Reasons 5&6: The Rule of Law and Israel

Ten Reasons Why I Will NOT vote for Bernie Sanders:

Part III Reasons 5 and 6 – The Rule of Law and Israel

by

Howard Adelman

Thus far I have pointed to Bernie’s ill targeted criticism of the major banks, his protectionist trade policies, his weak position on gun control and, most extensively, on his incoherent policies and performance on economic immigration, deportation, family reunification, the diversity visa lobby and, most importantly, his hesitancy and modesty in dealing with Syrian refugees. I could have spent much more time on the inadequacies and incoherence of his migration policies. For example, how could he:

  • Grant amnesty to illegal aliens but vote against bills to do just that only because they include no provisions against guest workers
  • Extend asylum to victims of domestic violence but not significantly increase the intake of Syrian refugee victims of state, rebel and terrorist violence
  • Expand the grounds for refugee claims by including victims of gang violence and include the credible fear standard for making an asylum claim while not recognizing victims of a different type of gang violence and credible fear when it comes to Syrian refugees
  • How can he enlarge the room for refugee claimants who can manage to get to the United States but keep resettlement of refugees at a minimal level so that the combination results in enhanced incentives for smuggling operations and illegal entry?
  • Oppose chain migration but support expanded family reunification
  • Supposedly support the high tech business sector but oppose their ability to import necessary skills and increase the pressure to relocate overseas while denouncing the out-migration of such firms
  • Oppose the visa lottery program but defend it in a speech in November 2015 “The Diversity Visa program is an enormous and inexpensive source of goodwill, affords potential immigrants with no family ties an opportunity to join our great nation, and is particularly important to African immigrants.”

I could go on, but I want to now focus on two additional reasons and complete the reasoning tomorrow, erring of necessity on the side of brevity because the New York primary is tomorrow.

Reason Five – The Rule of Law

Other than referencing Hillary Clinton’s legal problems with her use of emails when she was Secretary of State or Bernie Sanders’ legal challenge (successful) to enfranchise 17-year-old voters in the Ohio primary who will be 18 on election day, very little has been said about the rule of law, the system of laws and regulations that are the bedrock of a constitutional democracy and that apply universally to the wealthy and the poor, those in power and those who lack power, those in positions of formal authority and the vast majority who are not. As the saying goes, in a rule of law polity, the rules apply to the rulers as well as the ruled. This is true not only in the application of the law but in its creation. While Barack Obama was extremely cautious and modest in his use of executive powers to make law, what has become clear in Bernie Sanders’ campaign is that he would rely far more on the use of executive orders to override legislators.

This is a practice that was prevalent in both Venezuela and Brazil. The reality is that strong proponents of economic justice who blame rich economic elites for a country’s problems tend to see economic justice as trumping legal justice and procedures. Further, the more economic incentives and subsidies expand, whether on behalf of corporate interests or the needy, there is an increase in bureaucratic power. Though a strong and independent creative civil service is an essential component in a modern state, something the political right is blind to, it is also the case that  bureaucrats are susceptible to being corrupted by the economic inducements of the rich and powerful, to which Bernie is legitimately ultra-sensitive in the United States, but also to those who gain political power and envision enhanced control over different segments of the economic sector as the entry to greater economic and social justice, an entry point to undermining the rule of law and enhancing the power of individuals, including the President, and groups, a susceptibility to which Bernie seems insensitive.

Perhaps even more, but certainly as much, modern states need an honest, capable and efficient administrative apparatus, which attacks on government per se undermine. That civil service, and it is a service that must both remain civil and serve the universal interests of civil society, must retain a realm of initiative and independence to ensure the polity remains immune to both economic and crusading political predators. Unfortunately, there is a built-in tension between demands for the state to build the necessary infrastructure, provide the necessary services and incentivize both economic engines and individuals, as opposed to the temptation to turn these mechanisms into convoluted traps for inaction or, on the other hand, units for dispensing patronage and favouritism. Good government needs to walk that fine line between the Scylla of sclerosis and Charybdis of indulgences. From many of Bernie’s statements, one fears that he would remove the blindfold of justice and sail the ship of state into the rocks on either side of the straights as he attempts to maneuver the ship of state through the foaming waters of an unruly social environment.

  1. Israel

I could write on a number of political areas of foreign policy, such as Libya on which I have written a number of blogs, but I have chosen Israel because it is an arena I know well. Further, I have chosen to focus specifically on the degree to which Israel fights its wars in accordance with the norms of just war, an area on which I claim some expertise.  In the contemporary period, Israel generally and just war analysis more particularly has proven to be the Achilles’ heel of the Left. Bernie is the exemplification of the propensity of even the moderate Left, and Bernie is a card-carrying member of the moderate Left, to misunderstand and misrepresent Israel, a propensity exacerbated by a right in America which serves as a cheerleader of the Likud in Israel and is almost blind and deaf to the rights of Palestinians for self-determination.

In the corrected version of his original infamous editorial board interview, Bernie said, “I do believe that Israel…has every right to destroy terrorism. But in Gaza there were 10,000 wounded civilians and 1,500 killed. Was that a disproportionate attack? The answer is it was. As somebody who is 100% pro-Israel. In the long run, if we are ever going to bring peace… we are going to have to treat the Palestinian people with respect and dignity.”

In the reference to the cry about the numbers, he did originally say that, “my recollection is over 10,000 innocent people were killed in Gaza,” but soon corrected that to say 10,000 civilians had been wounded. So the outcry that there were only 1,400 or 1,600 killed according to even UN or Palestinian figures is beside the point. The real issue is that he referred to all the dead as “civilians.” Israel says there were only about 700 of the total of 2,130 killed. The UN and the Palestinians double the proportion of civilians killed. The reasons are clear. Youngsters under the age of sixteen are recruited by Hamas to serve in auxiliary positions as observers, runners, etc. When they die, they are counted as civilians. So are policemen who have a military role in Gaza. And since they do not wear uniforms, many militants can also be counted as civilians.

But the controversy over figures is both a distraction and an indicator. For the real issue is whether Israel’s response to the Hamas rocket attacks was disproportionate. Bernie on this point is dogmatic. “It was.” For him it is self-evident. Since there was wide-scale destruction, including destruction of apartment buildings and even hospitals, for Bernie it follows logically that the Israeli response, however much Bernie finds such a response in itself to be legitimate, is self-evidently disproportionate.

However, in the application of rules of just war and its conduct, a military action is disproportionate if excessive force is used to achieve a military goal. A military action is disproportionate if civilians and civilian facilities are attacked indiscriminately. The issue is not the quantity of destruction, but the procedures and mechanisms for minimizing civilian destruction.

In relation to the amount of force used to achieve a legitimate military objective, if the goal was forcing Hamas to sue for peace, as the United States did with Japan towards the end of WWII, then Israel would, at the very least, have to reoccupy Gaza. If the goal was deterrence, many would argue that insufficient force was used since the objective of deterring Hamas from targeting Israel with rockets has worked only for a limited time and then the practice has been resumed. If the goal was temporary deterrence and enhancing the protection of Israeli civilians and civil life without a significant cost in the lives of Israeli soldiers, then the proportion was probably about right, though I personally would have been very hesitant to use that much force. But then I am not a military officer or a politician charged with such a responsibility. And my wariness about the use of force probably ensures that I would be unfit for such a responsibility.

The issue is not treating the Palestinian leaders or the Palestinian people with respect and dignity. I think that Israel often falls far short of that standard in treating Palestinian civilians. The issue is whether Israel applies the standards of executing a just war sufficiently to protect the civilian populations in the territories where it is engaged in lethal and legitimate warfare both in general and in particular military encounters. By any measure that is objectively applied, Israel applies the rule of law in accordance with just war doctrine with greater attention to those rules than any other state, even the United States which also has high standards. Most countries, including the peaceable Kingdom of Canada, do not assign legal officers to military units to ensure that ethical considerations enter into targeting decisions. Israel does.

Of course the IDF suffers from the same tensions between the legal ethical officials and the commanders charged with winning a military battle as in any other army, but those ethical considerations are there and they are by and large effective. Bernie’s simplistic judgement that Israel practices indiscriminate warfare against the Palestinians is a calumny. That alone makes him unworthy to be the Democratic presidential candidate when Hillary Clinton is the alternative.

So when Bernie says that, “no one will fight for that principle (a right of self-defense) more strongly than I will,” and insists that Israel, “ has the right to live in freedom, independently and in security without having to be subjected to terrorist attacks,” he is not to be believed. For his credibility depends on delivery and execution, not just rhetorical adherence to a right. Further, when he boils the failures of the peace process down to the need to treat Palestinians with dignity and respect, he proves that he is not only self-delusional and  naïve, but is also ignorant of the machinations and positions of the various sides.

Opposing Netanyahu does not entail accusing those who have dealt with him as believing that Netanyahu is always right. Championing the cause of Palestinian self-determination does not require libeling Israel and its labours while assuring everyone that you cannot be engaged in libel since you believe in Zionism and support the Jewish right to self-determination. The reality is that the rights of self-determination of both Jews and Palestinians exist within a historical, political and ethical context and that does not easily boil down to simplistic sloganeering. It is not sufficient to oppose BDS, to condemn terrorism in general and Hamas in particular, to even criticize the bias of the Goldstone Report, but without really understanding its fundamental flaws. Bernie is certainly not an anti-Israeli zealot. He is a friend of Israel, but a weak friend with too simplistic a view of the dynamics of peace and war between Israelis and Palestinians.

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