UNHRC Report.2014 Gaza War.IV. Context and Ius ad Bellum

The UNHRC Report on the 2014 Gaza War

Part IV: Context and Ius ad Bellum

by

Howard Adelman

The section on context in the UNHRC Report on the 2014 Gaza War is packed with interesting material even though it only has five paragraphs, an odd fact in itself since exploring the reasons for going to war is 50% of the obligation of applying humanitarian law to violent conflicts. The section begins with the following two sentences: “The hostilities of 2014 erupted in the context of the protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip, and of the increasing number of rocket attacks on Israel. In the preceding months, there were few, if any, political prospects for reaching a solution to the conflict that would achieve peace and security for Palestinians and Israelis and realize the right to self-determination of the Palestinian people.”

There are five words about the rocket attacks on Israel. That item is placed second, sandwiched between continuing occupation by Israel and the fading possibility of achieving self-determination for the Palestinian people. The evaluation is almost explicit: continuing occupation provoked the rocket attacks in the context of the failure to achieve an independent Palestinian state. The opening part of the first sentence is about the “protracted occupation of the West Bank, including East Jerusalem, and the Gaza Strip.” This not only assumes that the Gaza Strip is occupied, as the UN officially does, but that the occupation of the West Bank and East Jerusalem is of the same order as that of the Gaza Strip. East Jerusalem, including the Old City, has already been relegated to a Palestinian state and regarded as under foreign occupation; the original 1947 UN resolution on partition putting Jerusalem neither under Jewish nor Arab control has been relegated to the dustbin of history. Further, only the failure to achieve self-determination of the Palestinian people is included as a receding goal; there is no mention of the security of Israelis. That is the context. Whatever one is to believe about the Middle East, this is not a statement of an impartial investigating body that presumably should either avoid taking sides, especially when unnecessary, or, at the very least, expressing some awareness of its own distinct bias.

The section on context is so short that I can reprint the whole of it following the opening two sentences quoted above of paragraph 53:

  1. The blockade of Gaza by Israel, fully implemented since 2007 and described by the Secretary-General as “a continuing collective penalty against the population in Gaza” (A/HRC/28/45, para. 70), was strangling the economy in Gaza and imposed severe restrictions on the rights of the Palestinians. Two previous rounds of hostilities in the Strip since 2008 had not only led to loss of life and injury but also weakened an already fragile infrastructure. Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma. In the West Bank, including East Jerusalem, settlement-related activities and settler violence continued to be at the core of most of the human rights violations against Palestinians. In the absence of any progress on the political front, the risk of a flare-up of the situation was evident.
  2. In the meantime, threats to the security of Israel remained all too real. Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity. According to one witness, residents of her kibbutz experienced regular panic attacks after a tunnel discovery in March 2014 and the explosion of an alleged tunnel exit on 8 July. Several other infiltration attempts were thwarted by the IDF during July and August.
  3. The events of summer 2014 were preceded by an agreement, reached on 23 April 2014 between the Palestinian Liberation Organization and Hamas, which sought to end Palestinian divisions. On 2 June 2014, President Abbas declared the formation of a Government of national consensus. The Government had yet to assume its full responsibilities in Gaza when active hostilities broke out in the Strip in July 2014, thereby leaving Hamas exercising government-like functions, as had been the case since June 2007.
  4. On 12 June 2014, three Israeli teenagers were kidnapped and brutally murdered in the West Bank. In response, Israel launched an extensive search and arrest operation, which lasted until the bodies of the teenagers were found on 30 June. On 2 July, a 16-year-old Palestinian teenager from East Jerusalem was viciously murdered by being burned alive and his body discovered in West Jerusalem in what appeared to be an act of revenge for the murdered Israeli teenagers. Tensions in the West Bank, including East Jerusalem, ran high, and were further fuelled by a rise in extreme anti-Palestinian rhetoric. Widespread protests and violent clashes ensued between Palestinians and the Israel Defense Forces.
  5. On 7 July 2014, the Israel Defense Forces commenced operation ‘Protective Edge’ in the Gaza Strip, with the stated objective of stopping the rocket attacks by Hamas and destroying its capabilities to conduct operations against Israel. The operation began during Ramadan, the Muslim month of fasting. After an initial phase focused on airstrikes, on 17 July 2014, Israel launched a ground operation, which it declared sought to degrade “terror organisations’ military infrastructure, and [… neutralize] their network of cross-border assault tunnels”.  A third phase began on 5 August and was characterized by alternating ceasefires and on-going air strikes. The operation concluded on 26 August when both Israel and Palestinian armed groups adhered to an unconditional ceasefire.

The causes and precipitators of the war are divided into two overall historical frames, the history of Israeli-Palestinian relations since 2007 and, secondly, the internal struggles between two factions among the Palestinians, Hamas in Gaza and Fatah in the West Bank.  Further, there are two geographically-based classes of factors: the situation in the West Bank and East Jerusalem and, secondly, the situation in Gaza. In the Report, the factors in the West Bank boiled down to four: i) the dim prospects of a peace agreement that would facilitate Palestinian self-determination; ii) settlement-related activities and settler violence that allegedly constituted the bulk of human rights violations against the Palestinian people; iii) the lack of political progress and the continuing Israel-inflicted human rights violations that had turned the West Bank into a tinder box in which the risk of a flare-up was evident; iv) the killing of three Israelis by Palestinians and the reprisal killing of a Palestinian by an Israeli.

As far as the situation in Gaza, four factors were also cited: i) the blockade; ii) the rocket attacks from Gaza onto Israel; iii) the digging of tunnels from Gaza into Israel; and iv) not the failure of but the prospect of  a reconciliation between the PA and Hamas. Let me deal with them all in reverse order.

Given that the apparent about-to-be-realized reconciliation between Hamas and the PA, one possible explanation for the outbreak of the war could possibly have been the use of war to disrupt the implementation of the agreement. The Report nowhere suggests this and simply notes that the reconciliation was underway. But it could have considered that argument. After all, in the seventeen months after Hamas took total control in Gaza in June 2007 following its electoral victory the year before, that is, following Hamas’ complete takeover of the Palestinian Authority national government within Gaza formed in March and headed by Ismail Haniya by a coup, in the course of and following the takeover, an estimated 600 Palestinians, one-quarter of the number purportedly killed in the fifty day Gaza War in 2014, were killed. In between May of 2008 for the next six years many more died, but not nearly the number in the initial militant phase of the conflict between Hamas and the PA, even including those murdered by Hamas under the cover of Operation Protective Edge. On all of this except for the last item, the Report is silent as if it is irrelevant to understanding the context.

Agreements of reconciliation, such as the May 2011 Cairo Reconciliation Agreement, were never implemented. In April 2014, two months before the outbreak of the Fifty Day Gaza War, an agreement was signed to form a unity government and hold elections. On 23 April 2004, both parties made a joint announcement about the formation of a new technocratic government prior to both parliamentary and presidential elections that would follow. The agreement said nothing about Israel, a two-state solution or the recognition of Israel by the Palestinian unity government, but President Abbas announced that the signing of the agreement was understood to imply both of these terms. On 2 June 2014, President Abbas swore in a new technocratic unity government.

President Benjamin Netanyahu denounced the agreement between Abbas and Hamas, that he repeatedly termed a terrorist organization committed to the destruction of Israel. Abbas issued a statement saying that Israel was out to sabotage the new government. Contrary to Netanyahu’s prophecies and warnings, the European Union, including France and the United Kingdom, as well as Russia, China, India, Turkey, welcomed the new unity government as a step towards peace. The Israeli cabinet, in contrast, voted to impose further unspecified sanctions against Palestine.

The war interrupted but did not end that process of Fatah-Hamas reconciliation even though Fatah stood aside, refusing to get involved militarily and allowing Hamas to be beaten to a pulp. The negotiations resumed in earnest after the war was over, but that process also recently came to naught. One might have thought all of this was pertinent to the issue of determining whether Israel initiated military action in Gaza to undermine the new unity government and once again set Hamas and the PA against one another. On the surface, this indeed did seem plausible. But there is no discussion of this in the Report. Perhaps it is because during Operation Protective Edge, Israel’s Shin Bet brought Abbas very convincing evidence that Hamas was plotting to depose Abbas and assume rule over the West Bank by activating its sleeper cells across the territory to instigate a third intifada.

Israel had not waited for Abbas to act. On 1 July, Israel launched Operation Brother’s Keeper, ostensibly in response to the kidnapping of the three Israeli teenagers (see later). The crackdown targeted Hamas’ militant cells and leadership in the West Bank resulting in 11 killed, 51 wounded and over 400 arrests, many of them recently released prisoners in the Gilat Shalit 1,100 prisoner exchange for Shalit’s return to Israel. Surely this was relevant to consider whether Hamas’ increased reign of rockets was at least understandable and, possibly, even justifiable.

Shin Bet’s evidence for a plot may have been false. After all, Abbas did revive the negotiations for a unity government. However, in the interim, Israel acted with force against Hamas in the West Bank, presumably with the blessing or perhaps only acquiescence of Fatah. Abbas did nothing to interfere with Israel’s sweep through the West Bank. However, whether or not there was secret cooperation between Fatah and Israel, surely the Israeli government’s serious concern about the formation of a new unity government with Hamas as a partner was at least relevant in understanding and trying to assess whether the instigation of all-out hostilities was warranted as a matter of self-defence, as Israel declared, or whether it was an act of aggression deliberately undertaken by Israel to destroy the prospect of a new unity government. In any case, if the latter was Israel’s objective, it did not work because negotiations over a new unity government started up again at the end of Operation Protective Edge. Further, by the summer of 2015, they had self-destructed on their own accord without any military intervention by the Israelis.

What about the blockade of Gaza and Hamas’ building of tunnels and sending rockets into Israel prior to the outbreak of the war? In 2007, after Hamas seized total power in Gaza, Hamas denounced the Oslo Accords, rejected the two-state solution and declared its objective to be the elimination of Israel. Surely, that is relevant as a possible casus belli. Israel initiated a land, sea and air blockade of Gaza. Israel had disengaged from Gaza. Instead of Palestinian society advancing its process of self-determination alongside that of Israel, the latter witnessed the emergence of a much more formidable and determined enemy in Gaza. This was the strongest blow that the Oslo Accords had received.

But this is not how the Commission wrote up the preceding events. Rather, with a weakened and already fragile infrastructure, “Palestinians have demonstrated extraordinary resilience in recent years, living in an environment scarred by physical destruction and psychological trauma.” The focus is on the Palestinian people as a whole. The different factions are not recognized. The people are raised to heroic status for their stamina in the face of great challenges. Now one could write the account much more from a Palestinian perspective than I did, but the contents in the report are written like first level history writing in which one side consists of heroes and the other of bullies and aggressors. Since it would be hard to dub Hamas as heroic, especially given the documentation of their actions, the virtuous attributes are assigned to the people as a whole. And no distinction is then made between the response of West Bankers who, whatever the inconveniences and hardships of the occupation, have economically prospered and strengthened the infrastructure, and the residents of Gaza whose infrastructure has been repeatedly destroyed by two previous violent encounters and whose re-investment in infrastructure has been significantly dedicated to building first quality attack tunnels and purchasing rockets and missiles.

The Report does say that, “threats to the security of Israel remained all too real.  Palestinian armed groups increasingly launched rockets during June and July 2014. The discovery of tunnels leading into Israel added to the sense of insecurity.”  Go back to 5 March 2014 when the Israeli navy intercepted a ship with a load of scores of long range missiles from Iran. Subsequently, Hamas spent its scarce funds for infrastructure on a monument to celebrate its rocket attacks that took the war into what Hamas dubbed the heart of the Zionist enemy. Reading the Report, one would never know that the EU, Canada, Japan and the U.S. as well as Israel had dubbed Hamas a terrorist organization, while the UK and Australia restricted that depiction to its military wing, the Izz ad-Din al-Qassam Brigades.

The Report provides as context that Hamas “increasingly launched rockets during June and July.” But rocket attacks went back to 2013. In January alone, 22 rockets were aimed at Israel; there were 9 in February and 65 in March. During the negotiations of a new unity government between Hamas and Fatah, rockets launched fell to 19 and 4 respectively in April and May, but then leaped again to 62 in June. Perhaps these figures seemed, in retrospect, insignificant in light of the 2,874 rockets Hamas rained on Israel in the opening month of the war. But surely these actions were relevant to depicting the context.

What about Palestinian activities in the West Bank? The key turning point that could have ignited the third intifada was the killing of two Palestinian teenagers on Nakba Day, 15 May 2014 by sniper fire. On 22 May, CNN broadcast evidence that the shots were not rubber bullets as the Israelis claimed, but live ammunition that had been fired against the Palestinian protesters, likely from the vicinity of Israel’s Ofer military prison. International demands for an independent investigation were ignored. On 12 June, possibly in reprisal for the shooting of two Palestinian teenagers, three Israeli teenagers were abducted in the West Bank and were eventually found dead.  Israel blamed Hamas which initially denied the charge, but Israel released documents showing that a Hamas member, Hussam Qawasmeh, had orchestrated the abductions after his brother had received $60,000 from Hamas in Gaza. On 20 August, Saleh al-Arouri, a Hamas leader in Turkey, acknowledged responsibility and said that the goal was to ignite a third intifada. Was this not relevant to the context?

The original specific goal of the abduction of the three Palestinian teenagers was evidently to hold the teenagers in return for the release of many more Palestinian prisoners, while, in the interim, sabotaging the progress on the Palestinian unity government as well as firing up the youth in the West Bank and demonstrating Hamas leadership even there. The PA confirmed Hamas responsibility. Then Hamas did as well, but insisted that it had no prior knowledge of the incident, did not condone the targeting of civilians but nevertheless celebrated the action as a response to oppression and an act of resistance. Since 2013 until these abductions, the PA and the Shin Bet together foiled about one hundred prior abduction attempts, the PA almost half of them. Was this not relevant to depicting the context? The incident triggered the reprisal Operation Brother’s Keeper by the Israeli military mentioned above, and human rights organizations, including Israel’s B’Tselem, denounced the disproportionate response. The denunciation could be expected from B’Tselem, but it also revealed that the human rights organizations did not interpret proportionally to mean the ratio of response and actions in relation to the military objective as required by humanitarian law, presumably foiling future kidnappings and preventing another intifada, but the ratio of the effects on each side.

However, suspicions about the real intentions of the Israelis rose when it was discovered that the Israelis did not learn of the deaths of the three teenagers on 30 June when the bodies were found, but had known for a long time that they had been killed. On the other side, Hamas significantly escalated its rocket attacks in response to Operation Brother’s Keeper. Negotiations between Israel and Hamas to halt and roll back the escalation broke down when Hamas added to its demand that Israeli reprisal bombings against Gazan targets be stopped in return for the cessation of rocket fire, but the conditions now included a demand that the blockade be immediately lifted and prisoners released. Hamas also escalated its rocket attacks once again. That is when Operation Protective Edge was launched.

Providing a far more adequate and fuller context would have only taken another page or two of the Report. Why was this aspect of the Report so impoverished and so deformed? Now I am not arguing that I have provided a more objective treatment than that provided by the Commission, only that it is much more complete. A much more complete picture was necessary for the Commission to assess to what degree the escalation of violent hostilities and their instigation into all-out warfare fell within the range of military actions permitted by the set of ius ad bellum criteria for going to war. Was Hamas the proper authority to escalate its rocket attacks since it was not the government of the Palestinian state, but only the political faction in de facto control of Gaza? Did each party warn the other? Certainly Israel announced that unless the rocket attacks ceased, Israel would launch a much more formidable response. In fact, from the Israeli side, it is very difficult to suggest under any of the criteria for evaluating breaches in ius ad bellum that Israel was in breach of any of them, including:

  • Proper authority
  • Fair warning
  • Just cause
  • Probability of success
  • Proportionality in resorting to military means
  • Last resort

On the other hand, the initiation and escalation of the violence by Hamas at best only satisfies the criterion of just cause. Hamas had no probability of success. If self-determination was simply the goal, then following the path of the PA would surely indicate a greater route to success. Resorting to an escalation in violence was only justified if Hamas had a larger goal, and Hamas was explicit in asserting that it did – the destruction of Israel. Given that goal, violence was not a last resort as it might have been if the goal was simply self-determination or lifting the blockade, but a requisite first step.

I can only speculate, but I presume this truncated and distorted account of context was so brief because nothing the Commission could have written would allow any detached reader to conclude that Hamas was justified in escalating the number of rockets fired at Israel according to humanitarian law governing the initiation of war. Quite the contrary. The best route to lifting the blockade would be to agree to giving up aggression against Israel and giving up its goal of eliminating Israel from the map of the world.

The initial substantive content of the Report instead of reinforcing the credibility of what would follow undermined it.

Next Blog: Ius in Bello – Hamas Violence Against Israel During the War

Advertisements

UNHRC Report 2014 Gaza War.III.Methodology

The UNHRC Report on the 2014 Gaza War

Part III: Methodology

by

Howard Adelman

How one investigates is as important as who does the investigation (the previous blog) and what framework one brings to the investigation (the first blog in this series).  Further, how one communicates the results of one’s investigation is integrally related to what is revealed, but I will reserve the discussion of that aspect of the methodology only after we examine the majority of the Report. For the context of how results are conveyed is as important as the context of the actual events themselves and the methodology for determining facts.

The Commission never visited Gaza. Israel never even acknowledged the repeated requests from the 2014 Gaza War Commission to permit entry from Israel. Egypt would not even allow the Commission to enter via the Rafah crossing, allegedly due to the security situation (para. 3). However, as we read on, Egypt’s refusal was irrelevant. Why?

“Israel also regulates all (my italics) crossings allowing access to and from Gaza. While it is true that the Rafah crossing is governed by Egypt, Israel still exercises a large degree of control, as only Palestinians holding passports are allowed to cross, and passports can only be issued to people featuring on the Israeli generated population registry.” (para. 29) Israel controls who gets passports in Gaza. Why is this claim made? Israel “controls the Palestinian population registry, which is common to both the West Bank and Gaza, and Palestinian ID-cards can only be issued or modified with Israeli approval.”

Assertions like this undercut the credibility of the report. Though most readers of the report will be unfamiliar with the so-called passport war, the basic facts are these:

  • The PA, not Israel, overwhelmingly controls who receives passports in Gaza
  • The PA issues approximately 500 passports per business day to Gaza residents
  • The PA is the party, not Egypt, which restricts the issuance of passports based on vague security concerns
  • Egypt’s restrictions are imposed, not only for security reasons, but to prevent overstayers and using Egypt as a place to escape from living in Gaza
  • Hamas has a record of confiscating passports held by members of Fatah, in part in retaliation for the PA limitations on who gets passports
  • Gaza human rights organizations have campaigned to end the practice; thus A-Dameer, one of the Gaza-based human rights organizations, once declared that, “The PA automatically prevents people affiliated with Hamas from receiving passports. We have appealed to the prime minister on the matter, but have so far received no response.”
  • The enforcement of these practices shifts depending on the character of the relations between Hamas and Fatah at the time
  • The major obstacle to leaving Gaza has not been the absence of passports, but the possibility of entry to either Egypt or Israel, both of which restrict entry, but Egypt has permitted students to cross, those seeking medical services, those with visas to other countries and those en route to attend the annual haj pilgrimage
  • Israel’s veto rights based on the Oslo accords over the Palestinian population registry is almost totally irrelevant to the issue over the issuance of passports, and is a red herring if ever there was one.

Why would the commission damage its credibility over such a side issue? Because, just as in referring to the Palestinian State, the Commission is committed to reinforcing the position that Israel is an occupying power, for an occupying power has additional responsibilities that an alien belligerent does not have. This is a clear example of ideology more than even a human rights frame influencing the content of the Report.

However, by and large the writing of the Report has not been influenced by the imposition of such crass uses of ideology. The Commission has relied on expert witnesses, especially when it had to determine the type of weapons used in a specific incident. However, witnesses who might contest the findings are not used. In using expert witnesses from the medical field to reinforce the source of death or injury, the Commission does not explain why medical doctors concerned with children’s health in Israel were not interviewed, but those in Gaza were.

However, the Commission has primarily relied on affected individuals through written submissions (500) and interviews (280), and on other witnesses primarily from human rights organizations. I will later offer a hypothesis to explain this source as the primary evidence in the documentation. The Commission also heard from representatives of the government of the West Bank, as indicated above, referred to as the representatives of the Palestinian State. No explanation is offered for that designation. Nor is there any consideration presented of how such a designation might in itself determine Israel’s non-participation in the process and whether such a designation arose after Israel’s refusal to participate or was one of the provocations that incited Israel to remain aloof from the proceedings of the Commission.

The Commission claimed that “a number of Israeli non-governmental organizations were reluctant to cooperate with the Commission of Inquiry, fearing in some cases that there could be negative repercussions on their work.” This is hard to believe and no back-up is provided for this contention. Certainly B’Tselem, Israel’s premier human rights organization, seemed to show no reluctance in offering evidence and is extensively cited in the Report.

Those who were not interviewed rather than those who were may be of somewhat greater significance. I mentioned two types of missing witnesses above, Israeli doctors and military experts on the use of weapons who might contradict the findings of the one military expert employed. A military expert on munitions was consulted to determine types of weapons used. That testimony, which is included in the details of each of the incidents described, reinforces the sense of detachment and concern with factual detail in the Report, but there is no reference to other military experts who might have a different view, and, if so, how the Commission adjudicated between and among differences. We will have to see when we examine the detailed descriptions whether this was significant. Alternatively, was there sufficient consensus such that the attention to detail on the munitions had another purpose that explains why this needed to be included in such detail. This is especially important since there is relatively very little in the Report, as there was in the Goldstone Report, discussing weapons banned by international humanitarian agreements.

There is no record of interviewing military personnel on either side or experts from either side or from other armies, or experts in humanitarian law, mainly the ICRC already discussed, other than from human rights organizations. The Commission also relied on satellite imagery, video and photographic evidence. But all of these sources, both neglected and included, were subsidiary. The Commission “gave particular weight to first-hand testimonies, recognizing the limitations resulting from the fact that the interviews were done remotely, the lapse in time since the incidents occurred, and the possibility of reprisals.”

The primary method in examining and presenting the evidence of the depiction of individual incidents is the use of “reasonable grounds” as the measure of what took place. That is, what “a reasonable and ordinarily prudent person would have reason to believe that such an incident or pattern of conduct had occurred.” (para. 19) Such a determination is based on the reliability and credibility of the source related to the objectivity and quality of the evidence and the methodology by which the evidence was obtained. The validity and veracity of the information itself was evidently based on cross-section comparisons. In examining the presentation of individual incidents, we will have to see if a major method of scientific objectivity was used, namely what checks were used to see if the evidence was false – known as the application of the principle of falsifiability, or whether that principle was employed at all.

This allows me to segue into a very different methodology altogether, and not one even mentioned or discussed in the methodology section –s literary and stylistic methods of presentation as well as issues related to determining scientific reliability and objectivity. First, it is very interesting that the Commission decided to place the depiction of the damages to Israeli civilians and property first. Of the almost 500 paragraphs in the Report which constitute the bulk of its material, only 50, or 10%, deal with attacks from Gaza against Israel. 90% deal with incidents of civilian deaths and injuries and property damage in Gaza. That may be justified because the proportions represent the different degrees of damage done by each side to the other, something that will have to be determined by a specific examination of incidents.

Before the Commission gets into the examination of the specific incidents, it offers an account of the legal framework it uses and of the context in which it places its investigation and the conflict that occurred. On the matter of the legal framework, the Report discusses three area of international law – humanitarian law (14 paragraphs), human rights law (8 paragraphs) and international criminal law (5 paragraphs).  The proportion given to each type of law is no indication of the importance in compiling the Report. For when one studies the Report, it is clear that the overwhelming framework for examining the legal issues in the conflict is humanitarian law.

On the issue of humanitarian law, the Report presents the most relevant principles for the conduct of war and presents them fairly and succinctly.  However, the Report offers no explanation of why it neglected to deal with other very relevant principles of humanitarian law. The first concerns not the conduct of war (ius in bello), the means and methods of engaging in a violent conflict, but the reasons for going to war in the first place (ius ad bellum). The Geneva and Hague Conventions are summarized as well as some follow-up treaties and references to customary international law, but case law seems to be reserved largely as citations in depicting and analyzing specific incidents. There is only an implicit and glancing reference to the reasons each side had for engaging in war in the first place and the extent to which the initiation of hostilities was justified.

This point is crucial. For both strands of international humanitarian law are critical to analyzing a conflict. To what extent does the Report engage in such discussions and what reason, if any, is offered for the relative inattention? The section on humanitarian law dutifully lists all the relevant international instruments. However, the focus of the discussion overwhelmingly concentrates on reinforcing the claim that Israel is an occupying power because:

  • Israel still occupies part of the Palestinian entity, namely the West Bank and East Jerusalem, and occupation of only part of a territory is sufficient to define a party as an occupying one
  • Israel exercises effective control over Gaza, not because it any longer has troops on the ground, but because it retains the capacity to launch troops easily into Gaza
  • Israel continues to control the air space and marine access
  • Israel exercises de facto control over the Gazan economy
  • As mentioned above, Israel controls not only access and egress via the crossings into Israel, but over the crossing into Gaza through its veto over the Palestinian population registry and, hence, over who does or does not get passports.

However, the key criterion of the readiness militarily to occupy a territory is whether a country, in this case, Israel, can at will assume physical control of the territory. Since Israel, by the war itself, gave proof that it could NOT do this both in beginning hostilities against Gaza as well as in the staging of those hostilities – conducting a ground war only after a period of air war – Israel could not be an occupying power by this criterion. The interesting point is that the Report cites the relevant measure but engages in no discussion of whether the measure is or is not applicable. It merely assumes that Israel had the capability in spite of the massive evidence to the contrary. It is not simply that the massive evidence is ignored, but even the argument is totally bracketed.

Nor does the Report get onto the issue of necessary versus sufficient conditions. Each criterion the Report cites is a criterion for determining occupational status. The question is whether they amount to sufficient conditions only in combination? Or does the presence of any one by itself determine whether one state is in occupation of another territory? The Report is written not in the form of a social science investigation, which considers and weighs the arguments for each side in a contentious controversy, but in the form of a prosecutorial notification before a court citing only evidence and arguments for the viewpoint it is putting forth, a viewpoint which reflects the position of the UNHRC and majority of members of the UN when it comes to the Gaza case (but not the case of Russia in the Ukraine, for example).

Perhaps Israel is legally an occupying power. The evidence as presented is totally unpersuasive and defies common sense. For if Israel were really in control of Gaza, how did Hamas manage to smuggle all those missiles and mortars into Gaza? Surely Israel’s going to war and the way it went to war are the best indicators that it did not exercise effective control over Gaza. If the issue of effective control of air space and of maritime access and of occupying a part of the territory of a state were key, then given the American extra-territorial military role on the Dew line in Canada, and its deployment of nuclear-armed missiles in the north of Canada contrary to general public knowledge, the United States, one might argue, has been an occupier of Canada, quite aside from the fact that America is by far the most important influence on the Canadian economy. The absurdity of such a claim, that America is an occupying power in Canada, should at the very least instigate the Commission to present the arguments and evidence for the other side in full instead of dismissing them as simply incidental and troublesome claims by the party, namely Israel, which allegedly wants to disown its responsibilities.

If the primary emphasis is on the issue of humanitarian law, why the big emphasis on the issue of occupation? And why does the issue take so much of the space within the humanitarian law section when the key issue of occupation seems to be the applicability of human rights law and the point the Report makes at the end of the discussion of human rights law: “victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.” (para. 46) If Israel is an occupying power, then Israel is accountable to Gazan residents for justifying its behaviour and the relationship is not just one between two alien entities, Israel and Gaza.

The Report not only neglects key issues of humanitarian law. First, it avoids the critical issue of the justification for going to war in the first place. However, even other issues in the conduct of war than proportionality, distinction between combatants and non-combatants and the choice of military weapons used, are not discussed. Why is there no discussion of the principle of humane treatment? That principle prohibits violence to life and person, torture, taking hostages, treating the enemy population, whether combatants or non-combatants, in a humiliating and degrading manner, executions without due process and proper legal protections. In fact, the principle of humane treatment is referred to only once in the Report, not in the paragraphs discussing humanitarian law, but in a depiction of one incident of claimed mistreatment by Israeli troops. In paragraph 342, the Report cites the relevant Articles 27 and 29 of the Geneva Convention IV, and then makes the claim that in several cases, Palestinians were detained in their homes in Khuza’a, and then insulted, threatened with death and ill-treated by members of the IDF.

Quite aside from whether Israeli soldiers behaved this way in this incident – which will be discussed in another blog – or whether this was an exceptional incident, the real issue is why was the principle of humane treatment never discussed in the legal section and only cited once as far as I could find in the whole document?  After all, the Report does discuss and describe the extra-judicial execution of alleged collaborators (paras. 490-502), describing them as not uncommon, as mostly perpetrated against those imprisoned in Gaza before the outbreak of the war, ostensibly as a warning against other potential collaborators. These were among the most heinous breaches of the principle of humane treatment, and infinitely worse than the alleged conduct of the Israeli soldiers in this one incident cited. The Report documented 21 incidents in total (there were others), at least 11 of them from persons previously incarcerated in Al-Katiba prison. “On 7 August, Al Qassam Brigades, the armed branch of Hamas, claimed responsibility for the 5 August executions, declaring that the persons executed were ‘found guilty of giving information on the whereabouts of fighters and civilian houses’.” (para. 495)

Overt abductions, torture, extra-judicial killings, kangaroo trials in some cases, are all severe breaches of the principle of humane treatment, some evidently for strictly political reasons to dispose of Fatah personnel during war when the killings would not be noticed. It is interesting that the Report includes a promise made by the PA that the government would investigate at least 25 cases under this rubric “once it recovers control of the Gaza Strip” and the PA did not mean recovering control from Israel. This and other comments all challenge the Report’s assumption more than conclusion that Israel was an occupying power in control of Gaza. Another relevant aspect is that witnesses in Gaza refused to come forward and be acknowledged lest revenge be meted out against them.

The Report has to be applauded by inclusion of these incidents and pointing them out as breaches of the Geneva Conventions. But then why not discuss the applicable principle of humane treatment in the legal section? Why the overall emphasis on proportionality? There are other principles that are also ignored, one related to the principle of non-discrimination which directly overlaps with human rights principles. So is the principle ignored of preferential protection for women and children non-combatants, more particularly, protecting women from rape or assault, and prohibiting children from being combatants? Ignoring rape and assault of women might be understandable since neither side had a reputation for engaging in such activities. But there is plenty of evidence and certainly far more allegations that the militant groups in Gaza had no compunction against the use of child soldiers. Did the Commission not have a responsibility to investigate such allegations?

Once the principles of ius ad bellum were ignored, and which will be discussed in much greater detail in my next blog dealing with context, the playing down of the principle of humane treatment and of the gender issue may have been given little play because the condemnations overwhelmingly bring Gaza militants to the forefront and allow Israeli troops to appear much better in following such norms. But this is a mere speculation. We shall have to establish whether it has greater importance when we get deeper into the Report.

Next: Context and the Justification for Going to War

UNHRC Report 2014 Gaza War.II.The Commissioners

The UNHRC Report on the 2014 Gaza War

Part II: The Commissioners

by

Howard Adelman

In my last blog, I wrote, “Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome.” In that blog I also indicated that the intellectual frame of any commission set up by the UNHRC, quite aside from whether it followed standards of objectivity and impartiality, would be one which endorsed the universal sovereignty of human rights over all other international norms. That this frame would govern the examination of the conduct of the belligerents in the 2014 Gaza War. However, the degree of impartiality and objectivity of the commissioners themselves will certainly be important.

My friend Bill Schabas has been the first one named to head the commission. The fact that he had already pronounced himself on finding Israel guilty of war crimes and crimes against humanity, and had insisted that his dream would have been to see Prime Minister Netanyahu in the dock before the International Criminal Court, did not seem to deter the UNHRC from making the appointment or Bill from accepting it. I personally wrote Bill and then spoke to him to ask him to recuse himself. I was far from the only one. There were a plethora of human rights experts worldwide that gave the same advice. These included Aryeh Neier, founding director of Human Rights Watch and another friend of Bill’s (Bill and Aryeh both lecture at the Paris School of International Affairs), Mordechai Kremnitzer who works with the Israeli human rights organization, B’Tselem, and Joseph Weiler, President of the European University Institute in Florence, who holds the European Union Jean Monnet Chair at New York University School of Law and is Editor-in-Chief of the European Journal of International Law. There were many others.

The appointment seemed to indicate an even worse outcome than the Goldstone Report. Bill insisted that he could maintain his objectivity in spite of his previous pronouncements, and that added to my concern rather than alleviating it. However, when it was revealed that Bill had accepted a small consultancy retainer with the PLO in 2012 to offer a legal opinion, that did him in. He was forced to resign, but only after he had run the inquiry for over six months.

A fellow commissioner, an American jurist, took over. Mary McGowan Davis became chair. Davis had been a member of the 2010 Committee of Independent Experts that was in charge of reviewing whether and how Israel (and the Palestinians) had behaved in response to the Goldstone recommendations. Israel was required to investigate about 400 suspected incidents of breaches of humanitarian law. In the conclusions of her inquiry, Davis criticized Israel for not opening investigations into those who designed, planned, ordered and oversaw Operation Cast Lead as called for by the Goldstone Report. She criticized Hamas for not investigating the launching of mortars and rockets into Israel. She criticized Israel again for taking too long in conducting its investigations while acknowledging the enormous scale and challenge to Israel to completing its work. She did commend Israel for the resources and the effort devoted to the task. The results of her committee’s work evidently were a key factor that influenced Richard Goldstone to withdraw his claim that Israel deliberately targeted civilians, though that only meant he was now anathema to both Israel and the supporters of the UNHRC which allowed the report to stand.

Davis’ modestly claimed that her responsibilities as chair of the post-Goldstone commission work were simply to implement the mandate of the Committee to “monitor and assess the investigations by both sides and to report back to the Human Rights Council.” It was not to make recommendations about what should be done with the findings. However, she did express the belief that if her committee embraced the principles of an impartial and fair investigation, that in itself would push forward the notion of a peace agreement based on transparency, accountability and justice. To that end, she insisted, the committee had to be seen to be delivering justice, especially by the victims on both sides. This perspective in itself was a considerable contrast to the evident partiality of Bill Schabas on the substantive issues of the conflict.  On the other hand, if she had already accepted to serve beside Bill on the Commission of Inquiry and had not insisted that Bill recuse himself as a condition for her taking up her post, one is forced to question how strongly she upholds the principle that justice must not only be done but must be seen to be done.

Davis honed her legal skills in a tough jurisdiction as a former Assistant U.S. Attorney for the Eastern District of New York. She had risen to become an Acting New York Supreme Court Justice. If I were even a half-decent journalist and not an ersatz one, I would have been able to find out why she had not been made a full member of the New York Supreme Court, why she retired from that position when she was clearly relatively young and full of energy. I would at lease have been able to analyze her judgements or her earlier role as a federal prosecutor. But I am not a journalist, let alone a good one, so I have no new information even on her beginnings as a defender of human rights. Because of my own previous work, I did know that she had been a consultant to the International Criminal tribunal in Rwanda, but I have no clue on how she performed except that she had also served to mentor criminal defense lawyers appearing before that court. That in itself is some measure of respect for her impartiality and her commitment to due process. Nevertheless, I was still bothered by her willingness to sit on a commission subordinate to Bill who should have unequivocally recused himself long before the issue of his consultancy emerged, especially important because Bill ran the inquiry for so many months before he resigned and Davis took over for the final almost 5 months.

I was wary on other grounds. After all, Davis had agreed previously and again this time to work under UNHRC auspices in spite of its record of a totally deformed focus on Israel in disregard of any reasonable standard of impartiality. She had said nothing about why the UNHRC had failed to launch an investigation into Hamas for reigning missiles and rockets against civilian targets in Israel and only launched an investigation once Israel once again invaded Gaza. Further, she had been congratulatory to the Palestinian Authority for cooperating with her 2010 investigation. This stood in contrast to Israel’s non-cooperation. Israel had only just initiated its self-examination. She ignored the views of Melanie Khanna, who served under Hilary Clinton, and who presented the American view that the UNHRC had an overwhelming record of a disproportionate focus on Israel and that Israel had at least demonstrated an ability to engage in self-scrutiny. Contrast this to the PA, which, while it offered full cooperation with Davis’ previous investigation, had shown no record of promptness or ability at critical self-scrutiny. Contrast this with Hamas, which also did not cooperate with Davis’ investigations and certainly never publicly investigated its own conduct.

Beyond these obvious considerations, there is the dilemma of the role of such reports, even as that of the Davis investigation into compliance. This certainly was true even with the Goldstone recommendations. After all, reports are useful tools of propaganda by all those states, ostensibly in favour of transparent impartial justice but, oblivious to those standards in the behaviour of their own states. Further, these Arab and Muslim countries   were exclusively interested only in those aspects of her investigation that focused on Israel as the culpable party. Even Amnesty International seemed to see its task as demonstrating impartiality, not by carefully weighing the faults and shortcomings of the respective parties, but ensuring that AI condemned Hamas and Israel equally. How does one operate within such a partial context of both the international community and the UNHRC more specifically? Davis has chosen to try to advance the cause of impartiality from within the auspices of the UNHRC while Israel is committed to non-cooperation with a body that has an almost perfect track record of bias.

All of this is beside the much deeper bias of the intellectual framework of the imperial sovereignty of human rights in contrast with the view of overlapping as well as competing international norms of human rights versus humanitarian law. Is Israel better off boycotting the whole proceedings or should Israel have chosen to cooperate with the investigation in spite of the record of biases of the organization under which it was operating? Did the second (originally third) commissioner tilt the balance towards greater impartiality or towards reinforcing the inherited biases of the UNHRC?

Doudou Diène (Senegal) earned his first degree in philosophy from Senegal’s Concours Général from which he graduated with the top prize. (As a philosopher, I am already predisposed, at least initially, to a favourable attitude towards him.) Diène holds a law degree from the University of Caen (France), a doctorate in public law from the University of Paris, and a diploma in political science from the Institut d’Études Politiques in Paris. After a long career at UNESCO, including two years as UNESCO’s Deputy Assistant Director-General for External Relations and subsequently as Acting Director of the Bureau of Public Information, he served as the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance for six years from 2002 to 2008. From 2011 to 2014, he served as the Independent Expert on the situation of human rights in Côte d’Ivoire. The fact that he worked for 6 years for the discredited UN Commission on Human Rights, the predecessor to the UNHRC, does not work in his favour. Further, there is no evidence from his background that he had any expertise in international humanitarian law however much an expert he was on intercultural and interreligious cultural dialogue. One might expect him to be fair-minded and impartial, while not expecting him to think outside the imperial role of human rights.

The report itself should prove to be very interesting reading.

UNHRC Report.2014 Gaza WAR.I.Mandate

The UNHRC Report on the 2014 Gaza War

Part I: Mandate

by

Howard Adelman

The basic question is whether a) the United Nations Human Rights Council (UNHRC) was operating outside of its mandate field or its field of supposed expertise, and b) in setting up a commission of inquiry, its own presumptions about human rights law, for which it has a clear mandate, deformed in any way the application of humanitarian law in its analysis of the 2014 Gaza War.

On 24 June 2015, the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict delivered its report (A/HRC/29/52) (UN Gaza War 2014). The commission was set up by the UNHRC and the report was delivered as agenda item 7 under the more general heading, “Human rights situation in Palestine and other occupied Arab territories.” One year earlier, on 23 June 2014, when the Gaza war was still underway, the UNHRC adopted resolution A/HRC/RES/S-21/1 to establish the independent, international commission of inquiry to investigate all violations of international humanitarian law (my italics) 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, and to report to the Council at its twenty-eighth session in March 2015. The report was delivered only three months late. The mandate read as follows:

“Ensuring respect for international law (my italics) in the Occupied Palestinian Territory, including East Jerusalem”, the United Nations Human Rights Council requested the UN High Commissioner for Human Rights to “to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Human Rights Council, to investigate all violations of international humanitarian law (my italics) 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, whether before, during or after, 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 (my italics), and to report to the Council at its twenty-eighth session”.

However, the United Nations never mandated the UNHRC itself to investigate humanitarian law. Human rights, yes. Humanitarian law, no. Humanitarian law is not mentioned once in the long resolution of 15 March 2006 setting up the United Nations Human Rights Council to replace the United Nations Commission on Human Rights which had fallen into total disrepute. According to the website of the Commission as well as the UNHRC, the Commission of Inquiry interprets this mandate as including investigating the activities of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip and Israeli actions in the West Bank, including East Jerusalem, by looking into a broad range of alleged violations committed by all parties under the full range of human rights, including economic, social and cultural rights. [Note that humanitarian law is not mentioned in this section.]

Here again, Res. A/60/251 setting up UNHRC does refer to regional groupings of states and especially individual states, but nowhere can we find any mention of armed groups, military, violence, etc. The UNHRC was mandated to strengthen the promotion and protection of human rights around the globe, that is, the rights of individuals in relationship to the states in which they live or of which they may be members. The UNHRC was not given responsibility for protecting all aspects of international law, but only those aspects having to do with the relationship between states and its citizens or individuals living on the soil governed by a state. Two overlapping realms of international law – refugee law and humanitarian law – deal respectively with the rights of individuals who are not members of a state that provides for their protection and for the laws governing the initiation and conduct of war. Yet the mandate, now as specifically interpreted by the Commission, was to look into the actions of Palestinian armed groups in Gaza, including attacks on Israel, as well as the Israeli military operation in the Gaza Strip, the West Bank and East Jerusalem as a part of the West Bank.

Under humanitarian law, this would mean investigating what happens to prisoners of war, how the wounded are treated, how military personnel are treated, and how and whether the state makes a strong effort to distinguish between civilian and military personnel. When we examine the report in detail, it will be interesting to see what aspects of humanitarian law are covered and which are not. We are, however, no longer surprised that the UNHRC would decide to investigate the protections afforded civilians and the permitted military means used in the 2014 Gaza War. After all, five years earlier, on 12 January 2009, under almost similar wording, the UNHRC set up what came to be known as the Goldstone Commission.

The difference in wording is interesting. Resolution S-9/1 setting up the Goldstone Commission in 2009 decided to: “dispatch an urgent, independent international fact-finding mission, to be appointed by the President of the Council, to investigate all violations of international human rights law and international humanitarian law (my italics) by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression, and calls upon Israel not to obstruct the process of investigation and to fully cooperate with the mission.” What a difference five years can make! Unlike the Goldstone Report, which was found to be so flawed, even by Richard Goldstone himself after it was published, the 2014 mandate mentions both belligerents and not just one (Israel) and does not restrict the investigation to Palestinian territories. The 2014 mandate does not predefine the war as unjust on the part of Israel by referring to the “current aggression” by Israel. In a more subtle shift, the reference to humanitarian law in the Goldstone Commission mandate followedthe investigation of the application of human rights law. In the 2014 mandate, the reference to humanitarian law precedes the reference to human rights law.

Recall that Mary Robinson, who eventually supported Richard Goldstone’s Report, partially because of her respect for him, and who had been the first person approached to head the 2009 Commission, refused to take the position as head of the 2009 Commission because the mandate was so one-sided and had been “guided not by human rights but by politics.”  Richard Goldstone himself, before taking the position, complained of its failure to take into account the actions of all parties in the conflict and informally received approval by the President that the Commission could broaden its mandate. However, the broadening seemed peripheral and, in any case, the UNHRC ignored the recommendation applicable to Hamas. Thus, Goldstone’s insistence that the informal broadening and the fact that his initiative received no objections at a plenary session of UNHRC was sufficient, proved incorrect, as did his chastisement of Hillary Clinton for her “tiresome and inept” criticisms of the one-sided nature of the mandate. This could not be done with the 2014 mandate which formally required the mission to look at all parties: Israel; the Palestinian Authority; Hamas, which governs Gaza; and other armed Palestinian groups. The two mandates, however, are similar in covering the West Bank, said to include East Jerusalem instead of being referred to as a separate entity, though the violent conflict did not take place there.

In 2009, Richard Goldstone in presenting his report said that he and his fellow commissioners had been motivated by four goals:

  • To uphold the principle of the rule of law and, more particularly, humanitarian and human rights law
  • To ensure the protection of civilians during armed conflict to the greatest extent possible
  • To ensure that no state or armed group should remain immune from accountability and justice
  • Finally,“out of a deep concern for the hundreds of civilians who needlessly died and those who suffered injury and dislocation of their lives.”

The key question in the 2014 inquiry would be the same. Were civilians “to the greatest extent possible” protected during an armed conflict? The question was not, were civilians protected to a reasonable degree in accordance with the laws of war? Because humanitarian law does not require that civilians be protected to the greatest extent possible, for, in the end, that would entail not going to war at all by either side. Killing per se is unlawful under human rights law. However, under humanitarian law, killing combatants is not unlawful and even the killing of civilians is permitted under the situation of “collateral damage” where deaths of civilians are permitted under the principle of proportionality, which is not about protecting civilians to the greatest extent possible, but requires balancing the incidental loss of civilian life or injury to civilians in relationship to the concrete and direct military advantage expected from a particular attack. In other words, it is not about the numbers killed relative to one another on each side, but whether those civilian deaths were proportionate to the military goals being pursued.

There is also an overlap between humanitarian and refugee law. Some of the norms applicable to the Gaza War require:

  1. If the territory is legally an occupied territory, the prohibition under the Fourth Geneva Convention of individual or mass forcible transfers, both within the occupied territory and beyond its borders; there is an exception – an occupying power is permitted  to “evacuate” the inhabitants of a particular area if this is necessary for the security of the civilian population or for imperative military reasons;
  2. Attacking belligerents is permitted, but attacking civilians and civilian property indiscriminately is prohibited;
  3. The duty to spare the civilian population as much as is feasible;
  4. The prohibition of reprisals against either the civilian population and its property.
  5. Permitting an unhindered passage of relief supplies and assistance.

Who investigates, how they investigate and the intellectual frame they use to conduct that investigation will determine, in large part, the outcome. To take up the latter point, in international studies a definitive distinction is made between humanitarian law, refugee law and human rights law. These three spheres overlap in their application, but the distinction does not. Human rights law deals with a state’s relationship to its citizens and other foreigners on its soil focusing on the protections of civilians from any oppression by a state. Refugee law deals with the rights of individuals who lack membership in a state that will protect them and are outside their state of normal residence, but, in situations of failing or disintegrating states, may even be living within their national home. Humanitarian law deals with the conduct of war, more particularly, though certainly not only, the protection of civilians affected by armed conflict. Unlike humanitarian law, which can never be suspended, some human rights treaties permit states to derogate from certain rights in times of public emergency and suspend certain key rights, including the right to life and the prohibition of torture or cruel, inhuman or degrading treatment or punishment.

The three spheres are said to overlap and complement each other. But, in reality, they are also at odds. After all, in war, targeting anyone for death, even if the person is a soldier, cannot be part of human rights law which, as interpreted in the last two decades, even restricts states from taking the lives of their own citizens even in cases of very heinous crimes. So it is very difficult to look at military behaviour through a military lens of humanitarian law if the primary glasses used are to assist in viewing that behaviour in terms of human rights violations. It is akin to using reading glasses to allow one to see distances more clearly.

Now it is well known that three agencies were set up to educate and monitor behaviour in each of these three fields – the UNHRC for human rights law, the UNHCR (High Commission) for refugee law, and the International Committee for the Red Cross (ICRC) for humanitarian law. So how come the UNHRC seems to be poaching on ICRC territory? One reason is conceptual.  ICRC in its 2005 statement on its own mandate, stated that, “International humanitarian law, refugee law and human rights law are complementary bodies of law that share a common goal, the protection of the lives, health and dignity of persons. They form a complex network of complementary protections and it is essential that we understand how they interact.” However, that is not how a coterie of human rights lawyers, researchers and professional actors who have made human rights their specialty, view it. For them, human rights is all encompassing and humanitarian law and refugee law are but specialized divisions of human rights law. The three fields are not related as overlapping, but one field is all-encompassing while the other two are subordinate.

But the rivalry is not just conceptual. This is quite evident. The UNHRC states unequivocally its imperial position: the UNHRC defines itself explicitly as the “principal human rights official of the United Nations.” But it is not the principal humanitarian law official of the international system. The ICRC, an organization much older than the UN itself, is. Yet the UNHRC saw no need to seek out the ICRC to forge a partnership to investigate the violent conflict in Gaza, or, for that matter, to cite the ICRC very much in its report. There is another reason, for the ICRC, unlike UNHRC, does not have a close relationship with any human rights organization, but particularly with the UNHRC which lacks a field presence. Further, human rights organizations define themselves as outspoken and, therefore, by their very nature, they speak out. ICRC, in contrast, has a confidential modus operandi.

But this does not explain why, of the 680 paragraphs and 1255 footnotes, ICRC is only referred to in 18 of them, that is just under 1%. Though ICRC was present and active in Gaza throughout the whole conflict, ICRC is only cited three times for evidence, each time with respect to Israeli behaviour – targeting civilians in an UNRWA school, targeting ambulance drivers and targeting the Gaza power plant. There is not one citation that says anything positive about Israel by the ICRC and no references to ICRC observations re Hamas conduct.

In addition to the three specific observational and interpretive issues, ICRC is cited three times with respect to two issues, the Palestinians aiming missiles at Israel, and here only to note that since the missiles could not be aimed properly, this would clearly be a mitigating circumstance in the degree to which they could found to be at fault. There are also two citations concerning Israel as an Occupying Power, not to discuss the legal issues raised, but to simply support the view that Israel has been an occupying power long before it invaded Gaza and even after it withdrew its troops.

The other 12 citations refer to ICRC as the definitive reference point on international humanitarian law, therefore granting in reality what they take away conceptually and concretely in the behaviour of UNHRC. Further, as the leading authority on humanitarian law, ICRC makes itself available to offer advice, particularly to the UNHRC, on the basic principles and guidelines applicable to various situations of alleged humanitarian law regulations. Why was so little attention paid to ICRC when it is clearly the most respected and widely recognized protector of humanitarian law as well as one of the most respected humanitarian organizations in the world? Most importantly, it is THE organization mandated under international law, including the Geneva Conventions, to both interpret humanitarian law and to protect the victims of armed conflict, including those wounded in war, combatants taken prisoner, the forcibly displaced and, most importantly for this report, the responsibility for protecting civilians and other non-combatants. Given ICRC’s well-known criticisms of some of Israel’s conduct, it could not be because ICRC is biased in favour of Israel. But ICRC is biased in favour of humanitarian law as a distinctive field, though overlapping with human right law, occupying a distinctly separate niche in international law.

In this analysis I will eventually discuss the key legal issues and the observations and interpretations of specific incidents where each of the belligerents were or could be found to be at fault. I will also compare the citations of ICRC compared to those attributed to such NGO human rights organizations as Amnesty International and Human Rights Watch who also presumptively assume a responsibility for humanitarian law, but almost always within a human rights frame. I will also question why the foremost authorities on applied humanitarian law are not cited or drawn upon for their experience in the application of international humanitarian law, namely the views of various Western armed forces on the ethical conduct of the war in accordance with international humanitarian law.

Just because the UNHRC is not the first among equals when it comes to humanitarian law, and just because it places international humanitarian law in a subordinate position to international human rights law, and just because its citations of the ICRC are so few, and even those few are feeble, does not mean that the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict could not conduct a proper investigation and deliver an excellent report. Certainly even on a cursory reading, it is much superior to the Goldstone report. If the Goldstone Report was worthy only of an E, a complete failure, a cursory reading of this report on the 2014 Gaza War appears to deserve at least a passing grade. Whether it will be a bare pass, a good pass or an excellent one will have to await our analysis.

One last word about the UNHRC’s own mandate and the mandate assigned to its commission. The Universal Declaration of Human Rights, the principles of which UNHRC is mandated to uphold, itself suggests that UNHRC in conducting this inquiry strayed both well outside its comfort zone as well as its responsibilities to the international community. For example, echoing Immanuel Kant, the preamble of that Declaration states unequivocally that its foundation is not only freedom and justice, but peace. Further, Article 3 states clearly that, “Everyone had the right to life, liberty and security of person.” War contradicts that and claims that belligerents have no right to life and no right to security, with the exception of the protection of civilians so long as that is possible given the strategies each side adopts. War by definition is a violation of human rights. But the Declaration is not concerned with violent conflict, either the reasons for going to war or the conduct of the war. It is concerned with such old standbys as freedom of speech, of assembly, as well as the new economic freedoms enunciated since the Universal Declaration was adopted. The latter document clearly refers to its mandate as focused on a state in relationship to individuals over whom it has charge.

International humanitarian law is about the conduct of states or quasi-state entities as they do battle, and primarily about the protection of individuals. Human rights are also about the protection of individuals. Those rights make up a very long list. However, by the time you get to Article 29 of the Declaration, the clear aspiration is peace. Article 28 reads: “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Clearly that is aspirational since international order is stated as a precondition for the full realization of human rights. Yet the Declaration does not attend to the question of how an international peaceable kingdom can be established. The foundation of human rights law and international humanitarian law are fundamentally distinct.

If human rights are based on the universal declaration of 1948, international humanitarian law is based on the four Geneva Conventions of 1949 and the two additional protocols of 1977, as well as a number of specific treaties, such as Conventions on the use of specific weapons – such as phosphorous or poison gas – Conventions on the protection of cultural property during violent conflict, and all of these as interpreted by international jurisprudence. International law governs the initiation and conduct of armed conflict even if nowhere in the law is armed conflict defined. But somehow, we all seem to know what it is even when it is not defined. And certainly there was no dispute that humanitarian law applied to the Gaza conflict. However, just to be clear, the ICRC qualifies a situation of violence and then “sends a memorandum to the parties concerned setting out their obligations under international humanitarian law and offers its services.”

What constitutes an “unlawful killing” in situations of armed conflict must be assessed on the basis of the relevant rules of international humanitarian law, including the fact that combatants or other persons taking a direct part in hostilities may be attacked – even with lethal force; and that killing of civilians in certain circumstances must be assessed pursuant to international humanitarian law’s principle of proportionality which requires a balancing of the incidental loss of civilian life or injury to civilians with the concrete and direct military advantage expected from a particular attack.

I will pay a great deal of attention to the application of this principle by the Commission the objectivity and expertise of which depends in good part on the expertise and mental frameworks of the Commissioners.

Next blog: The Commissioners

The 2015 Iran Deal.I.Overview

The Iran Deal

by

Howard Adelman

I was on my island up north in the week that the Iran deal was concluded. I was not connected to the internet. My reading and analysis was focused on continuing my blogs on the United Nations Human Rights Council (UNHRC) evaluation of the Gaza War. So when I returned, I not only had to read the 159 pages of the Iran deal, but the writings of over 100 commentators on that deal. Initially, in reading the terms of the agreement and the commentators over 36 hours, I began to think I was an alien in a foreign world. For I was reading a cascade of criticisms of the deal, initially without any commentator offering a positive response. However, before the end of my reading, I breathed somewhat easier. For I was not alone. There were others who agreed that overall and on balance the deal was a good one. Those commentators consisted of only about 20% of those I read, but on this issue I felt strengthened that I was not totally out of synch with what appeared to be a dominant note from the commentators.

Unlike the UNHRC evaluation, the Iran deal is not a retrospective analysis, but a performative one in its own right. The agreement changes the world in which we live and changes it significantly. So I am temporarily suspending my analysis of the UNHRC Report on the Gaza War – I will return to it – and will offer my analysis of the Iran deal. And I will do that in reverse order, focusing first on the commentators and only in the end provide my own detailed analysis of the agreement itself. In doing so, I will mainly deal with commentators who think the deal is a bad one and, most of my discussion will focus on the comments under four categories:

  1. Goals and significance of the deal;
  2. Intentions and motives (different than the goals);
  3. Consequences;
  4. Erroneous assumptions.

Thus, I will also be dealing with the commentators in reverse to a natural order that would begin with the deal itself and then deal with its misinterpretations and effects. In this backwards approach, let me first clarify why my initial approach relies on a cool, detached analytic tone rather than on a lamentation, aichah, the first word of Lamentations as Rabbi Splansky cited in her response to the Iran deal. My oldest son, Jeremy, is named after the prophet of peace, Jeremiah, who is credited with this lamentation and who warned of the immanent threats to Israel. It is what we will be reading on the forthcoming Tisha B’Av, an annual fast day in the Jewish religious calendar commemorating a number of disasters inflicted against the Jews over the course of history. As Rabbi Splansky wrote, the word aichah is not the response of an inquisitive mind, but of an aching soul. It arises from the deep well of our being, from a history of horrific experience. The lamentation does not invite discussion, but a communion of crying and screaming “Alas!” and “Woe are we!”

Rabbi Splansky asks us to understand the deal and view ourselves as Jews within the large arch of Jewish history. However, looking at the Iran deal from the perspective of the three weeks of mourning for the destruction of the Temple in Jerusalem does not invite questioning, including the questioning of whether mourning is the appropriate response. It may help us understand the deep roots of that response and why the leaders of the opposition in Israel line up with Prime Minister Benjamin Netanyahu in deploring the deal, but restricting their criticism to how he allowed this to happen on his watch, as if the Prime Minister of a small country like Israel could manipulate and control the outcome, not just of American thinking and policy, but of all of the five powerful states who are the permanent members of the Security Council as well as Germany in whose name this deal has been made. To claim that Netanyahu was guilty of failing to stop the juggernaut of China, Russia, France, Britain as well as America, not to speak of Germany, is just chutzpah and partisan politics. It deserves to be largely ignored.

Unlike Rabbi Splansky who says that, “Everyone is watching, worrying, wondering, but God only knows,” I take the position that even God does not know. For God has always been very poor at prophecy dealing with the future and was often on the wrong side of history. Further, unlike the watchers and kvetchers and those stunned in awe, either in fear and bewilderment or in wondrous appreciation, I believe in the power of an inquisitive mind that can enlighten us on this deal, on its significance, on its intentions, on its possible and even likely consequences, and, most of all, on the actual contents of the deal instead of the projections onto that agreement sometimes, to be charitable, propelled more by fear and worry than by detached analysis.

Let me begin by putting my approach up front after my reading the commentators – well over one hundred – and my very initial reading of the deal. (I will return to that reading near the end of this series.) Not surprising, since I have written about this a number of times in the past, overall my reaction closely resembles that of President Obama who, in an interview with Tom Friedman of The New York Times, offered his own evaluation of the deal. I have arrived at similar, but not identical conclusions. They are as follows:

In contrast to the view that the deal should have eliminated Iran’s nuclear infrastructure altogether given the powerful effects of the sanctions and the enormous powers arrayed against Iran, and the evaluation that the leverage has been squandered, I hold that this was never the premise nor the intention of the negotiations, nor one that could have been achieved or needed to have been achieved. If in the late thirties, a deal depriving Hitler of any capacity to make nuclear arms with a full scale inspection regime (admittedly a far-fetched imaginative stretch), such a deal would have been preferable to a Nazi Germany that could arm itself with nuclear weapons within three months while doing nothing about Hitler’s anti-Semitic genocidal plans and his record of persecutions or his ambitions for hegemonic conquest of Europe. The issue is not about whether Iran is an evil regime or about depriving Iran of even an ability to enhance its peaceful development of nuclear energy, if only to save face. The deal is only about control of nuclear weapons over which there was a global consensus. There was no consensus about depriving Iran of its nuclear infrastructure, only of its capacity to make nuclear weapons against th terms of the International Non-Proliferation Treaty.

Second, such an agreement does not rely on trust. Given Iran’s horrific treatment of dissidents and minorities, particularly of Bahá’is, its hegemonic ambitions in the Middle East, its overt support of terrorists such as Hezbollah and Hamas, and its repeated pronouncements of an intention to wipe Israel from the face of the earth, let alone Iran’s past record of working on the development of a nuclear weapons capacity behind the backs of international inspectors, any agreement has to be based on a deep distrust of Iran and putting in place an unprecedented inspection regime that could come as close as possible to reducing any chance that Iran could deceive the international community and revert to advancing its nuclear weapons program.

What is required and is in question is whether a powerful, but not perfect – an impossible dream – verifiable regime to cut off Iran’s capacity to enrich uranium, remove the majority of its cascades, including all of those of the most advanced technology, remove almost all of its highly enriched uranium needed for nuclear bombs, initiate a very intrusive and extensive inspections regime (we will have to see whether it is as intrusive and extensive as Obama argues that it is), and shut down Iran’s capacity to produce plutonium, is sufficient. However, if inspectors have to give 24 days – not 24 hours – notice for inspections, as too many interpreters have insisted, then that would certainly raise questions about the adequacy of the inspections regime. But, to adumbrate and deviate from the order of my presentation that I announced, the agreement definitely does not say that 24 days notice must be given for an inspection.

For all the facilities on the list (known sites for nuclear work), the 150 inspectors stationed in Iran will have immediate access at any time of the day or night and with no notice. Further, the inspection of Iran’s nuclear regime has no termination date; it continues “forever”. Only the inspection of non-nuclear facilities terminates, and then only after 25 years. The 24 days notice applies to suspected, illicit or unreported sites. 24 days is a maximum not a requisite. The section on inspections provides for the following:

Inspectors must be allowed to enter any suspect facility in Iran within at most (my italics) 24 days. If they aren’t, this will be considered a violation that could lead to renewed sanctions.

The procedure for those 24 days is as follows: If IAEA inspectors suspect that illicit or undeclared nuclear activity is taking place at an unmonitored facility, like a military base, it must first request explanations from Iran. If the explanations don’t satisfy the inspectors, they can ask to visit the facility.

The Iranians can then suggest ways of resolving the issue that don’t involve a visit. But if the inspectors remain unsatisfied 14 days after first broaching their suspicions to Iran, the matter will be transferred to the eight-member committee overseeing the deal’s implementation.

The committee will have seven days to try to find a solution that satisfies everyone. But if no such solution is found, the committee will then vote on whether Iran must allow the visit.

That decision requires only a simple majority – five of the eight members. Since Iran enjoys reliable backing from only two other panel members, Russia and China, it will have trouble preventing a decision ordering it to allow the visit. If such a decision is made, Iran must permit the visit within three days, hence the 24 day maximum period.

Certainly, aside from the routine monitoring required under the agreement, if inspections cannot realistically be done to cover research and development and to cover possibly new secret facilities under development, then the agreement might be just a sham and a cover for further cheating. Thus, evaluating the quality of the inspection regime will be crucial.  However, when a commentator insists that 24 days notice must be given for any inspection, one immediately recognizes that the individual has not read the agreement and that the comments are worth far less than the value of the paper on which those comments have been printed or, if in electronic version, far less than even the infinitesimal cost of electronic publishing. Or else the author is an outright liar.

To revert to my initial main point, regime change, or even deprivation of Iran’s capacity to the peaceful use of nuclear energy, was never the goal of the negotiations. If those had been the ambitions, there never would have been any negotiations in the first place. So one has to ask whether we are better off with an Iran on the verge of developing a nuclear military capacity or an Iran prevented from so doing, but at a cost, the opening of the dams that had confined Iran’s earnings from its oil into reserves which Iran could not access, but now would be able to do so, thereby enabling Iran to expand its purchase of conventional weapons and expand its support of terrorism. This was the critical choice between the Scylla of an Iran on the verge of producing nuclear weapons or the Charybdis of an Iran with its treasury replenished and enabled to enhance its terrorist and hegemonic foreign policy. Over this choice, there can be reasonable differences and very varied conclusions. But criticizing the deal for its failure to produce deliverables which it never was intended to produce nor could produce is simply misplaced and disingenuous.

Would the deal, however, advance the process of regime change or even open the possibility of regime change? I think this is not a likely possibility. Others argue that it is. I find the latter to be wishful thinking and an unsound foundation for making a deal. Others who are equally pessimistic about this possibility think that should be a reason for not making a deal. I disagree with them as well. If the deal depended on its value only if it leads to or even makes more likely regime change, then that is absolutely no ground for supporting this deal, though I welcome the fact that this deal will increase the slim possibility of facilitating regime change for a number of reasons, including reinforcing the factions that are not identical with the genocidal extremists in the regime.

As will be seen when I turn my attention to the commentators, reading all those accounts reinforces my conviction that they have deliberately shifted the debate from preventing Iran from becoming a nuclear power to the criticism that the deal does nothing, or, perhaps, by the odd moderate critic, does very little to stop this evil regime and undermine its authoritarianism within and its destructive ambitions in its foreign policy. Those criticisms are by and large correct. But they are totally beside the point. And that is their point, to distract citizens of the world from the achievements of the deal and view the agreement from the perspective of what was not and could not be achieved.

The issue is whether a deal with a non-nuclear-armed Iran is better than no deal that allows Iran to bring its nuclear armaments program to fruition – ignoring Iranian claims that they never had a goal of developing nuclear weapons. This is the core question. Some might argue that an Iran that completes its nuclear program but remains under severe sanctions that cripple its economy is a better choice because it limits the non-nuclear trouble-making in which Iran is deeply involved in the regime. Better an economically crippled nuclear–armed Iranian regime than one which is infused with cash, and, though deprived of its nuclear capacity, can now extensively expand its programs and foreign policy of undermining Saudi Arabia, keeping its satraps in place in Syria, Yemen, Lebanon and Gaza, and, thereby, significantly enhance the threats to Israel. That is an argument worthy of engagement. But, as will be seen, this is not the approach of the vast majority of the critics of the accord.

On another point, the inspection regime does not end in ten years. The inspection regime continues. The fact that I have to state this baldly, and will subsequently support this extensively, is a testament to a great deal of the misreporting and misinterpretation of the deal. Similarly, the agreement does not remove all sanctions. It only removes those put in place to enforce the Nuclear Non-proliferation Treaty. Other sanctions exist. Those sanctions could themselves be expanded. A whole set of other tools could be activated to target the Iranian abuse of human rights and its support of terrorism. The deal allows the West (and East) to further such an agenda, even though it is highly unlikely that Russia or China would join in such an effort. This may make a strong argument for using the confinement of the nuclear development program as leverage to fight against Iran’s hegemonic interests and its abuse of the rights of its own citizens rather than a goal in its own right, but it is actually shocking how few of the critics, as shall be seen, are this honest and straightforward in their criticisms.

President Obama has made the very valid point that this agreement is totally one-sided. Iran gives up its capacity to make nuclear weapons. Iran gives up almost all of its enriched uranium. Does the agreement curtail the nuclear weapons programs of China, of Russia, of France, of the U.K. or of the United States? Not at all. Nor does it restrict any of the parties from using other diplomatic, legal, economic and moral tools at its disposal for confronting the regime in other areas. What is given up is holding hostage Iran’s treasure and wealth, money which does not belong to any party except Iran, in return for Iran backing away from its nuclear arms program. Further, it removes the pressures on China and Russia, both of which have grown antsy under the sanctions regime, particularly China which has been denied access to Iranian oil in exchange for its exports. The deal removes the possibility that the sanctions regime could collapse from within because of the tensions among and different interests of the members of the negotiating team dealing with Iran.

More specifically, the U.S. and Israel (as well as Saudi Arabia and its Gulf allies) can cooperate much further in limiting Iran’s hegemonic goals. Congress is unlikely to be able to veto the deal. Then an enlarged program of dealing with Israel’s and Saudi’s enemies, specifically Iran, can be advanced. Further, if Iran does not live up to its commitments, the snap-back provision allows the sanctions to be re-imposed without a new vote in the Security Council. Now some may argue that this is correct in theory, but once Russia and Iran are offside on sanctions, they can remain offside by obfuscating and delaying any practical re-imposition of the sanctions regime. However, that is fully possible now. Further, the West has other means of leverage than diplomatic and moral suasion to keep China and Russia on side in addition to the interests of those two countries in preventing Iran from becoming a nuclear power. However, there is an even more serious problem about the snap-back provision. It would take place against a regime that had recovered its economic stability and wealth and would, consequently, make the snap-back provision much less effective, especially in the short run. Instead of starting from an advanced position with sanctions with Iran on its knees, the West would be back to a zero starting point. How does the Agreement handle such a foreseeable contingency?

So we have the following issues to sort out over the next series of blogs. To what degree can the inspections regime work? Is the inherent weaknesses of the snap-back provisions sufficient to offset the advantages Iran will have gained? Is the likelihood, not just risk, of Iran advancing its conventional arms program and its geo-political advances in the Middle East too much to pay for obtaining an Iran without nuclear weapons? Finally, since there are no deep signs of an ideological change within Iran and no signs at all of a regime change, with the momentum having been somewhat lifted with the easing of sanctions, was the gamble worth the cost? After all, Iranian Foreign Minister Mohammad Javad Zarif may have concluded that the world has changed with the Vienna Agreement, but Iran’s view of Israel as an unrepentant enemy has not altered one iota. As he said in an interview with journalists after the conclusion of the agreement, while calling for his enemies in Sunni dominated states to reconcile with Iran, there was no such call to Israel. Israel, in his view, needs, “crisis and wars to continue to hide their aggressions and their inhumane policies against the people of Lebanon, Palestine and the people of the region, so peace is an existential threat to them.” [Translation: Iran will remain an existential threat to Israel.] Given Iran’s rejection of Israel as having a place in the Middle East, Iran will clearly be better off and richer and freer to advance its implacable opposition to Israel.

I began with the words of one rabbi. Let me end with the words of another. “I understand that not all experts believe that the deal to be struck in Vienna is bad for Israel. Perhaps they know things that aren’t obvious to the public, even to those of us who follow the criticism of the current government. To end on a positive note: let’s hope that the optimists will be proven right. The alternative is too grim to contemplate.” If “Alas!” and “Woe is Me!” are not to stand in the way of reasonable and detached analysis, the other alternative of relying on hope with no basis in reality is just as bad, especially when it presumes that supporters of the deal argue that it is not bad for Israel. I have not read one who makes such an argument. Instead, most supporters argue that the deal is bad for Israel in many ways, but the alternative of no deal is even worse. Whether that argument is valid is open to question. But let us not misrepresent supporters of the deal. More importantly, DO NOT support the deal if the foundation for that support is a misplaced optimism or “hope”.

Kinky Boots

Kinky Boots

by

Howard Adelman

Last evening, Nancy and I went out to see a musical, Kinky Boots. I had not seen a musical in years and always moaned and groaned about how large scale musical shows had displaced real drama as the main entertainment on Broadway, the West End and on King Street. I knew virtually nothing about what we were going to see, I had read a snippet that was an excuse for a review that indicated the show was a terrific blast of music and foot stomping choreography. I expected to have a night of sheer entertainment dealing with exuberance and pure physicality in a paean to what I thought would be a dramatized version of an Irish River Dance. I needed an escape, a relief from writing about shame and humiliation.

Guess what? I thought from the little review of the show I read that the story was one about sons and fathers, about sons stepping into their father’s boots, kinky boots at that. So I thought the story would be about a young man coming out to his father and revealing he was a transvestite. The musical was about sons stepping into their father’s boots, but only in a very minor key. It was about men who stepped out in the flood lights, but not to reveal they were transvestites, but that they were drag queens. It was, after all, as Lola ,performed by an absolutely amazing Alan Mingo Jr., says at one point in the evening,  draq queens are royalty and flash and dazzle. Transvestites simply like to dress like women, but do not know how to show off who they really are.

The major theme, as it turned out, was not about the politics of the family and how one overcomes the repression imposed by fathers who will not recognize the true worth of their sons, though the musical is about that. The major theme, however, is about what it means to be a man, a true man, not a macho man, but a man who respects who he is and what he is. And it does not matter whether the man is a transvestite, a drag queen, a stocky tough and rough leather worker or a would-be entrepreneur interested in marketing. Its all pizzazz. Just different expressions. What counts is what is underneath and we cannot be ashamed of what we find there. Stand tall and proud about who you are, who you really are and not who you want to appear to be to please and cater to others. For whatever the different forms of expression that takes, we are all the same. We need to love and be loved. Most of all, we need to love ourselves. And it takes a drag queen, one seemingly on the surface dedicated only to dressing up and creating a mask as she/he entertains others, to tell us who we really are and who we can really be.

So the show turns out to about shame and humiliation, about men who are ashamed of their feminine side and drag queens who are not. The show is about the lessons drag queens can teach straight men about love. I should have known what the show was about, or at least had a clue. After all, I did know Harvey Fierstein had written the book. But I had not realized that 2 + 2 = 4. I had not connected the dots. After all, was he not the author of one of the best comedies ever written, La Cage aux Folles, both as a brilliant play as well as a musical? But, in some sense, it was better I did not know. In another sense, it would have helped because, though the production last night was thoroughly enjoyable and a terrific evening of entertainment, I might have had an easier time figuring out what was wrong.

I knew that something was awry by the second musical number. But I thought it was because I had simply made a mistake and was attending something very pedestrian. But as soon as Lola and her angels, her fellow chorus of drag queens, hit the stage, the show is transformed. In part, that is the intention. In part it is not. For in replaying the first two numbers in my mind, it was very easy to imagine them performed in a very different way so that one is clued into where the show is going and so we can become emotionally involved, even if not clear about the message, as soon as the musical starts. Certainly, Kinky Boots is and was both one terrific evening of entertainment and dead on in its understanding of what it means to respect oneself and respect another. But it could have been even more powerful. Perhaps it was in the Broadway production that swept up so many Tony awards.

Many who read my blog comment and ask how I know so much, and about so many different things. I do not. I do know a lot, but only about a very few slices of life. I know nothing of cars. I know virtually nothing about music. I know nothing about popular entertainment. I know nothing about technology. I know nothing about horror and zombie movies. I know nothing about virtually any sport you might name. I teem with ignorance. When my wife first met me she thought I was Mork from Ork, only I had no idea what she was talking about. But I do know drama and I was a regular at the Royal Alexander Theatre. For a while I had been a drama critic first for The Varsity and then for The Toronto Daily Star. It was, after all, the only way I had to avoid suffering from trying to stuff my 6’ 3” frame into the cramped seats in the first balcony, for critics gat aisle seats in the orchestra.

But I had forgotten how uncomfortable those seats are. And even though my frame has shrunk by 2”, my girth has more than compensated for that and I had to ask to move seats to a much poorer one in the upper row at the very end, but at least one where my knees were not up in my chin. Faced with a full house, the usher and the management were, however, very accommodating and did their best to see that I had at least a seat where I would not end up a cripple. As it turns out, I could see and hear very well, though clearly not nearly as well as if I was back in the orchestra in row G on the aisle when I was a much younger man. But such are the losses with age and irrelevance.

First, before I get to the serious flaw, why was the show so amazing? I believe it starts with both the theme and the book for which Harvey Fierstein was responsible based on a movie, Kinky Boots which I have never seen or, frankly, even heard about. It was a 2005 British or British-American flick, a musical adaptation of a true story taken from a 1999 BBC documentary about Steve Patemen who was struggling for his family shoe company’s survival in a factory in Northhamptonshire in the East Midlands. The company was renowned for the quality of its brogues and other men’s quality footwear. But the factory could no longer compete with cheap imports. The W.J. Brooks Ltd. Factory, Price and Sons in the musical, is saved when, through a chance encounter, the owner who had inherited his father’s business turns to making shoes for the niche market of transvestites and drag queens, and then the women’s market, by making a brassy boot, but one sturdy enough to support the much heavier weight of a male with a different centre of gravity. In real life, the new line was marketed under the “Divine” brand rather than as Lola’s kinky boots. And my sense is that the movie also tried to be divine instead of taking up the superb scorched earth path of Harvey Fierstein’s musical that ended up winning six Tony awards.

The basic plot is retained with only a few minor variations. The musical provides ample evidence that a story is not made by its plot, but by a combination of how it reveals itself and what is revealed beneath all the appearances, especially in a show that is about the relationship between appearances and the spirit of what it is to be human beneath all our masks. In the musical, Charlie, played by Graham Scott Fleming, is the young heir to the shoe factory who very reluctantly inherits the business when his father dies. And that is the major problem with the show.

The dramatic tension should be between a macho male who is also under both his father’s and his girlfriend’s thumbs with really no deep sense of who he is or who he wants to be, and Lola. So Charlie is the centre of the dramatic struggle, torn apart inside, torn apart by family politics and torn with his attraction to the flamboyant lifestyle of Lola who he meets in a chance encounter. He is the tough guy. He is the one who would stand up and protect “her” when “she” is being harassed by two boors after finishing her performance at a cabaret. But it is he who is knocked flat on his back.

But that was not a surprise. What was a surprise is that he would intervene in a fight in the first place. Because who would know from watching the performance thus far that this guy had been a high school football star, that his girlfriend, Nicola, played by Vanessa Sears, was the usual beautiful queen of the ball. Charlie he wanted to become a marketer because he had his own route to displaying himself, but one where he had the hard lesson to learn about what was worth expressing. It does not help when Charlie’s girlfriend/fiancé is played simply as a lower class but very ambitious tart instead of as an entrancing rival compared to Lauren.

Well its all there on the stage. Its all there in the plot. But it is not all there in the casting and, or, directing, especially of Charlie. Instead of a macho man in love with sports and proud of his physique and confident and determined to make it in the big city, Charlie starts out and remains a wimp through the whole performance until the very end. The struggle he is going through is referred to but not performed. It is in the book, but not in the production. And it creates a big hole in the evening’s entertainment.

At one point in the musical, Charlie notes that when Lola appears, life, and the stage, light up. When Lola is not there, there is a big vacuum left. What we do not get is Charlie’s efforts to fill that vacuum, and the underlying tense rivalry with Lola whose real name is Simon. Thus, when Simon turns against Lola, turns against his workers demanding perfection from them, reveals his insecurities and his own shame about his superficiality, his pretence, as distinct from Lola’s, is clearly on display. The revelation comes from left field instead of emerging clearly from the dramatic struggle that preceded it. The power of the musical depends upon Charlie being front and centre and competing to be front and centre with Lola and not simply in using Lola as a means and a means only. When his disrespect for her breaks out, one sits in the theatre and asks, “Where did that come from?” You then are confirmed that there is something wrong with the production, that there is a serious flaw.

In this case, it was easy to diagnose what was wrong. Bad casting. A misunderstanding of the character and an incapacity to pull it off. A terrific show. An amazing evening. But it could have been so much better. And the fault is not in the book or in Cyndi Lauper’s music and lyrics. Nor is the fault in the vast majority of the cast who are stars in their own right. And it is certainly not in the staging or the costumes which are fantastic. It is the absence of one star who should have been a truly central part of the show and honestly and powerfully vied with Lola for stage front.

Instead, Lauren, performed brilliantly by Aj Bridel as a factory worker smitten by Charlie – though you can never tell why such a wimp could be possibly attractive to any woman. – totally upstage Charlie when she is on. Various other members of the cast, from the tough as nails shoemaker (Daniel Willisten as Don) to the floor manager, are terrific. Most certainly, Lola’s team of a half dozen angels all brilliantly exemplify a different aspect of Lola’s six point rather than twelve point program for salvation. The brilliant cast certainly helps to cover-up and disguise the flaw at the centre of the production and prevent it from becoming a fatal one.

It’s a lost opportunity. The show could have been more than an evening of terrific fireworks, though simply watching Alan Mingo Jr. perform was worth the price of admission.

Shame and Humiliation in Judaism versus Christianity

Shame and Humiliation

Part V of V: Shame and Humiliation in Judaism versus Christianity

by

Howard Adelman

In the first part of this series, I referred to Tamar in relationship to her father-in-law as well as to Joseph and his brothers in the Torah and their rejection of shame and humiliation, especially shaming another. Instead, Judaism generally stressed guilt, remorse for what you specifically did, and not for who you are. This guilt element in Jewish cultural history emphasizes the rule of law and due process. It stressed respect for the Other and oneself. However, ancient Hebrew culture also has a deep understanding for a shame culture, for it is that which is rejected, that which represents falling into a bottomless pit. After all, the obverse of trying to abide by rules and experiencing guilt when one fails is not experiencing deep shame. It is summed up in Proverbs 13:18. If you do not follow a disciplined path, you will end up impoverished and in disgrace, totally ashamed of yourself, but if you learn from your mistakes and listen to criticism, you will be honoured. “Poverty and disgrace befall him who spurns discipline, but he who keeps reproof will be honoured.” רֵישׁ וְקָלוֹן פּוֹרֵעַ מוּסָר וְשׁוֹמֵר תּוֹכַחַת

Shame is the hell Israel will be forced into if the nation fails to follow God’s laws. “They will put on sackcloth and be clothed with terror. Every face will be covered with shame, and every head will be shaved.” (Ezekiel 7:18) But if the Israelites can throw off shame, if the dry bones of those who live without hope can be infused with self-respect and discard shame, then “dem bones, dem bones, dem dry bones” will come to life with flesh and spirit. (Ezekiel 37)

Further, those who try to humiliate and shame me for my beliefs and my practices will, in the end, be shamed and feel shame deep in their souls and disgraced in their very bones. “Then my enemies will see that the LORD is on my side. They will be ashamed that they taunted me, saying, ‘So where is the LORD–that God of yours?’ With my own eyes I will see their downfall; they will be trampled like mud in the streets.” (Micah 7:10) Shame revisits the shamer. To be mired in shame is to be an eternal wanderer without direction, without hope and destined to live in the deepest darkness.

The opposite is escape from shame, escape from humiliation. If one escapes shame, escapes humiliation, if one is to grow flesh on one’s dried up and dead life, out of that dry ground one must grow into a tiny plant rising from the cracked and parched earth seeking self-respect and light, seeking to respect others. When I was a young man, I wrote a play that was produced called “Root Out of Dry Ground” (Isaiah 53:2) about that struggle. I was denounced from the pulpit of Canada’s largest synagogue for being a self-hating Jew. Especially some sects experts at shaming even though shaming is antithetical to the core of their religion.

Though one be humiliated, though one can be shamed, though one can be “despised and rejected of men; a man of sorrows, and acquainted with grief,” and though others turn away, despise the shamed one and refuse to come face to face with him (Isaiah 53:3), though we hide our faces from him; “he was despised, and we esteemed him not,” that is not the path, the light and the way. “Fear not, for thou shalt not be ashamed. Neither be thou confounded, for thou shalt not be put to shame; for thou shalt forget the shame of thy youth, and the reproach of thy widowhood shalt thou remember no more.”

אַל-תִּירְאִי כִּי-לֹא תֵבוֹשִׁי, וְאַל-תִּכָּלְמִי כִּי לֹא תַחְפִּירִי:  כִּי בֹשֶׁת עֲלוּמַיִךְ תִּשְׁכָּחִי, וְחֶרְפַּת אַלְמְנוּתַיִךְ לֹא תִזְכְּרִי-עוֹד.

Before we get to the story of Cain and Abel that we referred to earlier, it is important to properly understand the Adam and Eve story in Genesis. In the standard misinterpretation, Adam and Eve disobey God’s command, eat the fruit from the tree of knowledge of good and evil, experience deep shame and are expelled from the Garden of Eden. They experienced deep shame for their disobedience. They experienced deep shame for having sex with one another.

I have written many times on the phenomenology of this experience, and so I will try to be very brief. Adam is placed in the garden. He aspires to be like God, to say and there is. After all, he is given responsibility for naming things. Enamoured with his vocation, he is ignorant of his own body, its desires and its needs. He does not even recognize he is lonely. He does not even acknowledge his body as his own. He may have been a brilliant naturalist, but he was also one dumb dude totally ashamed of who he was as an embodied being.

God knew he was alone. Adam himself never recognized his needs or his loneliness. And, as I have written, loneliness is at the core of suffering from shame. Adam is ashamed and he does not even know it well before he eats of the Tree of Knowledge of good and Evil where eating thereof allowed him for the first time to know, to acknowledge that he was ashamed. Though God had created Eve in the same way as Adam, in Adam’s dream, in his fantasy world, Eve is merely a projection of his own flesh without a mind of her own, without a centre of self-determination. He does not recognize her. He does not respect her. He does not even respect his own body. So when his erect penis in the form of an othered Being, viewed only as a devious snake, seduces Eve, that penis is not his. It is a trickster who beguiles Eve. It is not Adam who had sex. He was taken off guard. He was led down the garden path. Adam takes no responsibility for his acts. He was too enamoured with being a disembodied mind to appreciate he was an embodied creature with feelings and attachments.

But his body, not his mind, saves him. It introduces, but only introduces him, to determining what is good and what is evil, to the world of ethics and not just the knowledge of external nature, to the world of prescriptions and imperatives and not just descriptions. It began with recognizing that he felt ashamed, ashamed that he was an embodied creature and not a disembodied divine Being. With this knowledge, he could no longer live in the illusory purely mental world of the Garden of Eden. He automatically was thrust into the real world.

The shame experienced is not because of disobedience of God’s instructions, for God had simply warned that IF you eat of the tree of knowledge of good and evil, you will no longer be able to live in a cut off disembodied world of the mind. You shall surely die and be reborn as a flesh and blood creature. Thou shalt not eat of the Tree of Knowledge of Good and Evil is not a categorical imperative. It is not even an imperative at all. A conditional anticipation is not an imperative. But because Adam had not yet eaten of the Tree of Knowledge of Good and Evil, he could not recognize the difference between a categorical and a conditional. He could not recognize the difference between an imperative and a descriptive generalization, especially one that referred to what could be rather than what is.

Nor were Adam and Eve punished for eating of the tree. The consequence followed as described, but the shame arose from the lie, from the cover-up, from the displacement of responsibility. Where they should have felt guilt about this projection, about the failure to respect who he was as an embodied mind and not a disembodied God, for who Eve was as an independent self-respecting human being, they covered up their flesh. They felt ashamed. This was the Fall, not eating of the Tree of Knowledge of Good and Evil. Having sex is not a sin. Denying who we are, blaming others are sins. And Adam was deeply immersed in shame long before he and Eve had sex.

The history of man in throwing off a metaphysics of shame and accepting a metaphysics of guilt defined by rules and discipline became an effort of thousands of years. The start, however was ominous. The children of Adam and Eve demonstrate this. If Cain and Abel no longer could see themselves as demi-gods, each could at least try to define themselves and be respected as the one chosen to be closest to God. This was the new fantasy that replaced the older one. How do you achieve that recognition? They follow the reverse path of the Greeks where humans are helped by the gods – in this case by second order gods. But for the Hebrews, men still aspired to be next to God and to be recognized as God’s second-in-command.

How to get there? Show your indifference to the best products of your physical labour. Sacrifice the best that you have made and produced with the labour of your body to God to gain that desired recognition. The farmer sacrifices the best of his grain and Cain asks for recognition for his labour and service to God. Abel, the hunter, the cattleman, the rancher, sacrifices the best of his herd. God gives the recognition to Abel. Cain, instead of understanding that recognition is a step backwards, a step backwards to dependency on nature, a step back towards the image of man as a disembodied being, goes into a jealous rage and feels totally shamed. He lashes out and kills Abel.

God punished Cain by ejecting him from society and not just the Garden of Eden. The pain experienced and acknowledged there had been a piece of cake. He becomes the wanderer, the individual without a settled home who will have to roam through the wilderness of dry bones and shame, but will eventually redeem himself on a higher plane as the founder of cities, of civilization.

I recognize that this is not the Genesis tale you were taught as children. But, I suggest, you were educated in a culture that esteemed shame as a tool of progress, of redemption, as a spur to salvation. Instead of a state that had to be abandoned and left behind totally. In Christianity, it will be left behind, but by and only through grace. As it is written in Timothy 1:12, “That is why I am suffering as I am. Yet this is no cause for shame, because I know whom I have believed, and am convinced that he is able to guard what I have entrusted to him until that day.” Suffering is redemptive. And one is freed from shame only be being accepted as one with Christ, a far more ambitious goal than that of either Cain or Abel, who wanted simply recognition from God. If Jesus is God and a person can be one with Jesus, then one can be one with God. And that is the only route to escape shame and sin because man is by nature a sinner. As Christianity teaches, a true Christian stands unashamedly only when he finds the cross and lives as one with the spirit of Jesus.

Instead of positing guilt and shame as belonging to opposite worlds, guilt is absorbed into shame and the Hebrews are characterized as inherently wallowing in shame, suffering from faithlessness because they rejected Christ as their saviour and as a reborn God.  However, if one is a Christian, one accepts Christ as one’s saviour and the route out of sin and shame; one rejects the Jewish belief that the rejection of shame requires you and only you to have respect for who you are and not depend on another for recognition. Accepting Jesus is not only not the route to salvation but the route to reinforcing a shame culture. So Christianity was built, not on Judaism as a brother religion, or Judaism as the source religion of Christianity, but as something which has to be buried and upon which the cornerstone of the Church of Christ has to be built. As Peter put it, “See, I lay a stone in Zion, a chosen and precious cornerstone, and the one who trusts in him will never be put to shame.” (2:6) Jews became shameful, but if you trust in Christ, you will never suffer shame.

The choice for Christians was either everlasting life in Christ or shame, everlasting shame. One escaped shame not through respecting oneself and who we are, not by respecting Others for who they are, but by accepting that Jesus is the one and only way to escape your life as a sinner. Sin was shameful and man was inherently a sinner and cannot escape sin without the grace of God through the assistance and mediation of Jesus. One had to confess one’s natural sinfulness. Instead of an expansion of spirit, one had to experience contrition. Unless one accepted that path of salvation, one was condemned to everlasting shame and contempt. So guilt, instead of being a regret for one’s own responsibility in offending a social norm, becomes a synonym for shame instead of its opposite. Guilt says you are unworthy and not that you are guilty for the specific act you did.

Thus, when David cries out to God not to be cast aside in shame and thrown into the pit with the wicked, this is interpreted as a request for grace when it is no such thing. It is a request that as a person I stand up on my own two feet, accept who I am and what I must do to be better, but reject, not accept, that one is inherently shameful; to reject not accept that one needs a mediator to accomplish this task, to accept that shame cannot be a tool of redemption, but must be cast off and left in the desert of dry bones unable to rise up with flesh on those bones and a smile on your face.

In a guilt culture, one is inculcated with norms. When one disobeys those implanted norms by digressions in one’s behaviour, one feels guilty, not for who you are but for what you did. In a guilt culture, one confronts another in private so as not to humiliate the other for her or his failure to follow those norms. And when those norms shift, then there are cultural clashes within ourselves and between us and others. But this requirement for discourse is not a cause for shame, but for rejoicing. For it creates the foundation for a dialogical society. This does not entail that guilt cultures insist on total conformity, but rather they insist on a second order set of rules for altering primary norms governing behaviour, in secular parlance, a constitution. The problems really occur when these second order rules themselves are in disarray or have lost their respect.

Now some would class shame cultures as those which esteem self-pride and honour, superficial appearances and upholding of those appearances. But that is just one instance of a shame culture and a pretty debased one at that. Deep shame cultures do not attribute shame merely to how we appear but to who we fundamentally are. We are born sinners. And it is only when we accept that, when we accept that we are totally dependent on a divine hand to escape from wallowing in sin and shame, that we can escape its quicksand effects.

But doesn’t Christianity require confession of specific misdeeds? Doesn’t Christianity require restitution? Yes, but only as a step towards being reborn only when one accepts that one is by nature a sinner. In contrast, guilt without shame is the feeling that arises within when we violate the ethical norms planted within, when we violate our conscience. An individual may suffer guilt even if no one else knows of that error of your ways. The feeling of guilt can only be eased by taking responsibility for what you did as when Judah confessed his previous failure to take responsibility for his daughter-in-law, Tamar, and when he made restitution. Guilt cultures rely on the internalization of external norms which become the enforcers of behaviour. Purely shame cultures rely on external sanctioning, external shaming, external humiliation. In a guilt culture, one has to learn to accept punishment for your misdeeds, but, at the same time, learn to respect yourself. Accepting responsibility for what you did is a first step. When you accept that  responsibility, when you make up for the error of your ways, when you make restitution, you can forgive yourself, and forgiving oneself precedes anyone else offering forgiveness. And to do that, you cannot and should not be humiliated in the process, you cannot accept self-denial, you cannot and must not be humbled.

If Christianity is such a shame culture, how come there are so many beautiful Christians? I went to St. Michael’s College after I left medical school to complete my bachelor’s degree. One of my best friends was Vince Kelly. I only learned several years after we graduated that this beautiful smiling soul had hidden his homosexuality from me. And when he owned up to it, he recognized that at the time he would and could not realize his dream of becoming Prime Minister of Canada. If he had only lived to see Premier Kathleen Wynne, a lesbian, become the leader of our government in the Province of Ontario. If only he had lived to see the Supreme Court in the United States recognize gay marriage. He would have been a great Prime Minister. He was an extraordinary terrific president of the student council at the University of Toronto, leader of the young Liberals and campaigner to be one of the youngest Members of Parliament when he ran in Smith Falls, his home town.

When I was in medical school, when I was still in pre-meds, in fact, in my first year, Father Gregory Baum picked me up at the corner of Lawrence and Bathurst in his little Volkswagen beetle as he was coming down from the Catholic retreat where he lived. He gave me a lift to the University of Toronto. By the time we reached the university, we had become friends. Though we would much later have a falling out over Israel, I never ceased to view him as a beautiful soul. His mother had been Jewish and his father a secular Protestant. He had been recommended by a fellow internee, Rabbi Emil Fackenheim, in the Canadian prisoner-of-war camps for German Jewish nationals, to explore attending St. Michael’s College because of his enchantment with the mediaeval world, though he would first earn his bachelor and master’s degrees in mathematics. St. Mikes then hosted the leading centre of mediaeval studies in the world. Gregory converted to Catholicism and, not long after I first met him, rose to be a very prominent theologian and advisor to Vatican II as a peritus or theological advisor. It was he who led the Catholic Church to recognize that the effort to convert the Jews, especially after the Shoah, was an effort in religious genocide and had to be abandoned.

When much more recently for twelve years I produced and hosted a television show called Israel Today, that show was financed by evangelical Christians, not because, as many wary Jews suspected, they believed that the path to salvation required the resurrection of Israel, but because many of them had learned not only to love Jews but to love the Jewishness of their own faith. When one watches President Obama at the service commemorating those killed in Charlotte North Carolina and leading the 5,000 collected there to celebrate the lives of those destroyed by a deranged racist, and Obama leads the multitude in singing Amazing Grace, one cannot help but admire and appreciate the positive and powerful spirit of that religion.

But it is not what it once was. And that is to the good. By and large and to a significant extent, it has left a theology of shaming and public humiliation behind. It has reconciled itself with its Jewish roots. In America with that country’s deeply religious faith in the American constitution and the rule of law, it has emerged there as a religion that stresses guilt for one’s specific misdeeds and the need to and possibility of recovering from error, including Whites recovering from their heritage of offences against Blacks, of heterosexuals for their offences against gays, from the White Man’s offences against the natives of North America.

But the genie of shame and humiliation has not gone far. It has become secular. It has been resurrected in our public life and on the internet in a much more virulent form.

We are all obligated to combat it wherever and however it appears.