“We impose countless restrictions on our soldiers, legal as well as mental. Our fighters are more afraid of the Military Advocate General than [Hamas leader] Yahya Sinwar. Instead of defeating the enemy, we are containing it. …Education Minister Naftali Bennett, Press Conference, Nov. 19, 2018, relating to widespread dissatisfaction with inadequate IDF response to months of Hamas-instigated violence.

“There is always a cost to defeat an evil. It never comes free, unfortunately. But the cost of failure to defeat a great evil is far higher.” then-NATO spokesman Jamie Shea, cited in “Civilian deaths ‘necessary price,’ ” BBC, May 31, 1999, in response to allegations of extensive civilian casualities as the result of NATO bombing in the 1998-9 Balkan War.

Naftali Bennett’s recriminations against what many in the Israeli public considered the Israel Defense Forces’ feeble response to Hamas’s terrorist aggression along and across the Gaza border, initiated fierce public debate, with virtually the entire establishment—from the prime minister and the chief of staff downwards—severely condemning his remarks.

Is legality losing its legitimacy?

However, in light of what appears to be a growing disconnect between the man-in-the-street and the country’s legal apparatus, Bennett’s words of reproach seem to be far more in touch with public sentiment than those of his detractors.

Indeed, on the day immediately preceding Bennett’s press briefing, the distinctly left-leaning Israel Democracy Institute presented a poll at a two-day conference, “The IDF as the People’s Army,” which focused on the relationship between the military and society in Israel.

The poll produced unequivocal findings, showing widespread rejection of excessively legalistic and/or moralistic positions as determinants of IDF operational decisions.

Thus, it found that more than 90 percent of those polled agreed that “the lives of IDF combatants must be protected even at the cost of increasing Palestinian casualties.”

Similarly, more than 90 percent supported demolition of the homes of families of terrorists, subject to High Court approval; more than 80 percent endorsed “shelling a mosque if there is suspicion that it is being utilized for hostile activity against Israel;” almost 80 percent back the detention of family members of active terrorists as a means for exerting pressure to give themselves up; a little less than 80 percent believe that the overseas activities of Israeli human-rights organizations, like B’Tselem or Breaking the Silence, undermine IDF operational ability, and almost three-quarters feel that terrorists must not emerge alive from any theater of engagement.

These findings should give both the legal and the political establishment cause for concern. For clearly, when codified legality begins to lose its substantive legitimacy, the respect for the law is eroded and the rule of law is imperiled.

Does Israel’s legal system reflect societal norms?

Indeed, a number of studies have identified the diminishing credence the public has for Israel’s legal institutions and warned of the consequences thereof.

In his book, Towards Juristocracy, Professor Ran Hirschl noted: “In Israel, the negative impact of the judicialization of politics on the Supreme Court’s legitimacy is already beginning to show its mark.”

He cautioned: “Over the past decade, the public image of the Supreme Court as an autonomous and impartial arbiter has been increasingly eroded. … the court and its judges are increasingly viewed by a considerable portion of the Israeli public as pushing forward their own political agenda … ” 

A similarly dismal, but broader picture of the public’s assessment of the country’s justice system emerges from an ongoing Haifa University study, headed by Professor Arye Rattner, which has tracked confidence in Israel’s legal system for a decade.

Reporting on the findings of the study under the heading, “Public’s faith in Israel’s justice system continues to plummet,” the left-wing Haaretz wrote: “The public is further losing its faith in … the legal system, with only 36 percent of the Jewish public expressing confidence in the courts …

According to the study, public faith in the Supreme Court was the highest, at 56 percent, but still declining steeply from 80 percent in 2000. Faith in the overall court system dropped from 61 percent in 2000 to a little more than one-third in 2013.

Confidence in the police was even lower at barely 20 percent.

Later studies showed that faith in the Supreme Court had dipped below 50 percent by 2017.

Other studies have shown, disturbingly, that belief in the justice system drops with age. Thus, the younger one is, the less one’s faith in the system, with 63 percent of the public between the ages of 18-29 saying they do not trust it.

Civilian Casualties: Anomalous Israeli sensitivity?

The disparity between the prevailing public perceptions and those of the legal system are mirrored in the divergent sensitivities to enemy civilian casualties of the Israeli authorities and those of other Western democracies, even when dealing with threats far from the homeland and which do not directly—or at least, not drastically—imperil their domestic populations.

For example, according to some estimates, there have been 200,000-plus civilian deaths as a result of the U.S. wars on terror in Iraq and Afghanistan, without precipitating any anguished soul-searching on a major nationwide scale.

Indeed, even before the post 9/11 invasion of Iraq, the relative U.S. insensitivity to the fate of adversaries’ civilians, even children, were revealed in a 1996 interview on CBS’s “60 Minutes” with Madeleine Albright, who served under Bill Clinton as U.S. ambassador to the United Nations, and later, as Secretary of State. Albright was quizzed by host Leslie Stahl on the effects of the U.S.-led U.N. sanctions against Iraq.

Stahl asked: “We have heard that half-a-million children have died. I mean, that’s more children than died in Hiroshima. And, you know, is the price worth it?”

Albright responded: “I think this is a very hard choice, but the price — we think the price is worth it.”

It should of course, be recalled that at this (pre-9/11) stage, neither the U.S. homeland nor any U.S. resident had been harmed by the Iraqi regime.

Likewise, in the 1998-9 Balkan War, hundreds of civilians were killed in a NATO air campaign, code-named “Operation Allied Force,” which hit residential neighborhoods, old-aged sanatoriums, hospitals, open markets, columns of fleeing refugees, civilian buses and trains on bridges, and even a foreign embassy.

Exact figures are difficult to come by, but the undisputed minimum is around 500 civilians deaths (with some estimates putting the toll as high as 1,500), including women, children and the elderly, killed in about 90 documented attacks by an alliance that included the air forces of Belgium, Canada, Denmark, France, Holland, Italy, Turkey, Spain, the United Kingdom and the United States. Up to 150 civilians deaths were reportedly caused by the use of cluster bombs dropped on, or adjacent to, known civilian areas.

By contrast, the military losses inflicted by NATO on the Serbian forces during almost 80 days of aerial bombardment, unchallenged by any opposing air power, were remarkably low, with most estimates putting the figure at less than 170 killed.

Meanwhile, NATO forces suffered no combat fatalities! This was mainly due to the decision to conduct high-altitude aerial attacks that greatly reduced the danger to NATO military personnel in the air, but dramatically increased it for the Serbian (and Kosovar) civilians on the ground.

Of course, it should again be underscored that the civilian populations of the countries participating in “Operation Allied Force” were never attacked (or even threatened) in any way by Serbian forces.

Back to Bennett: Enemy civilian casualties as an operational constraint?

Bennett has been excoriated for his remarks, with his critics pointing out that very few IDF soldiers have been convicted for operational misdeeds or mistakes, even if grave (unless guilty of gross violation of orders). Indeed, they claim that not only has strict legal scrutiny not impeded combatants in discharging their operational duties, but it has, in fact, helped and protected them in doing so.

Now while much of this may be factually true, in many ways it misses the point.

For it is not so much a problem of inhibition in carrying out the orders given, but of inhibition in the substance of the orders given.

For example, it was not so much a problem that IDF soldiers were inhibited in carrying out orders for dealing with the violence on the Gaza border for the last eight to nine months, but that the orders were such that they were inadequate to quell that violence.

Clearly, the IDF has the operational capacity to terminate the violence on the border, but to do so would involve far higher civilian casualties on the Gazan side.

So ultimately, as I noted in this column last week, the problem in Gaza is not operational, but conceptual.

Thus, the question must be: Can or should enemy civilian casualties be considered an operational constraint that precludes reaching necessary operational goals or endangers Israeli forces or civilians?

Correctly conceptualizing the conflict

 Accordingly, the problem with the legal constrictions are not so much in the constraints they place on the actions of the rank and file IDF combatants, but with the constraints they place on the thought processes of the IDF high command and those charged with the formulation of the nation’s strategic policy.

Unless our senior political and military leaders correctly conceptualize the conflict, they will have no chance of adequately dealing with the long-term challenges it poses for the survival of Israel as the nation-state of the Jewish people.

The unvarnished truth is that, correctly conceptualized, the conflict between the Jews and the Palestinian-Arabs over the control of the Holy Land is the archetypical zero-sum game. It is a clash between two rival collectives, with irreconcilable foundational narratives. It is a clash where only one side can emerge victorious; the other, vanquished. There are no consolation prizes.

In this regard, there is a compelling, if counter-intuitive, rationale for the claim that excessive concern for one’s opponent’s civilian casualties may well raise casualties on both sides.

For if one’s adversaries believes that avoiding enemy civilian casualties is a significant constraint, they will have little motivation to evacuate them or allow them to be evacuated out of harm’s way. To the contrary, operational logic will dictate keeping them in harm’s way.

Moreover, concern for civilian casualties will compel adopting operational decisions that may well expose one’s own forces to greater, and otherwise avoidable, casualties.

In conclusion

Accordingly, this is a clash in which the Jewish collective cannot imperil its collective rights for the individual right of those in the enemy collective. If it does so, it will lose both its collective rights and the individual rights of its constituent members.

Indeed, I would invite anyone prone to challenge this harsh assessment to consider the consequences of Jewish defeat and Arab victory. Surely, even a cursory survey of the gory regional realities should suffice to drive home the significance of what would accompany such an outcome.

Thus, only once a decisive Jewish collective victory has been achieved, can the issue of individual injustice and suffering in the Arab collective be addressed as a policy consideration.

Clearly then, Jewish victory over the adversarial Arab collective must be Israel’s overriding moral and operational concern. Facilitating its achievement should also be the overriding challenge for Israel’s legal establishment.

Martin Sherman is the founder and executive director of the Israel Institute for Strategic Studies.