Friday, January 8, 2010

IDF Lawyers to Consult With Army During Operations

The IDF has now adopted the policy of having military lawyers consult with the army not only prior to military operations, but during them as well.

Frankly, I took it as a given that this is what had been happening all along and am surprised that it had not been. The implication of this order seems to be that prior to this latest decision, the emphasis of Israeli legal decision making was jus ad bellum, the legality of going to war, as opposed to jus in bellum, the law relating to the actual conduct of war. Certainly, Israeli military lawyers had examined questions of who or what can be targeted and under what circumstances, but it appears that when decisions were required in short time frames, there was no legal input. Contrast this with the Canadian experience where military lawyers are closely engaged at nearly all levels of the targeting process.

Also noteworthy from the Ha'Aretz article above is that Israeli Ministry of Foreign Affairs lawyers have advised against efforts to reopen the text of the Geneva Conventions so as to recognize the nature of the types of wars fought today, different from the ones fought when the conventions were drafted. Instead, Israeli lawyers are seeing understandings for a "dynamic" interpretation of the law with other western countries.

The reality of the situation this will likely lead to is one where all states that have come to an agreement for a "dynamic" interpretation will come to increasingly ignore traditional interpretations of the laws of war. It could, in effect, create a two tiered system where those that support a traditional interpretation will make one claim and Western states will argue in support of another. One would have to hope that this duality would not result in an undermining of the law all together and a situation where human rights are altogether ignored to make way for purely security concerns.

I think that if Western states truly believe that the Laws of War, as they now stand are insufficient to cope with the realities of modern counter-terrorism and asymmetrical warfare, then there is a legal and moral imperative to take the lead and make their case to the rest of the world.

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