Referring to the interpretation of the laws of war, retired Justice Aharon Barak said that a new reality sometimes requires a new interpretation, and rules established yesterday will have to be reexamined in light of changing times. On 07 October 10, times changed forever.
In order to understand the magnitude of the failure of the MAG Corps that led to the handcuffing of the IDF and security forces in the fight against terrorism, one must hear the chilling testimony of armored officer Lieutenant Yotam, who defended an outpost some 200 meters from the border, the first line facing Gaza, on Black Saturday. Lieutenant Yotam said in interviews that the tanks saw Gazans entering Israel en masse, but since they were not openly armed, no dangerous intent was attributed to them justifying harm, and therefore they refrained from eliminating them.
How many children and parents were murdered by these "non-dangerous citizens"? How many girls have been raped? How many were kidnapped by the "innocent and uninvolved" civilians?
The laws of war are intended, inter alia, to protect civilians who are not involved in war between states, and although the laws of war are not an orderly system of law and are still being written, they enable a state to protect its soldiers even against murderous terrorist organizations, by explicitly excluding in the Geneva Convention from humanitarian protection of civilians participating in hostilities. In other words, it is permissible and even obligatory to harm those "non-involved."
For years, the MAG Corps has given a distorted interpretation of the term "civilian taking a direct part in hostilities" in order to determine who can be harmed during combat and who can not. The Red Cross, for example, which should not be suspected of being overly sympathetic to Israel, explicitly states that hostilities do not have to be accompanied by weapons.
How did Israel reach a reality in which the laws of war are implemented in the IDF in a manner contrary to their purpose and objective – to bring about a state victory over its enemies – and de facto radically tie the IDF's hands?
Well, for more than a decade, policymakers have allowed the MAG Corps to make the IDF a mess. Its members interpreted the laws of war according to their perception of what is "right" and "moral." Major General Amiram Levin relates that when he served as an armored battalion commander during the First Lebanon War, he ordered his soldiers to fire at any source of fire that endangered them. Later, another retired general and current politician took pride in taking risks at the expense of our soldiers in order to be "moral."
In the face of this creeping approach, no one in the IDF or in the political system will rise up to say so far, and examine what the laws of war really say and whether they correspond to the extreme and distorted demands that the MAG Corps places on the IDF.
The "civilians" who crossed the fence, even though they were unarmed, would, according to the laws of war, be eliminated and run over immediately
In 2018, the Return Riots began on the fence, aimed at carrying out exactly the Black Sabbath massacre. Hamas built on the IDF's perception that civilians would not be harmed by IDF soldiers. It was not far from reality: In 2018, every week there were "return events" in which terrorists arrived, under cover of thick smoke, hiding under the cover of groups of civilians and approaching IDF soldiers, threw grenades at them and placed IEDs on the fence. Some of the terrorists during the civilian "demonstrations" even broke through the fence. And what was the IDF's public position on opening fire? Firing at the legs only, and even that only after warnings in the public address and as a last resort. These descriptions are taken from facts presented in HCJ 3003/18.
Back to Black Saturday. The "civilians" who crossed the fence, despite being unarmed, would, according to the laws of war, be eliminated and run over immediately.
At times, the entire judicial system, and the MAG Corps in particular, must fundamentally change the distorted operating paradigm that led to the shackling of the security forces and interpret the laws of war in a manner appropriate to their purpose – victory and defeat of the enemy.
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