The ethical doctrine of the war on terror is a set of principles that reflects an orderly conception dealing with the proper ways of conducting warfare against terrorism. Such a doctrine mediates between abstract values such as the “IDF spirit,” designed to guide commanders’ and soldiers’ behavior in any circumstances during their operations, and regulations, ROEs, and orders given to guide their behavior in a mission of a certain kind, under specific circumstances, at a specific time, and in a specific place....
This article will not offer a legal analysis or presume to take sides in the ongoing debate between the administration and its critics on legal positions regarding military and security issues. The basic assumption of this series of speeches asserted that such a discussion is unavoidable and even essential in any democratic country. The problem is that when it heats up, particularly in wartime, the debate is liable to frame the tension between security and values as an inevitable choice between them. Obama identified this...
Part Two of the report of the Public Commission to Examine the Maritime Incident of 31 May 2010, headed by retired Supreme Court Justice Yaakov Turkel, was published on February 6, 2013. It addresses one of the most fundamental questions in international law: methods of examining and investigating complaints and allegations about violations of the laws of war. The most significant conclusion by the commission was that “the examination and investigation mechanisms in Israel for complaints and claims of violations of the laws of armed...
On November 29, 2012, the United Nations General Assembly approved the Palestinian request for recognition of Palestine as a non-member “observer” state. With the UN recognition, the Palestinians are able to seek participation in international organizations and treaties open only to states. In addition, they are able to ask the International Criminal Court (ICC) to investigate allegations of war crimes in the West Bank and the Gaza Strip. It is unlikely, however, that the General Assembly’s recognition of a...
Two Palestinian documents recently made public deserve attention: the Palestinian request for non-member state status at the United Nations General Assembly, and the speech made by President Abu Mazen on November 11, 2012 at the ceremony marking the death of Yassir Arafat eight years ago.
Most articles in the Iranian media on the nuclear issue reiterate Iran’s “inalienable right” to enrich uranium according to the NPT. Iran contends that as a member of the NPT, it is treated unfairly by the international community when demands are made that it suspend enrichment. Iran has repeated this mantra so often that many experts and policymakers – even if critical of Iran’s nuclear program – concede that as a member of the NPT, Iran indeed has the right to enrich uranium. Ahead of a fresh round of...
It is an understatement to say that armed conflicts fought in densely populated areas can and do cause tremendous human suffering. Civilians in particular have historically paid a high price in the form of death, injuries, and permanent disabilities. They have also paid indirectly through the effects of widespread damage to their homes, the impact on their livelihoods, and the destruction of the infrastructure that supplies the necessities of life. With modern conflicts increasingly fought in urban areas, civilians are increasingly...
The starting point for any analysis of the legality of an armed attack by Israel or the US against Iranian nuclear facilities must be the UN Charter prohibition against “the threat or use of force.” The UN Charter provides explicitly for only two exceptions to the prohibition against use of force. The first exception is if the use of force is authorized by the UN Security Council acting within its powers under Chapter VII of the Charter. It can be assumed with high certainty that China and Russia would veto any proposal...
Lawfare is closely linked to the challenges facing the regular armies of law-abiding nations engaged in asymmetrical confrontations in densely populated civilian urban areas. Therefore, as part of its preparations for the challenges it may have to face in the future, particularly in this type of fighting, the IDF must give the proper weight to the legal front that is likely to develop as an integral part of the same confrontation.
What legal rules apply to armed confrontations against non-state elements in areas populated by civilians? What rules apply when the enemy does not honor the basic laws of warfare – does not distinguish itself from the local population, and even uses it for shelter and as a base of operations? This essay, which presents my position on the issue, refers to such confrontations as “asymmetrical conflicts.”
This essay will deal with the challenges to the laws of warfare posed by fighting in urban zones, the consequent changes to these laws, and the problems these changes have aroused and responses to them.
It behooves us to investigate asymmetry. Asymmetry between entities is measured not only in terms of force but also exists in every aspect in which there is a difference in the nature of the conflicting sides, in their goals, power, methods of operation, and especially the rules of the game by which they play.
