Behemoth v. The Dual State in the Gaza War

Two former partners in a small Berlin-based law firm that operated during the Weimar Republic wrote two of the most influential accounts of Nazi Germany legal system. Yet Ernst Fraenkel’s “The Dual State” (1941) and Franz Neumann’s “Behemoth” (1942) offer two diverging and sometimes conflicting accounts of the legal reality under National Socialism. In a nutshell, Neumann’s account is that the Rechtsstaat (a concept translated – without capturing its entire meaning – as “the rule of law”) ceased to exist in Germany when the Nazis took the reins of government. Lawlessness was the reality of Nazi Germany. Fraenkel presents a far subtler account in which two states functioned side by side in early Nazi Germany: the normative state, in which the Rechtsstaat had an important role, and the prerogative state, in which it had no such role. While Neumann’s book achieved greater success and influence in real time, today we know, based on works such as Jens Meierhenrich’s fascinating book, that Fraenkel’s account was the more accurate one.

Israel is not Nazi Germany, but the Behemoth v. Dual State controversy has strong explanatory power when examining the narratives that control the discourse on what has happened to Israel’s legal system during the Gaza War. Kai Ambos’s post “Respect for International Law in Gaza: The Perspective of Israeli Scholars” is a good illustration of the prevailing Behemoth account, according to which Israeli scholars are fighting against the lawless Behemoth. In this post, I wish to explain why I think that Ambos is wrong and suggest to adopt Fraenkel’s approach.

The controversy between the two narratives is important not only for the Gaza War, but also for the future of international humanitarian law (IHL) writ large. In many ways, following World War II, the Western world entrusted the future of peace and order in the hands of lawyers. The picture, according to which if lawyers had more power post-World War I, democracies in Europe would not have collapsed, affected both constitutional law and international law. Yet, the claim that Weimar and the world could have been saved if only the law and lawyers had possessed more power is inaccurate. We are now reliving the consequences of this mistake in the Gaza War.

The problem with the Behemoth narrative

In his post, Ambos gives a detailed account of 18 letters and memos that were written by “a group of eminent Israeli international law scholars” and expresses “concerns over many aspects of the Gaza War from the perspective of international law”. The picture emanating from Ambos’s account is simple: those who speak in the name of law – the Israeli scholars who write letters with both “doctrinal and historical” importance – are fighting with the limited means at their disposal against the lawless war in Gaza. Yet, the letters are all addressed to two lawyers: the Israeli Attorney General Gali Baharav-Miara (AG) and Chief Military Advocate General (MAG) Major General Yifat Tomer-Yerushalmi. Indeed, they are the heads of the legal establishment responsible for giving legal approval to all the government’s policies in the Gaza War. After all, Israel purports to be a Rechtsstaat state and one in which, according to the Israeli Supreme Court’s (ISC) doctrine, the AG has the final word on the legality of governmental actions unless the ISC ruled otherwise. In other words, if the AG says “this action is illegal,” the government must stop its illegal action.

Reality in Israel is thus not a story of a struggle between those who speak in the name of law against the lawless Behemoth. Both sides are speaking the language of law. Moreover, since the Netanyahu government’s attempt to overhaul the legal system, Israeli legal academia supports the AG and presents her as a hero who “guards” human rights even though the AG (and the ISC) have actively provided legal cover for the atrocities in Gaza.

A good illustration of this strange reality is the work of the Israel Democracy Institute (IDI), which continues being one of the leaders of the protest to stop the government’s plan to overhaul the judicial system. The IDI’s “Center for Security and Democracy” is headed by Dr. and Colonel (Res.) Eran Shamir-Borer, who was until 2022 the head of the International Law Division (ILD) in the MAG Unit. The ILD is responsible for providing legal clearance for military actions involving aspects of IHL, including targeting decisions.

During the War, the center has offered no scrutiny – none whatsoever – of the legality of the Israel Defence Forces’ (IDF) actions in the Gaza War. Apparently, those actions do not affect Israeli democracy.

Two prominent international law professors, who signed many of the letters Ambos refers to, work under Borer-Shamir at the IDI in addition to their work in Israeli higher education institutions. In March, I wrote an article (in Hebrew) criticizing, among other things, the IDI’s silence with regards to the legality of the IDF’s actions in the Gaza War and its decision to appoint a reserve officer, who has had influence on the ILD’s policy in the current war, to head a unit which is supposed to scrutinize it. Following my critique, I had constructive conversations with two members of the IDI, yet since then nothing in the IDI’s activity has changed. In my dictionary, this is “democracy washing.”

The Behemoth narrative conceals a much more complex reality which is saturated with law, and in which legal academia supports the agents producing this law. It masks not only a major problem for Israeli legal academia, but also for international law. To that complicated reality, I move in the next section.

The Dual Court and the failure of international law

In two recent posts, I demonstrated that the expansion of the ISC’s authority into realms of identity and mega-politics has hindered its ability to provide the most basic legal protections for Palestinians, such as in habeas corpus petitions. My account also showed how the ISC (with the AG’s support) uses its power against the government in high profile-cases dealing with institutional aspects of democracy, while at the same time, gives very mild remedies – if any – in response to infringements of Palestinians’ basic human rights, with the AG supporting the government.

The ISC’s dual function does not sit well with the Behemoth narrative: Is the ISC and the AG part of the Behemoth or fighting against them? But my previous posts focused on public law. Now, let’s speak of one example illustrating the gap between the Behemoth narrative and how international law is applied in the Gaza War.

The doctrine of manifestly unlawful orders aimed to invalidate the claim made by Nuremberg trial defendants that “they were just following orders.” The problem this claim raised is that soldiers could be relieved of criminal responsibility if the act for which they were indicted was ordered by a superior officer. This is known as the defense of superior orders. However, following World War II, an exception to this defense that reinstates criminal liability was established in the criminal law of many countries, as well as in Article 33 of the Statute of the International Criminal Court. This exception is the manifestly unlawful order doctrine. Under this doctrine, whereas the superior order defense may be a valid defense for “regular” unlawful orders, if an order is manifestly unlawful, the defense fails and the soldier must refuse the order.

But how do we identify manifestly unlawful orders? The test in Israeli law was formulated by the District Military Court in its 1957 judgment in the Kafr Qasim case (and later adopted by the ISC in the Eichmann judgment):

“The distinguishing mark of a ‘manifestly unlawful order’ should fly like a black flag above the order given, as a warning saying ‘Prohibited!’. Not formal unlawfulness, hidden or half-hidden, nor unlawfulness discernible only to the eyes of legal experts, is important here, but a flagrant and manifest breach of the law, definite and necessary unlawfulness appearing on the face of the order itself, the clearly criminal character of the acts ordered to be done, unlawfulness piercing the eye and revolting the heart, be the eye not blind nor the heart not stony and corrupt, that is the measure of ‘manifest unlawfulness’ required to release a soldier from the duty of obedience upon him and make him criminally responsible for his acts.”

As multiple accounts have shown, the IDF has become highly reliant on ILD’s legal clearance of military operations. As I have shown in several articles and posts, this rise in ILD’s power has led to a shift in the way the manifestly unlawful orders are identified. The decision of whether an order is manifestly unlawful was at least partly taken from the hands of combatants (as the Kafr Qasim case stipulated) and put in the hands of lawyers. After all, how can a soldier refuse to obey an order claiming that it is manifestly unlawful after a legal advisor gave it clearance and determined it is lawful? More importantly, for our purposes, the criterion for identifying a manifestly unlawful order changed from a moral/visceral reaction (“gut feeling”) into a legal metric.

While elsewhere I discuss this change in length, for the purposes of this post, only two key insights are relevant. First, in the Gaza War, highly qualified legal advisors were given more authority over military operations than in past wars, and the results are simply horrific. Second, more law is not always the solution. Sometimes it is the problem. Due to lawyers’ control over giving legal clearance to military operations, in the eye of combatants and large parts of the public, law has legitimated the IDF’s actions in Gaza, even if (or perhaps because) every now and then it also stood in its way. For this reason, Fraenkel’s type of picture better captures the current function of the Israeli legal system. In one arena, the so-called “fighting to save democracy” arena, the law has been a powerful tool in the hands of the legal establishment in stopping the government from changing certain institutional aspects of Israeli democracy. Yet, in the Gaza arena, law has been a powerful tool in giving power and legitimizing the state’s actions. As Fraenkel put it, in the former arena the state abides to the rule of law, whereas in the latter it is ruled by law i.e., it uses law to enable its actions.

Conclusion

When the Gaza War finally ends, the first premise in discussing the future of international law must be that a country with a powerful legal system and a military which heavily relies on legal advice, failed miserably in preventing atrocities. Lest us forget that the ISC has asserted its power throughout the war in cases that included striking down a constitutional amendment. The AG has also demonstrated activism on multiple occasions and confronted the government, just not with regard to the Gaza War. This is not a reality of “inter arma enim silent leges” (in times of war, the law falls silent), nor a situation of a passivity of the legal establishment during wars. Contrary to what the Israeli international legal scholars write in one of their letters, this is also not a reality of “the legal advisory system may be disconnected from field-level decision-making.” Rather, it is a reality saturated with law that is applied so as to legitimate military actions.

Firm believers in the current version of IHL may argue in response that the problem lies not in the law, but in Israeli lawyers. Had Israeli governmental and military lawyers properly followed IHL, none of the Gaza atrocities would have happened, or so the argument goes. Let me respond to that argument in a personal and open manner.

I served my compulsory military service at the Judge Advocate Unit as a military defense lawyer. The MAG who entered his position half a year after I joined the unit was previously a judge in the Military Court of Appeals. Apparently impressed by my work, he asked me to switch from the military defense to ILD, which is considered the top unit at Judge Advocate Unit. I said no. He then asked: “And what if I order you to serve there?” “Then I will refuse,” I answered. I served as a legal defense lawyer for the remainder of my service. Thanks to understanding commanders, I never represented soldiers indicted for acts of violence in the Occupied Territories, but I did represent the vast majority of conscientious objectors that the military legal advocacy represented. I am writing all of this so I will get some credit for the following statement rather than dismissing it as me trying to defend my fellow countrymen and women. The lawyers serving in ILD are not warmongers. During the lunches I had with them during my service, they would counter my claims that they were legalizing unlawful acts by saying that without them, the situation would be worse. I doubt that, but had I joined ILD, I don’t think I would function differently than they did. The incentives to excel in your job in the ILD are hard to resist especially for young adults, and soon enough you become part of the “banality of evil,” especially for those who wish to progress in the unit beyond their compulsory service.

The problem is not the people who function as military and governmental lawyers, but rather giving too much power to law in legitimizing and enabling military operations, especially when the legal tools are so plastic (e.g., proportionality). I want to stress that I am not saying IHL is unimportant or that we should trust military professionalism. I am saying, IHL needs to change.

I agree with Ambos that boycotting Israeli academic institutions would be a mistake. For Israel to get out of its current predicament, a strong Israeli academia would have to play an active role. However, living several months in Israel now after many years of being abroad, I am astonished by the ads that legal scholars publish weekly in Haaretz newspaper in support of the AG embracing her as a “hero” in her “fight to protect democracy,” while sending her the letters Ambos refers to regarding IHL violations. The AG is not my hero.

Israeli academia has proven to be very effective in boycotting speakers who supported the constitutional overhaul prior to October 7. Why not boycott the AG? For those of you who think this proposal is too extreme, I suggest the following thought experiment: if the ICC prosecutor had issued an arrest warrant against the AG in addition to Prime Minister Netanyahu and former Defense Minister Gallant, would the war in Gaza have been conducted in the same manner? I contend that, in view of the security forces’ strong support of the legal system during the protest against the constitutional overhaul attempt – up to the point of essentially threatening a military coup if the reform goes through – it is quite plausible that, without credible legal legitimation, the war would have been fought differently and probably would have been ended by now.