They say that “all is fair in love and war,” but what’s fair may not necessarily be legal. A sprawling, disjointed accumulation of international agreements, conventions and statutes make up the so-called “laws of armed conflict” dictating how militaries around the world can wage war and against whom.
With the world largely having moved away from nation states fighting nation states and toward nation states fighting terrorist groups and other non-state actors, that piecemeal corpus of international military law has struggled to keep up.
On Tuesday, over 100 of the world’s leading practitioners and scholars of international military law from more than 20 countries gathered at the Kfar Maccabiah Center, outside Tel Aviv, as part of a three-day conference on the laws of armed conflict, organized by the Israeli military.
“When I joined the IDF International Law Department over 20 years ago, we were seven officers. Our dealings with the law of Armed Conflict were limited. Scholarship and literature on international law were limited. Our office library was but a few shelves,” said Brig. Gen. Sharon Afek, the IDF’s Military Advocate General, during his opening remarks.
“Our discussions together are vital. Together we can strengthen the rule of law, and ensure that the law develops in a way that cements its relevance and prominence,” Afek said.
Representatives from the militaries of the United States and Australia, the defense ministries of the United Kingdom and France, and law schools from around the world were slated to speak at the conference, the second such event hosted by the IDF.
Attorney General Avichai Mandelblit addressed the conference, lauding Israel’s commitment to international law.
Former president of Tel Aviv University and dean of its law school, Prof. Yoram Dinstein, who is widely considered an expert on the laws of armed conflict, delivered the conference’s keynote address. However, his remarks were closed to the press, as was much of the conference.
It is Israel’s second time hosting a conference like this, with the last one taking place two years ago, under the direction of then-military advocate general Maj. Gen. Danny Efroni.
Unlike national criminal laws, there is no single compendium of rules governing warfare or a body charged with maintaining it. There are some agreements, like the Geneva Convention, that are universally recognized, but others do not have full international backing.
According to a book on the topic, “A Table Against Mine Enemies: Israel on the Lawfare Front,” there are four basic principles governing the laws of armed conflict: necessity, distinction, proportionality and shielding.
Generally, the principle of necessity demands there to be a clear military objective behind an attack; distinction requires the attacker to differentiate between targets and civilians; proportionality requires the attack to be commensurate with the objective it hopes to achieve; and shielding outright forbids the use of civilians as “human shields.”
However, within those basic guidelines lies a fair amount of ambiguity and subjectivity.
In his speech, Afek discussed some of the complexities and legal challenges facing Israel, including Hezbollah’s “integration into Lebanon’s state institutions,” the need to abide by the principle of proportionality while fighting in densely populated, urban areas, like those in Lebanon and Gaza, and the “fluid” dynamics in Syria, which complicate the targeting “persons and objects.”
“And this is without considering emerging fields such as cyber and space law,” the brigadier general said.
In his speech, Afek focused specifically on the challenges facing the IDF in particular, but he noted that “many of these challenges are not unique to Israel’s context, and indeed, our shared experience with them is the reason why many of you are here.”
Some of the topics will be discussed in workshops and panel discussions over the next three days. However, the emerging field of cyber warfare will not.
The head of the IDF’s International Law Department, Col. Eran Shamir-Borer, is scheduled to lead a conversation on Thursday with a retired US general, the current staff judge advocate of the US Central Command and two law professors, about who militaries can legally target.
For instance, a terrorist firing a gun at civilians would clearly be defined as a legitimate target. But what about the person who drove the terrorist to the scene? Or the person who loaned him the money to buy the gun?
Those are questions that Israel has faced for decades, but that other countries are only now grappling with.
A former US Army lieutenant colonel, Prof. Geoffrey Corn of the South Texas College of Law, is slated to chair a panel discussion on the laws of armed conflict in ground operations, which can be particularly challenging in urban environments where civilians and combatants are in close proximity to one another.
The issue of ground operations is of particular interest to Israel, which has fought ground wars in Gaza and southern Lebanon — and may do so again. For most other Western countries, aerial campaigns have taken priority.
Israel’s political and security situation is markedly different from those of most Western countries, in that it tends to fight its wars on its own borders, rather than overseas.
Yet despite its unique characteristics, the Jewish state is closely watched by foreign countries for the precedents it sets on the battlefield.
Israel, for example, has been targeting commanders of terrorist groups for longer than most nations. Its practice of targeted warnings ahead of some military strikes — namely leaflets, phone calls and nonexplosive strikes on buildings that alert residents to an impending airstrike, known as “roof-knocking” — has yet to be fully implemented by other countries.
In addition to the panel discussions and speeches, the conference will also feature a tour of Israel’s northern borders with Syria and Lebanon, as well as group workshops in which participants will be given different scenarios and asked to provide realistic legal recommendations for how militaries should approach them.
According to Afek, the goal of the conference is not only professional development, but also networking.
“I hope that we will make new friendships and relationships, that these issues will be expanded on in writings and in the legal blogs, and that we will remain in contact,” he said in his speech.
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