How Israel Undermines International Law Through "Lawfare"
Date Written: 18/08/2014
Year Published: 2014
Resource Type: Unclassified
Cx Number: CX16647
At the same time as it engages in repeated massive military assaults on a primarily civilian popuation in Gaza, Israel is also engaged in an ongoing assault on international humanitarian law by a highly coordinated team of Israeli lawyers, military officers, PR people and politicians. It is an effort not only to get Israel off the hook for massive violations of human rights and international law, but to help other governments overcome similar constraints when they embark as well on asymmetrical warfare, counterinsurgency and counter-terrorism against peoples resisting domination. It is a campaign that Israel calls lawfare and had better be taken seriously by us all.
Israels strategy of lawfare rests on repeating illegal acts while continuing to justify them with new military ethics. If you do something for long enough, says Colonel (res.) Daniel Reisner, former head of the IDFs Legal Department, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries
. International law progresses through violations. We invented the targeted assassinations thesis [that extra-judicial killings are permitted when it is necessary to stop a certain operation against the citizens of Israel and when the role played by the target is crucial to the operation] and we had to push it. Eight years later it is in the center of the bounds of legality. The more often Western states apply principles that originated in Israel to their own non-traditional conflicts in places like Afghanistan and Iraq, says Kasher, then the greater the chance these principles have of becoming a valuable part of international law.
Violations of the Principles of Distinction and Disproportionality constitute grave breaches of international law and we can only imagine what states would do if they were eliminated from the legal code or significantly watered down. But this is precisely what Israel aims to do. Using the Palestinians as their guinea pigs in a bold and aggressive strategy of fixing international law, it wants to create new categories of combatants non-legitimate actors such as terrorists, insurgents and non-state actors, together with the civilian population that supports them so that anyone resisting state oppression can no longer claim protection. This is especially relevant when, as British General Rupert Smith tells us, modern warfare is rapidly moving away from the traditional inter-state model to what he calls a new paradigm war amongst the people in which We fight amongst the people, not on the battlefield. A more popular term used by military people, asymmetrical warfare, is perhaps more honest and revealing, since it highlights the vast power differential that exists between states and their militaries and the relative weakness of the non-state forces confronting them.
But the people, those pesky non-state actors, also have rights. Back in 1960, the UN General Assemblys Declaration on the Granting of Independence to Colonial Countries and Peoples endorsed the right of peoples to self-determination and, by extension, their right to resist, even by armed force, alien subjugation, domination and exploitation. The push-back by governments over the years, and certainly since 9/11, led by the US and Israel, has been to delegitimize the right of non-state actors to resist oppression.