Israel's Military Advocate General Protects 'Civilian' Terrorists of October 7

Of all the images of Israelis being taken hostage on Oct. 7, 2023, the most heartbreaking is that of Shiri Bibas holding her two redheaded toddlers, her face contorted in horror, as if the camera had frozen the very instant when she realized there is no human feeling in her barbaric captors to appeal to.

We now know who these barbarians are. The Israel Defense Forces positively identified the kidnappers of the Bibas family. They still live in Gaza.

And though Israel vowed to hunt down each and every one of the participants in the massacre, it is not targeting the Bibas abductors—because Military Advocate General Brig. Gen. Yifat Tomer-Yerushalmi has defined them as “citizens,” not combatants, and so has vetoed targeting them. IDF Chief of Staff Lt. Gen. Herzi Halevi accepted the dictum and Defense Minister Yoav Gallant acquiesced. And so the tormentors of Shiri Bibas and her children are alive and well. The matter was first exposed by Amit Segal on Israel's Channel 12 News earlier this year, but nothing has changed since then.

How did we arrive at this madness?

The legal reasoning is as banal as it is irrelevant to the case at hand. It is based on Additional Protocol I of the Geneva Convention, which deals, among other things, with civilians who participate in military activities. Such civilians, the Protocol says, are only legitimate targets for the duration of their participation in these activities.

Israel, like the United States, did not ratify the Protocol, but according to Israel’s Supreme Court, it is nevertheless now part of customary international law, and therefore applies to the Israeli military.

The U.S. realized that the clear-cut dichotomy between soldiers and civilians had become untenable in modern-day wars, where terror organizations are imbedded in civilian populations, and thus vested in the president the authority to designate enemies who take part in military activity without being part of a regular army by the intermediary category of “unlawful combatant.”

Israel’s Supreme Court found another way to deal with the gray areas. According to former Supreme Court President Justice Aharon Barak, the idea that a civilian participating in military action is only a legitimate target for the duration of participation can become more elastic if “duration” is interpreted more broadly. If such an individual repeatedly takes part in military actions, then the periods between those actions should be considered as preparation to resume action, and therefore covered by the term “duration.”

But the military advocate general, Tomer-Yerushalmi, is apparently even stricter, and thus classified non-affiliated participants in the massacre simply as “civilians.”

There were 1,250 such “civilians” among the perpetrators of the Oct. 7 atrocities. Seven hundred of them were killed on that day, or later during action in Gaza. Four hundred and fifty are still alive. IDF intelligence has identified them.

Yet the military advocate general’s veto is preventing Israeli forces from targeting them, allowing troops only to search for and then arrest them—which, thankfully, they haven’t been doing. Israel should not risk the life of a single soldier to protect the non-existent right to due process of barbaric enemy terrorists who invaded the country and perpetrated some of the worst crimes against humanity, amid a military operation in a war that is still ongoing. Targeting them is not simply a form of revenge. It is military retaliation necessary to keep Israel’s deterrence effective and its commitments meaningful.

The unwise and undue formalities that Israeli jurists apply, and which tie Israel’s hands in myriad ways, are supposedly applied in order to protect the country from international tribunals, since—the logic goes—if Israel judges itself harshly enough, the principle of complementarity will lead international courts to see there are no grounds for them to intervene.

This is preposterous, as the recent illegitimate procedure against Israel at the International Court of Justice at the Hague has amply demonstrated. These bodies are political, packed full of antisemites and enemies of Israel, perfectly willing to turn reality on its head and accuse the Jewish state, not the genocidal terrorists who attacked it, of committing genocide.

What Israeli jurists are doing is therefore not just useless; it’s also outrageous. It is a reminder that groveling at the feet of antisemites in the hope that Israeli/Jewish self-hatred will somehow get them to accept us—or at least to accept those of us willing to indulge it—is as futile as it has always been. Self-hatred is no less despicable when cloaked in the formalistic language of the law.

The designation of “civilians” among active terrorists is by no means a single lapse of judgment by the military advocate general. Israel’s whole judicial system is infected by this frame of mind. And it is therefore as unnecessarily harsh with IDF soldiers as it is lenient with terrorists.

The State Attorney has moved to prosecute some of the brave individuals who rushed to the rescue on that terrible Sabbath morning for the murder of Nukhba terrorists. In the cases now being investigated for prosecution, it is alleged that Palestinian invaders were killed after being neutralized, which should therefore count as illegal execution—i.e. murder. As if, amid the chaos and mayhem, the homicidal spree and barbaric horror, those courageous souls who leaped, outnumbered, into the fire to save others could have just handcuffed a terrorist they caught and then sat to guard him until military police arrived, or escorted him to some not-yet-existing police pick-up spot.

There were no organized army units anywhere around for hours on end, let alone auxiliary units of military or regular police. The absurdity of judging those who had to think on their feet while desperately struggling amid bestial savagery to save families from being burned alive, as if they had made a casual arrest on a sunny morning in some residential neighborhood, should have been self-evident to anyone with minimum common sense.

But what is common sense compared to the woke self-aggrandizing of righteous jurists? Apparently for them the war is not an existential struggle for survival, but an opportunity to demonstrate their own moral purity, which it is their job, they believe, to force the rest of us to live up to.

What they want to impose, however, is not really moral. It is a local Jewish variation—spiked with self-hatred—on a perverse, moralistic form of woke narcissism. It is yet another manifestation of the autoimmune disease that turned the West’s values against the West itself.

It is the distorting mirror that magnifies the West’s imaginary sins, so as to conceal the very real horrors committed by non-Western Others. Western universities have become training grounds for this warped mentality: The self-declared enemies of our values are made into mere abstractions against which we can polish our own sense of moral superiority—by blaming ourselves. Politics has become a ritual of cheap, false self-purification.

Member of Knesset Amit Halevy (Likud) for one, refuses to see the military advocate general’s moralism as in any way moral. It is immoral in his view, because it substitutes virtue for evil, and evil for virtue. He therefore wrote an urgent letter to Defense Minister Gallant early in July, demanding a reconsideration of the dictum forbidding the targeting of “civilian” participants in the massacre.

These are not “civilians” caught in the crossfire and taking up arms incidentally, Halevy wrote. They joined the combat units and therefore made themselves part of them in deed, not in theory; they invaded the sovereign territory of another country—ours; and they took part in atrocious crimes against humanity. “Including them under the category of protected civilians,” Halevy said, “is utterly perverse.” His request for reconsideration of the military advocate general’s instructions has so far been turned down.

But his letter is notable for one more reason. Having surveyed the absurdities of the case for extending the protection of Additional Protocol I to non-affiliated terrorists, Halevy concluded with what is, perhaps, the most important observation he made: Under the conditions of an ongoing war, such decisions should be political, not legal.

Herein lies the heart of the problem.

In this clash between politicians and jurists, between woke moralism and real morality, between virtue-signaling and healthy survival instincts, lies a question with global historical implications. As Prof. Dan Schueftan has noted on the “Israel Update” podcast, this war is a test-case for whether civilized nations can defeat barbarism in an age when the barbarians have learned to use our values against us. Or, more starkly stated, has the woke autoimmune disease advanced so far as to paralyze our ability to defend our own lives?

Will progressive, woke elites—with their tribunals, NGOs, news organizations, social media and sprawling bureaucracies—rather see Jews die, and ultimately the West perish, for the sake of signaling their own virtue? Or will Israel defy all these and demonstrate that it can smash through this wall of false moralism and protect civilians, as well as civilization?

In that sense, the higher the wall, the stronger the demonstration. The shriller the screams of hypocritical outrage against us, the more compelling the stern insistence to ignore them. For it is our task in this war not only to ensure our physical survival, but also to expose the moral rot of elites who have given up on defending their own culture. Because the woke virus, this war has reminded us, can be lethal.

Of course, we must not become like the barbarians we fight; that goes without saying. Israel has managed to reduce civilian casualties in proportion to combatant deaths to a third or less of what is considered the norm in urban warfare. All that, despite the density of Gaza and the ruthless use of human shields by its barbaric enemies. This is commendable.

But it is a long way from the self-evident maxim that we Israelis should keep their moral standards to the charade by which self-flagellation reduces our ability to defeat and deter barbarians. It is immoral to put the lives of our own soldiers at unnecessary risk for the sake of infantile virtue-signaling. We should, in fact, turn the moral tables on woke elites, who now stage demonstrations for Hamas and try to convince the world that the racial hatred of Jews is somehow part of the global war against racism.

Those who support an organization that uses children as human shields should be shamed also for then using them again as propaganda. Those deaths are all on them. And Israel should not flinch before the attempt to turn moral reality on its head.

Gadi Taub writes for Jewish News Syndicate. Taub is a senior lecturer at Hebrew University’s Federmann School of Public Policy.