Lebanon 2006 and the Front of Legitimacy

Click to increase image sizeClick to decrease image size

Notes

 1. Winograd, Chapter 14: The Conduct of Israel in the Light of International Law. The Winograd Commission official site including the report and testimony (in Hebrew) can be accessed at http://www.vaadatwino.org.il/statements.html#null (accessed 2 April 2009). My quotations of testimony and findings are based on my own translation.

 2. See Michael Sfard (ed.), Backyard Proceedings: The Implementation of Due Process Rights in the Military Courts in the Occupied Territories, Tel Aviv, 2007; Lisa Hajjar, Courting Conflict: The Israeli Military Court System in the West Bank and Gaza, Berkeley, 2005. For a discussion of the nexus between settlers, the lawyers and the military appeals committee that rules on land related issues see Akiva Eldar, ‘A Small Circle of Friends’, Ha'aretz, 5 June 2009.

 3. Unless otherwise indicated, Reisner's comments referred to in this article were made to the author in an interview on 24 May 2009.

 4. Unless otherwise indicated Sharvit-Baruch's comments referred to in this article were made to the author in an interview on 21 May 2009.

 5. See Ian Black and Benny Morris, Israel's Secret Wars, New York, 1991, p. 469.

 6. Operation Cast Lead, also known as the Gaza Operation, lasted from 27 December 2008 till 17 January 2009.

 7. These themes arise from a legal discussion and are used here to suggest some interdisciplinary areas of research that are on the periphery of civil–military relations; their selection is not intended to represent the breadth of studies of civil–military relations. For a useful review of the wider field of academic enquiry see Oren Barak and Gabriel Sheffer, ‘The Study of Civil–Military Relations in Israel: A New Perspective’, Israel Studies, Vol. 12, No. 1 (2007), pp. 1–27.

 8. When the first legal challenges to the legality of actions taken by the military in the Occupied Territories came to court in 1971, jurisdiction was assumed by the Court and not challenged by the state. See David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories, New York, 2002, pp. 19–21 and generally for a review of the supreme court judgments and a discussion of whether they amounted to a legitimization of the occupation.

 9. See Dan Horowitz and Moshe Lissak, Trouble in Utopia: The Overburdened Polity of Israel, New York, 1989.

10. Menachem Mautner, Law and Culture in Israel: The 1950's and the 1980's, Aldershot, 2002, pp. 175–217. Mautner's argument is that the values of the court were shared by a powerful liberal elite that enabled the court to exercise its institutional power to challenge the power of the IDF.

11. Kretzmer, The Occupation of Justice.

12. Shlomo Mizrahi and Assaf Meydani, ‘Political Participation through the Judicial System: Exit Voice and Quasi-Exit in Israeli Society’, Israel Studies, Vol. 8, No. 2 (2003), pp. 118–138. They use the concept of quasi-exit behaviour whereby ‘people who are dissatisfied with various policies, and are unable to conduct, or have no faith in the efficiency of democratic forms of protest such as petitions, demonstrations and strikes, or are unable to exit from the society, create an alternative supply of a certain public good’, p. 128; see also Yagil Levy and Shlomo Mizrahi, ‘Alternative Politics and the Transformation of Society–Military Relations: The Israel Experience’, Administration and Society, Vol. 40, No. 1 (2005), pp. 25–53. They understand petitions against the military as quasi-exit behaviour arising from disequilibrium of the republican contract.

13. Thomas Risse, Stephen Ropp and Kathryn Sikkink, eds., The Power of Human Rights: International Norms and Domestic Change, Cambridge, 1999. The theory predicts a five-stage process of socialization by which change is brought about through dynamic relationships involving domestic and international influences with NGOs playing a prominent role.

14. See Orna Ben-Naftali and Keren R. Michaeli, ‘Justice-Ability: A Critique of the Alleged Non-Justiciability of Israel's Policy of Targeted Killing’, Journal of International Criminal Justice, Vol. 1, No. 2 (2003), pp. 368–405.

15. See Aharon Barak, ‘Human Rights in Israel’, Israel Law Review, Vol. 39, No. 2 (2006), p. 12 for Barak's description of his 1992 constitutional revolution.

16. Amichai Cohen, ‘Administering The Territories: An Inquiry into the Application of International Humanitarian Law by the IDF in the Occupied Territories’, Israel Law Review, Vol. 38, No. 3 (2005), pp. 24–79.

17. For a discussion of the process of judicialization whereby the judiciary takes over from the legislature and the executive in democratic states where the democratic decision making processes have become paralysed see Kenneth Holland (ed.), Judicial Activism in a Comparative Perspective, London, 1991. The best example in Israel is the torture case The Public Committee against Torture in Israel and Others v. The Israeli Government, HCJ 4054/95 5100/94, where the court ruled that certain interrogation techniques were illegal in circumstances where the Government had failed to enact legislation recommended by the Landau Commission. See Kretzmer, The Occupation of Justice, pp. 135–143.

18. Orna Ben-Naftali, ‘A Judgment in the Shadow of International Criminal Law’, Journal of International Criminal Justice, Vol. 5, No. 2 (2007), pp. 322–331.

19. Article 146 ‘The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing or ordering to be committed any of the grave breaches of the present convention defined in the following article’.

20. There have been calls by Palestinian supporters for Lt. Col. David Benjamin who served in the IDL during Cast Lead to be indicted for legal assistance in the planning and commission of war crimes. See http://australians_for_Palestine.com/ngos-want-benjamin-arrested (accessed 10 August 2009).

21. For a concise description of the jurisdiction and its politicization see Steven Ratner, ‘Belgium's War Crimes Statute: A Post- Mortem’, The American Journal of International Law, Vol. 97, No. 4 (2003), pp. 888–897. See also, Nissan Ratzlav-Katz, ‘Spanish Court Droppes War Crime Investigation of Israel’, Israel National News, 17 August 2009. Available at http://israelnationalnews.com/News/News.aspx/132133 (accessed 1 August 2009).

22. For a concise description of the legal framework, see Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, Cambridge, 2004, pp. 4–25.

23. Max Weber, Economy and Society, California, 1968, p. 213.

24. See Jean-Marc Coicaud, Legitimacy and Politics, Cambridge, 2002, who argues that legitimacy, as the right to govern, is based on consent and an ethical basis for the power of the state. Among social scientists, neo-institutionalists stress the importance of domestic social legitimacy while constructivists tend to look to international legitimacy.

25. For a discussion of the exercise of power by societies see Dennis Wrong, Power: Its Forms, Bases and Uses, Chicago, 1988.

26. David Kennedy, Of War and Law, New Jersey, 2007.

27. Cohen, ‘Administering the Territories’.

28. Asa Kasher and Amos Yadlin, ‘Military Ethics of Fighting Terror: An Israeli Perspective’, Journal of Military Ethics, Vol. 4, No. 1 (2005), pp. 3–32.

29. Amoa Harel, ‘The Philosopher Who Gave the IDF Moral Justification in Gaza’, Ha'aretz, 6 February 2009.

30. Kasher and Yadlin, ‘Military Ethics’, pp. 14–15.

31. See Oren Gross, ‘The Normless and Exceptionless Exception: Carl Schmitt's Theory of Emergency Powers and the “Norm–Exception” Dichotomy’, Cardozo Law Review, Vol. 21 (1999–2000), pp. 1825–68; Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis; Emergency Powers in Theory and Practice, Cambridge, 2006, pp. 162–170.

32. Avishai Margalit and Michael Walzer, ‘Israel: Civilians and Combatants’, The New York Review of Books, Vol. 56, No. 8, 14 May 2009.

33. Kasher and Yadlin, ‘Military Ethics’, p. 31.

34. Clearly there are other powerful cultural and ethical challenges to an IHL culture within the military—principally the growing influence of religion. See Stuart E. Cohen, The Scroll or the Sword, Amsterdam, 1997.

35. For a discussion suggesting that Kasher's philosophy guided the IDF operations in Gaza, see Amos Harel, ‘The Philosopher who Gave the IDF Moral Justification in Gaza’, Ha'aretz, 6 February 2009.

36. See Edward N. Lutwak, ‘Towards Post-heroic Warfare’, Foreign Affairs, Vol. 7, No. 4 (1995), pp. 109–122.

37. W.J. Fenrick, ‘Targeting and Proportionality During the NATO Bombing Campaign in Yugoslavia’, European Journal of International Law, Vol. 12 (2001), pp. 489–502.

38. Yagil Levy, ‘The Second Lebanon War: Coping with the “Gap of Legitimacies” Syndrome’, Israel Studies Forum, No. 23 (2009), pp. 3–24.

39. For a concise formulation of general conclusions and recommendations for change see Dinstein, The Conduct of Hostilities, pp. 255–257.

40. See Ofri Ilan, ‘Protests as IDF colonel who ruled for attacks on Gaza civilians starts as TAU lecturer’, Ha'aretz, 5 March 2009.

41. See Philippe Sands, Torture Team; Deception Cruelty and the Compromise of Law, London, 2008.

42. John Yoo, Conversations with History, The Shaping of a Legal Response to 9/11, available at http://www.uctv.tv/search-details.aspx?showID = 14234 (accessed 21 May 2009).

43. Jack Goldsmith, The Terror Presidency; Law and Judgment Inside the Bush Administration, New York, 2007, pp. 33–42.

44. Jack Goldsmith, p. 42. Goldsmith, like Sharvit-Baruch, found that on leaving office to take up a position at Harvard Law School, the media and some faculty members chalanged his appointment in view of his advice to the Bush administration. See Marcella Bombordieri, ‘Harvard Hire's Detainee Memo Stirs Debate’, Boston Globe, 9 December 2004.

45. For example, the UK has legal advisors at divisional level while the US legal involvement is at brigade level with marine lawyers at battalion level.

46. Vivien Lowndes, ‘Institutionalism’, in David Marsh and Gerry Stoker (eds.), Theory and Methods in Political Science, Basingstoke, 2002, p. 103.

47. B. Guy Peters, Institutional Theory in Political Science: The New Institutionalism, London, 2005, p. 18.

48. For a discussion of whether these approaches need to be merged to form a complete methodology, see Peter Hall and Rosemary Taylor, ‘Political Science and the Three New Institutionalisms’, Political Studies, Vol. 44, No. 5 (1996), pp. 936–957; Colin Hay and Daniel Wincott, ‘Structure, Agency and Historical Institutionalism’, Political Studies, Vol. 46, No. 5 (1998), pp. 951–957.

49. Yagil Levy, Israel's Materialist Militarism, Lanham, MD, 2007.