In the coming days, Israel will announce whether an incident known as “Black Friday” will warrant a criminal investigation.
On that day, August 1, 2014, with no warning, the Israeli army let loose a torrent of shells, missiles, drone strikes and mortars on the southern Gaza city of Rafah, in order to prevent the capture of an Israeli soldier by ensuring his death. The army killed at least 123 Palestinians. The act was derived from the Hannibal Directive, a policy developed in the 1980s that calculated a soldier was of more strategic value dead than alive and turned into something with which to be bartered by an enemy army.
Since Israel began its internal investigations into its 51-day assault on Gaza last summer, the Military Advocate General (MAG) has opened 19 criminal investigations. That’s a handful more than were opened after Israel’s 2008-2009 assault on Gaza.
Those investigations led to a single criminal indictment and a firm scolding by Israeli human rights organisations, B’tselem and Yesh Din, for their inexorable ties to the military’s interests.
The army has insisted that its self-investigation process has since sufficiently improved to satisfy critics (and the International Criminal Court) since it implemented the recommendations of the Turkel Commission from 2013.
But comparing the list of cases already closed without further investigation with those that have been opened makes it clear that the MAG is determined to exonerate the policies that wreaked the most systematic death and destruction on civilian life in Gaza while, maybe, scapegoating a few low-ranking soldiers.
For example, systematic targeting of residential homes – where a significant portion of civilians were killed – will remain unquestioned, while soldiers accused of looting may be, albeit rightly, rooted out.
Indeed, MAG Danny Efroni has already publicly defended the use of the Hannibal Directive as a response to the “arsenal of asymmetrical warfare [terrorist organisations] are forcing on us”.
It may seem that Israel heedlessly flouts international law, but the state is in fact very concerned with legitimising its actions.
Concurrent to these investigations, the Military Advocate General and the army’s legal division have been busy organising multinational forums to show off their concern about waging warfare in a “legal” manner in the modern age. At least four have taken place already and at least two more are scheduled for next month.
Shield of law
It may seem that Israel heedlessly flouts international law, but the state is in fact very concerned with legitimising its actions. Israel’s internal reviews of its wars are more than exercises in self-absolution; they’re processes that establish new standards to indemnify what will, without a doubt, occur again.
For decades, Israel has transgressed the boundaries of humanitarian and international standards of behaviour and has always used law as a shield from accountability.
The shrewd creation of an infrastructure of legitimacy is a necessary component of a state whose very existence relies on the systematic violation of other peoples’ rights.
The late Israeli sociologist, Baruch Kimmerling, once described the state’s vaunted High Court as having “bestowed on the occupation an enlightened face and a kind of legitimacy anchored in the modern concept of ‘law and order'”.
More recently, “terrorism” expert Yoram Schweitzer credited Israel’s Supreme Court for its contributions “to the effort to adapt international law to the changing realities” of the new anti-terrorism warfare.
And now we see Efroni using his pulpit as the MAG to strengthen the shelter of legitimacy around his country’s means of waging war against Palestinians in Gaza.
At these to-do’s, Efroni, along with other military heads, characterise Israel as being at the “forefront of Western nations in developing tools to comply with international law” even as they must defend themselves against a rival that does not play by the rules of “civilised” nations.
“MAG [has] no choice but to prepare for current and future conflicts,” Efroni declared at one such conference last February. “We cannot be blind to the fact that many of the realities of armed conflicts in today’s world pose exceptional challenges and considerable danger to our forces… Adopting that vantage point is crucial in defining the contemporary interpretation and implementation of LOAC on the battlefields of the 21st century.”
Hiding the carnage
The backdrop to these conferences dedicated to highlighting Israeli obeisance to law is Israel’s utter devastation of Gaza last summer: A ferocious 51-day assault that left 2,200 people dead, 17,000 injured – 10 percent of whom are permanently maimed or disfigured – and thousands of children traumatised, many to the point of dysfunction and attempting suicide.
Israel made a very deliberate choice to unleash indiscriminate shelling on the people of Gaza last summer. For example, the army used 533 percent more unguided artillery shells than in its 2008-2009 assault, according to a report by the London-based Action on Armed Violence. At irresistible bargain prices, these weapons are so inaccurate even the army suspended their use from 2006 until 2009.
Mitch Ginsburg, a military correspondent for the Times of Israel, explained with chilling frankness that these weapons are ideal when the military doesn’t have a precise target, but simply wants to “quiet an area”.
But non-combatants were no less safe when Israel employed its more precise weaponry. A recent report, published by Defence for Children International, finds that Israel directly targeted children with drones last summer. Some 164 out of the 535 children left dead were killed by Israeli drones that provide the military with “well-defined” images of their targets. Lawyers from the army’s international law division are sometimes even stationed in Israel’s war-room to approve such strikes.
Still, Efroni laments the “heavy shackles” which the laws of armed conflict burden his troops when they’re forced to wage battle against a “terrorist organisation”.
Establishing an exceptional standard of war that applies to Israel when it is fighting Palestinians is an ominous undertaking, but not one without precedent. Meir Shamgar, who served as the Military Advocate General between 1961 and 1968, knew that law would be Israel’s best friend.
Note that by the time Israel captured the West Bank and Gaza in 1967, Shamgar had already conceived the argument that Israel’s rule over the Palestinian territories would not amount to a “foreign occupation”, thereby exempting Israel from burdensome international obligations, such as the Fourth Geneva Convention.
His argument for excluding Palestinians in the newly captured “territories” from the Convention’s jurisdiction rested on the notion that they were stateless at the time Israel conquered the territory – Jordan and Egypt had been occupying the West Bank and Gaza, respectively – and stateless people were not the intended beneficiaries of international humanitarian laws.
Echoing this line of thinking, Efroni argues his army is fighting a “non-state militant force” as justification for Israel’s stunningly disproportionate killing of civilians in Gaza.
Israel and its supporters have made much of the unverified employment by Palestinian resistance fighters of “human shields” – using innocent and powerless civilians to shield them from attack.
But while Israel has indeed hidden behind helpless Palestinian bodies in this brutal way, most importantly, the state hides behind the law – a body that isn’t innocent at all, but is very powerful.
Charlotte Silver is an independent journalist in San Francisco, formerly based in the West Bank, Palestine.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.