Thursday, November 26, 2009

The So-Called Partial Settlement Freeze -- Mapai Unilateralism Again

So Bibi has announced a unilateral 10 month "settlement freeze," except in East Jerusalem. Perhaps the proper Palestinian response will be to restart the Kassams? Or the suicide bombing? I can already hear the Israeli hasbara-niks saying, "We announced a settlement freeze, and all we got was terrorism." Good PR for Israel from the master of Israeli PR.

In every generation, Israel needs to sound conciliatory in order to take the diplomatic heat off it. That, dear readers, is why Israel withdrew from Gaza. Not, God forbid, in order to give peace a chance. If that were the reason, then the move would have been negotiated and coordinated with the Palestinian Authority. But Sharon never believed in peace, and he certainly didn't believe in the Arabs. No, he decided to cut and run from Gaza in order to deflect attention from the Geneva Initiative and, more importantly, in order to ease pressure on Israel to cede portions of the West Bank he was not interested in giving up. At least that is what he told the Israelis.

Israel invades, Israel retreats, Israel declares itself a state. All unilateral steps. The important thing is never to acknowledge that there is another side, never take them seriously,never treat them as equals. What the goyyim say is not important; only what Jews do is important. Keep juggling and talking peace in order to keep the world (in this case, Obama) off your back. It's all about hasbara, the medium is the message. Attorney General Mazuz has already said that there is no way to enforce even the partial freeze. "Israbluff" is what they call stuff like that in Israel. Count how many illegal outposts there are today. And come back in ten months and then count.

Only Rabin thought otherwise. And he was shot by a frummie.

Friday, November 20, 2009

The Second Coming of Sarah Palin

Among the things that Sarah Palin said this past week to Barbara Walters this week was this little gem on settlement expansion was the following gem"

I disagree with the Obama administration on that. I believe that the Jewish settlements should be allowed to be expanded upon, because that population of Israel is, is going to grow. More and more Jewish people will be flocking to Israel in the days and weeks and months ahead. And I don't think that the Obama administration has any right to tell Israel that the Jewish settlements cannot expand."

This remark sailed right over the heads of the secular media who are not used to hearing Christian evangelicals. Here's one example, from the Christian Science Monitor.

While her assertion that more and more Jews will be "flocking" to Israel soon is dubious (the immigration of US Jews to Israel hit an 18-year low in 2007 while the Palestinian population in the area is growing at faster rate than the Jewish one), her wholehearted support for settlement expansion on land Israel seized in 1967 is an outlier. The West Bank and East Jerusalem are considered to be illegally occupied by the UN and most world governments . Direct support for settlements would be a stunning departure for the US.

Once is tempted to say "dumb goyyim," but Jeremy Ben-Ami of J-Street reacted about the same.

Palin's pandering to her right-wing base comes at the expense of the security of the State of Israel, the lives of those actually living the conflict, and the fundamental American interest in achieving a two-state solution in the near term. Her words reveal a glaring ignorance of damaging facts and a callous disregard of past and present U.S. policy.

For Ben-Ami, Palin's support of settlement expansion was a case of "pandering to her right-wing base," as if she didn't really care about Jews or Israel – she just wanted to pick up some votes.

Dr. Marsha B. Cohen has pointed out privately that Palin's remark has a lot more behind it. Indeed, maybe you have to be a religious Jew or a Christian evangelical – or, for that matter, somebody who has studied those groups, like Dr. Cohen – to understand that Palin's remark came from her deepest convictions. Because as has already been pointed out, her version of Christianity preaches that very soon now (or as Chabad says, be-karov mammesh) there will be an ingathering of all the Jews to Israel as part of the final eschaton. And then the Lord Jesus Christ will return after Armaggedon, etc.

As an orthodox Jew who respects – well, at least understands – religious belief, I take Sarah Palin seriously. She is motivated by an ideology that is almost indistinguishable from that of the West Bank settlers, who also see that the Messiah is just around the corner. True, they disagree over the details – like the identity of the messiah and the message – but they are both motivated by a fundamentalist religious ideological.

Under these circumstances, the most natural organization to call out Sarah Palin on this religious interference into the Middle East would be the Anti-Defamation League.

Think again. Abe Foxman went out of his way to defend Palin against J-Street's attack. According to Foxman, who the hell is J-Street to tell Israel what its security needs are. Foxman, whose loyalty is almost always to whatever Israeli government is in charge (one remembers how he left his shul during Oslo because his rabbi was dissing the Rabin government), sees no problem with questioning J-Street's "pro-Israel" moniker and defending a position which any person with a grain of sekhel would understand as problematic at best, or benignly anti-Semitic at worst.

For Ben-Ami's response see here.

Tuesday, November 17, 2009

David Shulman on Moshe Halbertal on the Goldstone Report on the NYRB Blog

One of Moshe Halbertal's criticisms in the Goldstone Illusion was that the report brought in extraneous material about Israeli's Occupation of the West Bank. "Why should a committee with a mandate to inquire into the operation in Gaza deal with the Israeli-Palestinian conflict at large?

The question was anticipated and answered already in the Goldstone Report, and I cite it in my post below. Another answer has now been provided by Prof. David Shulman, Halbertal's Hebrew University colleague. Shulman, whose book Dark Hope was reported on in this blog, has long been an activist on the West Bank with the Jewish-Arab group Ta'ayush.

Shulman's piece, "Israel Without Illusions: What the Goldstone Report Got Right" starts off with partial agreement with Halbertal on some points.

There are, in my view, problems, distortions, and lacunae in the Goldstone report—some of them resulting from the fact that the Israeli government refused to cooperate with the UN commission. At the very least, Israeli testimony, both by ordinary soldiers and higher-ranking officers, might have modulated the sweeping conclusions in three of the most damning chapters of the report: "Chapter X. Indiscriminate Attacks by Israeli Armed Forces Resulting in the Loss of Life and Injury to Civilians"; "Chapter XI. Deliberate Attacks Against the Civilian Population"; and "Chapter XIII. Attacks on the Foundations of Civilian Life in Gaza."

Shulman doesn't say what these "problems, distortions, and lacunae" are, but when he writes that "at the very least," more interviews with the IDF "might have modulated the sweeping conclusions in the three of the most damning chapters of the report," you know how fundamentally he disagrees with Halbertal's moral outrage over the report.

So where does he agree? On the "eerily neutral tone" taken by the report towards Hamas. C'est tout.

But after the perfunctory attempt at sounding conciliatory, Shulman gets down to business.

But the report's attempt to link whatever happened in Gaza with what has been going on in the West Bank for the last forty-two years is wholly justified. The political background to the report is, before all else, a cultural and moral one. I do not believe that a society can disenfranchise, dispossess, and effectively dehumanize large numbers of people living between Jenin and Hebron without this process influencing the way it conducts a war in Gaza. No one who regularly visits the Palestinian territories controlled by Israel has to speculate about whether or not Israel is engaged in the routine abuse of human rights.

And further

But at heart the problem is not, after all, a legal one: rather, it reflects our deeper vision of ourselves in the world and our ability to see, to imagine, and to acknowledge the suffering of other human beings, including those aspects of their suffering for which we are directly responsible. It is also important to note that the public debate itself has its limits, as you can see by the recent attempts to silence Dr. Neve Gordon of Ben-Gurion University or the no less invidious government campaign to dry up international funding for Shovrim Shtika ("Breaking the Silence"), the remarkably courageous group of ex-soldiers who have exposed recurrent acts of army violence against Palestinian civilians that they witnessed in Hebron and elsewhere in the territories. Shovrim Shtika has also meticulously collected soldiers' testimony about what they saw or did during the Gaza campaign last December and January.

Shulman ends with saying what many have said – that the Gaza Op was different from previous operations in terms of dealing with civilians -- that with each operation the IDF sinks to a new low. Those of us who have been around for a while remember when Israelis had at least a modicum of outrage over civilian deaths. A whole commission was set up to probe Israeli responsibility for a massacre in which the IDF did not even take part! Sorry to wax nostalgiac, but those were the days!

As prophesied long ago by the late philosopher Yeshayahu Leibowitz and others, the occupation—and above all the settlement project—have profoundly eroded the moral fiber of Israel, corroded central institutions of the society, and undermined our integrity as a political community. None of this happened in a vacuum; the "other side" has much to atone for as well. But even I can remember a time when charges of war crimes were not simply sloughed off by Israel's leaders, when military mistakes that cost innocent civilian lives were acknowledged as such and elicited expressions of sorrow, and when Israeli courts clearly articulated the principle that a soldier has not only the right but indeed the duty not to carry out an order that is at odds with his conscience as a human being or with basic human values.

I remember vividly an eloquent apology offered on national television by then Chief of Staff Mota Gur for accidental civilian casualties caused by shelling during Operation Litani in Lebanon in the spring of 1978. One might also recall the time in late 1982 when some 300,000 ordinary Israelis came out to demonstrate in Tel Aviv because of Israel's indirect responsibility, as occupying power, for the Sabra and Shatila massacre in Beirut. Times have changed.


(h/t to ibn ezra)

Saturday, November 14, 2009

The Children of Abraham vs. the Children of Joshua

In today's weekly Torah portion, we read how the patriarch Abraham bought the field of Ephron the Hittite, and the Cave of the Machpelah, in order to bury his wife, Sarah. Although he is recognized as a powerful chieftain, he refuses to receive the field and the cave as a gift. Instead, he pays the (perhaps exorbitant) sum of four hundred shekels, Ephron's asking price.

Now Abraham knows how to bargain – he bargained with the Lord in order to save the city of Sodom. So why doesn't he bargain here? Because he knows that, as a "stranger and a sojourner in the land", his peace and security depends upon his good relations with his neighbors. He does not want anything that doesn't belong to him, or that will compromise his values; he declines the spoils of war offered him from the King of Sodom. He has been assured that his descendants will inherit the land, but he does not act now on that knowledge, nor does he try to hasten that day. And his approach is imitated by his son, Isaac, and his grandson, Jacob. It is part of Abraham's legacy to seek peace and accommodation – while retaining his own identity – with the peoples of Canaan.

Not so Joshua. In his book we read of warfare, of conquest, of wiping out the inhabitants of the land of Canaan (all of which is probably an invention of authors who lived centuries after the events; there is no archaeological record of any conquests during this period.) True, Joshua is guided by the Lord, and the Israelites are successful, in a way, in inheriting much of the Land, with blood and fire. But is it coincidental that the period of conquest is followed by the period of lawlessness and internal strife, where everyone did what he considered to be right in his own eyes?

When contemplating the return to an imagined homeland, the Zionists had in front of their eyes the model of Abraham and the model of Joshua. As is well-known, it was Joshua that won out. War, conquest, the elimination of Palestine from the map, which included the refusal to allow the native Palestinians to return to their homes, the destruction of three hundred villages, the expropriation of homes, and the settling of immigrants therein, was the order of the day. Many Zionists looked at Joshua as their forerunner. They spoke of kibbush ha-aretz in Biblical terms, and they were proud of their military prowess, like the ancient Hebrews of old.

Yet there were some Zionists who rejected the conquest-model, and Judah Magnes was the most prominent of them. Shortly after the massacre of the Jews in Hebron, when nationalistic feelings were at a fever pitch, he wrote, "Like All the Nations." Magnes is today remembered for his binationalism, but that was not the essential part of his thinking, and he abandoned binationalism in favor of federation when the Jewish state was a fait accompli. What was essential to his Magnes was his belief that any political solution had to be with the consent of the native Palestinian Arabs; otherwise, the Jews would enter into a state of perpetual war with them. His was the opposite thinking to the "Iron Wall" mentality of the statist-Zionists, left and right. He was the ultimate opponent of unilateralism.

Well, he lost, didn't he? And look how things have turned out….

Today, there are "Jewish" settlers who live in the vicinity of the Cave of the Machpelah, in Hebron and in Kiryat Arba. They may be Jewish, but they are not of the seed of Abraham; they are the children of Joshua, at best. The real children of Abraham are both those of the seed of Ishmael who have been banished from their houses, and those Israeli Jews who have devoted their lives to seeing justice done in Hebron.

It is best to close with the words of Magnes from "Like All the Nations":

Palestine is holy to the Jew in that his attitude toward this land is necessarily different from his attitude toward any other land. He may have to live in other lands upon the support of bayonets, but that may well be something which he, as a Jew, cannot help. But when he goes voluntarily as a Jew to re-people his own Jewish Homeland, it is by an act of will, of faith, of free choice, and he should not either will or believe in or want a Jewish Home that can be maintained in the long run only against the violent opposition of the Arab and Moslem peoples. The fact is that they are here in their overwhelming numbers in this part of the world, and whereas it may have been in accord with Israelite needs in the time of Joshua to conquer the land and maintain their position in it with the sword, that is not in accord with the desire of plain Jews or with the long ethical tradition of Judaism that has not ceased developing to this day.

Spoken like a true child of Abraham.

Monday, November 9, 2009

When the Liberal Israeli Meets the Judge – Moshe Halbertal On the Goldstone Report: Part Two

In "The Goldstone Illusion", Prof. Moshe Halbertal reserves his greatest ire for those sections of the Goldstone report that deal with the historical context of the Gaza operation, and a review of Israel's activities on the West Bank:

The commission that wrote the report could have performed a great service if it had concentrated on gathering the testimonies from Gaza and assessing them critically, while acknowledging (as it failed to do) that they are partial and incomplete. This would have forced Israel to investigate various matters, provide answers, and take appropriate measures. (I do not imagine Hamas engaging in such an investigation of its own crimes. This is yet another asymmetry.) But instead the commission opted to add to its findings three unnecessary elements: the context of the history that led to the war; its assessment of Israel's strategic goals; and long sections on Israel's occupation of the West Bank. Why should a committee with a mandate to inquire into the operation in Gaza deal with the Israeli-Palestinian conflict at large?

….The commission should not have dealt with the context leading to the war; it should have concentrated on its mandate, which concerned only the Gaza operation. By setting its findings about the Gaza war in a greatly distorted description of the larger historical context, it makes it difficult for Israelis--even of the left, where I include myself--to take its findings seriously.

Before responding to Prof. Halbertal's objection, let us put to rest two of his assumptions. The first is that had the Goldstone mission simply published testimonies from Gaza, Israel would have been "forced" to investigate. This is an absurd claim, and Prof. Halbertal knows it. When the Israeli NGO "Breaking the Silence" published IDF soldier testimonies from Gaza last summer, the government turned on the young veterans and refused to deal or even to respond to the testimonies. It reacted similarly when similar reports were published by Human Rights Watch and Amnesty International. So why would the government treat the Goldstone report differently, especially after Israel had already refused to cooperate with the Mission?

As for the criticism that the Mission overstepped its mandate by discussing things that occurred outside of Gaza, here is the report's justification, which he does not mention:

As explained above in chapter I, the Mission believes that the reference in its mandate to violations "in the context" of the military operations in Gaza required it to go beyond the violations that occurred in and around Gaza. it also believes that violations within its mandate in terms of time, objectives and targets, include those that are linked to the December 2008 –January 2009 military operations, and include restrictions on human rights and fundamental freedoms related to the strategies and actions of Israel in the context of its military operations.

Developments in Gaza and the West Bank are closely interrelated, in the Mission's view, an analysis of both is necessary to reach an informed understanding of and to report on issues within the Mission's mandate. On the one hand, the events in Gaza have consequences in the West Bank, on the other, pre-existing problems in the West Bank have been exacerbated by the Gaza military operations. In its examination of the West Bank with respect to actions taken by Israel, the Mission focused on four key aspects in their linkage to the Israeli military operations in Gaza: (a) the sharp increase in the use of force by Israeli security forces, including the military, in the West Bank; (b) the tightening and entrenchment of the system of movement and access restrictions; (c) the issue of Palestinian detainees and especially the increase in child detainees during and after the military operations; and (d) the Gaza corollary of the detention of Hamas members of the Palestinian Legislative Council.702 While the treatment by the Gaza authorities of those opposing its policies is discussed in chapter XIX, similar issues with regard to the conduct of the Palestinian Authority in the West Bank also called for investigation. Linkages with the Israeli operation in Gaza are elaborated in the respective chapters.

While it is understandable that Prof. Halbertal wishes to limit the Mission's investigation to events in "Hamastan," where it's all about a "war on terror", it is obvious that Israeli actions in Gaza were both related to, and full of repercussions for, its actions in areas outside of Gaza -- since Gaza is one of two parts of the territory allocated to the Palestinians, and there are strong connections between the two. In fact, there were arguably two "fronts" in the Gaza war, as can be seen from the relevant sections of the report. While the "Eastern Front" was relatively quiet, it certainly was affected.

One point I will grant Prof. Halbertal: the section on historical context generally favors the Palestinian and not the Israel narrative. The suicide bombings of the Oslo period are mentioned, as are the Kassam rockets, but only laconically. The Separation Wall is not connected with security but with land expansion. But why is it illegitimate to view much of Israel's strategy and motivation in the Gaza operation in the context of its forty-two year Occupation? And suppose that the historical context had included all the things that Israel doesn't like about Hamas, e.g., its anti-Semitic charter, its history of suicide bombings (briefly mentioned), its refusal to recognize Israel's right to exist? Of what significance would that be to be to Israel's conduct of the war and considerations of jus in bello? Surely, Prof. Halbertal doesn't wish to suggest that Israel's operation in Gaza was motivated by a desire for revenge or to get even with Hamas for the bombings. In any event, the report's criticism focused not on the treatment of combatants but of civilians.

Prof. Halbertal is outraged at the report's accusation that the IDF deliberately targeted civilians: "…the claim that Israel intentionally targeted civilians as a policy of war is false and slanderous." Unfortunately, he neither produces any evidence on behalf of his own claim nor does he mention, much less attempt to refute, the evidence marshaled by the Mission in the report. Instead, he refers to the ratio of civilian deaths to militants deaths and concludes that this was reasonable, indeed better than other Western armies. This is a fallacy, since he infers, wrongly, that if the IDF had deliberately targeted civilians, then there would have been many more civilians dead than there were (or the ration of civilians to militants would have been greater.) But nowhere in the Goldstone report is Israel accused of mass murder, or of deliberately killing as many civilians as it could. Rather, it argues, on the basis of representative declarations by Israeli officials, the accuracy of Israeli artillery and air force, the vast destruction to property, and testimonies, that military necessity did not always play a decisive role in decisions to bomb. And this is correct. The goal of the Gaza operation was to reestablish deterrence perceived lost as a result of the Second Lebanese War and to punish (or at least scare the hell out of) the Gazans. Ba'al ha-bayit hishtage'a, 'The boss has gone bonkers'. Now whether a policy of relaxing the rules of engagement, of quick fingers on the trigger, etc., constitutes deliberate targeting of civilians is debatable. But it is not debatable that the numbers of civilians killed were not due to merely to carelessness, negligence, or regrettable accidents in urban warfare.

In fact, Halbertal's failure to grapple with the report's evidence raises the question whether he actually read it, or at least read it carefully. He makes several accusations which are simply false. For example, he writes that "Israel chose not to cooperate with the commission, and so the Israeli version of events is not here." But even the most superficial reading reveals that the Israeli version of events is on every page, culled from official reports, news reports, and even websites like the Jerusalem Center of Public Affairs. What Halbertal and most Israelis find galling about the report is not that the Israeli version of events does not appear, but rather than it is consistently rejected as less credible than the Palestinian testimonies. There are reasons for this, too, as the report mentions in exhaustive detail, but Halbertal ignores this as well.

Here's another case where Halbertal does an injustice to the report, the bombing of the Police Academy.

Consider a painful issue that comes up in the Goldstone Report--the matter of the Gaza police force. In the first minutes of the war, Israel targeted Hamas police, killing dozens. There is no question that, in an ordinary war, a police force that is dedicated to keeping the civilian peace is not a military target. The report therefore blames Israel for an intentional targeting of noncombatants. But such a charge is only valid concerning a war against a state with a clear and defined military institution, one that therefore practices a clear division of labor between the police and the army. What happens in semi-states that do not have an institutionalized army, whose armed forces are a militia loyal to the movement or party that seized power? In such situations, the police force might be just a way of putting combatants on the payroll of the state, while basically assigning them clear military roles. Israeli intelligence claims that it has clear proof that this was the case in Gaza. This is certainly something that Israel will have to clarify. But it is clear to me that Goldstone's accusation that targeting of the police forces automatically constitutes an attack on noncombatants represents a gross misunderstanding of the nature of such a conflict.

Now contrast this reading, which attributes to Goldstone the "accusation" that "targeting of the police forces automatically constitutes an attack on noncombatants" with what the report actually says.

The Mission examined the attacks against six police facilities, four of them during the first minutes of the military operations on 27 December 2008, resulting in the death of 99 policemen and nine members of the public. The overall around 240 policemen killed by Israeli forces constitute more than one sixth of the Palestinian casualties. The circumstances of the attacks and the Government of Israel July 2009 report on the military operations clarify that the policemen were deliberately targeted and killed on the ground that the police as an institution, or a large part of the policemen individually, are in the Government of Israel's view part of the Palestinian military forces in Gaza.

To examine whether the attacks against the police were compatible with the principle of distinction between civilian and military objects and persons, the Mission analyzed the institutional development of the Gaza police since Hamas took complete control of Gaza in July 2007 and merged the Gaza police with the "Executive Force" it had created after its election victory. The Mission finds that, while a great number of the Gaza policemen were recruited among Hamas supporters or members of Palestinian armed groups, the Gaza police were a civilian law-enforcement agency. The Mission also concludes that the policemen killed on 27 December 2008 cannot be said to have been taking a direct part in hostilities and thus did not lose their civilian immunity from direct attack as civilians on this ground. The Mission accepts that there may be individual members of the Gaza police that were at the same time members of Palestinian armed groups and thus combatants. It concludes, however, that the attacks against the police facilities on the first day of the armed operations failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity), and therefore violated international humanitarian law.

Does the presentation above justify Halbertal's conclusion that according to Goldstone, "the targeting of the police forces automatically constitutes an attack on noncombatants." On the contrary, we have here at least an attempt to examine a) whether these particular policemen had the status of combatants or not b) if they were combatants, were they justly attacked, and c) if they were justly attacked, did the direct military advantage anticipated justify the collateral damage? We also have a reference to the Government of Israel's position. One may wish to argue with the Goldstone analysis, but Halbertal studiously avoids it.

And then comes the volte face in section four. Having thoroughly discredited the testimonies, and having made accusations about the fairness of its authors, Prof. Halbertal concludes his essay by claiming that the report's "sections devoted to the Gaza war do make claims and cite testimonies that no honest Israeli can ignore. They demand a thorough investigation.,,,"

Pardon me? What is it about these testimonies that Halbertal feels compelled to investigate? And why here and not elsewhere? Thus, he claims that it is worthy to investigate the bombing of a chicken farm, which, if the testimonies are correct, "was done to leave a brutal scar as proof of the Israeli presence, as immoral and illegal instruments of deterrence." Why is Halbertal willing to believe that the IDF deliberately wreaked destruction for the sake of "immoral and illegal" deterrence, but he is not willing to believe that the IDF had a policy of "shoot first and ask questions later" – also for the sake of deterrence?

Are we expected to accept his distinction between killing chickens and killing human beings as a matter of faith?

Sunday, November 8, 2009

When the Philosopher Meets the Judge -- Moshe Halbertal On the Goldstone Report: Part One

Recently we have been witness to the curious spectacle of Israelis criticizing vehemently the Goldstone Report, yet at the same time calling for an independent investigation of the IDF's actions in Operation Cast Lead. I am not referring to those who believe that a pro forma investigation is necessary in order to stop the damage caused by the Goldstone Report. No, I mean those folks who say, "The Goldstone Report is one-sided, biased, and denies Israel the right to defend itself (or doesn't explain how it can do so)" and then turn around and say, "Still, there is enough evidence in the report to require an investigation." The latest one to do so is Prof. Moshe Halbertal in a rather long essay in the current issue of the New Republic, in which he criticizes the Goldstone report as a "terrible document…biased and unfair," which offers "no help in sorting out the real issues." And yet it took the Goldstone Report to arouse Prof. Halbertal from his dogmatic slumbers and to call for an independent investigation.

Barukh ha-Shem for that.

A word of introduction. Prof. Moshe Halbertal is a professor of medieval Jewish thought and the philosophy of Jewish law. Although he has done some work with the IDF, he would be the first to admit that he is not an expert in the field of military ethics, just war theory, or international humanitarian law. (Neither am I.) So it was with some surprise that I saw that he had written on the subject, especially when much of it accepts uncritically the Israeli narrative and thus will be rejected as one-sided and biased by non-partisans. The first section of the essay begins with many pronouncements on the subject of just war, asymmetric warfare, etc., without any reference at all to the highly contentious literature on the subject, or to historical or legal precedent. For Prof. Halbertal, the war that Israel is fighting against Hamas militants is quite simply a "war against terrorism" Here is a typical statement:

Since the early 1990s, the nature of the military conflict facing Israel has been dramatically shifting. What was mainly a clash between states and armies has turned into a clash between a state and paramilitary terror organizations, Hamas in the south and Hezbollah in the north. This new form of struggle is now called "asymmetrical war." It is defined by an attempt on the part of those groups to erase two basic features of war: the front and the uniform. Hamas militants fight without military uniforms, in ordinary and undistinguishing civilian garb, taking shelter among their own civilian population; and they attack Israeli civilians wherever they are, intentionally and indiscriminately.

In fact, the term "asymmetrical war," not to mention the phenomenon, predates the 1990's; some consider the American Revolutionary War to be a good example of an asymmetrical war. The ethics and law of asymmetrical wars – where one side has considerably less resources and power than the other -- has also been much discussed, though one would not know it from the essay. Contrary to what Halbertal writes, paramilitary organizations made up of combatants without uniforms may or may not be terror organizations; in fact, it would be better to leave the term "terrorist organization" for those groups whose goals are nothing more than to terrorize the other side, something that cannot be said either of Hamas or, for that matter, the Hagganah and Lehi. It is much better to talk of illegal tactics and actions, such as the indiscriminate targeting of civilians, which both Israel and Hamas appears to have been guilty of, at least according to the Goldstone Report, and a number of other human rights reports.

The essay barely refers to international humanitarian law, the law of war, the protocol of Geneva Conventions, etc. For Halbertal, a professor at NYU law school (albeit a professor of Jewish law), this omission is rather striking. Thus, from the paragraph above it would appear that those combatants who do not distinguish themselves from civilians are ipso facto "terrorists," despite the fact that article 44 of the Geneva Convention recognizes "that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself".

In short, Prof. Halbertal stacks the deck of his critique against the Goldstone Report from the outset by presenting a highly partisan picture of the conflict between Israel and Hamas in the guise of a neutral philosophical introduction to the issues. We are told of the ways in which Israel is hampered from conducting war, whereas we are not told of the ways in which Hamas, or the Palestinians, are so hampered. All the restrictions, self-imposed or not, on the stronger party in an asymmetric war still leave that party with considerably more resources and military options than the weaker one. Of course, if the latter is defined as terrorist, the only courses available to it are to surrender or die.

The second section of the essay describes current IDF "code of ethics concerning moral behavior in war." Presumably that is a reference to the new IDF code for the War on Terror authored in 2004 by Yadlin and Kasher (I have been told that the IDF has distanced itself from the discussions of the committee composed of Profs. Halbertal, Avi Sagi, Saul Smilansky, and Daniel Stetman.) There is no question that the code is full of high-minded principles; the question is whether the code is ever actually applied, or that, when it is applied, its purpose is to provide cover for IDF actions that are contrary to international humanitarian law. For example, Halbertal writes:

In 2002, for example, Israel bombed the Gazan home of Salah Shehadeh, who was one of the main Hamas operatives responsible for the deaths of many Israeli civilians. Fourteen innocent people were killed along with Shehadeh. The Israeli chief of staff, Moshe Yaalon, claimed that the collateral deaths were not only unintentional, they were not even foreseeable. The innocent people who were killed lived in shacks in the backyard of the building, which, in aerial photographs, looked like storage units. Yaalon claimed that, had Israel known about this collateral harm, it would not have bombed Shehadeh's hiding place. It had already aborted such an operation a few times because of concern with foreseeable civilian death. I believe that such care is right. It is better to err on the side of over-cautiousness concerning collateral damage.

Halbertal accepts Yaalon's statement at face value; he never once expresses skepticism at the truth of an IDF spokesperson, and implies that this is the IDF policy. He also doesn't mention that in Operation Cast Lead, the IDF dropped a two thousand pound bomb on the house of Niyar Rayan, a Hamas leader, killing him, his four wives, and eleven of his children, despite the IDF's knowledge that his family had not left the building (six months later it changed its story). This is a perfect example of how the IDF does not put in practice what its own ethical code suggests.

As for the duty of soldiers to risk themselves rather than harm civilians, one of the principal authors of the IDF code of ethics, Asa Kasher, has famously argued against Avishai Margalit and Michael Walzer that no such duty exists. Halbertal disagrees with Kasher and points to the battle in the Jenin refugee camp as a case where IDF soldiers took risks. (He attributes their motivation to a concern with civilians; as I recall, the concern was how not to repeat the public relations nightmare of the Kana Village bombing in Operation Grapes of Wrath) But in Operation Cast Lead, soldiers took minimum risk; mortars and bombs did their work for them, and the result was death and destruction. On this Halbertal is silent.

So where does the Goldstone Report fail, according to Halbertal? For one thing, it doesn't treat Israel's moral dilemmas with sufficient complexity:

These are not simple issues. They are also not political issues. They are the occasions of deep moral struggle because they are matters of life and death. If you are looking for an understanding of these issues. Or for guidance about them, in the Goldstone Report, you will not find it.

Halbertal, the philosopher, finds the Goldstone Report insufficiently complex and quite insensitive to Israel's legitimate military needs. Yes, the Goldstone Report recognizes that Israel has a right to defend itself, but it doesn't provide guidance on how to do it. It does not occur to Halbertal that the report of a UN fact-finding mission is not the appropriate place for philosophical complexity or what military strategy one should pursue in the "war against terror". As I recall, the report also doesn't counsel Hamas how to proceed with its war against Israel. (Putting on uniforms and sleeping in army camps? Not a great idea.)

Sections 3 and 4 deal with the Goldstone Report's account of the background to the conflict, and the specific charges it levels against the IDF that Halbertal finds worth investigating. I will discuss those tomorrow.

Tuesday, November 3, 2009

As US Congress Clears the IDF of Alleged War Crimes, the IDF Investigates Alleged War Crimes

On the same day that the US Congress condemned the Goldstone Report and cleared Israel of war crimes in Gaza, YNET is reporting that the Israel Defense Forces are investigating troops on suspicions of war crimes. Such an investigation was anticipated and insufficient; a government inquiry is called for. But the Congress has already made up its mind: the IDF committed no war crimes. So will it condemn the IDF for investigating alleged war crimes?

Here's the entire article. I invite you to compare the allegations reported herein with those of the Breaking the Silence testimonies. Recall that when the testimonies talked about the "Johnnie" policy (i.e., the neighbor policy in which a Gazan civilian is forced to risk his life by entering houses), the IDF shot back and said, "There was no employment of the Neighbor Policy in Cast Lead."

So why is the IDF investigating? Do I hear the word, "Goldstone"?

The article is here

Regiment commander, troops questioned on Gaza war

Hanan Greenberg

While Israel is being pressured to form a stance in regards to an investigation into last winter's military operation in Gaza, the Israel Defense Forces is thoroughly investigating criminal aspects in its fighters' conduct.

Ynet has learned that the Investigating Military Police has begun summoning soldiers who fought in Gaza for interrogations over a number of unusual incidents.

One of those questioned was a commander of one of the regiments, an officer holding the rank of lieutenant colonel. The suspicions include violence offenses, use of excessive power, using the "neighbor procedure" (using civilians to order wanted Palestinians to leave their houses to be arrested) and firing at populated areas, including incidents which led to the alleged injury of Palestinian civilians.

At least seven soldiers and officers, some of them reservists, have been summoned for questioning at the Investigating Military Police's facilities over the past few days. The alleged incidents they were involved in took place in the Gaza Strip between December 2008 and January 2009.

So far, the Military Advocacy has decided to launch 27 investigations into a series of matters, after examining both the operational inquiries conducted by IDF commanders and some 140 complaints filed by various organizations and Palestinians.

At first, the army collected evidence from about 50 Palestinians, mostly in a meeting held at the Erez crossing. The military then attempted to locate the force which operated in the area in each incident.

The soldiers, including a regiment commander in the Infantry Corps, were asked many questions about their conduct during the incidents and were asked to explain why they had chosen to act the way they did and what were the orders they received.

None of those questioned has been arrested so far, and no arrests are expected. However, after the Military Advocacy examines the testimonies, decisions will be made on whether to file charges against the soldiers or close the cases.

According to a military source, at least 10 more soldiers and officers are expected to be questioned in the near future.

"The investigations deal with a variety of incidents and are just at their beginning, at least as far as the interrogees are concerned, and it's hard to predict how many of them, if at all, will end with an indictment. Summoning the soldiers is a routine procedure carried out when a certain incident is examined," the source said.

"Naturally, these are very sensitive issues which are being examined meticulously as this is not a routine security activity, but an operation handled like a war in which civilians are present against their will," the source added.

IDF legal officials added that it was too early to estimate how the investigations would end, and that there was a long way to go before decisions were made.

Mind you, we are almost a year after Gaza. The only reason there is any investigation at all is to forestall a more serious one.

And whom are they going to investigation about the use of White Phosphorus?

Score One for the Bad Guys

The House, as predicted, ran over the Goldstone Report. The automatic pro-Israel majority, working without any scruples or decency, or concern with truth, much less the destruction of Gaza, showed once again how irrelevant it is to US foreign policy. Goldstone's objections presented here last Friday had some effect; the resolution was slightly reworded as a result of them. But it was clear that the US Congress, which doesn't seem to care about the United States' own human rights violations, would care even less about Israel's.

The original resolution seemed like the hatchet job of some staffer who didn't know what he (or she) was doing. Berman's response to Goldstone had lawyerly fingerprints all over it and reeked of bad faith.

For example, after the Berman resolution repeatedly criticized the report for one-sidedness, without mentioning that Israel refused to provide any information to Goldstone, despite Goldstone's entreaties, or to let Goldstone set foot in the country, the judge wrote in response:

Finally, I note that there is not a word to record that notwithstanding repeated pleas to the Government of Israel, it refused all cooperation with the Mission. Amongst others, I requested the views of Israel with regard to the implementation of the mandate and details of any issues that the Government of Israel might wish us to investigate.

Berman's Response:

Justice Goldstone is correct. The Government of Israel decided not to cooperate with the Mission, based on its biased mandate, as well as the UNHRC's long history of anti-Israel bias. I find that position, at the least, understandable.

But Justice Goldstone's "correct" point was not that the Government of Israel decided not to cooperate with the Mission (duh!), but that the resolution did not mention Israel's refusal to cooperate, whether that refusal was "understandable" or not. That's the level of intellectual dishonesty that is rampant in the Berman's response to Judge Goldstone.

And about that "original biased mandate" -- Would Israel have cooperated with the UN had the original mandate mentioned investigating Hamas war crimes?

I don't think so….

I can't resist another example:

[Goldstone:] "12. Paragraph 17: That Hamas was able to shape the findings or that it pre-screened the witnesses is devoid of truth and I challenge anyone to produce evidence in support of it."

Berman's Response:

The evidence is within the Report itself. Page 111 of the Report reads as follows: "In its efforts to gather more direct information on the subject, during its investigations in Gaza and in interviews with victims and witnesses of incidents and other informed individuals, the Mission raised questions regarding the conduct of Palestinian armed groups during the hostilities in Gaza. The Mission notes that those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups. Whatever the reasons for their reluctance, the Mission does not discount that the interviewees' reluctance may have stemmed from a fear of reprisals."

How can a speculation of the Mission regarding the reluctance of the witnesses to testify from fear of reprisals be cited as evidence that Hamas was able to shape the findings of the Mission or that it pre-screened the witnesses? The speculation is just that – a speculation without evidence. And the other "evidence" provided by Berman – that Hamas intimidates opponents, is also irrelevant to the Goldstone report, which reported that it found no evidence. And neither did Berman.

What is peculiarly ironic is that when groups like Breaking the Silence produce testimony, it is rejected by the pro-Israel crowd as unsubstantiated, hearsay, and fabricated – precisely the sort of testimony that the the pro-Israel crowd produces, if it produces testimony as well.

Barukh ha-Shem that the Congressional know-nothings like Berman don't set foreign policy. For the record, here is a list of the tzaddikim in Sedom. J-Street take note.








Carson (IN)



Davis (KY)



Edwards (MD)





Johnson, E. B.

Kilpatrick (MI)


Lee (CA)





Miller, George

Moran (VA)


Pastor (AZ)


Price (NC)




















Johnson (GA)




Lofgren, Zoe