“Military gains can outweigh civilian casualties”

Half a year after its military operation in Gaza, Israel is still facing accusations of war crimes. Israeli army legal advisor Daniel Reisner offers Jerusalem’s interpretation of international law.

RT: It’s six months since the Gaza war began. On the one hand Hamas is no longer firing rockets into Israeli territory. But on the other hand, it’s rearming itself. According to some reports, Hamas stockpiles are up to the levels that it had prior to the operation. In this context, would you say that Gaza war was or was not a success?

Daniel Reisner: If you want to understand what success means, in advance you have to create a reasonable criterion for what success is. I think that first and foremost the success is that a certain status quo has been achieved, which is based primarily on deterence. I think it's similar in many respects to what we have seen since the second Lebanon war with Hezbollah. No one argues that Hezbollah is still a very powerful entity in Lebanon. It has immense military capabilities for a non-state entity. And yet Hezbollah has not generated any incidents over the last two years. And hopefully the same type of deterrence has been achieved, perhaps short term, perhaps medium term, in Gaza and that in itself is a limited success. But if that's what you are going for, then it's a full success.

RT: But how do you measure deterence? Hamas and Hezbollah have been rearming in Gaza and Lebanon, and the sense of self-respect and belief in military capabilities against Israel that these organizations have given people is quite substantial.

DR: I totally agree. One of the dilemmas that we are faced with in this region is that if you do not show your force against some of these organizations, they will think that you are weak and will attack you. And if you do use force against these organizations, and of course you do beat them on the battlefield, then they take the event, they glorify it and then they use it to claim that they've won. And in many respects it's a lose-lose situation for the country fighting this type of terrorist organizations: no matter what you do, they will claim victory. And in this case I think Israel's policy has been consistent. When it identifies that a certain threshold has been passed, it sends very clear messages to these terrorist organizations that I think Israel will not live with. And while they may be very outgoing in saying that they are not afraid and that they are willing to go back to fighting, it is very interesting to note that they have stopped.

RT: The UN has set up a commission to investigate war crimes in Gaza headed by Justice Richard Goldstone. Why is Israel refusing to cooperate with this commission? Because by doing so it suggests Israel has something to hide.

DR: In advance this commission was established to reach a pre-designated answer.

RT: How do you know that?

DR: One, they started by appointing Lord Goldstone, who himself signed a petition calling for war crime investigations against Israel on Gaza before he was appointed in his previous capacity. Two, the mandate that the Human Rights Council gave the commission was only to check war crime allegations against Israel and not to address war crime allegations against Hamas. This is the type of attitude we have encountered in the UN for ages. Well, that is not to say that all members of the UN are anti-Israel. Absolutely not. It is to say that the UN, as a majority decision-making body, where numbers count more than truth, has a political agenda.

RT: Who would the Israelis accept as a credible international body, if not the UN?

DR: We are not saying ‘no’ to every UN idea, but we have learned to be very cautious.

RT: The Israeli military forces conducted their own investigation in May and they found there was no evidence of misconduct in Gaza. Do you know what proof they have of this and what type of investigation they did?

DR: I don't know. I wasn't involved in the internal investigation. The big issue is how one should investigate allegations. For the layman, the idea of bringing external experts to investigate seems to make perfect sense. However, if one looks at the practice of Western countries fighting wars – and by Western countries I mean almost every country, actually – all countries refuse to allow international fact-finding.

Now why is that? Because the generally accepted practice is that in war time, countries first and foremost investigate themselves. Now this may seem to be an attempt to hide or to shield, but in reality there are good reasons for this. First of all, the operations’ secret information is such that you don't share it with non-officials in your country. You don’t want to tell them exactly what your operation methodology was, what your weapons were, what the operational orders were. You don’t share this information with other countries. You very seldom share it with your allies.

In an army, you really want to know what happened because if you run an army which has disciplinary or even criminal problems, that army won’t succeed in military operations. If you have soldiers who lie, they will lie about killing a person, and they will lie about stealing money. And they will lie about succeeding in their mission.

There is a vested interest in ensuring that military investigations are as deep and as successful as possible. If you understand these points you will understand why Israel, like other countries, focuses on its internal investigations.

Are they perfect? I don’t think so. Do you always get 100% of the truth? I don’t think anyone has invented the system to do that. But I think they come up with results I can trust – better than, let’s say, the international fact-finding commission comprised of people who are handpicked to reach a pre-determined result.

RT: One of the most fundamental principles of humanitarian law is the principle of distinction. How can you argue that civilians, government buildings, Islamic universities are and were legitimate targets?

DR: A military objective is almost anything which the destruction thereof will hurt the military goals of the other side.

RT: There are many people in Gaza who do support Hamas. Does this make them legitimate targets? Are people are not entitled to their own opinion?

DR: Absolutely. And they will still remain in the category of civilians. The dividing line between supporter and activist is very difficult to draw, but I will give you some indications which you should look at. First of all. it is the difference between active and passive. Obviously, when someone is carrying weapons and wearing a Hamas uniform, the question becomes quite clear. And when someone is staying at home and just saying, “I support Hamas,” obviously it’s clear.

The questions that fall in the gray area are, for example, the people who give logistical support, people who give money and funding. Those are the areas where international law says, “we don’t know.” And there’s no clear rule on this. But the good news is that as far as I know, Israel targets these people.

RT: What are the limits on targeting civilians?

DR: The 77th First Additional Protocol to the Geneva Convention addresses this issue with a doctrine that we call DPH – civilians taking direct participation in hostilities. Under that Geneva protocol, you can target such civilians only at such time when they are taking part in hostilities. Primarily because of these words Israel, the US and other countries are not party to that protocol. It is our belief that it was specifically intended and drafted to shield terrorists. And our experience is that they try to abuse that.

RT: The second most important principle of humanitarian law is the principle of proportionality. Israel bombarded Gaza from the air. And we are talking about one of the most densely populated areas in the world. How is that justifiable under international law?

DR: The principle of proportionality first of all needs to be understood. The anticipated military advantage as a result of the attack outweighs the potential damage to innocent civilians. Because if international law states that they can attack you but you can’t respond, because they are using civilians as shields, then it’s time to throw international law into the dustbin. My point of view is that international law is still relevant. What it does, it tells you are of course allowed to respond, but when you respond – even though the enemy is not abiding by the rules – you must.

RT: There were many people during the war who were ordinary civilians desperate to escape Gaza and get away from the fighting. But Israel controls all the borders. Should Israel not have allowed them to leave?

DR: The first answer is “no.” International law doesn’t require you to evacuate the population. It requires, if you can, to make an effort to warn the population in advance. Israel took more measures to protect the Palestinian population in Gaza than any other Western country in history has ever taken. They dropped around one million leaflets warning people about attacks which were about to come. Israel actually phoned up to 30,000-40,000 homes directly to their telephone and gave them an automatic warning before attacks in their specific neighborhood. It is five levels more care than the European forces or the NATO forces use in Afghanistan.

So how come Israel is “not complying with international law”? This is probably where the focus of the discussion should be. Why does everyone focus on the fact that Israel should comply with every single letter of the international law – which we by the way it agrees to – and the rest of the world gets a free pass?

RT: You answer that question.

DR: Pure and simple: politics. There are countries which are deemed the good guys and there are countries which are deemed the bad guys. And for a variety of reasons, it is now very popular to brand Israel as a bad guy.

RT: How do you see the future of international law?

DR: I believe that international law, specifically the principles of how countries and people treat one another, are one of the few good developments of the 20th century. Human rights is a great development. I don't want to throw it away, but we have to recognize the fact that there are parts of this planet who don’t think it was a good development, who think there are other principles we should apply and which should govern. And for me those are very barbaric and primitive ideas. But for them they make sense.

In the conflict between us and them, the question that arises is, “should we play by our rules”? And my answer is “yes,” because otherwise, if we don’t show that even in the face of adversity, even in face of someone who totally battles and defies all of them, we still stick to what we think is right. If we don't do that, we lose all moral legitimacy to keep fighting this fight.