Ghosts on the Bus

Ghosts on the Bus
by
Howard Adelman
Yesterday morning I penned a eulogy to Shira Herzog. But I felt it was perfunctory, even forced. After all, my thoughts were not filled with my experiences with Shira and her accomplishments. They were so many I could only allude to them in my brief obit. But the eulogy felt so impersonal, and attended only to one aspect of her. To the extent my thoughts were preoccupied with Shira, it was not about her successes, but about the long talks we had – or, rather, her long discourses about herself and her marriage – when she was a relatively young woman and she needed an ear to express the turmoil and trouble she was going through. I always thought I was an odd choice for a listening post, but I believe she shared her doubts and fears with me because I was safe, someone who could listen but neither share what I heard or feel I had to do anything about it. In any case, I had no idea about what I could do about anything she told me. I could not even offer advice or much solace.
However, my mind did not rehearse those conversations – I remember them only very sketchily – but rather was fixated with the question why she was not among the ghosts that I experienced on the bus between Barrie and Toronto as I drove down to attend her funeral. Everyone else seemed to be there. No, not everyone. My four grandparents who died when I was between the ages of one and five were not there. I remembered them as very old and tired, though not one of them lived past the age of 55.
My father’s mother was always a walking ghost for me anyway as she wandered through the house on Kensington in the market where my grandfather had a chicken store. She just talked to herself and took no notice of me. She had gone mad when my grandfather left Europe for Canada in 1913 and then was unable to save enough money and get her and the other three children over before the war broke out. She was stuck in Europe and went crazy trying to find food for herself and her three young children. Even though she was not really present in my life, her spectre is more vivid than any of my other grandparents – certainly far more vivid than my mother’s mother whom I only remember indirectly when she died and my mother held me and was crying, but I felt that I was holding my mother even though she was holding me. I was only a year old.
The next generation is more vivid in my memory, but my aunts and uncles also were not on the bus. They were present in memory – in fact I had a distinct replay of my uncle Yumma’s burial in Montreal as we shoveled the clumps of wet soil onto his grave on a very rainy and wet and very cold day in the spring in Montreal where my cousin Sarah, his only child, lived. As we buried him I only remembered him as a presence but never there to talk to me or for me to address him. Yet he lived in Kensington near us and I saw him all the time, but just viewed him as a virtual stranger who talked with a heavy Yiddish accent even though he was the only one of the children to accompany my grandfather to Canada before the war.
I had no memory of my father’s youngest brother who committed suicide and only vague images of my Uncle Jack and Aunt Mary, but they were not on the bus. My aunts and uncles on my mother’s side were far more vivid, but again, only in my memory. They were not spectral presences. Some were as vague as my relatives on my father’s side – such as my aunt Mary whom I only remember as an older person always wearing the same trench coat yet I babysat her children, my two cousins, a hundred times at least. Her husband, Barney, remains far more vivid in my mind even though he died very young – I think he was just in his mid-thirties. He was a carpet salesman and I really liked him.
My aunt Jenny stood out more vividly – even her husband did – for Jenny lived with us when she was being courted and I used to be the tease and bane of her life, one time hiding behind the couch to listen to Jack Benny on the radio even though it was past my bed time. I became trapped when she and her future husband took up occupancy of the living room couch and I took to lightly pulling her hair instigating her to scold her boyfriend – my future uncle – until she discovered me and chased the young culprit through the house until I locked myself in the room I shared with my brother.
Of my aunts and uncles on my mother’s side, my uncle Jack, who was blind and crippled and lived in an institution, is very vivid in my memory, always listening to the radio when my uncle Irv took me to pick him up and take him to his home for the weekend. I remember very vividly his gift to me of a leather belt he had made from leather strips that he had interwoven. I wore that belt until I was eleven.
My aunt Doris I remember as someone always scolding my uncle Nate who seemed to take it all in as his shoulders grew more hunched and he shuffled even more as he grew older. He had been very kind. Doris and Nate lived in Buffalo and they took my brother and me out to a nightclub when I was only ten. We saw Sammy Davis Jr. perform and my uncle Nate taught me how to spin spaghetti on a fork and eat it. Before then I had only ever had canned spaghetti.
My aunt Lil is more vivid, with the very distinct red birthmark or hemangioma on her cheekbone – I think it is popularly referred to as a port wine stain. Her determined walk stands out most vividly in my memory and I looked forward to seeing how she boarded the bus. But she did not get on and I was left to stew in my tremendous guilt. When I began university and was in the same premedical class with my older brother, Al, and my cousin June, aunt Lil came to see us and took each of us aside, I was the only one, to my everlasting shame, who did not accept the one hundred dollars she offered me to help me out with purchasing books and other school expenses. I told her I did not need her money and could manage on my own. I don’t think I even had the grace to thank her for her generosity. I was not rude, but I was not gracious either. I gave no indication of gratitude or sensitivity to her concern. My brother took the money with ease and thanked her profusely. I was left only with my guilt over my ingratitude and rude behaviour driven by my pride. I had never apologized.
Her husband, Tommy is truly a more ghostly presence – a very kind but also very quiet man – my aunt had married a Christian who attended a Plymouth Brethren Church. But he was a true ghost for the most vivid memory is his funeral where I became so enraged at the pastor using my uncle’s funeral, my uncle Tommy of very cherished memory, to try to convert us to Christianity. If my wife had not held me back, I was determined to get up and throttle that pastor.
Four of my aunts and uncles are far more vivid than the others – my aunt Gladys because she was also my mother’s best friend, and her husband, my third uncle named Jack, who used to corner me to talk in detail about cars when I have never cared about cars or been able to distinguish one car make from another, let alone different models for each maker. Gladys was another story. She was always smiling, was very pretty, baked the best Chelsea buns in the world and she and my mother bickered all the time – “It is so.” It isn’t.” “I know it is.” “Well it isn’t.” It was too bad they did not have Google then, or perhaps not so bad because they might not have had anything to bicker about.
My most vivid memories are of my uncle Irv, even though he died young when I was in my teens – and my aunt Rose remembered as a cultured lady of great refinement. Almost every weekend, I stayed at their house, babysat my cousin Sue and her two twin brothers, Steve and Gil. Betty-Anne came along later when I no longer babysat for them. On Sunday morning, my aunt Rose would often tell me about the play, or sometimes opera, or at other times a movie they had seen the evening before; the world of drama became in my mind a great symbol of culture though I had never seen a live performance until I was seventeen.
My uncle Irv was a surrogate father. He took me with him to the market to buy crates of oranges and to the Cheerio Toy Company that he managed for his cousin until that cousin absconded to Israel and the headlines on the papers I delivered read: “Yo Yo King Escapes to Israel”. He had evidently not paid taxes. I had never met him but in family lore I was told that he had invented the yo-yo in the thirties while serving time in jail.
None of them were on the bus though. Not my father nor my mother. Not my wife’s father or her mother who was one of the kindest and most considerate people I had ever met. They were not like ghost students who never came to class or like my colleague in the philosophy department who became a ghost professor because he became so mad that we could not permit him to go in the classroom. My parents and my wife’s parents just were not there.
But my wife’s brother, David, who passed away relatively recently, and her younger sister, Janice, who died quite a few years ago before even her mother or father had died, were both on the bus. David appeared as a spectral presence with a twinkle in his eye and a slight sideways grin in contrast to Janice, who always seemed to be someone who lived squelching the anger within her as she made the greatest effort to be pleasant.
David and Janice were both there and each had gotten on the bus even as its door was not open and we were speeding down Highway 400 at 110 miles an hour. The bus door, even as it was closed, seemed to serve the same purpose as the ribonuclease membrane that allows yeast cell ghosts to pass through without anyone knowing how the crossing took place. Up until Barrie, Ontario, I had kept busy reading the papers I had purchased and doing sudoku and the crossword puzzle. But by the time we reached Barrie, it had grown too dark to read and the light at the seat was not working. I had started to write on my computer until I caught the sign pasted on the inside of my window. I was sitting in the second row and the sign said that laptop use was forbidden because the reflection in the glass interfered with the driver’s line of vision. I closed my laptop and within minutes those spectres started to board the bus.
I do not now remember the order. I do remember thinking how clichéd they looked for their presences were drawn from movies where they appear as translucent figures with the lights and sight of signs that we passed clearly visible through them. These were full bodies and not just faces, but they were not solid. They even lacked the bare substantive presence of the cadaver we were supposed to cut up in first year medical school.
That cadaver was an old lady who died in her eighties and had probably only weighed 70 or 80 pounds when she died. She was a ghost that haunted me in first year medical school but I never told my anatomical partners that this was the reason I had organized the anatomical philosophical society whose first dictum was that you were not allowed to cut up dead bodies because we were primarily concerned with the spirit of what it was to be a human. I did not even have the knowledge or presence of mind to offer the excuse and enter the debate on the side of those who argued that anatomical teaching itself was a ghost of the past and that cutting up cadavers had little relative educational benefit even though we spent half a day every day in first year meds supposedly cutting up a corpse. I did not even know the word “prosection” then or that living anatomy and use of radiology were far better educational tools. I simply argued that I did not want to be educated in necrophilia. (Our Filipino instructor training to be a surgeon kindly spent every Friday dissecting the poor old lady and showing us the full week’s work as he got his practice using the scalpel.)
Though full bodied, the ghosts that boarded that bus were not zombies. Their spectral presences moved with the same style they had when they lived. But why were they there? I had written often of ghosts, of how the ghosts of romanticism had infiltrated the bad thinking when we developed Rochdale College, how the New Left in the sixties, as much as it tried to distinguish itself from the old left, was haunted by old and obsolete ideologies that made their presence felt in different ways. In writing about the international financial world, I discussed the ghost ideas of development theorists, who, in contrast to Albert O. Hirschman, still operated on the assumption that problems of development could be cured simply by filling the missing financial gap for investment when, in reality, the real gap was the belief in a financing gap. This ghost of past ignorance haunted the efforts to foster development. The Harrod-Domar growth model to calculate investment needs was a misleading chimera that just failed to be confirmed by any reality check.
Of course, some ghosts had a powerful effect on subsequent periods in history such as the phalanx depicted in Homer and the massing of the hoplites to still their fears and keep them marching towards enemy fire. Those ghosts dictated military strategy for centuries long after that strategy had been made obsolete by the new technologies of weaponry.
So my scholarship had often been preoccupied with the presence of illusionary ghosts that haunted and deformed the present. But these were real enough presences from the past even though they lacked substance. But I never took these ghosts to be real in any physical sense. They were only part of a real experience, not of the real world. They were projections of my imagination and not actually present in front of me as clear and distinct as each of these images were. I knew that these visual presences belonged to the non-living but I was a total atheist when it came to the spiritualism that became such an important part of nineteenth century life.
Further, these were ghosts that belonged to the culture of film and had nothing to do with Hamlet’s ghost or the ghosts that haunted Lady Macbeth, in part because these ghosts were not really haunting in any way. They were friendly ghosts – no, not actually friendly since they never directed any attention towards me. They simply appeared and disappeared like ghostly dancers on a stage. Their one distinctive character was their lack of physicality even though I could recognize their faces and the ways their bodies moved. These ghosts were not figures from the past that had become physically reanimated. They had nothing to do with that dominant tradition of spectral tropes.
But why was I having this experience? I was a clear product of enlightenment thought informed by the necessity of empirical proof, reason and sceptical of anything that failed to satisfy these inter-subjective criteria. I knew that no one else on the bus saw the figures I saw boarding the bus. But the ghosts were real enough. Each spectral appearance had a name and a particular character. But they were not objects in experience but just a being-there of that which had been absent, for some for many years. An enlightenment scholar does not believe in ghosts. I do not believe in ghosts, especially not in ghosts blamed for cheating on exams as the negative effects of the policy of “No Child Left Behind” is felt and as a recent New Yorker article documented so brilliantly.
One of those ghosts really puzzled me. Only with a great deal of trouble and wrestling did I figure out that it was Dian Marino, an academic colleague and graphic artist from Environmental Studies at York University whom I barely knew. She did not belong to my department of even my faculty. I knew her husband, Chuck Marino, much better because he was in the Department of Psychology in my faculty. Dian died about twenty or so years ago. She had been relatively young, but like Shira had breast cancer. I suppose that is why she came onto that bus. More than likely, it was more because she had fought breast cancer for years, as had Shira. But she survived twelve or thirteen years, twice the length of time Shira had though Dian had not been given a death sentence of four months when she was first diagnosed as I recall. Like Shira, they discovered metastases. For Dian, those metastases had spread to her bones. Yet she survived for another half a dozen years after that diagnosis, as Shira did, beating all the odds.
Like Shira, she had dear friends who helped her. Like Shira, though she had her fears and was angry at her fate, she was determined to go on with her work. My memory of her was that she was totally forthright about what she was going through but was not inviting pity or any treatment different than that of any colleague. She was focused on her myriad of projects. Shira was not on that bus, but Dian Marino, whom I barely knew, was.
Though I do not remember Dian to have been like Shira – she eschewed the language of fighting cancer in favour of a sort of zen approach of acceptance and going with the flow. While Shira kept up her Pilates exercise routine, Dian had told me she loved massages. Like Shira, she had her own way of coping with the fear and rage she must have felt – and the overwhelming sadness that she would not watch her grandchildren grow up. But what they most feared, they both fought strenuously against – the propensity to be treated as different, of people around them walking on tender hooks all the time as if the person had already left the real world. They both insisted on maintaining a substantive presence and of being treated as if life goes on and that they are as fully part of it as they can be. They refused to be isolated and denied their last months of living while eschewing being patronized or becoming receptors for pity. They remained agents and constructors of their own lives, in Shria’s case, even to determining her own funeral service down to the last detail.
Dian Marino loved flowers. Shira had the poem (and song) by the Israeli, Neomi Shener (who also died from cancer), read at her funeral, “The Honey and the Sting” rather than the far more famous, “Jerusalem of Gold”. Like Shira, whatever the criticisms of Israel, she and Shira never failed to regard Israelis as “Anashim Tovim,” – good people.
Neomi Shemer “To the Honey and the Sting”
Every bee that brings the honey
Needs a sting to be complete
And we all must learn to taste the bitter with the sweet.

Keep, oh Lord, the fire burning
Through the night and through the day
For the man who is returning
from so far away.
Chorus:
Don’t uproot what has been planted
So our bounty may increase
Let our dearest wish be granted:
Bring us peace, oh bring us peace.

For the sake of all these things, Lord,
Let your mercy be complete
Bless the sting and bless the honey
Bless the bitter and the sweet.

Save the houses that we live in
The small fences and the wall
From the sudden war-like thunder
May you save them all.

Guard what little I’ve been given
Guard the hill my child might climb
Let the fruit that’s yet to ripen
Not be plucked before its time.

Chorus:

As the wind makes rustling night sounds
And a star falls in its arc
All my dreams and my desires
Form crystal shapes out of the dark.

Guard for me, oh Lord, these treasures
All my friends keep safe and strong,
Guard the stillness, guard the weeping,
And above all, guard this song.
Chorus:
For the sake of all these things, Lord,
Let your mercy be complete
Bless the sting and bless the honey
Bless the bitter and the sweet.
Bless the sting and bless the honey
Bless the bitter and the sweet.
But Shira was not on the bus. Yesterday morning, she was very powerfully brought back to a living presence by the magnificent eulogy her son, Kobi, gave at the funeral. But she was not on the bus and I do not know why. Janice Carmichael, who also died of cancer, the mother of one of the best friends of my son, Daniel, and a friend of my wife, was there, but in reality I barely knew Janice. Kathleen Ptolemy who was not even a friend but a representative of the churches whom I worked with on the Boat People campaign, was there. She too died of cancer at a relatively young age. So, as I wrote, were Nancy’s brother and sister, David and Janice, on that bus.
These spectral images had nothing to do with the ruach hachodesh of the Tanach. There was nothing holy about them. They were not present as a divine force and especially not examples of the perfection of the Holy Spirit in the Trinitarian god-figure of Christianity. They were not even conduits through which God was delivering messages as the Baha’is believe for they offered no messages at all from some other place.
Others who died of cancer also boarded the bus – Jim Cameron in overalls and an Ozark beard who also smiled out of one side of his mouth, came on and reminded me that I had failed to drive up to the Bruce Peninsula to visit him before he died. Though he said this, I actually did not hear the words and he never faced me. Sam Mallin and Sam Ajzenstat, fellow philosophers, also got on the bus, but Sam showed no interest in continuing our long held discussions about Kant versus Hegel. And Sam Mallin totally avoided preaching to me about my bad eating habits. Though their parents did not board the bus, my cousins, Steve Duviner and Betty-Anne Duviner, both got on, Steve with a shuffle and a grunt of dismay, Betty-Anne with a bright smile in spite of the suffering she had endued all her life.
But there were also relative strangers – my graduate student, Andrew Forbes, who was targeted and murdered in Northern Kenya by a killer on a motorbike. Strangest of all was the ghost of an African student when I ran the student co-ops when I was a grad student. He had jumped out of a third floor window with a noose around his neck. He was a powerful very handsome man with large muscles. When I stood on a chair to cut him down, I was shocked that he was still breathing. After he was rushed to the hospital, his ghost re-inhabited his body and he lived, at least for several months until he tried again, this time “successfully”.
There were many others, but three stand out. I went to high school and university with David Berger. In the bus we were talking together, at least, I think we were though I was not part of the spectrum or appeared to be talking back. The scene was in the Hart House library. I had left medicine and Dave wanted to talk to me about leaving as well. He had only a year and a half to finish. I talked him out of his decision. Though he had missed six weeks of school, he went back, and after writing some supplemental exams, he passed. He trained at the famous Menninger Clinic and became a renowned psychiatrist. On the bus, he went directly without passing Go from that Hart House library to a brown-tiled shower in what was then called the YMHA, the Young Men’s Hebrew Association, where he grimaced in pain, collapsed and died of a heart attack.
Harold Wise was also on the bus. He was part of our group in Medical School and had gone to the USA to become head of the Dr. Martin Luther King Jr. Health Center in the Bronx. He had learned from the local shamans to appreciate the benefits of folkloric medicine. On the bus, he was in the Toronto General in a room that I recognized as my friend, Milton’s, when he was sick and supposedly in the last few hours of his life. I could not see Milt, but I did see Harold lie on the bed right on top of what must have been Milt as I had seen in real life, for it was my turn to sit by Milt’s bedside. But Milt was not a spectral figure on the bus and, though blind since then, weeks ago we celebrated his 78th birthday. I had witnessed Milt brought back to life and Milt joked with Harold that he did not know Harold had become a homosexual. I wanted to talk to Harold and apologize for laughing at his ideas, but Harold seemed totally disinterested in any apology I had to offer.
Of course, the most vivid person on the bus was my brother Al. He came on the bus when four spotlights lighted up the middle of the road where road crews were working all night on the highway. At first, I was so blinded by the lights that I did not even know it was him. But unlike any of the others, he came to sit down beside me. But he didn’t say anything. He didn’t even turn to notice me. He stared ahead indifferent to my presence. Maybe I should talk to him about sports, I thought. What a ghost thought from the past. That is how I got him to talk to me when we walked to school together. But nowadays I know absolutely nothing about sports, not that I knew that much then.
Al sat there, but without the enormous anger that was eating away his brain as the blastoma took over his life. I did not think it appropriate to talk about the anger I felt that he had allowed his wife to become an exterior blastoma and separate him from his family and his own children as he took eighteen months to die. Unlike Shira’s, his fight to keep on living was not an inspiring one. I so wanted to talk to Al and, even more, for him to talk to me. But he just sat there for a while – it was probably only five minutes – without my being able to interpret his expression. Then he got up and left the bus through the same front door, of course without opening it.
Then Barry Luksenberg got on, my youngest son’s close friend with whom he had gone to Vietnam this past February and who ended up wiping out on his motorbike on a road north of Hue. He, at least, had died instantly, but my son carries his death with him as a ghost in his life as I carry Al’s. I wondered if Barry is to my son like Al is to me, a ghost limb. I feel the pain but am unable to see or manipulate the limb. In death, Al had not become reanimated. He remained as cold and indifferent as the living cadaver that his wife kept in her living room whom we were allowed to see for short visits each day when he was in a coma for the last few months of his life. I can never forgive the pain Al’s wife caused my mother.
I knew these dead were only spectral figures and were not coming from an afterlife to visit with me. Their visits were too reminiscent of my strongest memories. They were apparitions, as much products of the movie industry as my own imagination. Perhaps that is why I have such a great love of movies. They allow me to revisit the ghosts of my past. As Jacques Derrida had written, “ici le fantôme, c’st moi in the Spectres of Marx. Here, I am the ghost, or, in this case, ghosts.
So the question remains. Why was Shira not on the bus? Perhaps it was too soon. She had not been buried yet.

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Why Good People Do Bad Things

Why Good People Do Bad Things

by

Howard Adelman

With all the sidetracks I am taking, I am not going to get to my blog on whether participating in the war in Gaza was just, or my blog that was to follow on evaluating each side’s strategy in the conduct of the war in Gaza. But I will get there. First, I want to answer the many missives I received about my Bill Schabas blog.

First, some housekeeping. Attached, please find a corrected version of my blog on Schabas. I did not proof read it properly because I was tired and wanted to get it out. The numerous typos are corrected. I spelled my colleague’s name, Israel Charny, correctly, but twice I typed Charney. Pillay of course is a woman and not a “he” as I wrote once. I repeated one sentence twice and included a partial and incomprehensible clause as if it were a sentence when it was to be deleted. I want to publicly thank Alex for being so attentive to my errors.

My apologies.

Now for more substantive issues. My question “Why international human rights law and not just (my italics) international humanitarian law?” was read as if the word “just” was omitted and that I was stating that the reference to international humanitarian law was left out of the mandate of the inquiry of the UN Human Right Council into the Gaza War. It was not and I did not say it was but my way of expressing this could have been clearer. My query was why international human rights law was included into an investigation about a war. It was a sincere question.

Secondly, it was suggested that my blog implied that Bill had such a close relationship with the Iranian regime that he was a supporter of that regime. I did not say nor did I mean to imply that. My intention was to suggest that Bill was closer to the regime than he should have been and his judgment of President Mahmoud Ahmadinejad had been impaired to say the least for Ahmadinejad is an unrepentant anti-Semite.

I was criticized from the other side for stating that Bill was a friend. Further, I insist he remains a friend – unless he chooses to break off the friendship because of what I wrote about him. How could I have a friend who takes the positions Bill does?

Unlike Bill who dislikes criticisms of friends – and for that he is the better person as I shall later explain – I level my intellectual criticism most acutely at my friends as my good friends can attest. I always hope it does not ruin the friendship, but as people also know, my tone more than my comments sometimes leave a scar on that friendship and I am always sorry for that – though not for my harsh criticism. I believe that friendship should be able to tolerate and even welcome harsh criticism.

I like and respect Bill Schabas. He is an excellent scholar. More than that, he is very well intended and is very personable. He has a number of ideals I respect. He is also a very good person. But he is also naïve, self-contradictory and capable of very bad judgments. His naiveté was evident in his activities in Iran where he saw himself as performing the task of an educator to a regime that badly needed enlightenment. He does not understand, in my estimation, how he was used. His naiveté is evident in his acceptance of the offer to chair the inquiry. It is even more apparent because he failed to learn how an inquiry can go so wrong from the results of the Richard Goldstone inquiry, another inquiry headed by a good man with integrity but who got in way over his head and the results were atrocious. And Goldstone was a Zionist which Bill is not.

Bill is not only naïve but he suffers from a deep contradiction. He believes that international humanitarian law is inherently political. But he believes that he personally (as he believed Goldstone is and was) could be impartial and detached. But how does he (and Goldstone) escape from being political but no one else can? Bill doesn’t, as his many pronouncements highly critical of Israel attest, even extending to condemning Israel for crimes against humanity when he has not conducted a detailed investigation.

People like Bill are friends because I believe that they are also reasonable and well-meaning and that I can reach them through evidence and argument. More importantly, he has even more to teach me. And he is devoted to teaching – his students and his friends, This is not the same as some Israelis I have met. I can recall being at a Shabbat table in Jerusalem where Arabs were referred to in explicitly racist terms by former Americans and right wing Zionists who had never had any dealings with Arabs but felt perfectly positioned to state that “all Arabs are…” You fill in the words but none of them were complimentary. They then went on to advocate that all Arabs should be expelled and even killed. They are not my friends and I never returned to have dinner with them again. (The individual who invited me turned to me at the dinner table and whispered, “And you thought that I was right wing.”)

The bigger question is to explain the naiveté of people like Bill, the self-contradictions in their approach, their blindness to evidence staring them in the face, and the harshness with which they single out Israel and make unwarranted assertions against that wondrous country with all its faults about which criticism is fully justified.

Let me deviate from Bill Schabas to take up the current controversial parallel case of Javier Bardem and Penélope Cruz as well as Pedro Almodóvar. The facts are fairly straightforward on the surface. Both, along with a number of other Spanish artists and intellectuals signed an open letter condemning Israel for its crimes against humanity in the 2014 Gaza War. Javier Bardem had written an OpEd in the Spanish newspaper El Diario a few days before the open letter was published stating that in Gaza there are only “alleged terrorists” while Israel is in effect accused not only of being in occupation of Gaza but of genocide against the people of Gaza.

After the storm broke out over what they wrote they issued a statement insisting they were not anti-Semitic, that they had many friends who were Jewish, that Bardem had a child born in a Jewish hospital in LA and they were only trying to promote peace. Though Barden was critical of the Israeli military, Barden explained that he had “great respect for the people of Israel and deep compassion for their losses”. That deep compassion and respect did not lead him to write an open letter or an OpEd condemning Hamas for sending rockets against Israel before Israel decided to respond.

I now want to put the Cruz/Bardem comments on the war, and their mushy, totally inadequate response to criticism of their claims of genocide and intentional extermination, that they were only calling what Israel did “genocide” because they believed in peace for everyone. Soeren Kern at the beginning of August published an essay under the auspices of the Gateway Institute in Britain entitled “Spain Anti-Semitism Alive and Well” depicting the extet of anti-Semitism in Spain with one of the lowest proportions of Jews of any nation in Europe. Spain is a country that permits open expressions of hatred towards Jews to be published in major newspapers in spite of laws on the books consistent with EU norms prohibiting anti-Semitic hate speech. In El Mundo, a newspaper with the second largest circulation in Spain, Antono Gala, a well-known and award-winning playwright (The Green Fields of Eden), writer, current president of the international theatre institute and anti-Semite, in an article on the Gaza War on June 24th described Jews, whatever their virtues and perhaps in part because of them, as a people “not made to exist with others”. This is the eternal character and condition of Jews. They “screw the weakest” and so it is not surprising that they “have been so frequently expelled.” In other words, the Spanish expulsion of the Jews over 500 years ago was justified.

“The Hebrew people, tested since antiquity by ups and downs and the intimate dealings with their God, could have done much good for humanity: due to their prudence, their wisdom and endurance, their apparent religious fidelity and their proven administration of money. What is happening is that suddenly humanity is sick and tired of them: a phenomenon that has been repeated throughout their history, as if they were not made to coexist with others. This is how it is and will remain, as it always has been. No matter what the Jews call their civil or military leaders, they end up creating problems for everyone: it is ancient history. Now you must suffer their abuses in Gaza, and review it all with an apparent injustice. They are never clear.”

The original sin of the Jews is greed, in general for money and in Palestine greed for more territory. They “do not want to co-exist”. They have only “disregard for the lives and possessions of other people”. The actions of Bardem and Cruz have to be understood in this anti-Semitic context. Relative to other intellectuals and artists in Spain, they are not anti-Semites. They do not use generalities of evil to characterize all Jews. But they do accuse Israel, and hence the Israeli people who are mostly Jews, of genocide and intentional extermination. So though they are not in the same class as Gala, their anti-Israel animus is blatant and, at the very least, borders on anti-Semitism.

Bill Schabas is even more to the centre than Cruz or Bardem. He does not and would not apply the descriptor “genocide” to the actions of Israel. He has written that although Israel has committed crimes against humanity, there are a lot of countries far worse than Israel in this regard. Bill is not a Zionist as is Richard Goldstone, but he is not an anti-Zionist. He neither supports nor opposes the self-determination of the Jewish people. But he does accuse Israel of being in occupation of Gaza and of being guilty of crimes against humanity. Because he is not as extreme as others to the left him on the spectrum of an anti-Israel animus, in such company he takes himself to be impartial and even a defender of Israel because, according to his scale, its crimes are not nearly as serious as that of other countries.

But, like Cruz and Bardem, he is naïve in the extreme as indicated by his going to Iran, a country that, in its officially authorized electronic press in English, reported on the Cruz-Bardem focusing on the allegation that Hollywood would boycott the two actors as if it was fact and then printed a number of comments from writers supposedly writing from around the world. A selection of those comments published by a regime that is supposedly much more moderate than that of President Mahmoud Ahmadinejad follows:

Julia C. Kent (Is she the author of romance novels like It’s Complicated?)

“They are both very brave to talk against the Zionist Israel’s genocide of innocent women and children. I do all the time, but I am not a celebrity, although I do have a book out on my life which includes a lot from the Middle East.”

Boycott Hollywood.

Aug 12, 2014 2:28 AM

“There is no room in Hollywood for those who oppose Israel…..This should be reason enough to boycott anything out of Hollywood.”

Erzebet Mourad

Aug 11, 2014 10:11 PM

“Keeping neutrality in this horrible situation is the same as cooperating with the rabid murderer Israel. Congrats to Penelope, Javier and few others that still remain brave facing the lobby of zionist film industry. Solidarity is power!”

Wahida Joosub

Aug 11, 2014 4:16 PM

Zionism is directly opposed to Judaism. What Israel is doing to the people of Palestine is not different to what Hitler did to the Jews in Germany. Then like now, – The oppressed people put up a resistance. The world remained silent Women and children were murdered simply for belonging to a particular race. Should we let it happen again or should we speak out for those being oppressed????

Kevin McAree

Aug 11, 2014 11:49 AM

Like many others opposed to Zionist Genocide I have not gone to cinema to latest planet of the Apes film because of filim studios link and support of Zionism. I would urge others to take this stand and boycott any studio supporting genocide, dehumanising of Palestinians or blacklisting stars for speaking out!

 

And on – and on and on – it goes. Cruz and Bardem are not anti-Semites in the traditional sense, but their views feed and reinforce traditional anti-Semites and their characterizing Israel as a genocidal state is a form of the new anti-Semitism in which Israel is selectively chosen from among all other states and subjected to the harshest criticism calling it a genocidal state. Schabas is more moderate still. He may not call Israel a genocidal state but he accuses Israel of crimes against humanity before there has been a trial by a neutral judge or jury. He is clearly pro-Palestinian from what he has written and says, but sees no reason to recuse himself in the role of chair of an inquiry when he has already pronounced Israel guilty about the very actions he is about to assess.

If Bill were courageous and fully aware of the terrible decision he made in agreeing to chair the inquiry under the auspices of a very deformed mandate which he did not challenge and a UN Human Rights Council with a despicable reputation when it comes to assessing Israel fairly, he would resign and admit that he made a mistake. But he won’t because, terrific guy that he is, his moralism disguises and perhaps feeds his illusionary self-confidence that he can be impartial even if almost everyone else is infused with political agendas.

Good men are very dangerous when they do not recognize their own biases and deep inadequacies. So, again, why do I regard Bill as a friend and insist he remains a friend – unless he chooses to end the friendship. Further, I go further. In comparing the two of us, in spite of his imprudence, naiveté, bad judgment and irresponsible comments, I regard him as the better man. So in what sense is he a friend?

I will answer the question more fully in tomorrow’s blog on “Friendship”.

Bill Schabas

Bill Schabas

by

Howard Adelman

I planned to write my blog on the justice of going to war for both Hamas and Israel in the recent Gaza War now held in abeyance by a cease-fire, but yesterday (11 August 2014) Ambassador Baudelaire Ndong Ella of Gabon on behalf of the UN Human Rights Council announced that William A. Schabas had been named chair of a new panel of international experts charged with investigating “all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014.” Was this to be a repeat of the Goldstone Commission?

Why international human rights law and not just international humanitarian law? Why in the occupied territories including East Jerusalem? And why is the Gaza Strip presumed to be part of the Occupied Territories? Why start on 13 June 2014 when Israel responded to an escalation of rocket attacks from Gaza with an air offensive and not earlier when, after a lull in May, Hamas escalated its rocket fire at Israel significantly? Why is any investigation of what Hamas did in Israel not part of the articulated mandate? The Commission is instructed “to establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults.”

Given the wording, it is no surprise that the EU, a vocal critic of Israel, called the resolution setting up the commission as “unbalanced, inaccurate, and prejudges the outcome of the investigation by making legal statements.” The US called it “yet another one-sided mechanism targeting Israel.” Why did Bill Schabas accept the chair of the inquiry given this self-evident bias?

One other panelist is Doudou Diene, a former UN prosecutor and “Special Rapporteur on Contemporary forms of Racism, Racial Discrimination, Xenophobia and related intolerance”, a scholar from Senegal. He spoke at an anti-racism rally on 14 May 2009 and declared that, “racism is rooted in slavery and colonialism, including settler colonialism.” Israeli occupation of Palestine continues a tradition of settler colonialism and racism he insisted.

The third announced panelist, Amal Alamuddin, declined to take up the position and one can only speculate whether she was chosen because she is an Arab from Lebanon or because she is engaged to George Clooney and has celebrity appeal or both. Without confirming her acceptance, the United Nations Human Rights Council communicated its role as a bumbler. It had already established a well-earned reputation for an inability to investigate human rights issues impartially with respect to Israel for it had a long record of an anti-Israel animus. After all, Navi Pillay, the director of UN Human Rights Council, had already denounced (July 31, 2014) Israel for deliberately defying international law in its military offensive in Gaza and that world powers should hold it accountable for possible war crimes.

Though Pillay also said that Hamas had violated international humanitarian law by firing rockets into Israel, she did not denounce Hamas nor is Hamas specifically mentioned in setting up the investigation but Israel is. Israel initially indicated it would fully cooperate with an investigation if the panelists were truly impartial, but when the membership was announced, Israel declared that it would not cooperate and that the panel was a “kangaroo court”, an assertion that will surely endear Israel to Schabas and Diene. In contrast, Hamas welcomed “the decision to form an investigation committee into the war crimes committed by the occupation (Israel) against Gaza and it urges that it begin work as soon as possible.”

I will not review the Human Rights Council’s disreputable performance with the Goldstone Report on the Israeli-Gaza War in 2008-09 about which I have written extensively. Instead I want to discuss why Bill Schabas accepted the position. But first of all I have to state that I regard Bill as a friend and respect him as an eminent and worthy colleague. He has had an illustrious career and spent years as head of the Irish Centre of Human Rights after finishing his role as a Dean of Law in Quebec. He is very personable, has a great sense of humour and is truly a lovely individual. When I visited him at his home in Galway, Ireland, he took me around to the side entrance and asked what did I see? I saw some raincoats and boots but I could not imagine what he was expecting me to spot. “Don’t you notice? No heavy winter parka. No big snow boots. Would you choose Montreal over Galway?” I had asked him whether he was enjoying Ireland and he responded only semi-jokingly, especially given the over 200 days of rain in Ireland, that it was the weather and not academic opportunity that had drawn him to leaving Canada for Ireland.

Bill and I had shared a scholarly interest in the issue of genocide. He had published a legal study of the law of genocide that had made him the foremost legal expert on the topic. Further, we agreed, in contrast with many if not most of our fellow scholars in the field, that the term ‘genocide’ should be interpreted and applied narrowly and not used politically for its shock value to encompass ethnic cleansing and forced migrations.

When the Association of Genocide Scholars was formed, I was invited to join as an expert on the Rwanda genocide and as one of the co-editors of the Encyclopedia on Genocide. Though my colleague and fellow editor, Israel Charny, tried to dissuade me, I withdrew my membership at the second annual meeting partly because the scholars voted overwhelmingly to use genocide as a broad way to characterize a host of humanitarian crimes, but more because they did not give me an opportunity to speak even though they knew I opposed the motion and had indicated I wanted to explain my reasons for dissenting. I feared the bastard marriage of political activism and genocide scholarship and the intolerance and subjectivity that would bring to the field.

In a subsequent annual meeting when Bill Schabas was chair of the International Association of Genocide Scholars, a disruptive debate arose when Israel Charny denounced Martin Shaw’s use of genocide to apply to certain actions of Israel. Bill Schabas, though he agreed with the narrow use of genocide, chose to censure Israel Charny for his intemperate language and not Martin Shaw. Because the IAGS had “become too politically activist,’ a number of scholars left the International Association of Genocide Scholars to form a separate International Network of Genocide Scholars. Ironically, one of those to leave was Shaw who argued that the International Association of Genocide Scholars had become too political because it was too pro-Israel in its condemnations of Iranian President Mahmoud Ahmadinejad. Bill blamed the Charny-Shaw fight for his inability to mediate a merger between the two organizations, an interpretation adamantly denied by members such as Professor Juergen Zimmerer of the University of Sheffield who was part of the apolitical Network group. Charny charged the network with becoming a hotbed of anti-Israel rhetoric under the guise of being apolitical.

Bill Schabas and I both attended a workshop at the Centre for International Governance Innovation, CIGI, in Waterloo. I gave a paper which was very critical of Richard Goldstone’s role in the 2009 UN Human Rights Council report on Israel’s actions in Operation Cast Lead. My paper made Bill very angry. He did not take me on by addressing the arguments I offered or the evidence I gave, but defended both Richard Goldstone and especially his friend and colleague, Christine Chinkin, whom I insisted should have recused herself because she had taken a stand in public and in her writing denouncing Israel for its crimes against humanity in that Gaza War before accepting her position on the Commission. Bill insisted that Richard was a gentleman with the greatest of integrity.

But it was not his integrity that I questioned, but his judgment. The fact that he is and was a gentleman is and was irrelevant. I had complimented Christine Chinkin’s scholarship but argued that it was incumbent that an individual undertaking an inquiry be as impartial as possible. Bill, in disagreement with me, argued that as long as the individual was a person with a demonstrated record of scholarly skills and abilities, there was no necessity to recuse herself simply because she had made definitive and negative pronouncements on the subject beforehand and no reason that Richard Goldstone should have insisted she recuse herself before accepting his role as chair.

On 1 April 2011, following a debate with Avi Bell in California, Goldstone retracted his claim that it was Israeli government policy to deliberately target citizens. On 1 April 2011, Goldstone retracted his claim that it was Israeli government policy to deliberately target citizens, saying “While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.” (my italics) Two weeks later, the three other members of the so-called fact-finding mission on the Gaza conflict of 2008–2009, criticized Goldstone’s recantation and insisted that the report was valid. Bill also took a stand on this issue and insisted that Goldstone had not retracted the report. Bill was literally correct in that Goldstone had not retracted the report, but Goldstone had retracted the major finding that Israel was guilty of an international humanitarian crime because it had deliberately attacked civilians.

However, the major reason Bill defended the report was not simply his deep belief in gentlemanly conduct with colleagues however intemperate they become about issues or actions of states. It is his deep belief that impartiality is not only a chimera but a misleading and even destructive criterion in drawing up commissions of inquiry or tribunals or selecting their agendas. For all international law is inherently political. Thus, though he himself has pronounced many times on Israel’s international criminality, he sees no need to recuse himself because he is a scholar with integrity.

His views have been made known in a number of papers, but particularly in an interview he gave to Victor Tsilonis that was published in the interdisciplinary journal, Intellectum under the title, “International Protection of Human Rights and Politics: An Inescapable Reality”. In that interview, Schabas insisted that the Yugoslavian Tribunal had not only been political but it could not have been otherwise. His example: the Security Council “created a Tribunal for Yugoslavia but it did not create a Tribunal for Israel”. “This is the political dimension of the contemporary tribunals,” Schabas insisted. So he would not expect a fact-finding inquiry into the recent Gaza war to be anything but political. Hence, he went onto say, “I believe that pretending the prosecution of Sudan is not political is a mistake too. Of course it is political. Why are we going after the president of Sudan for Darfur and not the president of Israel for Gaza? Because of politics.”

Bill is not anti-Israel. He is, after all, on the board of the Israel International Law Journal. He does not insist that Israel is guilty of the most serious international humanitarian crimes. But he is certain that Israel did commit international humanitarian crimes. He has even explained why Israel has been singled out and why the country comes in for such harsh condemnation. “I think the reason why many people in the world are so upset about the atrocities in Gaza is not because of the bombardment of facilities in Gaza in January and in December of the last year (2008) but because of our unhappiness about the general political situation there. It is because the people of Palestine are still being denied their right of self-determination”.

Bill defended the Palestine Authority’s bid to be recognized as a state so it could refer Israel’s conduct to the ICC. Furthermore, he criticized the prosecutor at the ICC for not ruling that Palestine was a state for purposes of bringing an action before the ICC. In the arguments he offered, he stated that, the belief that the Prosecutor exercises a judicial function, independent of political concerns, is a myth. To reiterate, Bill believes that all international humanitarian law is political and though he is not a fanatical anti-Zionist, he is strongly critical of Israel and has expressed many times his conviction that Israel is guilty of crimes against international humanitarian law.

Bill not only argues that inquiries are necessarily political but defends a particular political approach that begins with the fundamental need for and justice of Palestinian self-determination. He has a preoccupation with Israel in particular. He discussed the death penalty in general, on which he is also an expert, and was asked, “There are many people in the UK who say ‘we are against death penalty but we have one exception, Osama bin Laden’. What would you say about that?’ Without going into the accuracy of claim or the targets of his criticism, the one country that came to his mind in a discussion of capital punishment was Israel. “I thought we would mention only Israel. Because Israel in its history has only carried out the death penalty once, in the case of Eichmann. Israel is still not a strictly abolitionist country because they still are for the death penalty but have only used it once and I think they have imposed it, they have pronounced it in one other case but then they found that the man was innocent and released him.”

Without getting into Israeli policy on capital punishment or Bill’s factual claims, his preoccupation with Israel mirrors that of the world. But he is clearly and ostentatiously on the side of Israel’s critics. He has called for both Netanyahu and Peres to be put on the block for prosecution for crimes against humanity by the international community. He has defended both the Durbam conference on racism and former President Mahmoud Ahmadinejad of Iran in his blog in 2009 as only a “provocative politician.” In a conference in June of last year (2013) in Geneva Of the Unrepresented Nations and Peoples Organization, delegates documented the persecution of minorities in Iran, namely Arabs, Azeris, Baluchis, Kurds, the Ahwazi Arab minority, Christians, Jews, Sufi Muslims, Sunni Muslims and Zoroastrians and especially Bahai’s.

Kamram Hashemi, director of Iran’s Centre for Human Rights and Cultural Diversity and a former senior officer in Iran’s foreign ministry, was supervised by Bill for his PhD at the Irish Centre for Human Rights. Schabas served as one of six commissioners on the Iran Tribunal Truth Commission that was held for a period of five days from 18 to 22 June 2012. At the Human Rights Conference in Tehran that he co-sponsored with Hashemi, he was in the delightful company of North Korean delegates. Though he has been critical of the Iranian regime, he also enjoys close ties with prominent Iranians, and, more importantly for our purposes, that regime has been a backer of Hamas. At the same time, his anti-Israel bias is clear.

Thus, though Bill should recuse himself from serving on the Commission, he will not. And Israel is correct to expect a very loaded report critical of its conduct.

Obligations to Palestinians – Part V: The Conduct of War

Obligations to Palestinians – Part V: The Conduct of War

by

Howard Adelman

Israel has been accused of crimes against humanity because of the large death toll of civilians, particularly children, killed during the recent hostilities. Defenders of Israel have argued that although many civilians have been killed, they were not killed deliberately but only inadvertently or incidentally in attacks on military targets. Further, the number of civilian deaths have been grossly exaggerated by listing some deaths, particularly of children, twice, by listing the very disproportionate number of men of fighting aged killed as civilians, by reporting the militants killed at an absurdly low number. Clearly, these accusations and subsequent Israeli defensive statements easily become part of the propaganda war indifferent to the evidence and the validity of the arguments. In adjudicating such radically competing claims, two principles of ius in bello, the laws in the conduct of war and armed conflict, are most relevant:

· The principle of necessity and proportionality

· The principle of distinction, especially with regard to women and children

There also principles of ius ad bellum, the determination of whether going to war is itself just. I will take up that issue in my next blog. This blog is restricted to an examinations of the boundaries governing the conduct of belligerents on both sides, that is, the means and methods by which each side conducted the war.

According to the Hague Conventions, in the conduct of military operations, at all times combatants are required to distinguish between the civilian population and enemy combatants. This is easier to do for Hamas militants because Israeli soldiers wear uniforms whereas Hamas militants may wear distinctive clothing but often do not and easily blend into the civilian population. Claims have been made that dead militants are then dressed in civilian clothes. Further, in spite of the international legal provision against using children under the age of eighteen to participate in military operations, Hamas ignores this provision.

The application of the laws of war is not very complicated or even controversial with respect to Hamas. Hamas is committed not only to the elimination of Israel but to the extermination of all Zionists. As their popular song “Up Do Terror Attacks” sung in badly pronounced and archaic Hebrew and mockingly now sung by Israelis, especially Israeli soldiers, which calls for exterminating the Zionists as cockroaches, inyenzi in the Rwandan genocide, as the chorus repeatedly promotes:

“Up, do terror attacks,
Rock them, inflict terrible blows,
Eliminate all the Zionists,
Shake the security of Israel!

The fact that there have been so few deaths because of the effectiveness of Israel’s defence system does not mean that crimes have not been committed. Attempted murder, after all, is a crime. The failure to kill significant numbers of civilians within Israel has not been for wont of trying.

However, it has to be recognized that Hamas attacks against civilians in Israel – Jewish, Palestinian, foreign tourists and guest workers – also has become over time more restrictive in recent years as Hamas significantly reduced its suicide attacks against civilian targets. That is why it is so important to determine whether, in the slaying of the three Yeshiva students, the operation was either the work of a rogue group acting contrary to instructions of Hamas, or, at the other extreme, the operation was carried out with financial backing and under instructions from Hamas.

On the Israeli side, which claims to conduct its military operations and to limit its military methods in accordance with the rights and duties of belligerents, the major issue has been about the death of civilians and the targeting of civilian buildings. The rule with respect to distinction is that all belligerents shall at all times distinguish between civilian and combatants. With respect to targets, belligerents are required at all times to use their firepower only for military objectives. Note, the rule does not say only military targets; a civilian target, such as a power plant, may be damaged or destroyed if there is a clear military objective.

However, then the rule of proportionality has to be applied and that norm may rule out targeting a civilian target considered to be a military target. Thus, the Israelis presumably have not destroyed El Sifra Hospital in Gaza, even though it houses the political and military command centre of Hamas, because the collateral damage to civilians would be so great that even hitting such an important target has been ruled out. On the other hand, Hamas in locating its command centre in a hospital is using the civilian population as a shield which it is not permitted to do according to the laws of war. The limitation of Israel attacking El Sifra Hospital was made clearer in the 1977 protocol to the Geneva Conventions

The Convention, which focuses on the civilian population, was strengthened in 1977 by the addition of two protocols. One explicitly forbad direct attacks against civilians where civilian includes any person who is not a member of an armed force. That one protocol to the Fourth Geneva is difficult to apply in asymmetrical warfare where the members of one belligerent party’s armed force is not distinguished by uniforms and where the hard lines between armed forces, police, civilian adjuncts to military units and civilians cooperating with the armed forces to build tunnels or even permit tunnel entries to be built within a house is very difficult to detect.

Nevertheless, the Convention is clear even if the result may be repugnant. Civilian casualties are permitted in military operations as long as those civilian targets are not the intention of the operation and, as long as the number of civilian casualties is not disproportionate to the importance of the military objective. “International humanitarian law and the Rome statute permit belligerents to carry out proportionate attacks in military operations as long as those military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) … or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).” Precautions must be taken to first distinguish civilians from militants, to avoid civilian casualties, and, if the latter cannot be avoided given the importance of the military target and objective, then those civilian casualties must be minimized.

Thus, ethics in the conduct of the war are determined by the military objectives and the modes used to achieve them and not by the number of casualties on each side. If the goal is to rout out Hamas’ military and political command, then a far more extensive and ruthless military operation can be contemplated than if the goal is to destroy or significantly reduce the missile capability. However, destroying the tunnel network may be more challenging than either of the two above and the risk to both IDF soldiers and to Palestinian civilians in Gaza may be greater.

So how do we know whether the principles of distinction and proportionality have been followed? We know when they have NOT been followed. If a belligerent admittedly targets civilians, all civilians, and claims that is for military purposes, the principle of distinction has not been followed. If a belligerent deliberately puts its own civilians in harm’s way, the principle of distinction has not been followed. If a side disproportionately kills civilians relative to the military objectives, the principle of proportionality has been breached. If a belligerent risks disproportionate numbers of its own civilians for military objectives, then the principle of proportionality has been broken.

Some of these cases are reasonably easy to determine. Hamas has NOT breached the principle of proportionality in the number of residents of Israel killed by its rockets. Over three thousand rockets (3356 in one Israeli tabulation) were fired at Israel and only three civilians in Israel were killed. Given the goal Hamas articulated in the resort to the use of rockets – lifting the blockade, opening all crossings for goods and materials, releasing Hamas operatives held prisoner by Israel, extending its fishing zone from three to twelve kilometers – the deaths of three civilians in Israel would seem to be disproportionately low for such ambitious military objectives. If its long term objective was the elimination of Israel as a Jewish state, then the numbers of civilians killed and risked in Israel is so extremely low that Hamas was an almost infinite distance from breaching the principle of proportionality relative to that military objective though the military objective itself would be labeled a crime against humanity.

A number of those rockets went astray causing Gazan civilian deaths – no one has offered a reliable estimate – but given that over 3,000 rockets were fired, given the density of Gaza, given the unreliability of those rockets in their ability to hit Israel, an estimate of at least 100 civilian deaths in Gaza would seem very modest. Israelis have indicated that 475 of the Hamas rockets did not reach Israel but landed within Gaza. For example, Israel claims that the 9 children and 1 adult killed in the playground in the Shati refugee camp were the result of a misfired Hamas rocket and not a result of an Israeli air strike; the IDF offered released maps tracking the trajectory of the rocket prior to the explosion based on its aerial reconnaissance. Hamas offered pieces of shrapnel ostensibly taken from the site to prove that the rocket was of Israeli origin.

Israel offered an estimate of over 300 Gazan civilian deaths killed by Hamas and jihadi rockets. Given even the relatively modest Hamas military tactical objectives (as distinguished from its long term strategic objective of eliminating Israel), 100 or even 300 civilians in Gaza killed by friendly fire would seem reasonable given the ambitions of the Hamas military objectives. Risking the lives of up to 300 members of its own population would not appear to be too high a price in the effort to achieve those objectives. And certainly for the far more ambitious objective of exterminating the Zionist regime, such a sacrifice would seem modest indeed. So on all counts, it would not appear that Hamas can be reasonably accused of having breached the principle of proportionality.

What about the Israelis? Has Israel deliberately targeted civilians in Gaza? Without question, Israel has hit civilian targets in which numbers of civilians were killed. According to Israeli calculations, of the figure of at least 1800 civilians after discounting for repeated names, 750-1060 were militants (253 from Hamas, 147 Islamic jihadis, 65 other terrorist and 603 with unknown affiliations for a total of 1058) and at least 300 were killed by friendly fire. The rest then were 600 civilian deaths. Even if a number of these were young boys employed as spotters and runners by the military units, at least 500 civilians in Gaza were killed by Israeli rockets. Given the fire power of the Israelis employed from the air, sea and ground, 500 or so civilian deaths would not seem exorbitant given the ambition of getting Hamas to stop firing its rockets and stop building tunnels into Israel. And if the ambition was really the overthrow of the Hamas military and political command structure, then 500 civilian deaths would seem relatively low to achieve those military objectives.

What if Hamas figures are used of about 1500 rather than 500 civilian deaths? Once the probability of errors is taken into consideration, once the acceptance of civilian casualties to a modest degree relative to an intended military target, even one thousand civilian deaths does not indicate Israel has been deliberately targeting civilians. But what about Israel’s obligation to use its best efforts to distinguish between militants and civilians? Even if the difficulty of making that distinction when the militants do not fight in large military units and do not wear uniforms, such a civilian death total, however awful and regrettable, would not seem to be excessive. But given the accuracy of Israeli weaponry compared to that of Hamas, such a relatively large number of civilian deaths might signify either willful or irresponsible neglect in the sufficient effort to make distinctions in its targeting. That would have to be established on a case by case basis.

Further, Hamas has a track record of deflating militants killed and grossly inflating civilian deaths. In Operation Cast Lead in 2008-09, Hamas initially reported only 50 fighters had died and the rest were civilians. Much later in the face of critical evidence to the contrary, Hamas was forced to admit that the number of militants killed was considerably greater, 600-700, more or less the figure provide by the IDF. In Operation Pillar of Defense, a strictly air operation, in 2012, 87 of 167 Palestinians in Gaza were reportedly civilian deaths, about half, and the proportion of civilian deaths seems to increase when ground troops are employed.

Given the Israeli military objectives, was the death of 500 or even up to 1500 civilian deaths disproportionate to the military objectives of the IDF? If Israel had deliberately targeted the civilian population in four weeks of fighting the death toll of civilians would have run into the tens of thousands. But even if Israel never targeted the civilian population in general, hitting 2 or 3 UNRWA schools providing shelter for civilians could be examples of failing to apply sufficient effort to distinguish between civilian and military targets. The deaths caused in two of the attacks which I previously wrote about may indicate negligence.

On 3 August an explosion ostensibly from an Israeli shell in a courtyard outside a UN school in Rafah killed 10 civilians. Red Crescent said they were killed when lining up for food. Israel showed air photos of the shell exploding in an empty courtyard from which three militants who had launched a rocket had recently fled on a motorbike. Red Crescent insisted there were no militants near the UN school prior to the explosion. Yet without a detached and objective independent inquiry, UN Secretary General Ban Ki-moon described the incident as a “moral outrage and a criminal act”, “yet another gross violation of international law”.

Because the civilian death toll on the part of the Palestinians was so much greater than the civilian death toll among Gazans, the impression might be that the principle of disproportionality had been breached. But numbers do not indicate disproportionality let alone the relative losses on each side. It is the number of civilian casualties relative to the military objectives that indicates whether the principle of disproportionality had been breached. The only principle at stake is the principle of distinction and not the principle of proportionality. In that regard, Hamas explicitly breached the principle of distinction. Israel did not do so deliberately but might have done so through criminal neglect. That would have to be determined in case studies of what the military did when it hit two UNRWA schools housing civilians for protection and when it hit a large number of families wiping out most or even all the members.

Did Hamas prevent those families from leaving? Did Israel give insufficient warning or no warning? What did Israel do to ensure it killed the militants it was targeting and minimize the numbers of civilian deaths? Was the civilian death toll excessive relative to the specific military target? Were civilians killed because insufficient attention was paid to the accuracy of targeting or to the collateral damage that would be caused?

So how do we know whether the principles of distinction and proportionality have been followed? We know when they have NOT been followed. If a belligerent admittedly targets civilians, all civilians, and claims that is for military purposes, the principle of distinction has not been followed. If a belligerent deliberately puts its own civilians in harm’s way, the principle of distinction has not been followed. If Hamas executes alleged informers without a judicial process – as it allegedly did with Ayman Taha and others – then Hamas was guilty of a war crime.

If a side disproportionately kills civilians relative to the military objectives, the principle of proportionality has been breached. If a belligerent risks disproportionate numbers of its own civilians for military objectives, then the principle of proportionality has been broken. One can only conclude that neither side breached the principle of proportionality. Hamas definitely breached the principle of distinction in explicitly targeting civilians in Israel and probably in putting its own civilians in harm’s way because of how it fought the war and in executing civilians without legal due process. Israel might have breached the principle of distinction in specific cases that need to be thoroughly investigated to draw a conclusion.

Obligations to Palestinians – Part IV: Essential Services

Obligations to Palestinians – Part IV: Essential Services – Moral and Legal Responsibilities

by

Howard Adelman

When the king of Israel saw them [prisoners captured by Israel], he asked Elisha, “Shall I kill them, my father? Shall I kill them?” The prophet Elisha answered: “Do not kill them. Would you kill those you have captured with your own sword or bow? Set food and water before them so that they may eat and drink and then go back to their master.” So the King prepared a great feast for them. After they had finished eating and drinking, he sent them away, and they returned to their master. So the bands from Aram stopped raiding Israel’s territory. 2 Kings 6:21-23

Treating an enemy morally, respectfully and humanely is not only a moral duty. It is good politics.

Up to now I have generally been concerned primarily to offer negative criticisms of commentators based on their poor reasoning, lack of evidence, inadequate argument and their often hysterical and dogmatic opinions. In this blog I will put forth what I think are the obligations that stem primarily from international humanitarian law (the Geneva Conventions) and the Hague Convention, the laws focused on how war can be conducted that is both legal and just. The two approaches are taken as complementary and I will refer to both.

The danger of such a discussion is that it can easily become immersed in technicalities of international law. I am writing this for the layperson and not the international law expert so will cite international legal authorities only when they offer an analysis with which I disagree but respect and to which the reader may wish to refer to judge for themselves. More generally they may wish to refer to Kevin Jon Heller’s blog Opino Juris that summarizes the current debate among international humanitarian law experts over whether Israel owes a duty to supply water and electrical power to Gaza.

As referred to in an earlier blog, one crux of the debate is whether Israel continues to be an occupying power in Gaza. There are basically four positions:

A. Israel is an occupying power and has obligations to provide water and sufficient electricity to maintain a basic standard of living for the population; (Cf. Professor Michael Bothe of Frankfurt University who takes this position – http://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/expert-opinions/michael-bothe-july-17.pdf

B. Israel is not an occupying power so it is not up to Israel to ensure that Gaza is supplied with power and electricity (Avi Bell) [Note, Avi Bell is the professor of international law at San Diego and it was after his debate with Richard Goldsone on the latter’s report that Goldstone withdrew his support for his own report and said that he should not have written that Israel deliberately targeted civilians.]

C. Whether or not Israel is an occupying power, Israel unquestionably was an occupying power and, as such, given its current position in relationship to Gaza in its control of entry points, retains post-occupation responsibilities to ensure that Gazans have water and sufficient electricity to maintain a basic standard of living;

D. Whether or not Israel is an occupying power and whether or not it retains post-occupation responsibilities, nevertheless, Israel has a humanitarian duty to ensure water services and sufficient electrical power to ensure basic standards.

Note that basic standards means that, if a party is an occupying power, it “must ensure sufficient hygiene and public health standards, as well as the provision of food and medical care to the population under occupation.” It certainly does not mean sufficient electrical power to manufacture weapons and build tunnels for military aggressive purposes.

Note that only position B above argues that Israel has no responsibilities. Further, positions A, C and D agree on the same set of responsibilities but differ only in the foundations that require those responsibilities to be fulfilled. I hold position D because I argue that Israel is NOT in occupation in Gaza and, further, given subsequent events to Israel vacating its occupation in almost all parts of Gaza, its post-occupation responsibilities expired. To the extent that they remain for the lateral roads along the border where Israel maintains control and occupancy for security purposes, this relatively small part of Gaza is unoccupied so the issue of responsibility in this part of Gaza is moot. Israel retains some responsibilities for the water and electrical supplies to Gaza not because it is or was an occupying power. Israel has secondary responsibilities for its neighbours, particularly others who are dependent on Israel for basic services.

Let me return to the argument – and it is a reasoned argument and not a dogmatic opinion – that Israel is still in occupation of Gaza as put forth by Michael Bothe. [Michael Bothe is my age and belongs to an older school of humanitarian law experts, is author of the very widely used handbook on humanitarian international law and is closely associated with the positions of the ICRC.] Bothe cites the ruling of the Israel Supreme Court in Bassiouini v Prime Minister of Israel that Israel is NOT an occupying power and does not have to provide for the welfare of the population even as a post-occupying power, but does have to cooperate in efforts to ensure that MINIMUM humanitarian goods and services reach the civilian population – essentially my position. Bothe, while clearly respecting both the Supreme Court and its ruling, disagrees.

Why? Because Bothe argues that the withdrawal had to be more complete in order to terminate Israel’s responsibilities as an occupying power. According to Article 42 of the Hague Convention (Laws and Customs of War on Land and its annex: Regulations, The Hague, 18 October 1907. Regulations respecting the laws and customs of war on land, Section III : Military authority over the territory of the hostile state – Regulations: Art. 42.) Israel still effectively controlled access, even indirectly through a cooperation agreement with Egypt (Article 60 GCIV). Bothe argued that an occupying power only loses its responsibilities if ALL the broad powers of government are transferred. In my interpretation, the section cited applies to an occupying power that tries to exercise control and authority indirectly (say through a puppet government or through internal means of intimidation) rather[A1] than directly. In other words, if withdrawal is merely a ruse and the occupying power still retains effective control, then according to international law, it remains an occupying power. Israel only retained sufficient control to ensure its own security and not nearly enough control to exercise effective power and authority in Gaza. The authority must be sufficient that the territory is “under the authority of the hostile army”. Since Israel is no longer in this position, certainly since Hamas assumed power in 2007, then Israel is no longer an occupying power. (Articles 44 and 57).

The argument in part depends upon whether a broad or narrower interpretation is given to “occupation”. Bothe (and the ICRC) defend a broad interpretation. Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” (my italics) In many military manuals, “can” entails all the powers of a sovereign authority. For many international humanitarian law experts, “can” refers to effective and not complete control. For a few of those humanitarian law experts – Bothe included -, effective control means sufficient control to ensure whether the sovereign party formally in charge is in a position to fulfill its duties.

The difference is whether it must have “all” powers, “effective” powers or “sufficient” powers to determine outcomes. In either case, as the ICRC states, it is solely the facts on the ground that determine the application of humanitarian law. For me, the facts on the ground are clear – Israel does not retain even effective let alone total control over Gaza. Further, though it retains sufficient control to interfere with the exercise of sovereign powers, this cannot be a criterion for the application of humanitarian law otherwise when a state introduces sanctions of any kind and thereby effects the ability of a sovereign authority to deliver services, it would be an “occupying power” and I contend that this would be absurd.

ICRC and Bothe disagree. They argue that control over the means of access means that Israel retains control over the well-being of Gazans. I argue that control of access does not mean occupation and certainly not control over the well-being of Gazans, but does effect that well-being and, to the extent that it does, Israel has responsibilities to ensure the provision of water and sufficient power for basic maintenance of the population. To be in occupation requires that Israel be in a position to exercise enough authority in an enemy territory that it can discharge its responsibilities as an occupier. Israel does not. Yet I argue that Israel has a responsibility to mitigate suffering.

Even in the broad interpretation of occupation, occupation exists “whenever a party to a conflict exercises some level of authority or control within foreign territory” and, I would argue only to the extent that it has that authority within that territory, and, therefore, only to the minor parts of Gaza over which Israel retains control. Bothe and the ICRC would respond that Israel retains control since it determines whether the Hamas government is in a position to fulfill its responsibilities. However, I argue that there is a difference between the obligation not to prevent Hamas from fulfilling its minimal responsibilities and assuming those responsibilities itself. As long as Israel does not prevent Hamas from supplying water and basic electrical services to the Gazan population, it will have fulfilled its responsibilities even though it is not an occupying power. Since Israel does control whether Hamas can build or repair the water and sanitation facilities as well as the power plant, to that degree Israel retains a responsibility to ensure Gaza has sufficient water as well as sufficient electricity to maintain a basic standard of living.

A reader may react: “Who cares about the grounds for responsibilities if, in effect, the responsibilities are precisely the same? This is all blather to keep intellectuals employed.” However, the dispute may not affect the moral or legal outcome desired but it may affect the actual outcome since it affects the prime responsibilities of the different parties in ensuring water and power are provided, that is, which party carries primary responsibility and which party has a secondary responsibility. This in turn effects the fine tuning in fulfilling those responsibilities.

This position is reinforced when one examines the border of Gaza with Egypt. When the Muslim Brotherhood came to power in Egypt, the enforcement of the restrictions on entry of goods and services to Gaza in accordance with an agreement between Egypt and Israel, which was already slightly lax, became extremely lax. With the coming to power of the military in Egypt about a year ago, the enforcement of those border controls became very strict and provided Hamas with one of the reasons for resuming its very belligerent actions towards Israel. Because Hamas was in even worse straights, these factors pushed Hamas into forming a unity government with Fatah on Fatah terms and backing off that belligerency in April and May. Its resumption of belligerency was then instigated when Hamas saw that it had backed itself into a corner and faced decimation, initially in the West Bank, when Israel used the excuse of the murder of the three Yeshiva students to round up Hamas operatives. This is just one strand of empirical evidence to indicate that Israel did not retain effective control over the exercise of sovereign powers in Gaza.

What responsibilities does Israel then have? Since there is little dispute over Israel’s provision of water, I will focus on the power plant since Israel, whether inadvertently or deliberately, bombed the power plant that provides Gaza with 90% of its electrical needs, The power plant is a dual use facility in that it provides energy both for civilian purposes as well as for military purposes, including both the manufacture of rockets aimed at civilian targets in Israel and the construction of tunnels through which to send saboteurs and murderers into Israel. Was Israel guilty of a crime against humanitarian law in bombing the electrical power plant in Gaza? If Israel was not in occupation and did not retain post-occupation responsibilities but only moral responsibilities to a neighbor, how could Israel bomb that plant either deliberately or inadvertently if it retained a moral responsibility to ensure Gazans were provided with essential services? This apparent dilemma led Heller to conclude that, “it would be paradoxical to say that a state is permitted to destroy the enemy’s electric plants, but is required to supply its own electricity to the enemy.”

But the paradox is only apparent. For under the laws of war Israel may be permitted to bomb the power plant but under humanitarian law may be required to ensure basic electrical services are provided. Israel could intentionally bomb the power plant to disrupt both communications and production abilities within Gaza but then, under humanitarian law, effectively control the amount of electricity supplied to ensure that it is only sufficient to maintain basic standards. The basic needs of a population must be met. The issue is the specific responsibilities of the different parties.

I hope this argument has not been too technical and explicates why I believe that Israel is not either an occupation power or a post-occupying power but nevertheless retains a responsibility to ensure the provision of basic services to the inhabitants of Gaza.

[A1]

Obligations to Palestinians Part IIIb – Lerner continued

Obligations to Palestinians: Part IIIb – The Outraged Prophet (continued)
by
Howard Adelman
Yesterday I set down the depiction of the situation that Michael Lerner believed to be the case in Gaza that led him to having his heart broken and declaiming that Israel had become the cause of the destruction of Judaism as a compassionate religion. Today I continue that analysis of gross factual and interpretive distortion and go on to analyze his outrage at most Jews for making Israel into an idol. Points 1-7 are really points 14-20 as a continuation.
1. The Ground Attack by Israel was the Epiphany that finally Broke Lerner’s Heart
???
2. Though Israel claimed to be Destroying Tunnels, It was Deliberately Targeting Civilians
This is a libelous charged and not born out at all by any fair reading of the statistics. If Israel were deliberately targeting civilians, the percentage of civilian deaths would have been much higher. According to the IDF, approximately 50% of the death toll was made up of civilians whereas civilians constituted almost 99% of the 1.54 million Palestinians living in Gaza. Using Gazan Health Ministry statistics instead of IDF figures and without taking into account the repetition of names in the total of the 1865 claimed death toll during the period of the violent conflict, children 14 and under make up 42.9% of the population of Gaza. 40% of those killed included not only children but women and the elderly. Over 800 of the deaths should have been children 14 and under if civilians were indiscriminately targeted. There would have been a much higher total than the 243 reported deaths of women aged 18-60. According to Gazan Ministry of Health figures, 429 children died during the period of the violent conflict and evidently these were aged 16 and under rather than 14 and under. Also, the normal mortality of children in Gaza 14 and under during a non-violent period would have been about 200. Further, we also know that numbers of children died from stray Hamas rockets, premature explosions in booby-trapped houses and friendly fire as in the case of the IDF casualties. However, even if 200 had been killed by IDF firepower, this would be 200 too many. But the statistics do not bear out the charge that the death toll was a result of Israel either deliberately targeting civilians or even of indiscriminate use of firepower.
3. Lerner endorsed the Findings of the UN Human Rights Commission That Hamas Did Not Use Civilians as Human Shields
The charge of the EU that Hamas uses civilians as human shields does not literally mean that Hamas militants put civilians between the militants and Israeli soldiers, a claim which Hamas adamantly and justifiably denies. The charge is that Hamas fires its rockets from domestic areas to reduce the incentives of Israel to launch reprisal attacks which would not be the case if Hamas used the open areas of Gaza. Further, the rocketeers can easily flee into the surrounding residential area after firing a rocket. Hamas itself has justified firing rockets from residential areas for these reasons and has used mosques and UNRWA schools to hide and store its rockets. For example, Peter Stefanovic from Channel Nine News in Australia tweeted that Hamas rockets had been launched virtually “next door”: “Hamas rockets just launched over our hotel from a site about two hundred metres away.” John Reed, Jerusalem Bureau Chief of the Financial Times reported that, “two rockets fired toward Israel from near al-Shifa hospital.” Finnish, Portugese and other reporters have provided more extensive reports along the same lines but only after they left Gaza.
4. Hundreds of children have been killed by Israel’s Indiscriminate Destructiveness
I have already commented upon this point but would add another – children are often used as spotters and runners by Palestinian militants in Gaza and this too helps account for a higher death toll among children. Nevertheless, of the 459 civilians killed mostly by IDF firepower when families at home lost their lives, about 200 of them were children. One need only read the list to recognize how horrific it has been in Gaza.

1. Hamd Family in Beit Hanoun – 6 martyrs.
2. Kaware’ Family in Khan Yunis – 8 martyrs.
3. Al Manasra Family in Central Gaza – 4 martyrs.
4. Al Hajj Family in Khan Yunis – 8 martyrs.
5. Abu Jame’ Family in Khan Yunis – 2 martyrs.
6. Abd Al Ghafour Family in Khan Yunis – 2 martyrs.
7. Ghanaam Family in Rafah – 4 martyrs.
8. Al Arja Family in Rafah – 2 martyrs.
9. Al Astal Family in Khan Yunis – 3 martyrs.
10. Al Sawali Family in Khan Yunis – 2 martyrs.
11. Al Batsh Family in Gaza – 17 martyrs.
12. Sheikh El-Eid Family in Rafah – 3 martyrs
13. Abu Daqqa Family in Khan Younes – 3 martyrs
14. Bakr Family in Gaza City – 4 martyrs, all children
15. Zo’rob Family in Khan Younes – 3 martyrs
16. Al Astal Family in Khan Younes – 4 martyrs
17. Shehaibar Family in Sabra, Gaza City – 3 martyrs, all children
18. Abu Musnina Family in North Gaza – 3 martyrs, all children
19. Abu Jarad Family in North Gaza – 8 martyrs
20. Shaat Family in Khan Younes – 4 martyrs, all children
21. Nateez Family in Gaza – 3 martyrs, 2 children
22. Radwan Family in Khan Younes – 4 martyrs
23. Abu Mussallam Family in North Gaza – 3 martyrs, all children
24. Zweidy Family in Beit Hanoun – 5 martyrs
25. Zabout Family in Zaitoun – 2 martyrs
26. Salhiya Family in Khan Younes – 4 martyrs
27. Rahd Family in Beit Lahiya – 2 martyrs
28. Hamouda Family in Beit Lahiya – 2 martyrs
29. Isleem family in Shajaia – 5 martyrs
30. Alshaer Family in Khan Younes – 4 martyrs
31. Alhaia Family in Shajaia – 4 martyrs
32. Ziadah Family in Bureij – 3 martyrs
33. Ayaad Family in Shajaia – 10 martyrs
34. Ridwan Family in Khan Younes – 4 martyrs
35. Abu Moammer Family in Khan Younes/Rafah – 6 martyrs
36. Siam Family in Rafah – 11 martyrs
37. Abu Jana’a Family in Rafah – 26 martyrs
38. Bre’em Family in Deir Al Balah – 3 martyrs
39. Yazji Family in North Gaza – 5 martyrs
40. Halaaq Family in Gaza – 7 martyrs
41. Hamdiyeh Family in Gaza – 4 martyrs
42. Al Kilani Family in Gaza – 7 martyrs
43. Hajjaj Family in Gaza – 4 martyrs
44. Al Radiyah Family in North Gaza – 3 martyrs
45. Al Moqta’a Family in Middle Gaza – 2 martyrs
46. Al Ska’afi Family in Shujeiyah – 4 martyrs
47. Al Shinbari Family in Beit Hanoun – 7 martyrs
48. Al Najar Family in Khan Younis – 5 martyrs
49. Abdel Alnaby Family in North Gaza – 3 martyrs
50. Abu Aitah Family in North Gaza – 4 martyrs
51. Abu Jazar Family in Khan Younis – 3 martyrs
52. Abu Hassanein Family in Rafah – 4 martyrs
53. Al Helou Family in Shujeiyah – 11 martyrs
54. Abu Shahl Family in Khan Younis – 4 martyrs
55. Al Najarr Family in Khan Younis – 13 martyrs
56. Al Agha Family in Khan Younis – 11 martyrs
57. Abu Jabar Family Maghazi – 15 martyrs
58, Abu Khosah Family Bureij – 5 martyrs
59. Abu Zaid Family in Rafah – 6 martyrs
60. Hashash Family in Rafah – 5 martyrs
61. Al Samiry Family in Middle Gaza – 3 martyrs
62. Al Far Family in Maghazi – 5 martyrs
63. Al Najjar Family in Khan Younis – 22 martyrs
64. Brikeh Family in Khan Younis – 7 martyrs
65. Abu Amer Family in Khan Younis – 21
66. Khalili Family in Gaza – 6
67. Balata Family in North Gaza – 8
68. Hamoudah Family in North Gaza – 4
69. Salman Family in North Gaza – 5
70. Allouh Family in Middle Gaza – 4
71. Najjar Family in Khan Younis –
72. Wahdan Family in North Gaza – 10
73. Najen Family in North Gaza – 10
74. Ghoul Family in Rafah – 10
75. Khatab Family in Middle Gaza – 7
76. Al Najdalawi Family in North Gaza – 6
77. Abu Jazer Family in Rafah – 4
5. Israel Deliberately Targeted UN Schools, Gaza’s Water and Electricity Facilities that will bring untold hunger and diseases to Gazans.
Gazans have not suffered from “untold hunger”. Though disease does increase during the violent conflict, the greatest health risk in addition to physical wounds and an increase in infectious diseases, has been psychological. But overall, the health of Gazans has improved significantly even under the blockade. According to the Gazan Health Ministry, “the mortality level is relatively low compared with the current mortality rates in the Arab countries” having declined to 4.0 per thousand. “This indicates improvement in the quality of life, opportunities for receiving medical services, improvement in health awareness among the population and improvement in health services.”
Three UNRWA schools have been hit ostensibly by Israeli fire and in two, casualties can be linked to Israeli missiles. 9 killed in the Rafah school (including 4 children) and 13 killed in Beit Hanoun. The 15 killed in in Jabila (including 6 children) were evidently killed by a Hamas rocket that went astray. However, since 138 schools, including 89 UNRWA schools, were damaged or destroyed in the recent Israeli assault, if it were not for the fact that school was out, there would have been many more casualties. It appears that Israel did target schools deliberately on the basis that they were being used by militants to hide or launch rockets. However, the attacks on the two UNRWA schools holding displaced people from other areas seem to have been inadvertent, though they may have been the result of criminal negligence.
6. Destroying Tunnels is Acceptable but Destroying Houses, Schools and Hospitals is a Crime Against Humanity
Destroying houses, schools and even hospitals is NOT a crime against humanity; targeting houses, schools and hospitals without a military objective is. When houses are targeted for military reasons, whether or not it is a crime depends on the military objective and the degree of collateral damage considered reasonable and acceptable to achieve the military purpose. This may be immoral but it is part of the laws of war. Civilian targets should NOT be struck unless they can be said to be military targets or hitting them must be risked because of the importance of a military target.
7. Israel Rivals Some of the Most Oppressive and Brutal Regimes in the World
This charge is blatantly outrageous. To equate Israel with the deaths of hundreds of thousands in Darfur by the Sudanese government or the 170,000 that have died thus far in the Syrian civil war, many by gas and the use of barrel bombs on civilian apartment blocks, the systematic murder of its own citizens by the North Korean government, the persecution of Baha’is by the Iranian government, is too heinous a charge to take seriously anything that Michael Lerner writes or says.
What about Lerner’s charge that if Israel’s sins are egregious, Jews around the world are equally complicit for turning Israel into an idol as evidenced by the following:
1 Branding Jews who do not support the state of Israel as a self-hating Jews.
Certainly some defenders and militant right wing Israelis do this, but this is not the norm
2. Jews believing that the IDF is the most moral army in the world as they remain blind to the IDF’s senseless murder of civilians.
I am not blind to the killing of defenceless civilians by the IDF and certainly not blind when I find it to be senseless and the result of negligence. Nevertheless I believe the IDF is a highly moral army but have not examined the morality of all armies in the world to assess its standing. However, the IDF is one of the few armies in the world that assigns ethical officers to military units to advise on the ethics of targeting. The vast majority of armies do very little even to educate their troops on the ethics of war.
3. Judaism has been turned into an auxiliary of ultra-nationalist blindness.
This may be true of many synagogues but I am not qualified to judge. However, when blatantly anti-Semitic ultra-nationalists hold a rally in a former synagogue in Hungary, it seems weird and almost obscene to equate the activities of these ultra-nationalist anti-Semites with the behavior of rabbis and Jews in synagogues around the world. A review of the characteristics associated with ultra-nationalism and hatred of the other in the scholarly literature would appear to belie such an accusation. For one, with the revisionist historians and the wider acceptance of some of their conclusions, writing heroic history in Israel seems to have become a motif of the past rather than the present. History books are not being written to glorify the past but to deconstruct it. Nor is there any effort to exclude dissenters from the body politic of Israel. To the extent that Israel does discriminate against its Arab citizens, the trend line has been to decrease that discrimination rather than instilling in the school curriculum lessons that portray Arabs as inferior or to assert that Jewish values are distinct from universal values of human rights for example. The Knesset is not passing laws to deprive the Palestinian population of Israel of their basic rights nor are military leaders extremists in their social and religious values. Israel does not foster racism or the political goal of hegemony in the Middle East. Israeli soldiers are indeed honoured but they are not conditioned to engage in suicide missions. When a group of Israelis seized an Arab teenager and burned him to death in an act of revenge, the vast majority of Israeli citizens were appalled and ashamed. However, there are a few worrisome signs. There is insufficient critical examination up to this time at the misuse of the kidnapping and killing of the three Yeshiva boys to blame Hamas in general when Hamas did not take any credit for the action as it usually does. On the other hand, evidence has emerged suggesting Hamas in Gaza funded the operation but the validity of this evidence still needs to be determined. The government does blame its enemies – Hamas in particular – as the exclusive player at fault without recognizing and accepting its role in the current impasse Israeli ultra-nationalists did threaten Haaretz writer Gideon Levy and did try to intimidate Orna Banai, an entertainer, for criticizing the war.
4. In synagogues around the world Jews pray for the well-being of Israel but not for their Arab cousins, especially the welfare of Palestinians.
Israeli President Shimon Peres and Palestinian President Mahmoud Abbas prayed together with a Christian pope for peace. Jews and Muslims prayed for the 17 year-old Muhammad Abu Khdeir, the boy abducted, brutally tortured and burned to death by Jewish zealots. Nevertheless, on this issue Lerner has a point. The indifference towards the enemy, but particularly the citizens of Gaza, is often palpable. As Jews, we must not adopt an Arab saying to “Let a hundred mothers weep as long as mine does not.” Instead, we must remain angry at Hamas for requiring the sons and daughters of Israel to kill Palestinians in order to defend themselves. Though it is natural and even right to cry first for your own and those closest to oneself, this should not displace the compassion we should feel for the suffering of others, particularly those for whom we share in a direct responsibility for that suffering. Palestinians have suffered inordinately in the last three wars in Gaza and it is incumbent upon ALL Jews to understand and feel that suffering and to do as much as possible to relieve it and prevent its future recurrence. But this does not mean we need to engage in an orgy of self-flagellation when enemies lead their people with policies that ensure future suffering. Certainly, we must never rejoice at such suffering and when a Jew does rejoice it should pain all of us. Further, Jews should consider adopting Peter Beinart and Joe Settler’s suggestion that we name and pray for those Palestinians who died in Gaza in our synagogues as well as the Israeli soldiers and civilians who lost their lives.
5. If they would choose to pray for Palestinians, they would be labelled a self-hating Jew.
Peres and the Jews who went to the home of Muhammad Abu Khdeir were not called self-hating Jews to the best of my knowledge. See the many images of Jews praying for Palestinians on the internet. (https://www.google.ca/search?q=Jews+praying+for+Palestinians&client=firefox-a&hs=YtS&rls=org.mozilla:enUS:official&channel=np&tbm=isch&tbo=u&source=univ&sa=X&ei=NXviU8e1AsqmyASd_IDIBg&ved=0CFEQsAQ&biw=834&bihIt)
6. Judaism came into existence to challenge the ethics of power.
This is one interpretation of the origins of Judaism. It is not mine
7. In contrast to Hobbesian realists or many evolutionary psychologists who believe that humans are driven by either fear that results in responses of either flight or fight, Lerner contends that humans have a choice where their behavior can be dictated by compassion and love for the other or fear and hatred and demeaning of the other, Judaism has chosen the former as its fundamental premise.
Rabbi Gunther Plaut used to tell us that the commandment to love the stranger and treat him or her with respect was the most repeated commandment in the Torah. Benevolence and compassion for the suffering are indeed fundamental themes in Judaism. But so are distrust, wariness of enemies and self-protection. The two can be complementary and not disjunctive.
8. Hitler has won a posthumous victory in instilling in most Jews a belief that we cannot trust our fellow humans and must rely on power and military might instead of embracing a worldview premised on hope and possibility.
Most Jews?
9. The young generation of Jews is growing up indifferent to Israel.
A large proportion of young Jews is growing up indifferent to Judaism more than to Israel. They are often conflicted over the latter because they are ignorant of both their Judaism and the Middle East. Lerner’s screed has not helped at all in that educational task.
10. In the age of the internet, Lerner is reduced to using “non-Jewish” sources to promulgate his message.
Is Tikkun a non-Jewish source?
Oudet Basharat, from whom I borrowed the Arab saying above, published an essay yesterday entitled, “Is this what morality looks like?” In it he asked the question that if the Arab leaders of his people killed 1600 Jewish citizens in metropolitan Tel Aviv and wounded another 10,000 while turning over 3,000 homes to rubble, he would be too ashamed to look his Jewish friend in the eye. I am not ashamed at what happened but I am very pained. Is this because Arabs live primarily in a shame culture whereas Jews live primarily in a culture of guilt that requires assessing degrees of responsibility?

Basharat went on to write that if my own leaders were to commit such an evil, “I would cry out against the way they do not bat an eyelash after perpetrating all these atrocities, and then I’d place the blame on the Zionist leadership, which situated its military headquarters near Ichilov Hospital and in the heart of a residential neighborhood.” Further, the issue was not that you should not direct the majority of your compassion to your own, but that your passion directed to your own and to the other should be proportionate to the suffering and not to the proximity of the other to oneself. Most of all, hatred should NOT be directed towards the suffering Palestinians in Gaza.

I end this blog with a poem by Rabbi Tamara Cohen entitled “No Pain Like My Pain”.

No Pain Like My Pain (Lamentations 1:12) – for Tisha b’Av 5774/ 2014 by Rabbi Tamara Cohen

That’s how it feels Dear God.
That’s how it felt to the lamenters exiled and Temple-shorn.
That’s how it feels to each grief-wracked mother, father, sister, son, family, nation.

הביטו וראו אם יש מכאוב כמכאובי
“Look carefully and see if there could possibly be pain like my pain, like the one bestowed by You upon me.”

No pain like my pain,
no exile like my exile,
No land my land,
No desolate city like my desolate city.
No heart like my own aching heart.
No fear like the fear of my people.
No genocide like our genocide.
No humanity like our humanity.
No right like our right.
No wrong like their wrong.
No rage like my rage.

No pain like my pain,
immediate and raw and righteous,
ancient and true and etched in our genes by history’s injustices.

Dear God, help us look, look closer so that we may see
our children in their children.
You, in the bleary eyes of each orphan, each grieving childless mother,
each masked and camouflaged fighter for his people’s dignity.

Dear God, Divine Exiled and Crying One,
Loosen our claim to our own uniqueness.
Soften this hold on our exclusive right — to pain, to compassion, to justice.

May your children, all of us unique and in Your image,
come to know the quiet truths of shared pain,
shared hope,
shared land,
shared humanity,
shared risk,
shared courage,
shared peace.

In Sh’Allah. Ken yehi Ratzon.
May it be Your will.
And own own.

Obligations to Palestinians: Part III – The Outraged Prophet

Obligations to Palestinians: Part III – The Outraged Prophet
by
Howard Adelman

This morning I was going to write my analysis of the laws of just war applied to the Gaza conflict, but since my first blog on the subject, three readers have forwarded Rabbi Michael Lerner’s outrage at Israel’s conduct of the current Gaza war so I thought I’s comment on his essay first right after I dealt with the saintly critic and the ideological anti-Israel campaigner.
Michael Lerner’s essay is entitled, “I’m a Rabbi Mourning for a Judaism Being Murdered by Israel”. (http://www.tikkun.org/nextgen/mourning-for-a-judaism-being-murdered-by-israel) Lerner sure knows how to compose a provocative title. The article tries to meld moral righteousness with situational analysis and is full of righteous rage. It is also very verbose and repetitive. I will deal with the moral outrage briefly and then focus on the situational analysis.
The moral indignation arises from the claim that he is suffering both for the Palestinian people and the seeming indifference of Israelis to that suffering. Given the title and the amount of energy space devoted to the topic, it would appear that is suffering for what he claims is the lost compassion of Judaism and love orientation for the other that has been murdered by Israel cuts much deeper. Since he has never reached this stage of denunciation of Israel in such harsh terms, and thugh he has evinced compassion for the Palestinian people before, it would seem that what bothers him most currently is the alleged indifference to Palestinian suffering that is apparently of a new and unprecedented dimension that began eight years ago.
The claim for a loss of compassionate Judaism is based on the situational analysis, so that is why I must spend my time analyzing that rather than his emotional tirade. The charges he levels are as follows:
1. Palestinians have been left without adequate medical supplies because of Israel’s continuing blockade;
2. Prime Minister Netanyahu has refused to negotiate a cease fire.
3. Re the latter, he declines to negotiate lifting the blockade and releasing Palestinian prisoners “kidnapped” and held in Israeli jails lest he be viewed as weak.
4. This behavior and the cheerleading by the American Jewish leadership is responsible the new anti-Semitism and a new kind of hatred for the Jewish people.
5. His moral outrage began eight years ago because of three factors:
• the continuing expansion of the settlements
• the economically crushing blockade of Gaza
• the rejection of the hand of partnership to a Palestinian leader (Abbas) who has adopted the path of non-violence and cooperated with Israeli security forces
6. the failure of Israel to respond to the Saudi Arabian peace initiative characterized as afresh first step
7. Hamas’ decision to accept the reality of Israel’s existence while denying ts “right” to exist
8. The willingness of the Israeli government and Israelis indifferently to allow the Palestinians to be reduced to penury
9. Israel completely broke off negotiating peace with the PA when it reconciled with Hamas
10. Israel used the pretext of the kidnapping of the three Israeli teenagers by a rogue Hamas element
11. Israel hid the fact that they had been killed as t Israela cover to round up Hamas militants and political leaders in the West Bank
12. Hamas responded to the last three provocations by launching missiles into Israel.
13. The latter provided the pretext for Netanyahu to launch his brutal military assault on Gaza.
14. The latter was the last straw that broke him into tears and heart break even though the beginning of that heart break went back eight years,
15. Israel claimed to be destroying tunnels but engaged in criminal behavior by targeting civilians.
16. The UN Human Rights Commission after the last Gaza War found the claim that justified targeting non-military targets of using those facilities to hide weapons and protect civilians – the human shield charge leveled at Hamas – was groundless.
17. From eyewitness accounts, hundreds of children have been killed by Israel’s indiscriminate destructiveness.
18. Israel deliberately targeted UN schools and Gaza’s water and electricity facilities that will bring untold hunger and diseases to Gazans.
19. Destroying tunnels is acceptable but destroying houses, schools and hospitals is a crime against humanity.
20. Israel rivals some of the most oppressive and brutal regimes in the world.
If Israel’s sins are egregious, Jews around he world are equally complicit for turning Israel into an idol as evidenced by the following:
1 Branding Jews who do not support the state of Israel as a self-hating Jews.
2. Jews believing that the IDF is the most moral army in the world as they remain blind to the IDF’s senseless murder of civilians.
3. Judaism has been turned into an auxiliary of ultra-nationalist blindness.
4. In synagogues around the world Jews pray for the well-being of Israel but not for their Arab cousins, especially the welfare of Palestinians.
5. If they would choose to pray for Palestinians, they would be labelled a self-hating Jew.
6. The prevailing worship of power which Judaism came into existence to challenge.
7. In contrast to Hobbesian realists or many evolutionary psychologists who believe that humans are driven by either fear that results in responses of either flight or fight, Lerner contends that humans have a choice where their behavior can be dictated by compassion and love for the other or fear and hatred and demeaning of the other, Judaism has chosen the former as its fundamental premise.
8. Hitler has won a posthumous victory in instilling in most Jews a belief that we cannot trust our fellow humans and must rely on power and military might instead of embracing a worldview premised on hope and possibility.
9. The young generation of Jews is growing up indifferent to Israel.
10. In the age of the internet, Lerner is reduced to using “non-Jewish” sources to promulgate his message.
Michael Lerner by this point became very repetitive and began to sound like a carnival barker or a shil hustling the wares and messages of the magazine he edits, Tikkun, so let me return to an analysis of the situation he claims to exist that justifies his outraged righteous anger. But before I do, once comment on that moral outrage and anger. It is such an irony that a man so full of rage at most of his fellow Jews instead of being filled with compassion for them, even if they are bereft, should so strongly denounce anger and hate.
1. The inadequate availability of medical supplies for the Palestinians in Gaza
While ICRC (the International Red Cross and Red Crescent, like many other humanitarian organizations, has denounced Israel’s targeting of schools, hospitals, ambulances and humanitarian aid workers in the current crisis and the unavailability of crucial materials for rebuilding infrastructure since the last war, ICRC has stated that:
• It has been able to donate nine war-surgery kits (one kit being enough for 50 seriously wounded patients or 1,500 patients with minor injuries), medicines, surgical equipment, 300 body bags, 20 stretchers, 120 hospital beds, wheelchairs, four sets of surgical dressings kits and 200 first-aid kits;
• It has been able to provide and deliver fuel for ambulances and hospital generators• working to facilitate the entry into Gaza of medical supplies from the Palestinian Ministry of Health and the Red Crescent in Ramallah, as well as from other organizations;
• facilitated the entry into Gaza of medical supplies from NGOs and the Palestinian Ministry of Health and the Red Crescent in Ramallah;
• has been able to arrange for the delivery of 76 pallets of medical supplies from Ministry of Health in Ramallah to the central medical storage facility in Gaza.
During a violent conflict, the provision and delivery of medical supplies is always fraught with difficulty, but this has not been a significant problem in Gaza.
2. Prime Minister Netanyahu’s alleged refusal to negotiate a cease fire;
John Kerry came in for a storm of criticism for veering away from the Egyptian initiative in sponsoring a cease fire to the one proposed by Turkey and Qatar, not only because the terms were absolutely unacceptable to Israel and would have rewarded Hamas with a victory, but because this shift alienated not only the Egyptians but Fatah as well. Netanyahu always expressed a willingness to negotiate a cease fire but not on the terms proposed by Hamas, Qatar and Turkey.
3. Netanyahu’s alleged unwillingness to negotiate lifting the blockade and releasing Palestinian prisoners
In the current unilateral cease-fire, Israel agreed to end its offensive, lift its blockade, grant fishing rights and release prisoners directly belying Lerner’s assertion, but Israel also rejected Hamas’ demands to rejected the Palestinian demands to re-open the Gaza airport, establish a seaport, guarantee the existence of a connection between the West Bank and the war-torn enclave, lift the Israeli-imposed no-go zone near the Gaza border fence, re-open institutions and restore confiscated public and private properties, end aggression against Palestinians by Israeli settlers and reconstruct the strip
4. In Cheering on Israel, American Jewish leadership’s Responsibility for the new anti-Semitism
There is no question that there has been a rise in anti-Semitism across Europe in the form of threats, hate speech and even violent attacks that can be correlated with the outbreak of violent conflict in the Middle East, but there has ben no demonstrable correlation with the American Jewish leadership’s support for Israel and the current Israeli government. If anything, given the absence of any significant increase in anti-Semitism in America and the relatively muted defence of Israel by the Jewish leadership in Israel, an argument could be made that the absence of strong and vocal cheerleading for Israel in Europe can be pointed to as one possible cause allowing the increase in anti-Semitism. Though I would not buy into such a claim without a great deal of evidence, it is a far more plausible claim than Lerner’s assertion about the role of the Jewish American Jewish leadership in stirring up the new anti-Semitism in Europe.
5. The Causes of Michael Lerner’s Outrage
I would not profess to know or even attempt to speculate on the causes of Lerner’s rage, but note it is totally inconsistent with his message of love and compassion. Further, most psychologists in advising people about their rages suggest they look at what is going on inside their own heads and hearts rather than blaming their outrage on external factors.
6. Israel’s Failure to Respond to the Saudi Arabian Peace Initiative
While I applauded the initiative, given its stand on refugees and on Jerusalem, I did not anticipate that it would move the Israeli government to act and was uncertain whether it would have been better if Israel engaged with the Arab states on the issue or continued to negotiate only with the Palestinians. Adopting the former posture might have undercut its increasing underground cooperation with those states while multiplying the pressures on the refugee issue and on the Old City
7. Lerner’s Claim that Hamas has accepted the Reality of Israel’s Existence but Denied Its Right to Exist
Hamas always accepted the reality of Israel – that is NOT new. Hamas simply denied the possibility that it could have any future. Further, Israel has a long record of negotiating with Hamas in spite of its determination to destroy Israel. Lerner is either naïve or confused on this issue.
8. The Israeli Government and Israeli Indifference to Palestinians Penury
Many commentators have suggested that the decline in the economic status of has lost support among Gazans for Hamas. Further, it appears that Israel welcomed the political weakening of Hamas. But declining economic standards does not equate to penury. But the major cause of that poverty was the break between Hamas and Iran over the former’s criticism of Syria and support for the opposition in that civil war which meant that Hamas was unable to pay salaries to public employees which in turn lead to a breakdown in government and further loss of support for hamas. But this does not translate into Israel being indifferent to Palestinian penury since Israel held out the promise of significant economic improvement if Hamas lost power. Israel might have had a short term interest in the economic decline of Gaza but its long term interest was the opposite.
9. Critique of Israel’s Breaking Off Negotiations with the PA after its Reconciliation with Hamas
I share this criticism but lack the absolute certainty and sense of self righteousness of Lerner that I am correct
10. Israel’ Use of the Pretext of the Murder of Three Israeli Teenagers by a Rogue Hamas Unit to Round up Hamas Supporters and Leaders in the West Bank
Politics are dirty and this may have been simply the implementation of a deal made with Abbas whenever an opportunity presented itself. But that is at odds with the explanation that the goal was to break up the new Palestinian Unity government. Whatever the motive or reason, I personally find it to be counter-productive in the long run as well as morally repugnant.
11. Israel Hiding the fact that the Three Israeli Teenagers Had Been Killed
12. Hamas Was Provoked to Launching Missiles into Israel by the Above Three Israeli Actions
13. The Launching of Rockets by Hamas Provided a Pretext for Netanyahu to Launch the Ground Assault on Gaza
14. The Ground Attack by Israel was the Epiphany that finally Broke Lerner’s Heart
15. Though Israel claimed to be Destroying Tunnels, It was Deliberately Targeting Civilians
16. Lerner Endorsed the Findings of the UN Human Rights Commission That Hamas Did Not Use Civilians as Human Shields
17. Hundreds of children have been killed by Israel’s Indiscriminate Destructiveness
18. Israel Deliberately Targeted UN Schools, Gaza’s Water and Electricity Facilities that will bring untold hunger and diseases to Gazans.
19. Destroying Tunnels is Acceptable but Destroying Houses, Schools and Hospitals is a Crime Against Humanity
20. Israel Rivals Some of the Most Oppressive and Brutal Regimes in the World