The triumph of legal defeatism

This week the IDF distributed ribbons to its soldiers and officers for their service in the war with Hizbullah in 2006. The ribbons were a source of embarrassment. Soldiers and officers, who like the general public view the war as Israel's greatest military defeat, are loath to pin them on their uniforms.

 

While the soldiers and general public view the war as a failure, one sector of Israeli society sees the war as a great triumph. For Israel's legal establishment, the war was a great victory. It was a war in which its members asserted their dominance over Israel's political and military leadership.

 

The legal establishment's ardor for the Second Lebanon War was exposed on Tuesday with the publication of the testimonies of Attorney-General Menahem Mazuz and Military Advocate-General Avichai Mandelblit before the Winograd Committee which the Olmert government established to research the war's failures. In their testimonies both men shared their perception of the war as a great victory of lawyers in their campaign to "lawyerize" – or assert their control – over Israeli society.

 

In his opening statement, Mazuz extolled the war as "the most 'lawyerly' in the history of the State of Israel, and perhaps ever." He explained, "The process didn't begin in Lebanon 2006. It… is a gradual process of 'lawyerizing' life in Israel."

 

Mazuz responded negatively to the question of whether legal considerations superseded operational and strategic goals during the war. He claimed that the government and the IDF restricted their plans from the beginning to conform with perceived legal restrictions.

 

As he put it, that preemptive limitation of goals was "the result of a sort of education and internalization that have taken place over the years. I remember periods where there was a great deal of friction with the senior military level regarding what is allowed and what is prohibited. But today I think that there is more or less an understanding of the rules of the game and I can't identify any confrontation… or … demands to 'Let the IDF win.'"

 

Mandelblit and Mazuz testified that legal advisers were present at all levels of command in all the relevant service arms and in the security cabinet. At each level the lawyers were asked to judge the legality of all the proposed targets and planned operations before they were carried out. And as the two explained, in their decisions, these lawyers were informed not by the goal of winning the war, but by their interpretation of international law.

 

From both men's perspectives, international law takes precedence over the national interests in wartime war. Mazuz argued, "Today international law controls our lives, no less … than domestic law. In all spheres – not just in the sphere of the laws of war… the sovereignty of states is diminishing and international law is becoming the tip of the pyramid of norms. It is becoming a substitute for the constitutions of states."

 

Mazuz's enthusiasm for the rule of international law troubled committee member Prof. Ruth Gavison. In response to his statement, she argued, "I find this analysis harsh. I think that you have ignored the fact that international law is plagued with problems of selective enforcement and that the application and use of international law in the context of international conflicts is very biased and very political… Therefore, [reliance on international law] seems to me to be a position that is possible to argue on a rhetorical level, but to internalize it as a real position, that looks to me like a strategic danger."

 

Given the contrast between Mandelblit's and Mazuz's view of the war as a triumph and the public's view of the war as a failure, it is worth considering whether there is a connection between the unprecedented "lawyerization" of the war in Lebanon and the fact that Israel lost the war.

 

Mazuz effectively asserted that international law prevents victory in war when he argued, "The laws of war, or international humanitarian law doesn't concern itself with relations between two states, but with the relationship between civilians and states. That is, it places the two warring states on one side of the divide and the citizens of the two states on the other side, and the goal of international law is to protect the citizens of the two states and to say: You're big kids. You want to fight, go fight, you have rules… and the rules aim to minimize as much as possible the consequences of the war."

 

By so arguing, Mazuz demonstrated that he views the goals of legal advisers as different from and indeed in conflict with the goals of political and military leaders. The goal of the latter is to defend the country from its enemies and to win wars. As Mazuz and Mandelblit see things, lawyers are tasked with protecting enemy populations from the IDF.

 

The distinctive way that legal advisers define their responsibilities has had an enormous impact on the military and the political leadership of the country. It is not that the internalization of the lawyers' approach has made the IDF or the Israeli government any more moral or law abiding than they have always been. Israel has never targeted civilians and has always sought to protect innocent civilians from harm even when they shelter enemy forces.

 

What has changed is the focus of military and political leaders in conducting war. Before the advent of legal dominance, commanders and political leaders devoted themselves to winning wars. Today they concentrate their efforts on avoiding criminal indictments.

 

THE SAME day Mazuz's and Mandelblit's testimonies were released a debate took place at the Hebrew University where the legal establishment's embrace of the role of protector of enemy populations came under assault. The debate, sponsored by the Shasha Center for Strategic Studies, was titled "Can Democracy Overcome Terror?"

 

There, retired Supreme Court president Justice Aharon Barak, who founded this view, was pitted against Judge Richard Posner, from the US Court of Appeals in Chicago. It was a fair match. For the American legal community, Posner's intellectual standing is equal to Barak's in Israel.

Quoting extensively from his own judgments, Barak explained his view that the duty of a judge is to protect democracy. Barak defined this role as protecting human rights, justice and fairness.

 

In his view, there is a constant tension between human rights and a state's security considerations. The fact that judges in Israel are not elected insulates them from public sentiment, which Barak noted is nearly unanimous in times of terror and war. Barak asserted that no distinction should be made between human rights in wartime and human rights in peacetime. If restrictions are placed on human rights in wartime, he warned, they will serve as dangerous precedents in peacetime.

 

Moreover, Barak explained that judges must intervene in real time in executive and military decisions even when those decisions are reasonable. As defenders of human rights, judges, he claimed, are better situated than politicians and military commanders to distinguish right from wrong.

 

Posner disputed all of Barak's positions. He argued that judges have no special expertise to determine norms and values. In his words, "I try to avoid using words like justice, fairness and human rights. I don't like these words because they are empty and used as substitutes for grappling with hard realities." Given their ignorance of military affairs, judges should be modest in their judgments.

 

Posner also objected to Barak's description of democracy. Democracy, he explained, is simply the rule of the majority. And judges limit democracy by checking the actions of the e
lected legislative and executive branches in government. They, in turn, protect democracy by checking the actions and limiting the scope of judicial oversight. Unlimited judicial independence, Posner argued, is tantamount to the overthrow of democracy in favor of judicial tyranny.

 

Then too, Posner rejected Barak's distinction between security considerations and human rights. The most basic human right, he argued, is the right to security – which is a collective right. And since security is a human right, it cannot be weighed against other human rights.

 

Finally, Posner strongly disputed Barak's assertion that limitations of rights during wartime impact those rights in peacetime. Citing example after example from American history, Posner demonstrated that limitations placed on rights in times of war were abrogated when the wars ended and never served as peacetime precedents.

 

THE BARAK-POSNER debate is relevant to the consequences of the 2006 war with Hizbullah because both Mandelblit and Mazuz claimed that their legal views stem from the judicial activism of the Supreme Court under Barak's leadership.

 

Mandelblit explained that the supremacy of international law over concern for victory was "the result of the vast involvement of the Supreme Court… in many judgments."

 

Similarly, Mazuz claimed that the "lawyerization" of the war was a consequence of judicial interference in military affairs. Since the government and military understood that "there will be a petition to the Supreme Court on every issue," ministers and generals felt it necessary to preemptively bow to Barak's world view rather than defend their actions in court.

 

For years there have been calls for legislative action to curb the power of the Supreme Court. Yet today the Olmert government is moving in the opposite direction.

 

Justice Minister Daniel Friedman's bill to reform the court system will institutionalize the Supreme Court's control of the state by anchoring in law the power the justices seized to cancel laws. Unfortunately, the only opposition Friedman's proposals have elicited has been from the Court itself. The justices argue that his proposed law doesn't empower them enough.

 

Fear and indifference no doubt stand at the root of the public silence on the issue. In his testimony, Mazuz openly acknowledged that the government's and IDF's subservience to their legal advisers was fueled by their fear of criminal prosecution. As he put it, both the government and the IDF asked the lawyers to tell them what they could do because "they weren't prepared to take responsibility to translate norms into decisions."

 

What Posner demonstrated on Tuesday, however, is that there is no reason to fear casting doubt on the legal establishment's positions. Mazuz and his colleagues do not have a monopoly on understanding the law. They certainly have no professional capacity to determine how wars should be waged.

 

The public's indifference to Friedman's proposals also stems from the view that such abstract principles have no impact on regular people. But as the war in Lebanon showed, the "lawyerization" of Israeli society affects the lives of all of us. Again, this process has not made us more sensitive to human rights. Israelis have always been respectful of human rights.

 

But before Barak established the supremacy of lawyers, we respected human rights and won wars. Today, we respect human rights and lose wars.

 

The fact that our soldiers were not tried for their actions in combat is no consolation for the weakness and dangers inherent in this current state of affairs.

 

 

Originally published in The Jerusalem Post