THE STRUGGLE FOR LEGITIMACY: A STUDY OF MILITARY LAWYERS IN ISRAEL Alan Ian Henry Craig Submitted in accordance with the requirements for the degree of Doctor of Philosophy (PhD) The University of Leeds School of Politics and International Studies March, 2011 The candidate confirms that the work submitted is his own and that appropriate credit has been given where reference has been made to the work of others. This copy has been supplied on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. Acknowledgements I am pleased to acknowledge the help of my supervisors Professor Clive Jones and Professor Jason Ralph who have given me valuable support and guidance throughout the undertaking. I also wish to thank Caroline Wise, Dr James Worrall and Simon Mabon for encouragement and for the more practical administrative help in completing the thesis. Ron Carrick shared many insights into the practical aspectsof Just War doctrine and welcomed me into the community of the Military Ethics Education Network. In Israel, my thanks go to the many academics, NGOs and practicing lawyers who found time to discuss the legal, ethical and sociological aspects of Israel's military actions. I particularly wish to express my thanks to the reserve and retired officers of the IDF International Law Department who spent many hours discussing, within the bounds set by security, their role in recent Israeli conflicts. Finally, it must be acknowledged that this thesis could not have been written without the support, encouragement and intellectual engagement of my wife Melanie. It Abstract This thesis examines the involvement of lawyers in Israel Defence Forces operational decision- making. By linking the legal requirements of international legitimacy to the institutional relations within Israel, the thesis reveals a dynamic of Israeli civil-military relations that connects the demands of Israel's external environment to its internal political relations and exposes the role of the IDF lawyers as an important locus of Israeli civil-military relations. The traditional approach to civil-military relations in Israel employs a framework of analysis that relies heavily upon domestic legitimacy, rooted in the requirements of representative government. In so far as such an analysis considers the role of law and lawyers at all, the domestic perspective focuses on the importance of the Israeli Supreme Court as a mechanism of civil control of the military. However, this level of analysis alone fails to explain the growing importance of military lawyers in operational matters. This study argues that Israeli civil-military relations cannot be properly understood without an examination of the requirements of international legitimacy and the largely unexplored field of legal-military relations. It is the conclusion of this thesis that there has been a rapid growth in the involvement of lawyers in IDF operational decision-making since the start of the Second Intifada in 2000 that can be only partially explained in terms of an institutional response to a growing involvement of the Israeli Supreme Court in matters of security at a time of heightened military activity. The increased power of the military lawyers is further explained by a domestic political response to the growing external demand for military compliance with international humanitarian law by the Israeli military as a pre- requisite of legitimate military action and the legitimacy of the Israeli state itself. The result has been a strengthening of the position of the military lawyers that has secured for them a veto over operational decision-making. Analysis of international reaction to Israel's military operations during the Second Intifada, which began in 2002, the 2006 Second Lebanon War, Cast Lead 2008-2009 and the 2010 Turkish Flotilla reveals a growing appreciation among Israeli elites of the importance of defending Israel's legitimacy that is likely to lead to greater empowerment of the military lawyers and increase their importance to the study of Israeli civil-military relations. A legal analysis reveals not just a strengthening of international humanitarian law, but also the extent to which the balancing of humanitarian and military requirements in conflicts involving non-state actors politicises the processes of construction of judgments of the legality of IDF military operations. The analysis exposes the opportunity for military behaviour to be constrained or enabled by the exercise of choice in the selection of legal advice. The case studies and previously unpublished accounts of the legal actors show that, to date, the International Law Department of the IDF has acted to empower the military. However, the increasing pressures of international and domestic civil institutional constraints, which are driven by a growing recognition of the need to use international humanitarian law to defend the legitimacy of Israeli military operations against non-state actors, suggests that the unbridled support of the military lawyers for their military employers may soon become a thing of the past with the choice of law to be applied a matter of political contestation rather than military preference. In short, the role of lawyers in the military is a new area of research. The methodology brings together legal and IR scholarship with original variations. The thesis examines previously neglected aspects of the Israeli legal environment, analysing previously unexplored and highly topical developments including the Universal Jurisdiction arrest warrants for Israeli political and military elites travelling abroad, the legal controversies surrounding the Goldstone Report and the Israeli responses to the Gaza flotillas. While the research focuses on Israel, the analysis and many of the conclusions are of wider application for those interested in the uses of law in promoting and condemning military strategies employed in military conflict against non-state actors, and more generally law and the employment of lawyers as a mechanism for the civil control of the military. iii Abbreviations HRL Human Rights Law IDF Israel Defence Forces IDL International Law Department IHL International Humanitarian Law IR International Relations IV Contents Abstract ..................................................................................................................................................iii Abbreviations IV ..................................................................................................................................... Contents .............................................................................................................................................. .... v Chapter 1: Introduction 1 ....................................................................................................................... .... 1) Methodology, hypotheses 3 researchquestion and ......................................................................... 2) Civil-military literature 6 relations ..................................................................................................... 3) Legal-military 28 relations ............................................................................................................... .. 4) Conclusion 29 ................................................................................................................................... .. Chapter 2: the IDF's legal 33 environment ............................................................................................... .. 1) Introduction 33 .............................................................................................................................. .. 2) The Winograd debate 33 ................................................................................................................... 3) The international law by the Israeli Supreme Court 40 application of ............................................ .. 4) The threat foreign Israeli decision-makers for 55 of prosecutions of war crimes ........................... .. 5) The increaseduse of international humanitarian law as a measureof legitimacy of military action 64 ............................................................................................................................................... .. 6) Conclusion 78 ................................................................................................................................... .. Chapter 3: Advising in the Grey Area 80 .................................................................................................. .. 1) Introduction 80 ................................................................................................................................ .. 2) The legal distinction 82 principles of and proportionality ............................................................... .. 2.1) Distinction 83 ............................................................................................................................ .. 2.2) Proportionality 98 ..................................................................................................................... .. 3) Conclusion: 108 plurality and choice ................................................................................................. Chapter 4: Ethics 111 ................................................................................................................................. 1)