The struggle for legitimacy : a study of military lawyers in Israel

• Main Author: Craig, Alan Ian Henry
• Other Authors: Jones, C. ; Ralph, J.
• Published: University of Leeds 2011
• Subjects: 327
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.540787

This thesis examines the involvement of lawyers in Israel Defence Forces operational decisionmaking. 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 prerequisite 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.