Review: The Whipping Man

The Whipping Man

by

Howard Adelman

For a while, particularly at the end of the eighties, one of the scourges of anti-Semitism was the big lie that Jews were prominent in America and the Caribbean as slave traders and sellers or, at the very least as financiers of that trade and exchange. (Cf. The Nation of Islam (1991) The Secret relationship between Blacks and Jews) During the nineties, research and a series of academic books and articles demolished this canard. (For one of the earliest, cf. Henry Louis Gates Jr. (1992) "Black Demagogues and Pseudo-Scholars," The New York Times, 20 July, A15) Jews were involved in all aspects of the slave trade, but their role was relatively miniscule.

The same is true of slave ownership. Only 15,000 Jews, though some estimates go as high as 25,000 (Robert N. Rosen (2000) The Jewish Confederates), lived in the confederate states when the American Civil War erupted. Of those, Jews who owned slaves were overwhelmingly urban; they held slaves as domestic servants. However, 90% of the American slave population worked on plantations. Among plantation owners, of 11,000 significant slave holders, only four or less than 0.04% were recorded as Jews. Thus, of almost 4,000,000 slaves, 3,600,000 of whom lived on plantations, Jews may have owned relatively few slaves, but those numbers on the four plantations numbered possibly as high as fifteen hundred altogether. The Whipping Man, a play by Matthew Lopez directed by Philip Akin and a joint venture of two theatre companies, the Harold Green Jewish Theatre Company and Obsidian, a Black theatre company, is set on a fictional version of one of these four Jewish plantations. The play is currently on stage at the Toronto Centre for the Arts.

Further, in the play, the slaves, though not converted to Judaism, were raised as Jews, a practice totally consistent with Jewish teaching. Deuteronomy 16:14 reads: "And thou shalt rejoice in thy feast, thou, and thy son, and thy daughter, and thy man-servant, and thy maid-servant, and the Levite, and the stranger, and the fatherless, and the widow, that are within thy gates." Servants or slaves (ebed) were expected to participate in all festivals and especially expected to honour shabat, an instruction many Jews in Toronto with nannies might find surprising. Further, there were specific rules laid down about their treatment. Slaves could not be overworked. On the other hand, they could be legally held as property and sold and bought. That in itself presents a conundrum for Jews celebrating Passover and their own escape from slavery.

Lopez` play is not the first work of fiction to take up this setting. Alan Cheuse used it in his novel, Songs of Slaves in the Desert: A Novel of Slavery and the Southern Wild dealing with a slave girl growing up on a rice plantation and her involvement with a slave-owning Jewish family. Cheuse in interviews said that he got his idea from a period when he went to Lafayette College in Pennsylvania, joined a Jewish fraternity and met the President who was Black, Len Jeffries, who afterwards went onto a distinguished academic career. Cheuse set his novel in pre-Civil War South; Lopez set his play in the immediate aftermath of the Civil War. There are no notes in the theatre program to indicate where Lopez got his very clever idea to juxtapose a Passover seder held by observant slaves on a Jewish plantation after the end of the Civil War.

The first day of Passover in 1865 was 11 April. It was a Tuesday. The Civil War had started four years earlier on 12 April 1861. After the decisive victory of Union forces at the Battle of Five Forks on 1 April, after desertions and casualties from the Confederate Army became massive after being attacked by Major General Philip Sutherland leading a Union army of 50,000, five times the size of his decimated and demoralized force, General Robert E. Lee was forced to abandon Petersburg and Richmond. Lee surrendered in Northern Virginia on Sunday, 9 April at McLean House in the village of Appomattox Court to General Ulysses S. Grant, 36 hours before the first seder was scheduled to be held. Abraham Lincoln was shot and killed on Good Friday, 14 April of that week. In the play, the Passover seder is held on the Friday evening when the shabat meal is also scheduled to accommodate the news that Father Abraham, as Simon calls him in the play, was shot.

One of those deserters from Richmond is fictionalized as Captain Caleb DeLeon, the son of a Jewish plantation owner who arrives at the destroyed plantation house at the opening of the play. 10,000 Jews served on both sides of the Civil War and they suffered casualties in the same enormous ratios as the rest of the population. Caleb has arrived home over a week after he was wounded. The bullet is still in his leg which has become gangrenous. In the opening of the second act, Caleb stands unwounded, an apparition of his previous existence as a soldier, to read one of his love letters sent home to his lover describing the horrors of the war in general and of Petersburg in particular probably drawn either from J. Tracy Power’s 1998 collection of Confederate soldiers` letters and diaries, Lee’s Miserables: Life in the Army of Northern Virginia from the Wilderness to Appomattox or Robert Alexander`s more recent 2003 collection, Five Forks: Waterloo of the Confederacy which intersperses diary and letter entries with the author`s own impressions.The Petersburg National Battlefield Memorial site which has diary entries and letters on display is well worth a visit to get a sense of the enormous horrors of that battle.

The opening battle scene of Stephen Spielberg`s movie is set at the Battle of Jenkin`s Ferry, one year earlier, to fit the timeline of the movie. Instead of the realism of Spielberg`s Saving Private Ryan depicting Omaha Beach on D-Day, this famous director offered a far more surrealistic and evocative portrayal of close-quarter fighting in the deep mud of battle, a vision that could only be hinted at in the play when Caleb read from the letter he sent. But it was the same vision and would helped us in the audience identify with Caleb`s suffering if the scene had come earlier in the play.

After all, the play is a juxtaposition of two sides of the Civil War, Black slaves who identified with the Union versus their former masters, in this case, the Jewish son of a Jewish plantation owner. The slaves are celebrating Passover and this year in Jerusalem for they have been emancipated by Father Abraham who was assassinated two weeks after the end of the Civil War near the end of the play. Caleb, on the other hand, has lost his faith after the horrors of the war as well as his status as the owner and commander of the behaviour of his former slaves.

The play is totally plot driven so one cannot review the production adequately without giving away that plot. From the audience reaction at the end – they gave the performers a standing ovation – and the personal comments of friends whom we met coincidentally after the play, the audience loved the play and its production. I found Sterling Jarvis who plays Simon, the older Black Plantation quasi-manager, who saves Caleb`s life and initiates the seder, to have offered a stellar performance, though one individual after the play complained that it was difficult for her to follow all his dialogue because he tended to mumble into his chest rather than project. I myself had no such difficulty.

Robert Crew in his Toronto Star review of 20 March, after noting the oft-repeated notes of the publicity that Lopez`play has been one of the most frequently produced plays since it was first staged in 2006, comments that Lopez skillfully unveils "revelation after revelation. And director Philip Akin keeps the audience engaged to the very end, when a final skeleton exits the closet." That is indeed how the play works, not by character development or thematic exploration, but by plot revelation of hidden secrets around the central theme of remembering as a way of rediscovering and recovering freedom. Crew concludes, "It’s a solid piece of theatre, fast-moving and entertaining yet offering some knotty little questions to ponder." Though I did agree with his criticisms of the credibility of Brett Donahue`s performance of Caleb, I came away as a tiny dissenting minority about both the general quality of the play with a few criticisms of the production itself.

However, mine is clearly a very minority view. Gregory Bunker in his review, "Spinning Slavery" thought the play explored "the notion that a religion with the history and pride of escaping slavery could be kosher with imposing such chains on others," whereas I saw this as merely the clever occasion of the play while it tried to probe deeper into a notion of bondage tied to memory that both frees and ties one down. In Bunker`s view, the three players, "With the help of innumerable bottles of whisky…begin to open up and clean the festering wound of slavery." Instead, I saw the author as celebrating Judaism as a questioning religion and using that to probe deeper and raise even more questions about the after effects of slavery on the psyche as well as the body politic. Bunker concluded, "The Whipping Man is a thoroughly entertaining and thought-provoking play about overlapping identities, their complexities, paradoxes, incompatibilities, and their resolutions. For its polish and novel, well-written story, The Whipping Man is a drama to be seen." I would agree that the play is worth seeing, but not for the same reasons.

The director, Philip Atkin, from his remarks on line clearly understood that the play was not about resolutions. "I love plays that focus us inexorably on those crucial moments in time. That dive deep and open up big questions. I love that both of our plays this season do not dwell in the cult of the answer but reside firmly in the cult of the question. And it is with those questions that we bring who we are into the theatre and are forced to engage one on one with what is being asked." (The Charlebois Post, http://www.charpo-canada.com/2013/03/first-person-director-philip-akin-on.html) Atkin was clearly surprised by the reaction of a Jewish audience – which last night seemed to be overwhelmingly Jewish – that was so discomfited by part of their history that they did not seem to know when Blacks were enslaved by Jews. So how did they reconcile their discomfort with their enthusiasm for the play? Was that enthusiasm in part a liberal reaction to that discomfort?

In my own view, the play, as I said above, was plot-driven. The need to uncover revelation after revelation to drive the plot prevented the deeper exploration of the questions and themes raised – whether of lords and bondsmen, mastery and slavery, memory used to recall slavery and celebrate freedom and memory used to reinforce bondage and inhibit freedom, Judaism as a religion of questioning and Jews as a group who have the opposite propensity of denial and not coming face to face with their own past and even the injustices written into the Haggadah read at Passover.

Lynn Slotkin in her review on the radio on CIUT`s morning show on 23 March described the joint effort of two production companies "as a very fine production directed with tremendous style, energy and intelligence by Philip Akin…that echoes the plight of two peoples—Jews and blacks—and shows how they are so similar. The play is gripping in its story-telling; full-bodied in its characters; and compelling in what it has to say about freedom, choice, moral fibre and responsibility. Simon often asks John is he a slave or a Jew? I love that distinction and it reverberates in this play." I myself found the story telling to be predictable, the plot devices contrived, arbitrary and generally unnecessary, the characters left undeveloped and unaltered, and the themes pronounced but unexplored.

Sonia Borkar in her review may have grasped the source of enchantment of the play. As she wrote, "The show is so intense and sucks you in from the moment the lights go down.

I found this show interesting on so many levels because I don’t know much about American History or the Jewish culture and to watch something where they both intersect was fascinating to me." Gentile and non-Jewish audiences are evidently most fascinated by the makeshift seder in the second act. As Borkar wrote, "For me it was ironic to see an enslaved Jewish black man singing about the struggles of freedom the Jews had endured when they fled Egypt and the parallels to his own life. Simon’s faith now made complete sense to me. All these centuries later he was still a Jewish man fighting for his freedom. It’s also an interesting commentary on human nature to see a culture that survives slavery then enslaves another."

(http://www.mooneyontheatre.com/2013/03/23/review-the-whipping-man-harold-green-jewish-theatre-companyobsidian-theatre/)

Borkar encouraged everyone to see the show. "The script is great, the acting and direction are fantastic, the set couldn’t be more fitting and the trek is more than worth it. And if you don’t know much about the subject matter you will still be moved to tears and definitely learn a little bit about an important slice of history." I found the script contrived and the set a representation of the interior of a Toronto home, except for one small Doric column, rather than of an impressive huge plantation home. However, the direction is indeed excellent. The acting of Sterling Jarvis is outstanding. Thomas Olajide tried mightily and with great skill to reconcile the scholarly and studious side of John with his scallywag character and huge repressed rage, but here I found the inadequacy lay in the play for, given the material, I could not imagine how to make these tensions into a coherent character – the studious John is sacrificed to the scoundrel with the memory of Caleb`s betrayal and John`s whipping as the explanation for an unstoppable rage serving as a cover to bottle up and then explode the perilous contradictions.

Finally, I do not expect plays or movies to teach us history, but they can induce one to look into history. The play certainly succeeds on that level. The program notes could have helped if a full page had been devoted to providing some historical background or even if a simple timeline of the two weeks covered by the play could have been included.

Parashat Shmini: Leviticus 9:1 – 11:47

Parashat Shmini Leviticus 11:1-11:47 – Clean and Unclean Food 05.04.13

by

Howard Adelman

I was brought up in a kosher home. The first time I ate treif (food that does not conform to Jewish kashrut dietary laws) was when I was 16. A bunch of us committed the sin together. We went down to 91/2. That was a restaurant on Elizabeth Street in Toronto (#91/2) located on the second floor of an old house in the old Chinatown which is where Nathan Philips Square is now located. I had sweet and sour pork spareribs. I can taste them until today. I am sure I had the same sensation as others when eating delectable but forbidden food, all the more delicious because it was forbidden and never before eaten, as I broke God’s and, more importantly, my mother’s commandments to never eat treif. Pork is treif for though pigs have cloven hooves, they do not ruminate (chew their cud). Mohandas Gandhi in his biography recorded the same type of sensation when he was in London as a student and ate meat for the first time in his life. His best friend, a Muslim, accompanied him and ate pork. We were all sinners.

When I reread this section in Leviticus, my only surprise was the following passage: “There are, however, some flying insects that walk on all fours that you may eat: those that have jointed legs for hopping on the ground. Of these you may eat any kind of locust, katydid, cricket or grasshopper”(Lev. 11:21-22). Up until now, I never recalled reading that passage. I did not know that locusts, katydids, crickets and grasshoppers were kosher. I thought of being in Bangkok at the market and holding my nose in disdain at the idea of eating a deep fried katydid or grasshopper sitting on a tray of a street vendor. As I read the passage, I thought: I should have tried that grasshopper. After all, they are kosher. But locusts are evidently more meaty than the crunchy grasshoppers. They are probably too salty though for me. In any case, they are a taste sensation I have never had.

Quite aside from impurities indicated by defects or improper slaughter, why are some animals, mammals, fish, birds and insects considered unclean or impure while others are classified as pure and suitable to eat? Or is looking for rationality in this list itself a stupid question? My daughter Rachel, an Orthodox Israeli biblical scholar who now teaches at a rabbinic college in Boston and checks my commentaries for egregious errors but disdains taking any responsibility for my wild writings, keeps kosher. It creates minor complications and inconveniences when she eats here or at the homes of one of her siblings. But she accommodates and adapts with a smile while the hosts – her sister or my wife – are very considerate but less amused by what they consider an idiosyncrasy but one for which I have a nostalgic indulgence. However, I have heard from modern families who are so upset that one or two of their children have returned to eating kosher food that it totally upsets the family harmony. They think their children have joined a cult and that deciding to eat kosher divides the family at Friday meals and holiday occasions.

If some animals were impure, why did God save them from the flood and tell Noah to bring all the animals on the ark, both the clean and unclean? When I was a kid, we were told the reasons were for standards of health. Pigs in particular were regarded as filthy. Yet pigs are one of the most intelligent and friendly animals and are, in fact, very clean. This is very evident if you visit a modern pig farm. Pigs don’t like to wallow in mud except to cool off from the heat (they don’t sweat to cool off) and prefer to be clean. Jews, and probably Muslims as well, have given pigs a bad rap. Just as homosexuality is regarded as an abomination in the Torah, so are pigs. I recall insults that called friends “dirty pigs”. Though not equivalent to being anti-Semitic, we were certainly guilty of prejudice against pigs; we were anti-porkers. And with very little if any justification! However, by not eating pigs, the lives of the pigs were saved and they were not sent to be slaughtered. Perhaps the Bible designating animals as clean was the real disservice for those animals got eaten.

Modern health foodies and especially vegans are more kosher than Jews for they are conscious of everything they eat and are wary of putting anything in their bodies that defile it for they regard their bodies as temples. I am a heathen in comparison who worships eating fresh bagels – though I am now on a deprivation diet for four months. If I stop eating bagels, I lose weight. However, I regard anyone who toasts a fresh bagel as being not simply unappreciative of this magnificent food but as a real defiler and sinner. That is what for me is really unkosher – toasting a bagel – my God!

More seriously, if hygiene was a rationale for these divisions, it may have been valid to some degree for pork in a hot weather climate but has little if any validity today. If, more likely, the designation ‘kosher’ was used to draw a fat dark and definite line between the ethical and the unethical, the worshipper and the pagan, between affirmation of life and attachment to death, between the sacred and the profane, or to formalize the separation between Jews and gentiles, my own suspicion is that in the present world it only works to some degree with respect to the last dichotomy.

But I do not believe kosher laws necessarily have a heuristic purpose. They are chukim, laws without a rational explanation but which may have a functional result, namely to help Jews maintain a distinct and separate existence from other peoples and inhibit intermarriage with non-Jews by serving as daily reminders to those who keep kashrut as Jews.

They may be right.

Leviticus Chapter 11:
11 The LORD said to Moses and Aaron, 2 “Say to the Israelites: ‘Of all the animals that live on land, these are the ones you may eat: 3 You may eat any animal that has a divided hoof and that chews the cud.
4 “‘There are some that only chew the cud or only have a divided hoof, but you must not eat them. The camel, though it chews the cud, does not have a divided hoof; it is ceremonially unclean for you. 5 The hyrax, though it chews the cud, does not have a divided hoof; it is unclean for you. 6 The rabbit, though it chews the cud, does not have a divided hoof; it is unclean for you.7 And the pig, though it has a divided hoof, does not chew the cud; it is unclean for you. 8 You must not eat their meat or touch their carcasses; they are unclean for you.
9 “‘Of all the creatures living in the water of the seas and the streams you may eat any that have fins and scales. 10 But all creatures in the seas or streams that do not have fins and scales—whether among all the swarming things or among all the other living creatures in the water—you are to regard as unclean.11 And since you are to regard them as unclean, you must not eat their meat; you must regard their carcasses as unclean. 12 Anything living in the water that does not have fins and scales is to be regarded as unclean by you.
13 “‘These are the birds you are to regard as unclean and not eat because they are unclean: the eagle,[a] the vulture, the black vulture, 14 the red kite, any kind of black kite, 15 any kind of raven, 16 the horned owl, the screech owl, the gull, any kind of hawk, 17 the little owl, the cormorant, the great owl, 18 the white owl, the desert owl, the osprey, 19 the stork, any kind of heron, the hoopoe and the bat.
20 “‘All flying insects that walk on all fours are to be regarded as unclean by you. 21 There are, however, some flying insects that walk on all fours that you may eat: those that have jointed legs for hopping on the ground. 22 Of these you may eat any kind of locust, katydid, cricket or grasshopper. 23 But all other flying insects that have four legs you are to regard as unclean.
24 “‘You will make yourselves unclean by these; whoever touches their carcasses will be unclean till evening. 25 Whoever picks up one of their carcasses must wash their clothes, and they will be unclean till evening.
26 “‘Every animal that does not have a divided hoof or that does not chew the cud is unclean for you; whoever touches the carcass of any of them will be unclean. 27 Of all the animals that walk on all fours, those that walk on their paws are unclean for you; whoever touches their carcasses will be unclean till evening. 28 Anyone who picks up their carcasses must wash their clothes, and they will be unclean till evening. These animals are unclean for you.
29 “‘Of the animals that move along the ground, these are unclean for you: the weasel, the rat, any kind of great lizard, 30 the gecko, the monitor lizard, the wall lizard, the skink and the chameleon. 31 Of all those that move along the ground, these are unclean for you. Whoever touches them when they are dead will be unclean till evening. 32 When one of them dies and falls on something, that article, whatever its use, will be unclean, whether it is made of wood, cloth, hide or sackcloth. Put it in water; it will be unclean till evening, and then it will be clean. 33 If one of them falls into a clay pot, everything in it will be unclean, and you must break the pot. 34 Any food you are allowed to eat that has come into contact with water from any such pot is unclean, and any liquid that is drunk from such a pot is unclean. 35 Anything that one of their carcasses falls on becomes unclean; an oven or cooking pot must be broken up. They are unclean, and you are to regard them as unclean. 36 A spring, however, or a cistern for collecting water remains clean, but anyone who touches one of these carcasses is unclean. 37 If a carcass falls on any seeds that are to be planted, they remain clean. 38 But if water has been put on the seed and a carcass falls on it, it is unclean for you.
39 “‘If an animal that you are allowed to eat dies, anyone who touches its carcass will be unclean till evening. 40 Anyone who eats some of its carcassmust wash their clothes, and they will be unclean till evening. Anyone who picks up the carcass must wash their clothes, and they will be unclean till evening.
41 “‘Every creature that moves along the ground is to be regarded as unclean; it is not to be eaten. 42 You are not to eat any creature that moves along the ground, whether it moves on its belly or walks on all fours or on many feet; it is unclean. 43 Do not defile yourselves by any of these creatures. Do not make yourselves unclean by means of them or be made unclean by them. 44 I am theLORD your God; consecrate yourselves and be holy, because I am holy. Do not make yourselves unclean by any creature that moves along the ground. 45 I am the LORD, who brought you up out of Egypt to be your God; therefore be holy, because I am holy.
46 “‘These are the regulations concerning animals, birds, every living thing that moves about in the water and every creature that moves along the ground.47 You must distinguish between the unclean and the clean, between living creatures that may be eaten and those that may not be eaten.’”

Israeli Security Cabinet

The Israeli Security Cabinet 28.03.13

by

Howard Adelman

As I wrote in my last blog (Israel Government and Cabinet), Benjamin Netenyahu seemed to best Yair Lapid in terms of the percentage of posts allocated in both the cabinet and the government. Whether this was because Lapid’s party, Yesh Atid, was a) inexperienced; b) feared going the way of Tzipi Livni and the risk of being left out of government; c) were convinced by Netanyahu that he needed more experienced ministers in cabinet; d) Lapid, in pushing for a reduced cabinet size, for leaving the religious parties outside of government and for specific cabinet posts, sacrificed his political capital represented by the Yesh Atid proportionate share of posts in relationship to his strength in the Knesset; is difficult to say. In any case, the role played by parties and individuals is not determined solely by ratios but by positions occupied and who occupies them.

The two most important committees of cabinet are the security and the finance committees of cabinet. The security cabinet, formally the ministerial committee for national security, includes, in addition to the Prime Minister, Defense Minister Moshe Yaalon, Finance Minister Yair Lapid, head of Yesh Atid, Justice Minister Tzipi Livni head of HaTnuah, Economy and Trade Minister Naftali Bennett head of HaBayit HaYehudi, Home Front Defense Minister Gilad Erdan and Internal Security Minister Yitzhak Aharonovitch. As I will argue in today’s blog, the Security Cabinet is predominantly right wing. Further, one of the main issues for the Finance Committee will also be security, namely the settlements, and I will suggest that there are clear problems for peace on that front.

In today’s blog I will examine the track records of enough key ministers to indicate that there is virtually no chance of re-launching meaningful peace negotiations. The Palestinians will already have undertaken this analysis. Beginning in reverse order, Yitzhak Aharonovitch is a policeman’s policeman. He served in the IDF from 1968 to 1971 and rose to become a Lieutenant Colonel at the age of only twenty-one. He joined the Israeli Border Police (Mishmar HaGvul or Magav) responsible for both internal security as well as security along the borders and in the West Bank and Jerusalem, He rose quickly earning a degree in history from Haifa University on the way. In the 1980s, he headed the northern command and then became Commander of the Israel Police Force from 1993-1995. He then took up a diplomatic post and served as Israel Police Attaché to the Americas from 1995-1997. He was the Israeli Police Representative on the National Security Council from 1997-1998 and then became Commander of the Judea Samaria District from 1998-2000 and Commander of the Southern District from 2000-2002. He became Deputy Commissioner from 2002 to 2004, but at the time of the Gaza disengagement in 2005, he had left the public sector for the private sector and became Director General of the Dan Bus Company. In 2006, he was elected to the Knesset on Yisrael Beytenu’s list.

In March 2007, he was appointed Minister of Tourism until 2008 when his party left the coalition. In the 2009 elections, he was fourth on the party’s list and became Minster of Public Security with the formation of the Netanyahu government on 31 March 2009. He has always maintained close ties with minorities in Israel, especially the Druzim and the Circassions who have such a strong presence in the Israeli Border Police. He was part of a committee with Minority Affairs Minister Avishay Braverman, and Shin Bet director Yuval Diskin that recommended at the end of 2010 strong efforts to integrate Israeli Arabs to reduce tendencies to radicalism among Israeli Arabs. In addition to internal security issues that became especially acute during hostilities in Gaza, given the recent shooting of the mayor of Acre, Aharonovitch also has to oversee the issue of organized crime in Israel and enhancing the morale of the police force charged with being ridden with corruption. The police are especially susceptible since they probably suffered disproportionately from cuts during economic hard times. With inadequate finances, the police have had to cope with emergencies when rockets land internally and with internal protests by Israeli Arabs.

In the first Obama administration foray into the Palestinian conflict, Aharonovitch was perceived by the American administration as undermining the peace negotiations in 2010 by maintaining the policy of demolishing the homes of families in East Jerusalem of Palestinians arrested on security charges. When, as Public Security Minister, Yitzhak Aharonovitch insisted that Israel would still demolish Arab homes in East Jerusalem, the United States warned Israel against steps that would incite the conflict and undermine the efforts for peace. More recently this past month, Aharonovitch remarked on the recent ominous and dramatic increase in stone throwing not only in Judea and Samaria aimed at both civilians and the IDF, but in Jaffa, the Negev and on the streets of Netanya. There has also been an increase in the number of robberies on the road. (The Algemeiner, 13 March 2013)Aharanovitch, conscious of that danger, has expressed his support for the renewal of direct talks between Israel and the Palestinian Authority but is sceptical of any success. "I want to believe that there will be peace, but we must be realistic…To say that we can reach an agreement in one year? I’ve got a problem with that, because it’s impossible to solve a 60-year conflict in one year."

Aharanovitch also has on his desk the scandal over Prisoner X, the Australian-Israeli Mossad agent Ben Zygier who had been held incognito in an Israeli prison and hanged himself. Aharonovith has vowed that no other prisoners are being held in Israeli prisons incognito. He has also made his objections well known on the misuse of administrative detention – the practice of arresting and holding persons without trial or laying any charges – as a substitute for undertaking proper criminal or intelligence investigations. In that regard, he still has the problem of the spread of Palestinian hunger strikers in the prisons as an urgent issue to be resolved.

The scandals, however, are not restricted to military security issues but to the conduct of the police. In 2006, a 21-year old woman, Inbal Amram, was abducted from the parking lot outside her Petah Tikva home when she came upon a 20-yearold Palestinian from Kalkilya, Muhammad Jaidi, trying to steal a car. Jaidi forced Amram into the stolen car, drove her to an open area, and repeatedly stabbed her and left her for dead. She died the next morning from her wounds a few hours before police found the car and her body. Jaidi was sentenced to life plus fifteen years.

Amram’s family sued the police for negligence because they refused to investigate the report the evening before that she was missing and would not respond to the family’s plea to initiate a search. In 2011, Judge Hila Gerstl of the Central District Court approved an out-of-court settlement. In August 2010, she had already ruled that there had been a causal connection between the girl’s death and the conduct of the police and that the police had been negligent in Amram’s death for the family had been able to prove that the girl was still alive at 6:30 a.m. Aharonovitch commented that, "The court presents the matter in a harsh and truthful manner. It is certainly unacceptable for the police to treat citizens in this way," and added that, "These types of incidents will not become the norm; the police will kick these people out."

On the domestic front, Aharonovitch comes across as a law and order man who is sensitive to inclusion of minorities in spite of a whiff of scandal when he inappropriately reprimanded a soldier for looking like a scruffy Arab. He is also an excellent organizer as evident in how he managed dealing with the huge Carmel fire in December 2010 that took 42 victims. Nor did he forget those victims. In a story published in the Canadian Jewish News on 4 December 2012 ("Aharonovitch: Carmel fire victims dies in line of duty") on the second anniversary of the fire, he called for recognition of the victims as having the same status as military who die in the line of duty. On security more generally, he has advocated strong military attacks on Gaza and an effective zero tolerance for rocket attacks. (Israel Frontline, 3 August 2011) At the same time, he has defended reduced roadblocks and security checks in the West Bank. "Removing the roadblocks in Judea and Samaria was not a mistake; we cannot change our policy because of one or two incidents."

So while a hardliner when dealing with actual threats, he upholds the law and prefers preventive pre-emptive considerate policies, but there still remains a significant gap between his ostensible beliefs and actual Israeli police practices. On Land Day last year, he ensured that there were plenty of police conspicuously but not provocatively placed, 1200 in the north alone, equipped with non-lethal means to disperse crowds near mosques, especially at the Temple Mount where prayers that day were limited to males over 40 with residency permits. Aharonovitch announced wide and clear that the marches and rallies were legal and would be allowed “to proceed undisturbed," but if breaches of the law occurred, they would be dealt with “determinedly and with strength.” He negotiated with Palestinian leaders in advance in both Israel and the West Bank to prevent any descent into violence and had been reassured to that effect.

Although there were a few sporadic small clashes on the Temple Mount, at the Damascus Gate, in Bethlehem and at the Rachel Checkpoint outside Bethlehem, the only significant incident that took place was near north Jerusalem’s Kalandiya checkpoint where thousands of Palestinian protesters had gathered and started burning tires, throwing stones and Molotov cocktails; troops had to use stun grenades, tear gas, sound weapons and foul-smelling water to disperse Palestinian youths who were demanding "the right of return" and insisting that, "non-Jewish holy sites are at risk and the city itself is being ethnically cleansed." There were no incidents in the north where 10 people had been killed in clashes in 2011.

Gilad Erdan, previously the Environmental Protection Minister, a Likud political pro and apparatchik, is the minister in charge of Home Front Security and Communications responsible both for the Israel Broadcast Agency and the Government Publications Bureau. He will be in the security cabinet even though the responsibility for the strategic relationship with the United States was snatched away from him at the last moment and handed to Dr. Yuval Steinitz who will not be in the Security Cabinet but is the heir apparent as Foreign Minister if Liberman is convicted of his fraud and breach of trust charges. Steinitz will have the responsibility for meeting most foreign VIPs. Erdan, however, retains the seat in the Security Cabinet.

Erdan places high in the Likud lists because he was head of Likud Youth and cultivates his ties with the Likud membership. He made a name for himself as a student Likud activist and led protests against Oslo. Since the Oslo Interim Agreement of 1995, the Joint Water Committee allocates water to the Palestinians and manages the treatment of West Bank sewage. That means to get water and manage their waste, Palestinians have to submit extensive detailed plans to the Joint Water Commission. The Palestinian Water Minister, Dr. Shaddad Attilli, claims they rarely get approval even when just asking to rehabilitate a village spring. Problems stem from the inequality between the parties – effectively the PA makes requests and Israel approves or rejects – most commonly the latter. Israel does supply more than the 10% water needs obliged in Oslo – 51.8 cu. meters vs the required 31 cu. meters – but Israel has rejected requests for a desalination plant for brackish water in Ein Freshkah and only recently approved a Palestinian wastewater treatment plant on the Palestinian side of the Alexander River. Recently, Erdan and Attilli agreed to dialogue more to enhance true cooperation.

As Environmental Minister Erdan saw to it that the charcoal making sites (making charcoal by burning citrus wood branches covered with hay for 21 days) in Area C in the West Bank were shut down but was not able to do the same in area B and asked the Cabinet to redefine making charcoal as a security issue because of the threat to the health of Arabs and Jews. The customers for the charcoal are all in Israel and the sale and purchase of that charcoal could be banned in Israel. In another case in May 2012, Erdan proposed cutting off the supply of power to Gaza even though he is fully aware that Israel is obligated by both treaty and international law to continuing the electricity supply. The Israeli Supreme Court has already ruled on the matter. The reality is that limiting the electrical supply already impedes the work of Gaza hospitals, the Gaza sewage system, local agriculture and industry not counting the disruption of the lives of ordinary Gazans dealing with daily blackouts. In accordance with Oslo, Israel is obligated to sell Gaza 120 megawatts of electricity, but since the bombing of Gaza’s power station in 2006, this has been insufficient and, with the blockade, Gaza has been unable to import the equipment necessary to repair the damage.

Vatican

In contrast to Erdan, Moshe Ya’alon is by far the most experienced member of the security cabinet as former IDF chief of staff (2002-2005), deputy chief of staff, head of Army Intelligence and GOC of Central Command. Further, he and Benny Gantz, current IDF Chief of Staff, see eye-to-eye; Gantz served under Ya’alon when he was GOC Northern Command. Yaalon led the Israeli commandos in 1988 in the assassination of PLO’s Abu Jihad in Tunis. Ya’alon left the army over disagreements with Shaul Mofaz over the disengagement plan for Gaza. Ya’alon began on the left as a member of HaNoar HaOved VeHaLomed. Originally his surname was Smilansky, but he changed it to Ya’alon after the Nahal group he joined. He became a member of Kibbutz Grofit near Eilat.

Ya’alon is a moderate on Iran even though in January 2008 when I was in Australia I recalled reading his insistence that, "We have to confront the Iranian revolution immediately. There is no way to stabilize the Middle East today without defeating the Iranian regime. The Iranian nuclear program must be stopped." (The Sydney Morning Herald) I thought he was a radical hawk then, but on further reading of his views, he is a hawk on confronting Iran before Iran gets a bomb but supports diplomacy before resorting to military means and, more currently, but only recently, is behind Barack Obama’s approach to the Iranian crisis and believes the USA will launch a military attack against Iran if Iran’s headlong thrust towards nuclear arms is not stopped. He clearly believes Iran is the most important security threat Israel faces. After that, he ranks the threat from the north and the new threats on the Syrian border, then Gaza and, at the bottom, the West Bank.

On Syria, Ya’alon does not expect Assad to use his chemical stockpiles against Israel and was, surprising to me, optimistic about a more moderate regime succeeding Assad, but that was a year ago. (Haaretz 5 February 2012) I was unable to find out if his views have changed since then since I expect Syria to implode and become a failed decentralized state. On the other hand, Ya’alon, though originally a supporter of Oslo, he has become a hawk on settlements and the West Bank, has visited illegal settlements, insisted that Jews should be able to live in all parts of Samaria and Judea and attended the right-wing Likud party faction opposed to dismantling settlements. At the same time, he supports peace negotiations but is opposed to the generous terms offered by Ehud Barak and Ehud Olmert. Like Aharonovitch, he would enter talks without any expectations of a peace agreement.

Given that Netanyahu, Ya’alon and Aharonovitch will dominate the Security Cabinet with right wing pushes from Erdan and Bennett, do not expect progress on peace talks with the Palestinians even though Tzipi Livni has that portfolio. Aharonovitch has said that, "Netanyahu wants to make peace, he’s trying to get it started. He is sincere and is at peace with this direction." What he did not add is that he, Netanyahu and Ya’alon want peace on their terms, terms which are unacceptable to the Palestinians. Progress on peace with the Palestinians will have to be in terms of tactics and practices which increase and enhance Palestinian self-determination without compromising Israel’s security concerns and fears of re-creating another Gaza on the east to complement the danger of Hezbollah on the north and of Gaza in the south-west.

[Tags: Israel,
Aharonovitch, Erdan, Ya'alon, peace talks, Palestinians, Iran, Syria]

Israeli.Security.Cabinet.28.03.13.doc

The New Israeli Government

The Israeli Government 25.03.13

by

Howard Adelman

First of all, Happy Easter or Hag Sameah, and have a great Passover seder if you are having one. My youngest son surprised us and returned from kayaking in Belize for Passover. Hence, my silence of the last few days! I was going to give the blog a rest for Passover but I find my mind is in too much agitation. My next few blogs will deal with the Israeli government and cabinet, Obama’s speech in Ramallah, the Netanyahu apology to Erdogan and how Obama’s plan to focus on tactics is beginning to work out.

THE ISRAELI GOVERNMENT

The Size and Balance in the Cabinet

The Israeli government consists of the following members:

Likud:

  • Benjamin Netanyahu – Prime Minister (+ interim Foreign Minister)
  • Moshe Ya’alon – Defense Minister
  • Yisrael Katz – Transport, Infrastructure and Road Safety Minister
  • Yuval Steinitz – Int’l Relations, Intelligence, and Strategic Threats Minister
  • Silvan Shalom – Energy, Water, and Negev and Galilee Development Minister
  • Gilad Erdan – Home Front Defense and Communications Minister
  • Gideon Sa’ar– Interior Minister
  • Limor Livnat – Culture and Sports Minister
  • Zeev Elkin – Deputy Foreign minister
  • Danny Danon– Deputy Defense minister
  • Ofir Akunis* – Deputy Minister – liaison between government and the Knesset
  • Tzipi Hotovely– Deputy Transport Minister
  • Haim Katz – Chairman, Knesset Labor and Welfare Committee
  • Tzachi Hanegbi* – Chairman, Knesset House Committee
  • Miri Regev – Chair, Knesset Interior Committee
  • Yariv Levin – Coalition Chair
  • Yuli Edelstein – Knesset Speaker
  • Moshe Feiglin – Deputy Knesset Speaker

*After 18 months, Akunis switches with Hangbi and Hanegbi switches with Ofer Akunis)

Yisrael Beytenu:

– (Foreign Minster-in-Waiting)

  • Yitzhak Aharonovich – Public Security Minister
  • Yair Shamir – Agriculture Minister
  • Sofa Landver – Absorption Minister
  • Uzi Landau – Tourism Minister
  • Faina Kirshenbaum – Deputy Interior Minister
  • David Regev – Chairman, Knesset Law Committee
  • Orly Levy-Abekasis – Chair, Knesset Committee on Children’s Rights

Yesh Atid:

  • Yair Lapid – Finance Minister
  • Shai Piron – Education Minister
  • Yael German – Health Minister
  • Meir Cohen – Welfare Minister
  • Yaakov Peri – Science and Technology Minister
  • Micky Levy — Deputy Welfare Minister
  • Yoel Rozbozov – Chairman, Knesset Immigration and Absorption Committee
  • Aliza Lavie – Chair, Knesset Committee on the Advancement of Women

HaBayit HaYehudi:

  • (Religious Affairs portfolio, and responsible for Jerusalem and Diaspora Affairs)

Uri Ariel – Housing Minister

Uri Orbach – Senior Citizens Minister

Rabbi Eli Ben Dahan – Deputy Religious Affairs Minister

Avi Wortzman – Deputy Education Minister

Nissan Slomiansky – Head of the Knesset Finance Committee

Hatnua:

  • Tzipi Livni – Justice Minister
  • Amir Peretz – Environmental Protection Minister
  • Amram Mitzna – Chairman, Knesset Education Committee

Of the five political parties in the government backed by 68 members of the Knesset, 43 are in the government. In addition to the Prime Minister, 21 are currently cabinet ministers. If Liberman wins in court and is restored to cabinet, there will be a total of 23.members in cabinet.

Parties Knesset #s Members

Cabinet

Ratio of Cabinet Government Posts Ratio of Government
Prime Minister 1

%

Actual Entitle Actual Entitle
Likud 20 29.4% 8 6 36.4% 18 13 41.9%
Yisrael Beytenu 11 16.1% 4 + 1 3 18.2%

(21.7%)

8 7 18.6%
Yesh Atid 19 27.9% 5 5 22.7% 8 12 18.6%
HaBayit HaYehudi 12 17.6% 3 3 13.6% 6 7 14.0%
Hatnua 6 8.8% 2 2 9.1% 3 4 7.0%
Total 68 98.8% 22 19 100% 43 43 100.1%

Excluding the Prime Minister, the entitlement column indicates how the posts should have been divided up if they were split roughly in accordance with Knesset seats won in the election and still giving the slight edge to the party that won the most seats. In other words, when Bibi pushed Lapid to get a cabinet of 21 instead of the 18 in addition to the Prime Minister, the figure Lapid had originally insisted upon – though they agreed upon 20 and somehow got 21 – Likud and Yisrael Baytenu got all 3 of the extra cabinet posts. Even more telling, if almost two-thirds of the members of the Knesset receive government posts, Likud received by far more of its share; Yisrael Beytenu also received more of its share. When Liberman enters the cabinet – assuming he does – Yisrael Beytenu will do even better. Netanyahu was able to give most of his 20 Knesset members posts in the government.

Naftali Bennet was about 1 post down and Tzipi Livni did ok. In contrast, Lapid’s Yesh Atid did the worst by far. Instead of at least 11 or 12 government posts, Yesh Atid only got 8. And Yesh Atid should have had at least one more of the cabinet posts.

Without even getting into the quality of the ministerial posts allocated, I read this as having the following significance:

1. Netanyahu and his Likud colleagues did a brilliant job in getting and keeping a disproportionate share of cabinet and government portfolios in Likud and Yisrael Beytenu hands.

2. This will mean that Likud should be able to keep its caucus in line, especially since the dissidents within Likud over the peace process and over the alliance with Yisrael Beytenu did not get re-elected since Dan Meridor, Benny Begin and Michael Eitan already had lost out within the party to hardliners like Danny Danon, Miri Regev and Moshe Feiglin.

3. Avigdor Liberman, who did very well in negotiating the running list with Likud by first getting a ratio of 1 member of his party for every 2 Likud members, then securing 2 of the top 4 slots in the election list (Benjamin Netanyahu, Avigdor Liberman, Gideon Sa’ar and Yair Shamir) and 15 instead of 13 or 14 of the top 40 candidates, got his full share of cabinet and government posts.

4. If you look at who did not get posts from the Likud/Yisrael Beytenu list, they include Reuben Rivlin, a very prominent Likudnik who has probably had his last hurrah as a politician and may be slotted to replace Peres as president when Peres leaves office. A former speaker and believer in a one state solution, he defended Balad MK Haneen Zoabi (he participated in the Gaza flotilla) from being kicked out of the Knesset and has made equality for Arab Israeli citizens a principle goal. However, at 73 he is unlikely to lead a revolt against Netanyahu but can be expected to remain very outspoken as he was when Sharon withdrew from Gaza.

5. The highest ranked Yisrael Beytenu member who did not get a post was David Rotem, a settler in Efrat and a former member of Mafdal who got his first seat in the Knesset as a replacement for Yuri Stern in 2007; I do not see him as a threat to Liberman’s leadership. Neither is Hamad Amar, a Druze member of Liberman’s party, but not quite high enough in the list to make it into government. So neither Netanyahu or Liberman can expect trouble from their respective caucuses.

6. Lapid and his Yesh Atid Party did very poorly in the negotiations to protect their interests, their relative strength in the cabinet and in ensuring the involvement and confidence of their backbenchers.

7. One might expect Lapid to be facing a very restless caucus, but I somewhat doubt it in the short term. Ofer Shelah was high up on the Yesh Atid list (#6) but did not make it into the government never mind the cabinet. Since on the surface he has written extensively on security issues as a journalist, lost one eye fighting for as a paratrooper in Lebanon in 1983 and is a personal friend of Lapid’s, one is initially surprised and puzzled. In an interview with Haaretz just before deciding to run on the Yesh Atid list, he was quoted as saying: "Therefore, when he decides to do something, then I, as a friend, am with him. He consults me frequently, because I’m his friend. And when there’s a concrete offer, then I’ll decide yes or no." As a columnist for Ma’ariv, when Ehud Olmert was trying to form a coalition in 2006 and there was a problem with the negotiations between Kadima and Labour over Shaul Mofaz who wanted the Finance Ministry that Labour coveted, Shelah had written an article on 28 April 2006 entitled "Coalition Talks Offer Few Slots for Old Soldiers", ironically in light of the current predicament in getting a place in government. The year before he had written a piece called, "Bitter Divisions Could Split Likud Party" (2 September 2005). Shelah has a record of being very sensitive to splits in parties over posts and is not inclined to be an obstacle. My surprise is that he did not push for a strong place on a security committee or as Tzipi Livni’s deputy on the peace negotiations since he has been so sceptical about Netanyahu’s willingness to press this issue and had predicted that nothing would happen unless Obama forced Netanyahu to the table and squeezed compromise from him. However, I believe Shelah is a loyal friend, and, in any case, is a widower with two children. Between his loyalty, his family responsibilities, his sensitivity to schisms, and his continuing need to earn income from his sports journalism, one can expect quiet on that front.

8. Another source of potential activist schism within Yesh Atid could come from Adi Kol, a young (37 years) and very attractive legal scholar (PhD in law from Columbia University) and activist – founder of the University of the People that organizes Tel Aviv University students to offer free university education. Given that the ones who did get posts were either much more prominent (Rabbi Shai Piron, director of the Movement for the Advancement of Education in Israel) or seasoned local politicians (Yael German, the mayor of Herzliya, Meir Cohen, the Dimona mayor and Yoel Razvozov, a Netanya city council member) or very experienced in security (Yaakov Peri, former head of Shin Bet 1988-1994 whom you saw in The Gatekeepers) and Aliza Lavie, like Adi Kol, an Orthodox but fifteen years older, feminist, scholar – a senior lecturer in communications and multiculturalism at Bar Ilan University – and public intellectual who wrote the best-selling National Jewish Book Award volume, A Jewish Woman’s Prayer Book, one should not expect Kol to pose a problem for Lapid.

Given stable caucuses in each of the parties, the stability of the government will depend on the wisdom of its leadership. Lapid’s party makes up 28% of the very enlightened centrist representation along with Hatnua’s 9%, but they are immersed in an otherwise overwhelmingly right wing government. The next real question is to look at the sub-cabinet structure and the occupants of each of the ministries.

I will save that for my next blog.

Israeli Government.2013.doc

Obama’s Speech in Jerusalem

Obama’s Speech in Jerusalem 21/03/13

by

Howard Adelman

WOW!!! Obama could certainly sell refrigerators to the Innuit. Facing a tough and justly cynical audience of young Israelis, Israelis who serve in the army, postponed their lives and careers, and live in the nastiest neighbourhood in the world in which every calumny possible is thrown against them, Israelis who themselves have increasingly given up hope and persuaded themselves to ignore or even hate Palestinians, he sold them on hope. He sold them on the possibility of peace. He sold them on the idea that it is their task, not just the government’s, to begin the true and the hardest struggle – the struggle to make peace.

How did one speech achieve so much? How is it that this one speech will go down in history as one of the great pieces of oratory? There was no soaring language. There were very few sonorous phrases that would echo and re-echo in your brain. There was none of the historic rhythmic black cadences that Martin Luther King used so brilliantly in his speeches. It was the structure of the speech and its comprehensiveness in a very tight format. It was the direct appeal to the hearts, the minds and, most of all, to the great courage and guts of Israelis – particularly Israeli youth.

I have attached the speech if you have not already read or heard it. When you read it, you want to stand up at certain points and applaud even though you are just reading the speech. It is a speech that gets you up off your ass.

First of all, whether or not it ever had any validity, Barack Obama put to rest, as he had tried to do in the previous 36 hours, the image of himself and Benjamin Netanyahu as not only not at loggerheads, as not being linked by icicles. He did it, not only by calling the Prime Minister of Israel, Bibi, but with humour: "just so you know, any drama between me and my friend Bibi over the years was just a plot to create material for Eretz Nehederet." At the same time, he showed that he knew the most popular satirical news show on Israeli television.

He did it by personally and institutionally identifying with the Jewish people. Not only had he introduced seders into the White House, but the story of Jewish wandering, Jewish homelessness, Jewish perseverance, Jewish religious faith, indeed, even the history of Jewish persecution, was his personal story even though he was not a Jew. It was the story with which he identified and that inspired him. "For me personally, growing up in far-flung parts of the world and without firm roots, it spoke to a yearning within every human being for a home."

As he said, however, the Zionist dream did not end with getting to the promised land, with getting a state of their own for the Jewish people. That was just a new beginning: "the work goes on – for justice and dignity; for opportunity and freedom." Barack Obama did not just say that the statement that Zionism is racism or that Zionism is apartheid. Barack Obama in effect said: I am a Zionist, just as John Kennedy had once said, I am a Berliner. "The Jewish people sustained their unique identity and traditions, as well as a longing to return home. And while Jews achieved extraordinary success in many parts of the world, the dream of true freedom finally found its full expression in the Zionist idea – to be a free people in your homeland." Israel is the realization of national self-determination for the Jewish people. "Israel is rooted not just in history and tradition, but also in a simple and profound idea: the idea that people deserve to be free in a land of their own."

The second part of the speech dwelt on Israel as the start-up nation par excellence. Israel is a country of innovators, of Nobel prize winners, a thriving democracy where referring to lively public debate is an understatement. And all this has been accomplished in the midst of intense hostility and physical insecurity. He then told a big white lie. Through it all, the United States of America has shared an unbreakable bond of friendship with Israel. In the context, it was totally understandable and forgivable.

America shares interests with Israel, shares $40 billion dollars annually in trade, shares a commitment to the security and stability of the Middle East, shares a belief in economic growth and the expansion of trade around the world, shares a belief in a strong middle class, shares a faith in democracy. But international realism is not all both nations have in common. Both are countries of immigration representing the ingathering of people from around the world. Both are countries enriched by faith. Both are countries made strong by a belief in the rule of law. Both are countries fueled by innovation and entrepreneurship. After he established his deep personal identification with Israel and America`s shared interests and values with Israel, Obama moved into the third and tough part of his speech – the issues of establishing security, peace and prosperity in the Middle East.

He began with security as he had adumbrated in his speeches over the last months when addressing the Issue of Israel. Security was basic – not simply in general but for the child in Sderot. Security requires an Iron Dome. Security requires a strong defence force. But these are not sufficient. These will not protect Israelis boarding a tour bus in Bulgaria. The only real protection is when the people in the region – specifically in reference to Syria – can live in states in which the leadership is responsive and responds to the needs and desire of its people while protecting all communities within and making peace with countries beyond those borders.

Obama brought up Iran, and without underlining any differences with Netanyahu over red lines, reaffirmed that America was committed to Iran not acquiring nuclear weapons. While giving diplomacy a chance, "America will do what it must to prevent a nuclear armed Iran." Then he delivered the lines that must have received the longest and loudest standing ovation. "Make no mistake: those who adhere to the ideology of rejecting Israel’s right to exist might as well reject the earth beneath them and the sky above, because Israel is not going anywhere. Today, I want to tell you – particularly the young people – that so long as there is a United States of America, Ah-tem lo lah-vahd."

You are not alone. I am with you. America is with you. Further, you are even justified in being sceptical about the prospects of peace. But I, Barack Obama, am not going to take the easy way out and express solidarity in the abstract without working to assure that security in the best way possible, through peace.

So Obama came to the fourth and greatest section of his speech – his arguments to say that peace was necessary, peace was just and peace was possible with the Palestinians.

1. First, peace is necessary. Indeed, it is the only path to true security. You can be the generation that permanently secures the Zionist dream, or you can face a growing challenge to its future. Given the demographics west of the Jordan River, the only way for Israel to endure and thrive as a Jewish and democratic state is through the realization of an independent and viable Palestine.

2. Second, peace is just. Though security must be at the center of any agreement, the only path to peace is through negotiation. The Palestinian people’s right to self-determination and justice must also be recognized. Neither occupation nor expulsion is the answer. Just as Israelis built a state in their homeland, Palestinians have a right to be a free people in their own land.

3. Third, peace is possible. Palestinians must recognize that Israel will be a Jewish state, and that Israelis have the right to insist upon their security. Israelis must recognize that continued settlement activity is counterproductive to the cause of peace, and that an independent Palestine must be viable– that real borders will have to be drawn. But only you can make that dream possible. That is where peace begins – not just in the plans of leaders, but in the hearts of people; not just in a carefully designed process, but in the daily connections that take place among those who live together in this land, and in this sacred city of Jerusalem. Speaking as a politician, I can promise you this: political leaders will not take risks if the people do not demand that they do. You must create the change that you want to see. Your hopes must light the way forward.

There will be many voices that say this change is not possible. But remember this: Israel is the most powerful country in this region. Israel has the unshakeable support of the most powerful country in the world. Israel has the wisdom to see the world as it is, but also the courage to see the world as it should be. Ben Gurion once said, "In Israel, in order to be a realist you must believe in miracles." Sometimes, the greatest miracle is recognizing that the world can change. After all, that is a lesson that the world learned from the Jewish people.

We bear that history on our shoulders, and we carry it in our hearts. Today, as we face the twilight of Israel’s founding generation, you – the young people of Israel – must now claim the future. It falls to you to write the next chapter in the story of this great nation.

As a man who has been inspired in my own life by that timeless calling within the Jewish experience – tikkun olam – I am hopeful that we can draw upon what’s best in ourselves to meet the challenges that will come; to win the battles for peace in the wake of so much war; and to do the work of repairing this world. May God bless you, and may God bless Israel and the United States of America. Toda raba.

I believe that great words well said can change the course of history.

Category: Politics

Tags: Obama, Israel, peace process, Zionism.

Obama.24.Jerusalem.speech.21.03.13.doc

Prepared.text.Obama.speech.Jerusalem.doc

False Dichotomous Thinking – peace process.20.03.13

False Dichotomous Thinking 20.03.13

by

Howard Adelman

What does it mean when journalists report that "expectations are low" concerning Barack Obama’s visit to Israel with respect to the peace process? No one expected him, especially given all the forewarning, to make a new proposal to break through the current impasse. In that sense, ‘expectations are low’ meant simply that no one anticipates a proposal for a breakthrough let alone a breakthrough itself. The expression, however, could mean something else at the other end of the conceptual spectrum. Expectations are so low that absolutely no headway can be expected with respect to negotiations. This is how Foreign Policy Mideast Daily reported it this morning. Or it could mean anything in between – a few openers for further discussions; a definition of the key elements of the impasse with some dialogue procedures set in place to see if they can be overcome; a set of sub-negotiation bilateral or trilateral committees to discuss key elements re the impasse with a range of options for each:

1) settlements

  • No settlement activity at all
  • No new settlements
  • No building in settlements on territory slated for transfer to the Palestinians
  • Settlement activity only to fill in areas in existing East Jerusalem settlements clearly indicated for remaining part of Israel
  • No settlement freeze at all unless Palestinians return to the peace negotiations

2) The Holy Basin

  • Israeli Sovereignty but Islamic administration re their holy sites
  • Shared sovereignty
  • Shared sovereignty with international partners
  • International sovereignty
  • Separate sovereign status a la Vatican

3) Security

  • Israeli further withdrawals and replacement with Palestinian police forces in West Bank
  • Further refinement to past agreements on a demilitarized West Bank
  • Role, make up, responsibilities and accountability of an international peace keeping force in the West Bank

4) Refugees

  • Further discussions on number to be repatriated to Israel under family reunification – no less than 5,000 and no more than 100,000
  • Refinement of compensation proposals
  • Refinement of proposals for compensation to Jews from Arab lands
  • Tweaking of the "right of return" to accommodate this fundamental principle for Palestinians while ensuring that it does not apply to Israel
  • Education program to prepare Palestinians for this result
  • Proposals to integrate UNRWA with respect to areas governed by the Palestinian Authority into the Palestinian administration

5) Mutual recognition

  • Recognition by Israel of a Palestinian state
  • Recognition by Palestine of Israel as a Jewish state

6) Land Swaps

  • Refinement of maps for planned land swaps
  • The outcome re Ariel

On the other hand, pre-negotiations could avoid any discussions about advancing on substantive issues and be confined only to confidence building measures. Dow Marmur dealt with some of these in his discussion of Dennis Ross in his column in the Toronto Star on Monday:

1) a unilateral declaration by Israel to confine new building within settlements and only those that will almost inevitably be involved in the land swap to Israel;

2) unilateral offers by Israel to offer financial incentives for Israelis to abandon settlement outposts;

3) unilateral moves by Israel to further reduce the areas over which it still exercises its security presence;

4) mutual recognition by Israel of a Palestinian state with borders not yet defined in correlation with Palestine recognizing Israel as a Jewish state;

5) Palestinian changing maps to show Israel;

6) Palestinians not only pledging but insuring no further demonization of Israel.

Dow ended his column: "Obama is uniquely positioned to be the catalyst for this process. His visit could become a game changer by helping both sides to take small steps now in preparation for peace later."

But the next day, Dow had switched back from wearing his hat of small hopes to being very pessimistic. (See his blog that I received this morning and that I have included at the end of this blog.) Dow contrasted the pessimistic picture painted by Shlomo Avineri versus the insistence of Naomi Chazan on pushing an optimistic agenda. Shlomo, he wrote, "maintains that neither the Palestinian Authority nor the new Israeli government – the most right-wing in its history, will do much about solving the problem. All that we can hope for is that the situation can be managed better in anticipation of good times, whenever these may come." (Shlomo Avineri’s views are set out in the January issue of Foreign Affairs where he, in fact, sets out his own list of pragmatic and achievable measures that can be taken as interim steps.)

This is the pessimistic picture. Yet confidence building measures proposed by Dennis Ross were merely steps to manage the situation rather than substantive progress, but were treated as a blessing of small hopes rather than a despairing pessimism. But perhaps in the fuller acquaintance with Shlomo’s views, his proposals for maintenance were more restrictive than Dennis Ross’ proposals. But not by much! As Avineri said, "you try to achieve a lot of proactive conflict management measures, some of them partial agreements, some of them unilateral steps, some of them doing things below the radar where people can reach understandings even if they don’t have to sign or even if they don’t want to sign on the dotted line about the final issues."

As can be seen from his Foreign Affairs article, those views of Avineri were not that much more restrictive than those of Dennis Ross. In Avineri’s participation in the Israel Policy Forum on "The Future of the Peace Process", he anticipated Obama’s address to the Israeli public through his talk to the students as being at the heart of his visit to at least convey that Obama hears what worries Israelis and understands those fears. On the core issues of settlements, borders, Jerusalem, security, refugees, the gap between the current more right wing government versus the previous moderate government engaged in the last negotiations is even wider than the considerable chasm still left when moderates were negotiating with moderates. "To try to reopen those kinds of negotiations now is probably doomed to failure." That is certainly the generally universal pessimism, even of Naomi Chazan.

Yet Naomi Chazan argued vehemently against the notion that nothing could be done and insisted that "survival demands that those in power don’t wait for ‘the right time’ for peace negotiations but create them now" by instead of "lowering expectations" about the Obama visit, pushing Obama to press both sides to resume negotiations.’ However, the overwhelming view of most observers and specialists in conflict management and peace negotiations is that a push towards direct negotiations at this time would be counter-productive. Naomi Chazan’s push is not idealism or optimism but the despair of hope and the guarantee that hope will turn into greater despair.

Subjective reactions to proposals as instilling pessimism or optimism are one thing. But positing a false and misleading dichotomy of proposals as pessimistic or optimistic may be far more misleading than helpful.

Part of the equation is also knowing the American administration and, in particular, Barack Obama’s mindset as well as that of the Israelis and the Palestinian Authority. Avineri has advised that, "the president shouldn’t really put his life on the line on this issue because he has already failed in the past," and has suggested an emphasis on back channels or Track II diplomacy. I think Obama has already incorporated that view. This is why when Gerald Steinberg in his article in the National Post this morning, "Natanyahu is from Mars, Obama is from Venus" is so misleading with his false dichotomy. Steinberg correctly calls Netanyahu a hard-core realist. However, he argues that Obama has a very opposite perception of international politics who takes "an idealist (or optimist) approach" and "believes that disputes generally can be overcome through dialogue and compromise. For Obama, the use of military force is an undesirable last resort." The portrait of the al-Qaeda and the Taliban as outliers would perhaps explain his use of drones to assassinate them. [I am
being sarcastic!]

The portrait is so wrong and so distorting that one despairs at correcting it. For example, the difference between Obama and Netanyahu over Iran is on whether to draw a line in the sand before hand of after you have given diplomacy and talk the best chance that can be afforded. The argument for drawing the line in the sand early is that the other side knows very early on when their actions will trigger a military response and this will prevent escalation creep. The argument for not drawing a line in the sand early is that it psychologically blackmails the negotiation process and limits the saving of face. There are arguments for both positions. (Listen to American National Public Radio today on "The Value and Risk of Drawing a Red Line" with Aaron David Miller from the Woodrow Wilson Center whom I have cited before with respect to Obama and Israel.)

Both Netanyahu and Obama are variations of realism and not a realist versus an idealist. There is an abundance of evidence that Netanyahu is a hard-core realist and that Obama is what may be termed a softer realist, but it is very clear that he is not a Kantian idealist. Painting him as one may be considered a credit or a demerit, depending on your point of view, but, whatever its normative value, it is descriptively false. False either/or dichotomies in international politics, however convenient they are in explaining issues, much more often mislead.

The issue of red lines is not only applicable to Iran but also North Korea and Syria. Ignore North Korea for the moment, however difficult it is to bracket the self-aggrandizing and advertisements for himself of Kim Jong-Un. Last year, intelligence reports informed the president that the Assad regime was weaponizing missiles with nerve gas. Obama and the USA drew a definite line in the sand for Syria. As Foreign Policy reported, "In August, President Barack Obama first asserted that Syria’s use, or movement, of chemical or biological weapons (CBW) would be a ‘red line’ that would result in ‘enormous consequences’." (5 December 2012) Presumably, the rationale would be humanitarian rather than siding with one side. Intervention was required to protect civilians under the universally accepted doctrine of the responsibility to protect that Canadians pioneered in forging. After all, the international community to its everlasting shame did nothing when Saddam Hussein used Sarin and VX in 1988 on the Kurdish village of Halabja, killing 5,000, injuring over 10,000 others and leaving a legacy of birth defects. In 1982, Bashar al-Assad’s father massacred between 10,000 and 20,000 in Hama to repress a rebellion so mass murder by this regime would not be a total surprise.

Foreign Minister, Jihad Makdissi of Syria has repeatedly stated that the Assad regime would only use chemical weapons against invaders and not against Syrians. If the Assad regime does resort to the use of chemical (or biological) weapons in Syria, the Syrian regime could expect to invite some type of military response from the USA without specifying whether that meant arming the opposition, imposing a no fly zone or bombing certain facilities. The possible use of poison gas in Syria against civilians in Aleppo needs first to be verified. Little noticed in today’s news reports about possible chemical warfare in Syria, is that the report itself may be a way for the Iranians to test run how seriously to take red lines by the USA if ever they were to be drawn. Iran has repeatedly used Syria as a proxy.

Dichotomies that apply to subjective states and attitudes – such as pessimism and optimism – may be very misleading when applied to characterizing positions held on peace negotiations. False mutually exclusive categorization is often misleading and sometimes even dangerous when misapplied to the positions of world leaders. Dichotomies posed as polar opposites with many intermediate positions between can also be misleading as well; it may be useful to distinguish realists along a range between an extreme hard-core group and realists who soften that realism with moral considerations with many variations between. But posing realists and idealists as polar opposites on a spectrum of variations does not work very well.

Both/and thinking analyses may often be better suited to an issue than either/or positioning.

[Tags: dichotomous thought; Israel, Obama,
Netanyahu, peace process]

THE PEACE PROCESS – REALISM OR IDEALISM?

The day after the swearing in of Israel’s new government and the day before the arrival of President Obama, a symposium was held in Jerusalem under the title, “Israeli-Palestinian Conflict – Where to?” on the occasion of the publication of The Routledge Handbook on the Israeli Palestinian Conflict, edited by Joel Peers and David Newman.

The four panelists were on the centre-left of the political spectrum, i.e., in favour of the two-state solution. Nevertheless, there were differences, particularly between the realism of Shlomo Avineri’s analysis and the idealism of Naomi Chazan’s vision.

I was both heartened and depressed by Avineri’s presentation. Heartened, because what he said as an expert I’ve been saying as an amateur: though the Arab Awakening is likely to lead to the balkanization of the region and complicate life for Israel, the two-state solution is still the only viable response to the Israeli-Palestinian issue.

Depressed because much of what I’ve written from Israel has been along Avineri’s line. It depresses me and, alas, my readers. He maintains that neither the Palestinian Authority nor the new Israeli government – the most right-wing in its history, he said – will do much about solving the problem. All that we can hope for is that the situation can be managed better in anticipation of good times, whenever these may come.

Naomi Chazan differed sharply. She argued vehemently against the notion that nothing could be done about peace at present and, therefore, containment is all that’s possible. I understood her to say that in the same way as Avineri’s skepticism is self-fulfilling prophecy, so can the belief that peace can happen now. It’s essential for Israel’s survival and, therefore, requires the same kind of idealism that brought it into existence.

Chazan maintained that this fight for survival demands that those in power don’t wait for “the right time” for peace negotiations but create them now. For example, much could have been achieved towards it, she argued, if Israel had been the first to support the Palestinians’ bid for statehood at the United Nations. Similarly, instead of joining in the chorus that tells everybody not to expect much from Obama’s visit, his being here can and must greatly stimulate the process by pushing the two sides to negotiate.

I left the meeting wishing that Chazan were right but believing that Avineri got it right. Instead of hoping for the ideal we should settle for the real and make it less difficult than it is now and much less difficult than it’ll become if we do nothing at all. That’s why prudent management is the best possible interim measure to be taken now.

I understand this also to be behind Dennis Ross’s idea about what each side could do independently of the other to create confidence building measures that would ease the tension and prepare for the future. (Thus my latest column in The Toronto Star.)

The third speaker, Professor Arie Arnon of Ben Gurion University, pointed to the vital importance of the many Track Two encounters between experts who’re preparing the ground for peace whenever it comes by dealing with specific aspects of it. I understood him to say that these encounters blend realism with idealism.

The last speaker was Professor David Newman, also of Ben Gurion and co- editor of The Handbook. He reminded us that little of the left’s message, whether realistic or idealistic, is now touching the Israelis. The new government of the right reflects it. The citizens, indeed the world at large, have to learn to grin and bear it. Advantage: Avineri.

Jerusalem 20.3.13 Dow Marmur

False Dichotomous Thinking.doc

Ethics and Drones Revisited19.03.13

Ethics and Drones Revisited 19.03.13

by

Howard Adelman

If you skip the bibliographical references, this is not a long blog.

I thought the debate over drones would cool off again after the initial flurry of articles following the leak and publication by NBC News of the Obama memo justifying their use in a confidential Justice Department 16-page memo (on 4 February 2013). That memo concluded that the U.S. government could order the killing of American citizens (Anwar al-Awlaki and Samir Khan) if they were believed to be “senior operational leaders” of al-Qaeda (or “an associated force”) even in the absence of intelligence indicating they had been engaged in an active plot to attack the U.S. Between the immediate aftermath of the release of the memo until the publication of my blog on Obama and Drones (Obama 19. Drones: The Normative Debate 27.02.13), the commentary certainly seemed to cover all sides of the issue. This is a sampling that I added to my bibliography on the topic between the release of the memo and my blog:

  • Nick Gillespie, "Do You Agree with White House that Drone Strikes are ‘Legal’, ‘Ethical’ and W’ise’," Reason.com, 5 February 2013
  • Matt Willstein, "White House Responds To Drones Memo: Strikes are ‘Legal’, ‘Ethical’ and ‘Wise," Media, 5 February 2013
  • Doug Powers, "Jay Carney: Drone Strikes constitutional, ethical, wise, and completely within the province of a Nobel Prize Winner," Michele Malkin, 5 February 2013
  • Maryann Cusimano, "Love White House: Drone Program ‘legal’, ‘ethical’ and ‘wise’. Is it?," The Washington Post, 5 February 2013
  • Adam Clark Estes, "The Future of Drone Warfare is Scary," Atlantic Wire, 6 February 2013
  • Owen Schaefer, "The double standard of objections to drone strikes against US citizens," Practical Ethics, 6 February 2013
  • Robert Murray, "The Ethics of unmanned killer drones still evolving," The Province,7 February 2013
  • Andrew Reddie, "Beyond Ethics: Drones in Realpolitik," Georgetown Journal of International Affairs, 8 February 2013
  • Eugene Robinson, "Drones bend the rules of ethics," Tennessean, 10 February 2013
  • "Drone Ethics: The Policy and the Memo," Ethics Alarms, 11 February 2013

· George Clifford, "Drones and targeted killings – Part1," Ethical Musings, 11 February 2013

  • Jane Mayer, Jeff McMahan and Michael Walzer, "The Ethics of Drone Warfare," on Live Chat with Amy Davidson, 14 February 2013
  • David Post, "Drone Attacks Spur Legal Debate on the Definition of ‘Battlefield’," Huffington Post, 14 February
  • Travis Normand, "The war on terror without geographically defined battlefields," Blog response to Post’s article in The Huffington Post
  • Bill Darrow and David Kaiser, "Drones: The Ethics and Strategy," Williams College, 19 February 2013
  • Amy Davison, "Can a President Use Drones Against Journalists?" The New Yorker, 20 February 2013
  • Meghan Topp, "The Secret Drone Wars," RELEVANT Magazine, 21 February 2013

· George Clifford, "Drones and targeted killings – Part 2," Ethical Musings, 21 February 2013

However, in March thus far the debate has continued apace:

," The New York Times, 17 March 2013

  • Shane Newell, "The ethics surrounding drone strikes need more discussion," DAILY49ER, 10 March 2013
  • Michael Walzer, "Is the Military Use of Drones Ethically Defensible?" The Berkley Center, the Master of Science in Foreign Service Program, and the Mortara Center for International Studies, 13 March 2013
  • Ben Emmerson, UN special rapporteur on human rights and counterterrorism, "Report on the Use of Drones by the United States in Pakistan," Office of the High Commission for Human Rights, Geneva. [The report itself is not available
    but its contents have been widely reported in the media, beginning with a
    breaking news item on CBC and then in published reports in The New York Times and a wide array
    of other news outlets around the world
  • "EC Community discusses the ethics of drone
    strikes," The Leader, 19
    March 2013
  • The Kroc Institute for
    International Peace Studies, Conference:
    "The
    Ethical, Strategic & Legal Implications of Drone Warfare," Chicago, 20-21 March
  • Kenneth Roth, "How We Should Control
    Drones," The New York Review of Books, 4 April
    2013

 

Reading this
last one after the issue of the NYRB arrived in the mail yesterday provoked me
to take up the subject once again, but focusing exclusively on the ethical
issues. I suspect that the forthcoming book by Christian Enemark entitled Armed Drones and the Ethics of War: Military
Virtue in a Post-Heroic Age
to be published by Routledge on 31 August 2013
will be out of date before it hits the bookstores. Old fashion book publishing
is just too slow in the modern age of electronic publishing.

 

Roth is not
opposed to the use of drones, even though they appear to make war and lethal
killing easier because their use reduces the risk to the party which owns the
drones. However, insofar as they increase pinpoint accuracy, can hover over the
target to confirm the individual(s) to be hit and can choose the optimum moment
for a strike, the use of drones has the potential of reducing civilian
casualties. Roth also recognizes the difference between the justifications used
for the use of lethal weaponry for a just cause – self-defence employed after
proper congressional authorization, and ius
in bello

issues such as proportionality and the principle of not targeting
civilians. 

 

However, Roth
found the leaked memo of 5 February not only to be deliberately ambiguous but
designed to allow plenty of wiggle room while claiming to employ killer drones
strictly within the bounds of international law. Roth launches seven arguments
against the Obama administration's justification for the use of drones.

 

First, Roth argues
that the range of geographical areas where drones can be used are limited to any
actual battlefield where American troops are engaged. Yemen, Somalia,
Mali and the untamed
territories of Pakistan
lie outside that battlefield. Roth's second argument concerns the
combatant/belligerent status of the targeted individual; the laws of war
prohibit targeting civilians not actively engaged in belligerency – such as
cooks or drivers – there must be direct participation in hostilities. If a
third rationale for targeting individuals is used, namely, the rules of
prevention in a criminal action (rather than a military justification), Roth
argues that such a justification of an immanent threat only applies to war
powers and not to anti-criminal activities; in a criminal situation, the threat
must really be immanent — such as individuals holding a gun to an innocent
civilian's head. Fourth, Roth argues that in non-battlefield situations,
capture is by far the preferable criterion but though the administration
appears to agree, that principle is not applied; capture never seems to be
feasible. Roth's next two arguments concern process. His fifth argument is that
the decisions are too secret and not sufficiently transparent. Sixth, the
decisions are unilateral and not subject to institutional constraints. Finally,
Roth argues that the Pentagon, not the CIA, should be the proper and legal
agency to use drones because the military have a proper chain of command and a
tradition of stronger accountability to the law.     

 

Though Roth
himself is confusing when he flits back and forth between strategic (is the use
of drones counter-productive in creating more civilian resentment and more
terrorists) and ethical issues, and though he makes his arguments in the form
of a trial brief rather than a legal or ethical analyst weighing the different
sides of the question, nevertheless he offers a fairly concise view of one
school of thought on the ethics and laws of war applied to drones. For
elaborations of that argument, see Nils Melzer (2008) Targeted Killing in International Law (OUP). More succinct versions,
but one more elaborate than the one Roth offers, can be found in the writings
of Mary Ellen O'Connell.

 

I myself find it
somewhat exasperating to read repetitions of arguments, especially when not
precisely stated, enunciated virtually since the Obama administration took
office without taking into account the arguments made on the other side. I'll
examine each argument in turn.

 

Does the law of
war restrict belligerency to the battlefield? If it does not, Roth argues that
the US could be allowed to
hit an individual in London.
Functionalists argue that there are no such restrictions in international law
of war. Contrary to Melzer, O'Connell and Roth, the functionalists seem to be
supported by the overwhelming tradition in international law applied to war. The
official US
government view is that fighting follows the belligerents and is not restricted
to battlefields. In ius in bello, hostilities
take place where hostiles are to be
found not where battles take place. The exception is when hostiles are in
neutral territory of a state determined to protect its neutrality.

 

However, neither
the preponderance of authorities nor the weight of tradition makes an
interpretation correct. Those are simply empirical issues about ethics. They
weigh as precedents and arguments from authority but are insufficient in
themselves to determine the outcome of a debate. Mary Ellen O'Connell offers a
more elaborate argument than merely a confusing reiteration and a throw away
line about the opposite argument leading to killing targets in Paris
and London. I
distil her arguments published in various scholarly articles in books and
journals and legal briefs, largely relying on her Pakistan study and her legal brief
to Congress.

 

(2004) "Ad
Hoc War," in Krisensicherung and
Humanitärer Schutz – Crisis Management and Humanitarian Protection
405

(2005)
"Enhancing the Status of Non-State Actors Through a Global War on
Terror," Journal of Transnational
Law
43:435

(2009) "Combatants
and the Combat Zone," University of Richmond Law Review, 43:845

(2010a) "The
Choice of Law Against Terrorism," Journal
of National Security Law

(2010b) "Unlawful
Killing with Combat Drones: A Case Study of Pakistan, 2004-2009," Notre
Dame Legal Studies Paper No. 09-43," republished in Simon Bronit (ed.) Shooting to Kill: The Law Governing Lethal
Force in Context

(2010c)
"Lawful Use of Combat Zones," legal brief to the Subcommittee on
National Security and Foreign Affairs, House of Representatives, Washington, 28
April

 

In the school of
thought on the international law of war to which O'Connell (as well as Roth and
Melzer) subscribe, O'Connell is more precise for she does not make the error of
insisting that belligerency per se is
restricted geographically to battlefields, but rather that drones drop bombs;
bombs may only be used lawfully in areas where armed hostile conflict is taking
place and international law does not recognize the right to kill with battlefield weapons outside an
actual armed conflict. Melzer goes even further and argues that weapons can be
used extra-territorially to a battlefield (257-261) provided the target is a
combatant in the armed conflict and is directly participating in armed
conflict. Thus, Roth has offered the most restrictive argument of all for those
who want to restrict the use of drones very severely.

 

O'Connell's
argument depends on a second premise: militant operations outside of
battlefield conditions are police not military operations. Police actions
require that warnings be issued before lethal force is used. The very nature of
the use of drones dropping explosives depends on surprise, so notice cannot be
given. Since the use of drones does not conform either to a police operation against
criminals nor a battlefield scenario, drones, though lawful for use in
Afghanistan by US forces, are not lawful for use in Somalia, Yemen, Mali or even
Pakistan, though there is more dispute over the last. The reference to London and Paris
are just red herrings.

 

David Post's 15
February Huffington Post article,
drawing on O'Connell, argued that the break with the law of war began with the
use of a predator drone over Yemen
in Bush's war on terror on 3 November 2002 when six suspected al-Qaeda terrorists
were blown up by a missile shot from a drone over Yemen. However, Post was wrong in
claiming that this was the first use of a battlefield weapon outside a
recognized war zone. The debate over the destruction of the battleship ARA Belgrano
in the Falklands War (Guerre de las Malvinas)
in 1982 hung on whether battlefield weapons were restricted to recognized war
zones or could be used outside the exclusion zone of 200 miles. The United States
has never recognized such a restriction. Nor has the UK. Ironically, in the case of the
Belgrano, evidence recently came to light from the British navy that the
Belgrano was not heading back to port when the missiles hit but in fact had
been ordered to sail towards the exclusion zone. (Thomas Harding, "RAR Belgrano
was heading to the Falklands secret papers
reveal," MercoPress, 26 December
2011) Nevertheless the issue remains – the Belgrano was struck by lethal
weapons and sunk outside the exclusion zone defining the battlefield.

 

The US
"Authorization for the Use of Military Force" in the war on terror,
subsequently amended by Barack Obama to the war on al-Qaeda and its affiliate,
authorizes the "use of all necessary and appropriate force against those
nations, organizations, or persons he (the President) determines planned,
authored, committed, or aided the terrorist attacks that occurred on September
11, 2001, or harboured such organizations or persons." The authorization
focuses on hostiles, not geographical areas.

 

This American
official opinion is backed by a number of eminent experts on the international
law of war. [For example, see
Nicholas
Rostow (2011) "Combating
Terrorists: Legal Challenges in the Post-9/11 World
, in Paul A. Pedoza & Daria P. Wollschlaeger (eds.) International Law and the Changing Character
of War.
The same two schools also are divided over who can be detained and
where. Cf.
Curtis A. Bradley & Jack L.
Goldsmith (2005) "Congressional
Authorization and the War on Terrorism," Harvard Law Review 118:2047; Robert Chesney (2011) "Who May Be Held? Military Detention Through
the Habeas Lens, British Columbia
Law Review
52:769] Essentially, subject to the usual constraints of just war theory re proportionality and discrimination, states have an inherent right to use lethal military weapons in a war of self-drefensewherever the enemy is to be found.

But that still leaves open the question whether attacking those six men in the car in Yemen "appropriate" force was used when a battlefield weapon was employed. There are two schools of thought. The English functionalist school (most just war and laws of war scholars and officials in the USA, Canada, the UK) focus on where the alleged enemy is, subject to certain debatable constraints. The human rights school centred in continental Europe, particularly Geneva, which suborn international laws of war as a subset of human rights norms, limit war to wide scale armed conflict in specific geographic zones with specific exceptions by some scholars. Generally, police operations are law enforcement operations applicable outside such areas and these operations are governed only by human rights norms. Reading Roth’s human rights polemic, one would never be aware that another school of thought was in contention or that there were divisions among the adherents to his own school of thought.

Jennifer Paskal, a Fellow at the Center on Law and National Security at the Georgetown University Law Center has written articles trying to overcome the divisions between the two schools. Her paper, "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the ‘Hot’ Conflict Zone," forthcoming in The University of Pennsylvania Law Review 161 specifically deals with this impasse. She offers the argument, repeated by Roth, that focusing on hostiles instead of hot military zones would mean that Russia could go after Chechnyans anywhere in the world, including the U.S.A. This is as big a red herring as the Paris and London or Times Square arguments bandied about, for law permits but does not prescribe. There are other limitations imposed by prudence and not law.

Paskal in her effort ends up on the side of the functionalists for she recognizes both the need and the right of states to deal with enemies wherever they are found, and, therefore, that conflict follows the enemy, but extends that territory beyond hot zones to include territories where the rule of law cannot or is not being imposed. In fact, this merely encapsulates in proposed legal norms actual operating policies based on prudence. She "explicitly recognizes that the set of current rules, developed mostly in response to state-on-state conflicts in a world without drones, fail to adequately address the complicated security and liberty issues presented by conflicts between a state and mobile non-state actors in a world where technological advances allow the state to track and attack the enemy wherever he is found. New rules are needed, she argues. Drawing on evolving state practice, underlying principles of the laws of war, and prudential policy reasons, the paper proposes a set of such rules for conflicts between states and transnational non-state actors – rules designed to both promote the state’s security and legitimacy and protect against the erosion of individual liberty and the rule of law."

As Kenneth Anderson has written, "armed conflict law applied under conditions of hostilities, and although hostilities could and sometimes did follow the participants around to far-flung places, on account of technological limits and related practical reasons, armed conflict tended to have a de facto geographical space. Moreover, if one wanted to invoke the law of armed conflict in some place, the presence of combatants would not by itself suffice; someone would in fact have to undertake hostilities (including initiating them). So the conduct of hostilities, rather than geography as such, was the traditional touchstone – but in fact hostilities for all sorts of practical reasons tended to stick to geographical zones. The hostilities standard also had the virtue of keeping jus ad bellum issues (including sovereignty, neutrality, borders) distinct from the jus in bello issues (irrespective of whether ad bellum law was violated, the law of armed conflict would apply in the conduct of active hostilities)." [See his 2011 essay, "How We Came to Debate
Whether There Is A Legal Geography Of War," and his introductory framework
essay of Lawfare for the Naval
War College
workshop on the legal geography of the battlefield.] The norms guiding the conduct of war are merely catching up with changes in technology and the prevalence of asymmetrical wars against non-state actors.

What about Roth’s argument with respect to those who can be targeted. The authorization for the war against al-Qaeda and affiliates was wide open. The policy tended to focus on high level policy makers and medium level operatives. Roth would further restrict targets to those actually engaged in conflict, in effect, hostiles with a gun. This is far too restrictive and would outlaw capturing or killing bin Laden except by law enforcement authorities. On the other hand, targeting individuals based on patterns of behaviour (signature strikes) rather than individual identification has resulted in costly mistakes where civilians were killed and should be prohibited on the traditional rule of discrimination and minimizing collateral damage.

I will ignore the issue of immanent threat governing the actions of police officials given that I have already accepted that these are military and not civilian police actions. What about Roth’s fourth argument for prioritizing capture. As I indicated above, both schools agree on this preference. The real difference here in not over principle but over practice. In all cases, the authorities argue that capture was not feasible, including some cases – such as the infamous bin Laden case – where it was feasible. This is an argument over practice and not rules of war per se, but perhaps over process rules, the issue of Roth’s fifth and sixth arguments. The issue is not, in my mind, transparency, but the need for a legislative body to provide better worked out procedural guidelines for specific decisions but without setting up a proposed court of review or an equivalent ex ante review before the executive could take action. Legislative oversight could require the executive to set standards of threat and provide criteria for determining when such standards have been met. Legislatures can help provide normative frameworks. This is important and valuable, but legislative bodies should not partner in executive decisions. That legislative body should be empowered to define the constraints within which the policy should be carried out.

Finally, what about the argument that the use of drones should be assigned to the Pentagon and not the CIA because the former has a proper chain of command and a tradition of stronger accountability to the law? This issue is moot since the Obama administration has already announced that it intends to shift the implementation of drone use overwhelmingly to the Pentagon, a policy incidentally that was publicly supported by John Brennan both before and since he became head of the CIA.

Kenneth Roth is the Executive Director of Human Rights Watch. He has had enough on his plate defending himself against his former chair and the founder of HRW, Robert Bernstein and the record of bias on the Israeli-Palestinian conflict as well as by Islamic states on his stands in defence of Islamic women. He has also been criticized for being too defensive of American policy in Latin America. My concern is not with any of these. There is a great need, and possibly obligation as well, when presenting a case dealing with normative issues with respect to drones to clarify, analyze and then argue for a position and not simply serve as an advocate ignoring all other counter-evidence and arguments, variations and opponents.

[Category:
Ethics]

[Tags: drones,
just war, laws of war, geographical restrictions, target restrictions,
constraints]

Ethics and Drones Revisited19.doc