Lawfare and the IDF Lawyers

By Jack Goldsmith
Thursday, June 11, 2015, 8:57 AM

Willy Stern has a very interesting essay at the Weekly Standard about “Dabla,” the Israeli Defense Force’s elite operational lawyers. The thrust of the story is that because these lawyers ensure that IDF soldiers stay far on the side of legality, and are especially cautious with regard to civilian casualties, it is perverse that a “powerful coalition of self-righteous journalists, pro-Palestinian NGOs, left-leaning academics, biased human rights organizations, and … the United Nations … routinely accuse[] the IDF of perpetrating war crimes.”

Readers can judge the conclusion about the groups for themselves, but I have no doubt about the truth of the premise, concerning the rigor of Israeli operational lawyers. And yet, despite the lawyers’ elaborate care, and despite their counsel for action well within legal lines, Israel seems perpetually to be on the losing side of Lawfare battles. It is losing not just because it continues despite its efforts to be subject to withering criticism for its targeting practices, but also because in response to these criticisms it continues to tighten policy constraints on its actions beyond what the laws of war require—constraints that eventually become the baseline for legal judgment in the next round of criticism. (Compare U.S. drone policy.) The structural reasons why this happens--in addition, of course, to the broad underlying opposition to Israel in its conflicts--are that perfidy pays, that lawful targeting in the face of perfidious action inevitably produces civilian casualties, that civilian casualties are widely reported in our tightly-knit world, and that such reporting leads to serious recriminations no matter what legal precautions are taken.

Israel has not yet figured out how to play Lawfare, much less win it, in its conflicts against terrorists.