[Guest post by DRJ]
Patterico recently hosted a thoughtful and spirited debate on the legality of waterboarding, and this post is representative of that series. While the question of whether the US should waterboard detainees has been treated as both a moral and a legal issue, most discussions have focused on whether waterboarding is or should be legal.
The Israeli government investigation that followed the 2006 Israeli-Lebanon war illustrates why the US should resist the lawyerization of the war:
“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Mazuz responded negatively to the question of whether legal considerations superseded operational and strategic goals during the war.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.”
It’s not unthinkable that the majority of nations will someday agree that Israel is a rogue nation whose lands should be “returned” to the Palestinians. If that day comes, I wonder how these Israeli lawyers will feel about sitting on the tip of that pyramid?
The article’s author also considered whether the lawyerization of the Israeli-Lebanon war contributed to the perception/fact that Israel lost the war. I think the answer is clearly “Yes” judging by Mazuz’s views, in which he equates war to child’s play where the goal is to avoid winners and losers:
“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.“
Do you want to win or do you want to lawyer? That is the question.
NOTE: The equally interesting last section of the linked article is a summary of the Barak-Posner debate regarding “Can Democracy Overcome Terror?” I’ll leave it to others to explore that topic or (perhaps) I will address it in a future post but it’s definitely worth reading.