How IDF Legal Experts Legitimized Strikes Involving Gaza Civilians

IDF source says army's international law division 'more liberal than the High Court petitions department.'

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The idea to bombard the closing ceremony of the Gaza police course was internally criticized in the Israel Defense Forces months before the attack. A military source involved in the planning of the attack, in which dozens of Hamas policemen were killed, says that while military intelligence officers were sure the operation should be carried out and pressed for its approval, the IDF's international law division and the military advocate general were undecided.

After months of the operational elements pushing for the attack's approval, the international law division headed by Col. Pnina Sharvit-Baruch gave the go-ahead. In spite of doubts, and also under pressure, Sharvit-Baruch and the division also legitimized the attack on Hamas government buildings and the relaxing of the rules of engagement, resulting in numerous Palestinian casualties. In the division it is also believed that the killing of civilians in a house whose residents the IDF has warned might be considered legally justified, although the IDF does not actually target civilians in this way.

Many legal experts, including former international law division head Daniel Reisner, do not accept this position. "I don't think a person on a rooftop can be incriminated just because he is standing there," he said.

One reason for the international law division's permissive positions is its desire to remain relevant and influential. Sources involved in the work of the Southern Command said that its GOC, Maj. Gen. Yoav Gallant, is quite suspicious of legal experts and has a reputation of not attaching much importance to their advice. The Southern Command's legal adviser was not invited to consultations before the attack, and was compartmentalized when it came to smaller forums. It was actually during the action in Gaza that consideration for his opinions grew.

The legal addendum to Operation Cast Lead's order shows the way the IDF's legal experts legitimized the army's actions: "As much as possible and under the circumstances of the matter, the civilian population in a target area is to be warned," it states, adding "unless so doing endangers the operation or the forces."

The addendum orders commanders to be extremely cautious in the use of "incendiary weapons" (for example, phosphorus bombs), but does not prohibit their use: "Before using these weapons, the the military advocate general or international law division must be consulted on the specific case."

A source who served in the division in the past says it is "more liberal than the attorney general and the High Court petitions department." "The army knows what it wants, and pressure was certainly brought to bear when legal advisers thought that something was unacceptable or problematic," an operational military source said.

According to a senior official in the international law division, "Our goal is not to tie down the army, but to give it the tools to win in a way that is legal."