese society and other Arab states would react to protracted Israeli military operations in Lebanon and, even more importantly, failure to appreciate that IDF, despite all of its past glory, was not well-positioned to wage successful operations against a Hezbollah-style opponent. (This is not to say that it is inherently impossible to defeat Hezbollah; it is to say that IDF circa 2006 was not in a position to do so, and this state of affairs should have been obvious to the Israeli political and military leadership. It was not inherently impossible for the IDF to change its combat strategies and end up decisively defeating Hezbollah; unfortunately, IDF proved unable to do so within the political and diplomatic "window" that Israel had available for this. This too should have been predictable before the war started.) I don't want to re-hash all of the investigations into what went wrong during the 2006 Lebanon war, except to reemphasize that it is entirely reasonable to assume that, with a war that was this short and produced such bad outcomes, the failure to appreciate/predict these consequences at the outset constituted a strategic blunder of the first magnitude.

I want to finish our second exchange by pointing out that, having made the wrong choice to go to war against Hezbollah in Lebanon in 2006, Israel has just made another erroneous choice -- not going to war against Hamas in Gaza. Since I assume that, given Hamas' attitudes and plans, an all-out military confrontation between it and Israel is inevitable, the only relevant question is whether the delay, in the form of the current ceasefire, benefits Israel or not. I believe that the Olmert government answered this question incorrectly. The ceasefire provides no lasting diplomatic or political benefits to Israel; it would still pay the same price for the inevitable carnage that would ensue as a result of heavy fighting in Gaza's densely populated urban environment, with howls of predictable outrage from the international community. Yet, the ceasefire would bolster Hamas' military capabilities and political standing and will make the inevitable coming war against Hamas more difficult and costly for Israel.

Best regards,

David

Dear David,

In the Washington Post you wrote the following:

"Gaza is exceptional only in that its international legal status is indeterminate. Its last true sovereign was the Ottoman Porte. It was part of the British Palestine Mandate and has since been administered by both Egypt and Israel. Today, no state claims sovereign authority, though it is expected that Gaza will become part of a future Palestinian state. For its part, Hamas acknowledges no higher authority and functions as a de facto government in Gaza. It is a classic example of a terrorist-controlled badland."

You also wrote that "pretending that groups such as Hamas are merely criminal gangs that must be dealt with as a local policing problem" will not be productive.

Does any of this change following the cease-fire agreement between Israel and Hamas? Do you also consider this agreement as "unproductive"? If Gaza is a "terrorist-controlled badland" what should be done with it?

Thank you for this discussion,

Shmuel

Dear Shmuel:

Nothing I have written in our Washington Post piece has been fundamentally altered by the recent developments. However, these developments have made Israel's legal and policy posture vis-a-vis Hamas even more difficult. To begin with, on the legal front, while I am not prepared to say that the Olmert government's recent actions amount to a de facto recognition of Hamas as a sovereign government in Gaza, they certainly moved Israel a long way towards that posture. To be precise, the fact that two sovereign states -- Israel and Egypt -- have spent months negotiating with Hamas, producing a ceasefire agreement, which imposes obligations on all sides, comes pretty close to an Israeli and Egyptian de facto recognition of Hamas as a sovereign government.

This situation has a number of unfortunate legal and foreign policy implications, both for Israel and for the international community as a whole. To begin with, symbolism is important in foreign policy, and the Israeli willingness to negotiate a formal ceasefire with an entity like Hamas has extremely negative symbolism. It effectively undermines the ability of the United States to hold the line against negotiating/dealing with at least the most odious of today's rogue regimes and groups; this is not a theoretical possibility, as attested by the fact that the Obama campaign and various critics of the current U.S. policy have already begun to argue that, if it is okay for Israel to negotiate with the region's rogues, the U.S. should follow suit. I realize that, for many years, the U.S. and Israel have been dealing with Fatah/PA, despite its repeated failure to abandon terrorism and cease incitement to violence. However, one can at least draw some nuanced distinctions between Fatah's somewhat ambiguous posture toward Israel' and Hamas' totally rejectionist stance. By signing a ceasefire with Hamas, the Olmert government has basically abandoned the argument that a modicum of respectability and moderation are the preconditions for a de facto recognition of a particular group.

This is certain to end any vestiges of Hamas' diplomatic isolation; the EU, which has been already unhappy with the posture of isolating Hamas, will now move forward aggressively and promptly to reengage with it. In the process, both Hamas' perceived victory in the standoff with Israel and the end of its diplomatic isolation would further bolster its standing among the Palestinians and would further weaken Fatah/Mahmoud Abbas' position. I would not be surprised to see in the near future a Hamas-dominated PA in both Gaza and the West Bank. To state the obvious, I also do not expect that the current ceasefire with Hamas will last; Hamas would use this as an opportunity to re-supply and re-equip its forces, obtain longer-range missiles, and would resume its confrontation with Israel at a time of its choosing, from a position of greater military and political strength.

This brings me to the last and most important question you had posed -- how Israel should have dealt with a Hamas-controlled Gaza badland? In my view, Israel should have continued its policy of an economic blockade of Gaza, accompanied by military strikes against the Hamas infrastructure and personnel. It should have also launched a series of progressively more and more extensive ground and air offensives into Gaza, designed to inflict maximum casualties on Hamas. (Israel also should have publicly and vocally challenged Egyptian complicity in Hamas' rearmament; it is not just a question of discovering tunnels and stopping weapons smuggling. In an authoritarian state like Egypt, weapons shipments would have never gotten anywhere close to the Gazan/Egyptian border, without at least Cairo's tacit approval. Indeed, I would have gone as far as to say that the Egyptian government, by not stopping the shipments of weapons to Hamas, bears full responsibility for any civilian casualties in Gaza, resulting from continued Israeli military operations there.) Yes, such a policy would have been costly, producing heavy civilian casualties in Gaza and substantial losses of IDF personnel. Yes, it would have subjected Israel to strident international criticism and claims that it was committing more crimes and such. It would have also not resulted in a definitive elimination of Hamas' threat, since anything short of a full long-term reoccupation of Gaza is unlikely to eliminate Hamas as an entity. However, it would have been the best of all of the conceivable options.

By contrast, the ceasefire with Hamas, coming after Israel's defeat in the last Lebanese war, further erodes Israel's hard-won military and diplomatic credibility. The perception that Israel is weak, and is singularly incapable of dealing effectively with the Hamas- and Hezbollah-style of warfare is extremely dangerous for Israel, particularly at a time where most of its neighbors continue to view the Jewish state as a temporary interloper.

Best regards,

David