Maya Wind is a scholar of Israeli expertise and militarism. She is a Killam Postdoctoral Fellow in the Department of Anthropology at the University of British Columbia.
On Dec. 27, 2008, a targeted Israeli airstrike killed 89 Palestinian police cadets during their graduation ceremony in the Gaza Strip. This strike was no accident. It was planned for months in advance and discussed at length in the Israeli Military Advocate General's Corps, responsible for the rule of law in the Israeli military. Specifically, the proposed airstrike was brought to the Corps' Department of International Law, which has increasingly played a key role in military decision-making, its jurists routinely advising senior Israeli commanders during the planning and execution of military operations. These military jurists thus not only offer legal advice, but shape how laws of war are interpreted and how military violence is waged.
The Department of International Law approved the targeted airstrike, thus initiating Israel's 2008-9 offensive on the Gaza Strip. Under the leadership of Col. Pnina Sharvit Baruch, department jurists had contended that the police cadets could be considered combatants and, therefore, legitimate targets, because they would likely be absorbed into military forces that fall under Hamas authority in fighting the impending Israeli military offensive. The execution of the Israeli airstrike itself, in other words, changed the designation of the cadets it targeted from civilians to combatants. This argument has since been criticized by both international human rights organizations and legal scholars as unduly expanding the definition of legitimate targets and as an unusual if not improper reading of international humanitarian law. Nevertheless, the department sent its jurists to the operation rooms on the Israeli-designated border of the Gaza Strip for the remainder of the offensive, sanctioning tactics that were widely criticized by the international community as war crimes.
Not even two weeks after a cease-fire was signed toward the end of the offensive, Tel Aviv University announced it had appointed Sharvit Baruch as a lecturer in its Faculty of Law. Moving directly from overseeing the 2008-9 offensive on the Gaza Strip, Sharvit Baruch was hired to teach a course on international law the following semester. Sharvit Baruch's appointment to the Faculty of Law was broadly celebrated, except for opposition by a few university faculty and student groups who decried her role in sanctioning war crimes and compromising the academic integrity of legal studies. Responding immediately to the criticism, the minister of defense at the time, Ehud Barak, contacted the university administration to support the appointment, and then-Prime Minister Ehud Olmert preemptively threatened to withhold funding from universities that would reject faculty based on their work for the Israeli military.
Meanwhile, Tel Aviv University resolutely stood by the appointment and declared that "it does not intend to scrutinize or evaluate the legal, political and moral positions of its teachers." Yet the university administration did, in fact, evaluate and hire Sharvit Baruch precisely on the basis of her legal, political and moral positions. She was hired because of this very expertise, which she gained exclusively during her service in the Military Advocate General's Corps.
In her transition from head of the Military Department of International Law to Tel Aviv University, Sharvit Baruch continued her service to the state. As a senior research fellow and director of the Law and National Security Program at the Institute for National Security Studies (INSS), she currently facilitates collaboration between military personnel and academics to develop interpretations of international law that defend Israeli military operations and policy. These interpretations include defenses of military tactics she personally oversaw.
Israel has created the legal infrastructure to justify extrajudicial assassinations, torture and deployment of what would otherwise be considered disproportionate use of force against civilian populations tantamount to war crimes.
- Maya Wind
During Sharvit Baruch's tenure, the Israeli military has legalized "roof knocking," a practice of shooting relatively smaller munitions at buildings, ostensibly to warn Palestinian civilians immediately before they are bombed. First put into practice during the 2008-9 offensive on the Gaza Strip, the Israeli military leadership hoped the accompanying legal framework offered by the Department of International Law would help clear it of accountability for subsequent Palestinian civilian casualties. But "roof knocking" was deemed inadequate as a measure to protect civilians, and condemned by the U.N. and international human rights organizations. Israel nevertheless continued extensively using this tactic in its subsequent offensives on the Gaza Strip in 2012, 2014 and 2021. Even in the face of the international condemnations and investigations that followed, the INSS Law and National Security Program has continued to formulate legal defenses of "roof knocking" to sustain Israeli military doctrines.
Israel is an innovator in interpreting international humanitarian law, with the Occupied Palestinian Territory as its laboratory. Illegally governing the Palestinian population through military occupation for decades, Israel has developed a corpus of laws and legal interpretations to sanction its permanent military regime. As legal scholar Noura Erakat shows, this development expanded with rising Palestinian resistance throughout the Second Intifada, which began in 2000. As it waged military campaigns to subdue Palestinian protesters and insurgents—and came under international scrutiny—Israel began to advance arguments that its use of force against Palestinians constituted a new form of warfare, which could not be subject to regulation by existing bodies of law.
To sidestep available legal frameworks, Israel argued that it was engaged in what it defined as "armed conflict short of war" against the Palestinians, constituting a sui generis situation (one of its own kind) to which existing laws of armed conflict could not be applied. Over the course of its interpretive innovations since, Israel has created the legal infrastructure to justify extrajudicial assassinations, torture and deployment of what would otherwise be considered disproportionate use of force against civilian populations tantamount to war crimes.
These legal doctrines have not merely been used to shield Israel from accountability in the international arena; they have transformed the arena itself. The United States, and other countries waging what they define as "counterterror campaigns" and "asymmetric wars," have constructed their own legal interpretations based on Israeli theories, rendering new forms of devastating violence permissible and increasingly legitimate.
Over the past two decades, faculties of law across Israeli universities have facilitated this legal innovation in service of the Israeli military and security state. Ethicists from philosophy departments have joined these efforts, theorizing and providing moral justification for Israeli policies and military operations, both in real time and during the international legal probes that followed. One of the philosophers leading this endeavor is Tel Aviv University professor and Israel's distinguished ethicist Asa Kasher. Kasher established himself as an academic in the service of the state in 1994, when he collaborated with the Israeli military to write its code of ethics. Kasher was later joined by philosophers and legal scholars from across Israeli universities and the military to update the code. The revised document, titled Ruach Tsahal (literally the "Spirit of the Israeli Defense Forces"), was officially adopted by the Israeli military and is conceptualized as an outline of its foundational values and as an ethical guide for its commanders and soldiers with concrete applications.
Building on Ruach Tsahal, Asa Kasher began a long-standing collaboration with Maj. Gen. Amos Yadlin to offer ethical guidance to the military. In 2001, the Israeli military's International Law Department issued a legal opinion governing the nascent Israeli policy of targeted assassinations. Shortly thereafter, in 2002, Kasher and Yadlin joined a committee of military lawyers and academics that came together to formulate Israeli laws of war concerning targeted assassinations. Reportedly, committee members debated what number of Palestinian civilians it would be ethical to kill—in pursuit of a targeted assassination of a Palestinian defined, by Israel, as a militant—all to save a single Israeli. Answers varied between "zero" to "as many as needed," and the committee average was 3.14 Palestinian civilian lives for one Israeli.
Shortly thereafter, Kasher and Yadlin teamed up to write Israel's "Ethical Doctrine for Combating Terror," developed at the National Security College at the University of Haifa with a team of academic and military experts. The final document, supported by three military chiefs of staff who served during the height of the Second Intifada, was broadly considered to be Israel's "counterterror doctrine" and the basis for its military guidelines. The doctrine was developed as part of a broader project of legal innovation led by Israeli military lawyers, with support from Israeli legal scholars and ethicists.
These theorizations and legal interpretations, Noura Erakat and Lisa Hajjar show, sanctioned practices that have been traditionally defined as extralegal in international humanitarian law. Israeli military operations and tactics deployed on the basis of this counterterror doctrine have since been repeatedly deemed war crimes by international human rights organizations. Yet the doctrine is continuously defended by Israeli scholars, who collaborate with Israeli military leadership to elaborate philosophical and legal theses for military commanders on the ground on its basis.
Tel Aviv University has offered itself as a key site for this military strategizing and legal innovation. At its Institute of National Security Studies (INSS), academic experts and senior security state personnel join forces to develop and publish legal guidance for the Israeli government and military. Yadlin himself was appointed as director of the INSS, where he oversaw policy work and published legal guidelines elaborating on the counterterror doctrine for over a decade. In INSS journals, Kasher and Yadlin articulated further justifications for why the point of departure for their doctrine is not international law. They argue that traditional conceptions about the nature of warfare and how to restrict it do not apply to Israel's "war on terror." Kasher even proposed a new category to contravene the legal distinction between combatant and civilian when he coined the term "third population"—persons who appear to be noncombatants but may potentially interfere with Israeli military operations—in reference to Palestinian civilians.
Building on these theorizations, Kasher and Yadlin lay philosophical foundations for the legitimacy of disproportionate killing. They argue that Israel can ethically and legally justify greater "collateral damage" of Palestinian civilian casualties than has been previously allowed under international law. They do so on the basis of an explicit ranking of Israel's ethical obligation to safeguard human life, proposing that Israeli soldiers deployed to the OPT be placed above Palestinian civilians. As a result, they argue that it is in fact immoral for Israel to endanger its own soldiers in order to safeguard the lives of Palestinian civilians. This proposition, Erakat argues, preemptively allows for more Palestinian civilian injuries and deaths in Israel's calculus of proportionality in the advance planning of its military operations.
Kasher and Yadlin's hierarchy of human life was intended to serve as a practical guide for Israeli military commanders facing operational decisions, and its effects were evident in the military operations that followed. In its military offensives on the Gaza Strip in 2008-9, 2012 and 2014, Israel used aerial bombing and artillery shelling that killed thousands of Palestinian civilians, including hundreds of children, and left tens of thousands more severely injured and without homes. Israel waited 10 days into its 2014 offensive to send in ground troops, and did so only after massive shelling and aerial bombardment had razed entire neighborhoods. Israeli combat soldiers deployed to the Gaza Strip reported that they were told by commanders that this execution of the offensive was intended to protect their lives in the ground incursion.
The occupation of Palestinian territory has indeed served as a field-defining laboratory for Israeli legal scholars.
- Maya Wind
Since Kasher and Yadlin, legal interpretations developed by faculty and research fellows at Tel Aviv University continue to shape Israeli military operations and to legitimize their tactics retrospectively. The Law and National Security Program at the INSS explicitly advances legal scholarship to mitigate international criticism of Israel and support it in evading accountability. Program director Pnina Sharvit Baruch contends that claims about the illegality of Israeli military actions are based on "tendentious interpretations" of the laws of war that greatly limit the freedom of military action. To counter this, Sharvit Baruch advocates that Israeli jurists promote interpretations that offer the military greater flexibility and remake international legal discourse in line with Israel's vision:
In order to influence the laws of war and their interpretation, it is important that Israel and the Israeli military will be involved in this field. We must strengthen collaborations with legal advisers from other militaries and engage them in a fruitful professional discourse. We must initiate publications by legal scholars who understand the complexity of the battlefield and who will present the practical and applicable interpretation of the laws of war. We must also be active on blogs and online. It is important to attend professional conferences and maintain relationships with the scholars who influence the interpretation of the law.
Sharvit Baruch herself has taken on the mantle. Following the U.N. Independent Investigation Commission's report on Israel's 2014 offensive on the Gaza Strip, which found Israel to have committed alleged violations of international humanitarian law and the laws of war, Sharvit Baruch wrote a rebuttal. Her counterreport argues that the U.N. commission was ill-equipped to investigate Israel's offensive. She grounds her arguments in opposition to its assessment of Israel's disrespect of the principle of proportionality under international humanitarian law, which is based on the damage caused weighed against the military advantage achieved. Among other arguments, Sharvit Baruch contends that because the U.N. is not privy to Israel's assessment of the military advantage achieved by its every aerial strike, the U.N. cannot possibly assess the proportionality of its military actions.
Under Sharvit Baruch's leadership, Israeli scholars continue to construct innovative legal interpretations to shield Israel from accountability, often in direct response to international condemnations or probes, and sometimes even anticipating them during Israeli operations in real time. In May of 2021, for instance, the Law and National Security Program offered a defense of Israel's offensive in the Gaza Strip even as it was still being carried out, claiming that it cleared the threshold of proportionality based on its reading of excessive damage in international humanitarian law. More broadly, the program works to undermine the legal arguments and legitimacy of international human rights organizations and regulatory bodies. In 2022, the program published a rebuttal of Amnesty International's report charging Israel with the crime of apartheid, as well as a report that delegitimized the International Criminal Court. The report put forward legal arguments challenging both the ICC's jurisdiction and its definition of war crimes, as well as offering policy recommendations for the Israeli government to thwart investigations into Israeli activity in the occupied Palestinian territories on this basis.
The occupation of Palestinian territory has indeed served as a field-defining laboratory for Israeli legal scholars. Israeli legal studies have continually expanded to provide the theoretical infrastructure to legitimate and hone Israel's permanent military rule, while its researchers and faculty have become facilitators, authors and executors of widely condemned Israeli policy.
Editor's note: This essay is adapted from Maya Wind's new book Towers of Ivory and Steel: How Israeli Universities Deny Palestinian Freedom, published by Verso.
