Commentary on Bereshit 2

Commentary on Bereshit 2

by

Howard Adelman

In my comment on commentary last week, I set out a few of the premises of MY reading of the Torah:

  1. I believe in doing what commentators have done over the centuries, retelling the story in my own words.
  2. The story is about creation, about coming to be, about the beginning of that process through the interaction of God and earthlings.
  3. I pick up on one stream of interpretation that sees this creative activity, once nature has been organized, as the result of a partnership of a non-material Being and earthlings: “Let us create…” The process of creation is the story of the creation of two worlds, heaven and earth.
  4. I then take from this stream another even rarer stream – that the story is about God becoming; God not only creates history in partnership with man, but creates Himself in the process. God is
  5. Though I told the tale as if God is characterized as masculine without explication, this is also a premise that will be developed and explicated.
  6. I am fully within the tradition in seeing the narrative as being about tov and ra, goodness and evil.
  7. Then I became really idiosyncratic in depicting the character of God, for, in my understanding, God has the hubris to congratulate himself on what he does as Good, and in the case of creating human beings, as “very good,” a pronouncement that will soon prove to be not only very incorrect, but the first lesson: Let others pronounce and recognize the quality of what you do. It is not only a curse to make that pronouncement oneself, but it is itself a moral failing.
  8. So as I read the story, God in the process of co-creation has to also create the moral world and to make Himself as a moral being who has faith and compassion and a capacity for respect and reverence for the sanctity of life.
  9. But as I will again try to show, He only does so primarily through the mistakes of humans living in history as embodied creatures.
  10. God begins the process of creation by giving order to chaos; since humans are made in the image of God, they too have a responsibility to give order to chaos.

Ironically, as I will try to show, chaos and order turn out to be, not polar opposites which admit of degrees, but a process whereby chaos follows from order as well as precedes it. Put simply, as soon as we think we are on the verge of creating a new world order, beware for we will be introduced to a new type of chaos. This interpretation is offered, not because I have mastered Hebrew and Aramaic, know the Torah intimately and have thoroughly studied the commentators. It should be very evident that I do not write this commentary as a result of any claim to be an expert on either the text or previous commentators, but it is the way I find coherence and meaning in the text as well as a correspondence between what I read and how I interpret it.

The narrative does not move forward because men have an inherent propensity towards evil in the most customary interpretation. The new chaos emerges out of the limitations of what has previously been created. But, as in most traditional interpretations, it is about responsibility, beginning with God assuming all responsibility for what happens and assuming, because He is the creator, it must be good. Human beings initially assume none of the moral responsibility, but also assume that because God was the creator, what takes place must be good. Both have to learn that the true source of evil lies within this nearsightedness, this myopic view of the world.

So how do we reconcile Chapter 1 and chapter 2, for as everyone knows who reads the text, they appear to be contradictory? Chapter 2 begins with the consecration of the seventh day as a day of rest. The whole text is a process of embedding in the repetition of time, in embodied existence, the metaphor of the Torah story. But look how it starts, in complete contradiction to what I just wrote. Instead of a dynamic story about creation, that process is said to be finished; the heavens and earth were a totally completed product. The Torah is then not a tale of a process of both Heaven and Earth coming to be, but of what has been completed. Further, instead of worshiping and celebrating that dynamic process, the most celebrated day of the week emerges, shabat, the day that is said to be about rest. Further, it is rest, not creativity, that is made holy.

But read the text again. On shabat, God “rested from all the work of creating that he had done.” Not from the process. It was a day to look back, to reflect, to analyze what had just been completed. As we shall see, this applies to every new lesson and is why we read and re-read the text in an annual cycle. It is that reflection, that evaluation, which is holy. For it is a very different order of creativity, not one which ends as each of the first six days did in dogmatic conviction, but one which will challenge those dogmatic convictions in the most fundamental way. And the challenge is not one which proceeds sequentially – He created this, then He created that. Rather, it is about subordination rather than conjunction. Instead of this and that, we find: when this then that.  Each action has consequences.

Further, the Creator has a new name, Yahweh rather than just Elohim, the Lord God and not just God. He has a name with two yuds and two hehs, a God that doubles up on Himself, a world which is abbreviated and to the point as a yud, and open to interpretation as a heh. Instead of a story of coming into being, of creation, of bara, it is a story of fashioning, of constructing, of yatsar, in fact, of reconstructing. Words do not bring the world of material being into existence. Rather, through massaging words themselves, existence is given form and order. We are presented with a moral rather than a material order, the world of adam and not just adamah. The action, the verb is followed by its noun form. To die – a process – is followed by death, a final state. Ironically, that very fixed state will be the source of a new stage of creativity.

In reflection, as in commentary, the same story must be re-told, but now from a retrospective perspective. That retrospective focused on the last day of creation after God turned a planet into a thriving greenhouse from a moonscape. But suddenly instead of simple interpretation, we get a midrash, a story about the original story. In this version, God hives off a Garden called the Garden of Eden, seemingly rich and perfect in every way – most perfect because there is no apparent death, no awareness of death, just the richness of nature.

Second, instead of this day of rest being about a celebration about what had been created, God continues to create, but what God creates on the day of rest, on the day of reflection, on the day of re-examination, are not dichotomies and opposites, but particulars: the Garden of Eden first, then soon two unique and very different trees. But first the creation of earthlings is re-envisioned.

It is a very specific process: “the Lord God formed a man[c] from the dust of the ground and breathed into his nostrils the breath of life, and the man became a living being.” It is also self-evidently a different process. First, man is formed, that is fashioned and shaped rather than brought into being through words, So the dichotomy of male and female become a story of priority and subordination. Because we are now in the realm of reflection, in the realm of historical reconstruction of what has already taken place, in the realm of midrash, Second, instead of apparent dichotomy, it is our reconstruction of original creation that is taking place. Equality is transformed into a moral hierarchy through a different kind of temporal ordering such as occurs in dreams as well as nightmares. Third, the dichotomy is internalized, for instead of two from one, we have one out of two, man made from shaping his earthliness at the same time as he is infused with God’s spirit. This will be a story not about the coming to be of a natural creature alongside all the other animals, but of a unique being, about what it is like to be made in the image of God.

But first the two trees, the tree of life and the tree of knowledge of good and evil, two unique trees among all those that were created. Then the Garden of Eden is described as having four headwaters of one river. And we should recognize that we are being introduced to the four orders of interpretation, the four lenses through which the recreation of what has come about materially can be understood on the reflective plain. They are the headwaters of creative reflection:

  1. Havilah – gold, but also the precious onyx and aromatic resin – interpretation must be rich; it must smell right and sensible; it must pass the smell test;
  2. Gihon – comprehensiveness;
  3. Tigris – the boundary river for interpretation is not arbitrary, but has limits and is an example of order itself, not of sequential order but of framing;
  4. Euphrates – the longest of the rivers in Western Asia, u-fra’-tez, “the good and aboundingriver and, together with the Tigris, the defining river.

So in addition to interpretation being rich and sensible, in addition to it being comprehensive, it must have an order in space, a frame clearly defining an area of reflection, but, as well, an unfolding in time that goes on and on, an openness, a heh and not just a yud. We are now in a specific location of earth, in western Asia, but boundaried on the east to define the world of the Middle East.

We have our frame. What happens? Man is placed in the garden. Though resting from making the world, it is clearly a garden of enormous richness. The conversion of the natural world into a civilized and ordered one must be reconsidered, must be reflected upon, for that is the work of Eden. That is the work of shabat. But in doing this work, man is given a very specific warning – not a command. “You must not eat from the tree of the knowledge of good and evil (TKGE), for when you eat from it, you will surely die.” But, of course, as in all such narratives, a warning is merely a prediction of what is to come.

Then we have a sudden disjunction, or, at least, the appearance of one. God discovers everything is not very good. For, as He observes, “It is not good for the man to be alone. I will make a helpmeet suitable for him.” Adam does not seem to feel he is alone. God recognizes it. But why is woman characterized as a helpmeet, an ezer to and for him? Does this simply mean she is a helper, or does it mean she is someone who will help him meet both himself as an other, both to see himself as an object of reflection and not just an agent, and the other as an agent and not just an objectification of himself? If eating of the TKGE means having sex, why is there a warning of the great risk of sex?

Suddenly another switch. We are back in the natural world of the garden. Or so it appears. Adam is doing his proper work, giving order to the world in terms of language. He is a botanist and zoologist naming the various species of plants and animals. Using language, he is re-creating the world as experienced in front of us into an intellectual order, into a taxonomy. But he is a nerd who does not even have the sense to know he is alone. But his dreams tell him. In his dreams, God took one of his ribs and made woman. Woman is made from tsela, from man’s protective but fragile shield, from that which gives the body its structure, from that which embodies flesh and internal organs. Woman was seen and imagined as a projection of one side of man. Which side? Surely not consciousness, not the scientific side that went around the garden naming the animals and plants. Not the conscious side that saw the world as objects needing to be ordered. It must be the side of which he himself was not conscious, the protected side, the hidden side, the side that he did not recognize, the side that felt but was not even recognized by the other side. Adam did not even know he felt lonely.

So in his dreams, Eve was projected to be a person of feeling, an .objectification of a side of himself that he did not recognize. Eve was feeling; he was thought. In his objectification, Eve was not recognized as a subject, an agent in her own right. And he did not recognize himself as having feelings, as having passions, as a man who would leave home and marry and thereby make himself whole again. Man, not woman, is a bifurcated being, a being with no intercommunication between his right side and his left side, a being who does not know he has desires, but in his conscious life thinks that he is only a scientist who gives order to the world by means of language.

As an arrogant aside, when I read the Talmudic commentaries, it seems that virtually all the commentators are as pedantic and nerdy and oblivious to the plain meaning of the text as Adam was to his own feelings. This is not entirely accurate. Many of the commentators do note specific technicalities of the text which have a mine of revelations. For example, Rabbi Eliezer, the son of Rabi Jose the Galilean, noted the rhythm within chapter two moving back and forth between what he thought was generality and particularity, much as I described the shift from chapter one to chapter two. Where I described disjunctions, he noted connections. And there are connections, but not simply a connection between generality and particularity, but between a depiction of a state of being and the content of that state.

For example, verse 6 described a mist or fog rising from the earth and watering the whole garden while verse 7 moves to God forming man out of the dust of that same earth. I read this as first offering a clue that this is a dream sequence – we are in a fog. In the content of that dream sequence, God is seen as making man alone, not man and woman, and in the dream, man is an earthling into whom the breath of the holy spirit must be breathed. That breath gives life to the “dead” being that Adam has thus far revealed himself to be. In the dream, there is the world that the conscious self does not recognize, his embodied being, his being as a man of desire and passions, a being when the air and the earth combined to form fire, to form what can never be given form, fire and passion, a world that is first glimpsed in the fog of dreams.

In this type of pilpul of literalness, of the detailed analysis of the bark and the leaves of each individual tree, we do miss the forest for a tree. We miss the sweep and scope of the tale, the richness, and sensuousness, is missed, the real understanding of the headwaters of the long river of life are be missed. It begins with the period before the conjoining of man and woman when both, not just Adam lacked any shame.

So sex, pain, temptation, desire and most of all death – not the objects of consciousness but the subjective state of experience – now has to be brought forth.

Next week: Sex and the Origin of Shame

Goals and Significance of the Iran Deal

Goals and Significance of the Iran Deal

by

Howard Adelman

This past summer, John Robson wrote an op-ed in the National Post (17 July 2015) claiming that, “those most determined to stop Iran from going nuclear are most unhappy with the deal.” He went from that assumption to its presumed opposite, asserting that those most committed to the deal then must have a very different agenda than stopping Iran from acquiring nuclear weapons. He speculated that it might mean a desire to promote regime change provided that this happens before Iran goes nuclear in ten years. Or perhaps the real motive is a soft-headed rather than hard-hearted intent simply to delay Iran going nuclear for just ten years. (He did not write soft-hearted versus hard-headed, but if he so deliberately turns what is written on its head, he perhaps deserves the same treatment, even if only for a weak attempt at humour.)

However, ignoring the extreme misrepresentation for the moment, just look at the bad logic. To repeat, he insists that, “those most determined to stop Iran from going nuclear are most unhappy with the deal.” But is it not more valid to assert that those most unhappy with the deal are more determined to continue economically crippling Iran so it is less able to pursue its hegemonic program in the Middle East and enhance its extreme antagonism towards Israel? Are these goals not the primary ones rather than any determination to stop Iran from going nuclear? The presumption that Netanyahu and his ilk are the ones most determined to stop Iran from going nuclear is a presumption, not a fact, and I would argue a false one. Further, even if it was accepted that the extreme opponents of the deal are the ones most determined to stop Iran from going nuclear – a very questionable assumption indeed – it does not follow that this is the reason that they are really unhappy with the deal. Nor does it explain their actions, particularly Netanyahu appearing before the American Congress to try to persuade Americans to kill the deal. Netanyahu said, “I deeply regret that some perceive my being here as political; that was never my intention.” But how else can one describe the enormous effort the Jewish state put in to killing the deal. Motives can be overdetermined – to kill the deal, to prevent Iran from becoming an even more powerful economic and military power in the region, and even, perhaps, to heighten the political schisms already in America.

The false assumptions and illogic in reasoning is also to be found in the characterization of the proponents of the deal. While those proponents, as I indicated in my last blog, have a modest agenda focused only on making sure Iran does not develop nuclear weapons and that they have no agenda beyond that, the argument that they must have another hidden agenda, such as an illusionary expectation of regime change, does not follow from the argument that the opponents of the deal are most determined to stop Iran from becoming nuclear. It is both logically and empirically possible that the proponents and opponents are equally, or almost equally opposed to Iran not acquiring nuclear arms, but either side may have additional, and often very understandable and even commendable goals separate from that one, such as the fairly obvious one, that Netanyahu also has the goal of keeping Iran crippled economically.

Now I wish that John Robson were just an extreme example of a critic who is both illogical and misrepresents reality, but, unfortunately, this is not the case. He may teach history in Ottawa and be a journalist and documentary filmmaker, but he also may be one of the poorest critics of the accord. He, however, has lots of company, though many do not defend that opposition on the basis of sheer partisanship that is immune to wrestling with facts and rational argument.

Take another critic of the accord, Shimon Kofler Fogel, CEO for the Centre for Israel and Jewish Affairs (CIJA), the Canadian counterpart to America’s AIPAC. At least in his op-ed alongside John Robson’s, he says what he believes is wrong in his view of the deal, that it fails to leverage the diplomatic and economic pressure on Iran to reign in its hegemonic foreign policy goals and its extreme antipathy to Israel. He is absolutely correct. It does not do that. Further, all parties negotiating with Iran did not believe that was a feasible goal. But Fogel, though accurate about the non-achievement of the accord, is also guilty of false reasoning. If the weight of sanctions coerced the Iranian regime to come to the negotiating table, then, he argues, it follows that those conditions can and ought to have been used to modify Iranian foreign policy. But that does not follow at all, not only not for Iran, but for virtually all of the other representatives of the six nations negotiating with Iran.

The fact that Iran is the leading sponsor of terror in the Middle East (I personally think ISIS is, but Iran is horrible enough, and the point is not worth debating here), that it is a brutal regime with an enormous number of executions per year and extreme repression of its minorities, mainly Bahä.a’is, does not invalidate the value of the agreement. Fogel’s recommendation that relief from the sanctions should be tied to Iranian tangible progress on reducing Iran’s role as a state-sponsor of terror is disingenuous. For, to repeat, it was neither the goal of the negotiations nor one that any reasonably-knowledgeable person argues could be achieved by negotiations at this time. The agreement already allows for his other recommendations – continuing to define Iran as a state-sponsor of terrorism, continuing the criticism of Iran for its horrendous human rights record and the continuing use of sanctions for these reasons – quite separate from the provisions of the Special Economic Measures Act.

The goal of the negotiations with Iran was clearly spelled out in Obama’s first election platform, but particularly in the Prague Agenda articulated in an Obama speech in Hradčany Square of the Czech capital on 5 April 2009, which focused on Iran, not as a rogue state, not as a promoter of terrorism, not as a human rights abuser and, most of all, not as an intractable enemy of Israel. The focus was on promoting the peaceful use of nuclear energy and reinforcing mechanisms in the Nuclear Non-Proliferation Treaty. Obama was intent on reducing the risks posed by nuclear weapons while simultaneously supporting and promoting nuclear energy as an alternative for peaceful purposes.

The Prague Agenda included a broad swath of goals, many since achieved:

  • Negotiating a new START (Strategic Arms Reduction Treaty) with Russia to reduce their strategic nuclear arsenals by 30%;
  • Cancellation of the Bush plan to deploy ground-based strategic missile interceptors in Europe;
  • Restricting the strategic use of America’s nuclear arsenal to deterrence only;
  • Banning nuclear testing for the future.

The Prague Agenda included further restrictions on North Korea and Pakistan, but these have notably not been achieved. However, the goal of rallying international support and engaging Iran to resolve the crisis over its military nuclear program has now finally been achieved after over five years of work. The Majli, the Iranian parliament has just endorsed the deal. So has the Obama administration. “My administration will seek engagement with Iran based on mutual interests and mutual respect. We believe in dialogue. But in that dialogue we will present a clear choice. We want Iran to take its rightful place in the community.” (my italics) Israel wanted no such result for this regime.

Making the world safer from nuclear terror and reigning in Iran did not supplant the need for deterrence and a strong regional strategy. (It may have had an inadvertent impact on it.) Further, the achievement of such a goal of eliminating the prospect of Iran becoming a nuclear power had to meet a number of criteria:

  1. The strongest inspection and verification system ever;
  2. Elimination of advanced centrifuges and a significant reduction of older models;
  3. A virtual elimination of Iran’s stockpile of highly enriched uranium
  4. Sanctions relief as a quid pro quo;
  5. Spelling out repercussions in case of violations.

A further word is needed on the prospect of regime change in Iran and transformation of its confrontational ideology. Paul Berman in The Tablet on 15 July 2015 focused on a single paragraph in Obama’s speech about the conclusion of the Iran deal. Obama stated in reference to U.S./Iran relations, “Our differences are real, and the difficult history between our nations cannot be ignored. But it is possible to change. The path of violence and rigid ideology, a foreign policy based on threats to attack your neighbors or eradicate Israel – that’s a dead end. A different path, one of tolerance and peaceful resolution of conflict, leads to more integration into the global economy, more engagement with the international community, and the ability of the Iranian people to prosper and thrive.”

Paul Berman insisted that this one paragraph was crucial because, “if a change among the Iranians is not, in fact, possible, then Obama’s critics are right. The deal will turn out to be a disaster because, in the short run, it will strengthen the Islamic Republic conventionally and, in the long run, will strengthen the Islamic Republic unconventionally – and, all the while, the Islamic Republic will go on treading the dead-end path of violence and rigid ideology and the dream of eradicating demonic enemies. It is hard to imagine how, under those circumstances, the deal will reduce the chances of war. On the contrary, Iran’s endangered neighbors will contemplate their own prospective eradication and will certainly notice that time is against them, and they would be foolish not to act.”

It is one thing to argue that regime transformation may take place as a result of the deal and the insistence that it must take place or else the deal is more than worthless for it will enhance the prospect of war in the region. Obama made the former claim. Berman extracted from that slim possibility and transformed it magically into an absolute necessity. In that case, then the nuclear containment deal to peaceful uses is only as good as the strength of the possibility of transformation of the Iranian regime. That is clearly not Obama’s position.

It is and was certainly not the goal of the Iranians who stood steadfast in the opposition to the “arrogant” U.S., “the policies of which they viewed to be at 180 degrees to their own. The U.S. remained as the “Great Satan” ever after 18 months of negotiations. Israel remained its implacable enemy. Though Supreme Leader Ayatollah Ali Khamenei insisted that the deal was only about guaranteeing that Iran could continue its peaceful program of developing nuclear energy and had no wider goals, Iranian President Hassan Rouhani insisted there was another aim: opening a new chapter of cooperation with the outside world after years of sanctions. He predicted that the “win-win” result would gradually eliminate mutual mistrust. Similarly, Foreign Minister Mohammad Javad Zarif also saw the deal as going beyond the nuclear arrangements and hopefully could lead to greater regional and international cooperation.

What have Benjamin Netanyahu’s goals been in rejecting and criticizing the negotiations with Iran over its nuclear program? Let me go back to his address to a joint session of Congress, not the one earlier this year, but the one he delivered on 24 May 2011 before the negotiations got underway and when the Arab Spring remained a gleam in many eyes, including Netanyahu’s. Though most of his address focused on the negotiations with the Palestinians, a small portion of his remarks addressed the question of Iran. Iran was depicted as the most powerful force in the Middle East opposed to modernity, opposed to democracy and opposed to peace. Here are Netanyahu’s words verbatim:

The tyranny in Tehran brutalizes its own people. It supports attacks against Americans troops in Afghanistan and in Iraq. It subjugates Lebanon and Gaza. It sponsors terror worldwide.

When I last stood here, I spoke of the consequences of Iran developing nuclear weapons. Now time is running out. The hinge of history may soon turn, for the greatest danger of all could soon be upon us: a militant Islamic regime armed with nuclear weapons. (my italics) Militant Islam threatens the world. It threatens Islam. A nuclear-armed Iran would ignite a nuclear arms race in the Middle East. It would give terrorists a nuclear umbrella. It would make the nightmare of nuclear terrorism a clear and present danger throughout the world.

These were not Obama’s words, but those of Netanyahu. Then he came across as the most vocal champion of ensuring that a militant Iran did not possess nuclear weapons. Just over seven months later, in the 2012 new year, when the U.S. led the successful charge to impose new and tough sanctions against Iran’s oil and banking industry as the “only” diplomatic measure that could force Iran to the negotiating table, after President Obama signed legislation imposing sanctions against Iran’s central bank to impede Iranian oil sales and the EU put plans in place for an oil embargo, this goal was no longer sufficient for Netanyahu. The consequent weakening of the Iranian rial led Iran to state that it was willing to permit a visit by a team from the International Atomic Energy Agency (IAEA) which, independently of the world powers, had suggested that Iran was working towards acquiring the ability to make nuclear weapons. As the goal of dismantling Iran’s nuclear weapons came nearer, Netanyahu’s pitch shifted.

There was one discordant note at the time. Israel wanted the U.S. to warn Iran that if the sanctions and diplomacy failed to get Iran to abandon its nuclear program, the U.S. should warn Iran that the U.S. would resort to military means to stop Iran. While not ruling out such a possibility, the U.S. refused to threaten Iran if negotiations failed. In contrast, Netanyahu, while applauding the new economic sanctions aimed at stopping Iran’s military nuclear program, insisted that only if the sanctions were combined with the threat of military action would the effort succeed. Netanyahu was proven wrong. It succeeded beyond most expectations. No threat of military action was necessary.

That note threatening military action grew far more shrill when Netanyahu, during the period in which he was struggling to put together a new coalition government, addressed an AIPAC Policy Conference in March 2013. After the usual praise for the President and Vice-President of the U.S., after the accolades to the government of the United States as Israel’s best and most steadfast ally, Netanyahu now insisted far more vociferously that sanctions were insufficient and that Iran needed to be militarily threatened.

Iran has made it clear that it will continue to defy the will of the international community. Time after time, the world powers have tabled diplomatic proposals to resolve the Iranian nuclear issue peacefully. But diplomacy has not worked. (my italics) Iran ignores these offers. It is running out the clock. It has used negotiations to buy time to press ahead with its nuclear program. Thus far, the sanctions have not stopped the nuclear program either. The sanctions have hit the Iranian economy hard. But Iran’s leaders grit their teeth and move forward. Iran enriches more and more uranium.  It installs faster and faster centrifuges Iran has still not crossed the red line I drew at the United Nations last September. But they are getting closer and closer to that line. And they are putting themselves in a position to cross that line very quickly once they decide to do so. Ladies and Gentlemen, to prevent Iran from developing nuclear weapons, we cannot allow Iran to cross that line. We must stop its nuclear enrichment program before it will be too late.  Words alone will not stop Iran.  Sanctions alone will not stop Iran. (my italics) Sanctions must be coupled with a clear and credible military threat if diplomacy and sanctions fail.

From March 2013 until November 2013 when the negotiators were on the verge of a tentative deal with Iran, and with the US Senate poised to authorize new sanctions, and after Obama phoned Netanyahu to ask him not to oppose the deal, Netanyahu did just that, openly opposed the deal by phoning all the other leaders asking them to block it. French President François Hollande agreed. The French Foreign Minister, Laurent Fabius, carried the message to his colleagues in the negotiations which bought time for Israel to take further steps to try to stop the deal after Netanyahu had failed to persuade John Kerry at Ben Gurion Airport not to loosen sanctions without the Iranians agreeing to halt the nuclear project altogether. The sticking points then were Iran’s stock of enriched uranium and the heavy water reactor at Arak that could produce plutonium from spent fuel.

The delay turned out to be temporary only. On 24 November 2013, an interim agreement, called the Joint Plan of Action, was agreed upon in Geneva that provided for a short-term freeze on much of Iran’s nuclear program in return for a decrease in the economic sanctions against Iran, the agreement to commence on 20 January 2014. Iran agreed not to commission or fuel the Arak heavy-water reactor or build a reprocessing plant to convert spent fuel into plutonium, agreed not to commission the Bushehr Nuclear Plant, the Fordow Fuel Enrichment Plan, the Isafahn uranium-conversion plant, the Natanz uranium-conversion plant and the Parchin military research and development complex. Iran also agreed to stop enriching uranium above 5% reactor-grade, and to dilute its stock of 20%-enriched uranium. As well, Iran agreed not to increase its stockpile of low-enriched uranium and to leave half its 16,000 centrifuges inoperable, all this to be verified by more extensive and frequent inspections.

That is when Netanyahu first labelled the deal a historic mistake and became an implacable foe to the negotiations. But not because it left Iran as an implacable foe of Israel. Not because of Iran’s hegemonic ambitions in the region. Those reasons would come later. At that point the deal was opposed because it did not dismantle Iran’s nuclear capacity altogether. In other words, Netanyahu now opposed Iran even having the ability to use nuclear energy for peaceful purposes.

Netanyahu had upped the ante and produced a deep gulf between Israel and the P5+1, for the premise of the negotiations from the get-go was that Iran would be allowed to use its nuclear knowhow and facilities for peaceful purposes. In his speech to the Knesset on the Plan of Action, Netanyahu admitted that sanctions without a military threat had, in fact, produced significant and successful results, but the deal was still bad because the results were not tangible. Effectively shutting down Iran’s nuclear military production was insufficient.

From then on, the line of attack grew more shrill, more definitive, and the grounds expanded until the bulk of the weight was not on the efficacy of inspections or the length of time Iran’s military nuclear program would be in place, though these were always there and were almost always deformed with less and less resemblance to the actual terms of the agreement. It soon became obvious and clear that Netanyahu was not really after an agreement that halted the possibility of Iran developing nuclear weapons, but that he opposed the deal because Iran without nuclear arms would be an even more dangerous foe of Israel. However, preventing Iran from using its facilities for peaceful purposes had never been a premise of the negotiations or there never would have been any negotiations. Further, that goal of dismantling Iran’s nuclear facilities altogether had not been Netanyahu’s goal eighteen months earlier.

Netanyahu was now engaged in gross exaggeration if not an outright lie. “Today the world has become a much more dangerous place because the most dangerous regime in the world has taken a significant step toward attaining the most dangerous weapon in the world .” (my italics) This is a bad agreement; this is a historic mistake. This became his mantra. Both were evaluations of a very dubious nature as more and more information emerged about both the Action Plan and the terms of the ongoing negotiations. Netanyahu’s efforts to weave his new critique and reconcile it with his old support for simply a ban on Iran’s ability to make nuclear weapons was skating on thinner and thinner ice. The release of the final agreement in July allowed him to fall through the ice, but the freezing water has not reduced the pitch of his hysteria one iota. Netanyahu had established to any objective observer, as distinct from his horde of cheerleaders, that he was not the one most opposed to Iran developing nuclear weapons; he wanted to keep Iran impoverished for very understandable reasons given Iran’s irrational and extreme antipathy towards Israel.

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

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.

William Schabas: Was He Pushed or Did He Jump?

William Schabas: Was He Pushed or Did He Jump?

by

Howard Adelman

On Tuesday, Prime Minister Benjamin Netanyahu called for scrapping the U.N. commission looking into Israeli actions last summer in Gaza since the Geneva-based U.N. Human Rights Council is an “anti-Israeli body” that had a proven track record of doing nothing about true human rights violations around the world. So why submit evidence to undermine the Chair of an inquiry into the last Gaza War at this time? And why submit it to the UNHRC and not just to the media?

In answer to the latter question, Israel lends some legitimacy to the UNHRC in submitting its information to it. At the same time, Israel wins brownie points with the UNHRC by giving the UNHRC 2-3 days advantage before the issue and the new evidence became public. Further, Israel recognizes that it cannot stop the inquiry. Israel will criticize the results, but this initiative gives the appearance of being less subversive of the proceedings of the UNHRC. No matter what the report says, because of the extreme bias of its sponsors and the absence of Israeli cooperation, any inquiry is bound to be seriously compromised. But, in the end, Israel would prefer a report that was less rather than more unfavourable. For the report becomes a reference point over time and not Israel’s denunciations. Since the report is at the writing and not the investigative stage, Israel would prefer a report less anti-Israel than one written by Bill which Israeli professionals saw as the most likely result.

I believe the key reason is to be found in the announcement of Rolando Gómez, a spokesman for the U.N. Human Rights Council, that accompanied the information on Bill Schabas’ resignation that current commission member Mary McGowan Davis would replace Schabas as chair and not Doudou Diène who, with his post-colonialist mindset and conviction that Israel is a late colonial outpost of the West, would be even more anti-Israel than Schabas. Davis was a third late appointment announced on 25 August, whereas William Schabas and Doudou Diène’s appointments were announced two weeks earlier on 11 August. This was a result of the farcical announcement by the UNHRC that Amal Alamuddin, a British-Lebanese lawyer and George Clooney’s then fiancée and now wife, was the third appointee. Amal Alamuddin issued a press release the next day insisting that she had never agreed to sit on the inquiry. The head of UNHRC, Navi Pillay, was left with mud all over her face.

Davis is a former prosecutor from New York, has been a New York Supreme Court judge (1986-1998) and has served the UN in a number of legal capacities – working to strengthen the public defender’s office in Afghanistan in 2004 and 2005 to mentor and to hone the analytical and trial advocacy skills of Afghan lawyers representing detainees in the local prisons. In the International Criminal Tribunal for Rwanda, she served as a consultant and offered trial advocacy training programs for prosecutors there. Her CV also lists her as doing work in Cambodia and Sierra Leone, but I do not know what she did on the crimes against humanities, human rights abuses and the war crimes investigations there. One of her very interesting observations is that, “courts that operate beneath the radar screen like this one in Kamituga (in the Democratic Republic of the Congo) are of equal or, perhaps, greater value” than the formal court system.

Her experience, however, culminated in her own post-Goldstone investigation of whether Israel had conducted satisfactory investigations of all charges of war crimes and crimes against humanity in the previous Gaza War. She had strenuously insisted that her inquiry had not been influenced by the Goldstone Report and was entirely independent. “Our work was completely separate from his work.” Her strenuous and adamant insistence on separating her report from that of the Goldstone Inquiry was the first initial promising sign that it might be fair.

McGowan Davis and Swedish Judge Lennart Aspergren (who served on the International Criminal Tribunal for Rwanda) also submitted their report to the United Nations Human Rights Council, but insisted that it was vastly different from the Goldstone effort. Even though they did hold hearings with victims of Israeli and Palestinian violence, their report was not intended and did not investigate Israeli military action in Gaza. Their mandate was to investigate and evaluate the respective Israeli and Palestinian investigations of claims of human rights abuses. The report began by praising the Turkel Commission inquiry into abuses in the May 2010 flotilla raid and the outstanding quality of that report which proved that Israel was capable of great impartiality and zealotry, even probing high-level decision making.

However, the inquiries into the conduct of the IDF in Operation Cast Lead did not match that standard. Of 400 investigations of claims of operational misconduct, few led to disciplinary action. Of 14 investigations into human rights violations, only two led to criminal charges. Further, right up until the publication of their report, Israel had not probed executive decisions related to Operation Cast Lead. Davis and Aspergen also criticized Israel for tardiness and lack of transparency. The report made no recommendations on reference to the International Criminal Court, but the UNHRC used the report to refer Israeli action in Operation Cast lead to the ICC.

Given the possible explanation that Israel wanted to see McGowan Davis replace him as chair, why did Bill resign, not only as chair but as a commissioner, for he then will have no input into the writing of the report? The following different reasons have been proffered for the resignation:

  1. The Protection Rationale

1.      Bill’s work in defence of human rights made him a huge target for malicious attacks, and this was but part of those attacks.

2.      “The situation in the committee became unbearable and I did not want the personal attacks of Netanyahu and Lieberman to detract from the truth, which will give justice to the victims.”

3.      “I resigned so that the personal attacks from Netanyahu and Lieberman do not affect the report itself”

4.      Schabas resigned so that the personal attacks by Netanyahu and Lieberman do not affect how the Report is received.

B.     The Impact on the Process and Work of the Inquiry

1.      The Israeli filing of the information led to the Human Rights Council’s executive on Monday seeking legal advice about his position from U.N. headquarters. In making this reference, customary practice requires stepping aside until the legal opinion is received.

2.      “I believe that it is difficult for the work to continue while a procedure is underway to consider whether the chair of the commission should be removed.”

  1. The claims from Israel that he was not objective led to the development of an investigation by the UNHRC, and this investigation led to his resignation.
  2. The resignation was the result of “the huge pressure Israel and the Zionist lobby put on the committee and its chairman” according to Hamas spokesman, Fawzi Barhoum; Palestinian official Hanan Ashrawi decried the Israeli efforts as “typical Israeli tactics” in which, “They try to intimidate, they try to slander, they try to discredit, they make it extremely difficult for anybody to take any position that would hold Israel accountable or investigating Israeli violations or Israeli war crimes.” Barhoum added that the Israeli pressure “is meant for impunity and killing the truth.”

Bill viewed his resignation as necessary to protect human rights, ensure justice for the victims (of Israel), protect the report and protect how the report is received. But it is difficult to see how his resignation could be helpful in any of these respects. Certainly, the resignation removes a distraction for the work of the commission, but how does it enhance human rights, victims’ justice, the report itself or its reception? Ironically, the latter two claims may have a degree of accuracy. For, I believe, in McGowan Davis’ hands, the report will both read more impartially, be more judicious and be received better even though Netanyahu and company are bound to jump on it no matter who writes the report or what it says. Thus, the report is likely to receive, relatively at least, a better reception. This may not have been Bill’s intention when offering the reasons for his resignation, but I suggest that this was both the reason for the Israeli action and the result of Bill’s resignation.

On the impact of the resignation on the process rather than substance of the inquiry, I see not one whit of truth that this was an exercise in political pressure or Israeli intimidation and such charges only discredit the people who make it. Israel not only had a right but a duty to present its evidence. Whether the evidence was sufficient to establish a conflict of interest is another thing. The resignation had nothing to do with charges that Bill would not be objective since that charge had been made repeatedly since his appointment both by friends and enemies of Bill’s. This item in that context seemed totally trivial, except that the issue was not about impartiality but about an alleged conflict of interest. Would the investigation of the legal office have intruded on the commission’s work? Only to the extent that Schabas would be expected, in these circumstances, to temporarily step aside. In that case, he could not influence the writing of the report in any case unless the UN lawyers responded quickly and exonerated Bill, but that is not their custom. So Bill was likely dead in the water anyway.

But his resignation comes at great cost to himself and at some cost to the credibility of the report. For Bill has not had his day “in court” as it were to prove he was not in a conflict of interest, hence leaving a bloody spot that, however much he will hereafter cry, “Out, out damn spot,” will colour his future career. But in the past, he has suffered far worse. And the resignation, except in so far as it improves the perception of impartiality of the report, is bound also to stain how it is received. An independent investigator to assess quickly whether Bill was in a conflict of interest would have better served Bill as well as protected the report in a better fashion.

However, that would entail a risk for the independent counsel might have concluded that Bill was indeed in a conflict of interest and that would have burdened the report with a much larger stain. So given what has happened since, given that Bill was between a rock and a hard place so that whatever choice he made, the outcome was not good, I believe he chose the less risky one precisely for the reasons he said, even if those reasons are unlikely to offer the protection he would like. But the succession might to some degree.

Bill Schabas’ Resignation

Bill Schabas’ Resignation

by

Howard Adelman

The rest of the documentation of Boko Haram’s atrocities in Nigeria will have to wait. William Schabas resigned three days ago as chair of the UN Inquiry Committee into the actions of both Israel and Hamas in Operation Protective Edge that took place in 2014. I have been mentally pre-occupied with the issue ever since, even though I was determined to complete this mini-series of blogs on Boko Haram in Nigeria. Why the urgency?

There is none. I will complete the Boko Haram documentation. An analysis of America’s involvement in Libya and the quadrangle of Jerusalem, Tehran, Buenos Aires and Washington have been waiting in line. But the line suddenly became longer. Further, in resigning, Schabas and the UN inquiry jumped to the front of the queue. Objectively, I could have waited. The investigative portion of the committee’s work had just been completed. It was beginning its writing phase. The report is due for completion next month. Nothing hangs on a quick write-up. Why now?

The reasons are internal, not external. Bill Schabas is a friend. I have been very critical of his appointment and his acceptance of that appointment. I am pleased he resigned and told him so. I know of his anti-Israel bias which I documented in an earlier blog (https://howardadelman.com/2014/08/12/bill-schabas/ ‎). I have been convinced that the bias could not help being infused in the report. It was not a simple bias. After all, in the past he has called for Netanyahu’s indictment as a war criminal and compared President Bashir actions in Darfur to those of Shimon Peres in dealing with the Palestinians. He disagreed that his past statements and positions should make him ineligible to take the position or that they would impair his impartiality. I could not disagree more. Now, I will never know whether I am correct. But that is not the reason for my current obsession with his resignation. I am simply puzzled by the timing, why Bill seems so easily to have fallen off the wall like Humpty Dumpty and the implications for the commission’s report.

I wrote Bill to ask if he wanted to share with me any information or elaborate further on why he resigned. He wrote back and said that he chose not to. So this blog is based on information accessible to everyone.

Before I analyze Bill’s resignation this week, let me summarize what I wrote in my previous blog after Ambassador Baudelaire Ndong Ella of Gabon, on behalf of the UN Human Rights Council (UNHRC), on 11 August 2014 announced that William A. Schabas had been named chair of a new panel of international experts charged with investigating “all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory, including East Jerusalem, particularly in the occupied Gaza Strip, in the context of the military operations conducted since 13 June 2014.”

First, I was critical of the terms of reference of the commission which included East Jerusalem and the West Bank as well as Gaza, defined Gaza as an occupied territory, insisted the commission investigation begin on 13 June 2014 when Operation Protective Shield was launched and not when Hamas started raining rockets down on Israel, specifically excluded mentioning Hamas actions as part of the explicit terms of reference. The commission was instructed to, “establish the facts and circumstances of such violations and of the crimes perpetrated and to identify those responsible, to make recommendations, in particular on accountability measures, all with a view to avoiding and ending impunity and ensuring that those responsible are held accountable, and on ways and means to protect civilians against any further assaults.”

Bill Schabas, I explained, accepted his appointment in spite of the self-evident bias of the UNHRC because Bill himself was biased as was a fellow panelist, Doudou Diene, a former UN prosecutor and “Special Rapporteur on Contemporary forms of Racism, Racial Discrimination, Xenophobia and related intolerance”, a scholar from Senegal. He had spoken at an anti-racism rally on 14 May 2009 and declared that, “racism is rooted in slavery and colonialism, including settler colonialism.” Israel’s occupation of Palestine continues a tradition of settler colonialism and racism, he insisted.

Israel refused to cooperate with the commission because of the partiality of Doudou Diene and Bill Schabas. I have had one impassioned argument in the past with Bill over a colleague, Christine Chinkin, Professor of International Law at the London School of Economics and Political Science, who accepted a position on the Goldstone Commission, more formally, the United Nations Fact Finding Mission on the Gaza Conflict, even though, just prior to her appointment, she had written and pronounced judgment on Israel as criminal, the very same actions she was now asked to consider impartially as a member of an international inquiry. I argued that Christine should have recused herself and, if she did not, Richard Goldstone should have submitted his resignation. I argued, as did many others, that the reasons the commission was set up, the formulation of its mandate, the individuals appointed to it, the timeline boundaries, as well as many other factors indicated a strong perception of bias. The perception of bias was there for all to see when Richard Goldstone withdrew his own support, after the report was issued, from the claim that Israel intentionally targeted civilians (1 April 2011), but the three other members strongly criticized their own colleague, Richard Goldstone, for his retraction.

Bill insisted his colleagues were capable of acting as impartial judges in spite of their very strong assertions of guilt prior to their appointment. When he was appointed chair of the latest inquiry into Gaza, he repeatedly insisted he was capable of the same impartiality and lack of bias in spite of his previous strong written and oral condemnations of Israeli actions. He strongly defended to me and others his right to assume the position and insisted that he would ensure that the committee of inquiry proceeded in an impartial manner. At the same time, Bill has previously argued that impartiality is a misleading and even destructive criterion in drawing up commissions of inquiry or tribunals or selecting their agendas. For Bill, all international law is inherently political. Hence, in spite of his repeated pronouncements many times on Israel’s international criminality, he saw no need to recuse himself because “he is a scholar with integrity.”

Bill has in the past not only called for both Netanyahu and Peres to be prosecuted for crimes against humanity as I indicated above, but has also defended the Durban conference on racism. He has been accused of characterizing President Mahmoud Ahmadinejad of Iran as only a “provocative politician,” and paying no attention to his role as a persecutor of Baha’is and his being a notorious anti-Semite. These charges, which I myself previously repeated, are incorrect. Bill did serve as one of six commissioners on the Iran Tribunal Truth Commission from 18-22 June 2012. (http://www.irantribunal.com/index.php/en/sessions/truth-commission/306-findings-truth-commission) That commission reported on the heinous abuses in the arrests, brutal tortures and mass executions carried out by the regime between 1981 and 1988 and the impact of these brutalities on the families of the victims and the survivors of the torture and imprisonment.  The Truth Commission concluded:

“These violations of human rights were devised, instigated and executed (or caused to be executed) by a single central authority and as such the Islamic Republic of Iran is the only authority responsible for these acts.”

Bill has not been an apologist for Ahmadinejad but, in his most recent trip to Iran, accompanied Sandra Schulberg, producer of Nuremberg, Its Lesson for Today screening of the film for young Iranians. In the lion’s den, he spoke about the horrors of the Holocaust and the importance of the values of the Nuremberg trial in combating historic anti-Semitism. Though Bill is unquestionably very critical of Israel, he is neither an apologist nor one who even ignores anti-Semites.

That said, I have three major questions, at this specific point in time, why did Israel choose to present the United Nations Human Rights Commission with the key evidence that led to Bill’s resignation? Second, why was it sufficient to force Bill Schabas’ resignation? Third, what is the significance of the resignation since Bill insists that the report will not be affected by his resignation, and will be published as expected at the beginning of next month. Foreign Minister Lieberman of Israel agreed. For Lieberman contended that Bill’s resignation is not expected to change the contents of the report, but nevertheless celebrated Bill’s resignation as “a diplomatic achievement for Israel and the activities of its foreign ministry.”

Let me begin with what I find most puzzling – Israel’s decision to present evidence to a United Nations Human Rights Council with which it is not cooperating and which is purportedly not expected to change the content of the report. So why now? Why not wait until the report is issued and use the information collected to undermine the report when it is issued? Why choose this time if Israel’s actions are not expected to undermine the results? And why celebrate the resignation as a diplomatic victory? What was the evidence Israel presented three days ago to the UNHRC that set in motion Bill’s sudden resignation?

Israel had lodged a complaint before the UNHRC accusing Bill of “clear and documented bias against Israel,” specifically citing a “contractual relationship with the Palestinian side” prior to becoming head of the commission. Israel put before the UNHRC evidence that Bill had received $1,300 for a legal opinion he wrote for the Palestine Liberation Organization in 2012, an action which Bill acknowledged in the press conference at his resignation, but insisted that the opinion he wrote was of a “technical legal nature” drawn from scholarly work he had published and that he had not been hired or paid as an advocate on behalf of the PLO. It was no different than advice he had given to many other governments and organizations. Further, he insisted such advice constituted only “a tiny part” of what he called “his body of academic work.” In his letter of resignation, he admitted that he had written,

“a legal opinion for the ‘Negotiations Affairs Department/Palestinian Negotiations Support Project’ of the Palestine Liberation Organisation. The legal opinion was to consider the consequences of a UN General Assembly resolution upgrading Palestine’s status to that of a non-member state on the declaration that was lodged by Palestine with the International Criminal Court in January 2009. It also addressed whether accession should include acceptance of the amendments to the Statute adopted at Kampala and how the territorial jurisdiction of the Court might be applied. These are matters on which, as one of the academic specialists on the subject of the Rome Statute, I have frequently expressed myself in lectures and in publications. A 7-page opinion was provided on 28 October 2012 and I received remuneration of $1,300, as previously agreed. I have done no other consultation and provided no other opinions for the State of Palestine, the Palestinian Liberation Organisation or any other related body.”

So why did he accept the commission and why did he charge $1,300 if the advice was freely available by reading Bill’s writings? Why had Bill not disclosed this possible conflict of interest earlier to the UNHRC? Bill explained that he had not been asked to detail his consultancy work when he was appointed (curious indeed!), that, his views on the Israeli-Palestinian conflict had been well known and that he had pledged to serve “with independence and impartiality.” As he continued,

The complaint about my brief consultancy, as I understand it, is not about the content, which is of a technical legal nature, but the implication that in some way I am henceforth beholden to the Palestine Liberation Organisation. Perhaps there is also the suggestion that I might tailor my opinions in one direction in order to generate more such consulting for remuneration. If I were indeed motivated by financial gain, it would be hard to explain why I would have accepted the position as Chair of the Commission of Inquiry, to which I have gladly devoted several months of work and for which there is no remuneration whatsoever.

But in the complaint registered, there is no suggestion that he has been motivated by financial gain or that rendering the opinion would influence his future judgments about Gaza and Israel’s role. That is a red herring. This issue is one of an apparent conflict of interest. And that is quite separate from his past partial opinions on Israel and the question of whether he could be impartial in his current role. For impartiality is an ethical issue. An alleged conflict of interest is a legal issue. In law, accepting such a fee, on the surface, should disqualify one from accepting a role as a judge. And one cannot offer the excuse that the fee was for an opinion to the PLO, not Hamas, for the mandate of the commission included investigating Israel’s actions in both East Jerusalem and the West Bank.

“A conflict of interest occurs where a personal interest is sufficiently connected with public or professional duties that it results in a reasonable apprehension that the personal interest may influence the exercise of professional or public responsibilities.” It is not just, though it can be, an issue of benefitting financially. A conflict of interest arises if a person in a position of judgment about one entity (Israel) has worked on behalf of another entity (the PLO) which has adverse interests to that of Israel. Further, the rules of law demand vigilance with respect to possible conflicts of interest.

Note first that a conflict of interest is not the same as partiality. A person charged with the responsibility of making a judgment may, by his prior behaviour, actions and writing, have demonstrated pre-judgments which could affect his or her opinion, but total impartiality is not part of a job description. The absence of a conflict of interest is. An individual is normally disqualified if the interest is so related to the exercise of public duty that a reasonably well-informed person would conclude that the interest might influence the exercise of that duty. Not that it would, but that it might. The appearance of a conflict is sufficient for disqualification.

But was this a case of a conflict of interest? For Bill was not advocating on behalf of the PLO nor representing the PLO. He was serving as a technical expert on the law. But is this nevertheless not a procedural violation? Administrative law differentiates between legal work as an advocate or authorized representative and legal work as a technical specialist and consultant. Bill did not intervene in the ICC on behalf of the PLO. In Bill’s letter he is clearly suggesting that in law that he was not in a conflict of interest. I think he may be correct. So why did Israel use this material, and use it at this time, to undermine his role? Why did he resign? And what are the implications?

Aside from the issue of how Israel obtained such information, did Israel proffering this information expect and anticipate that it would lead to Bill’s resignation? I believe it was a tipping point. But Bill is both stubborn and arrogant and believes he has the divine capacity to bracket and rise above his past and render totally impartial judgments. I am not the only one critical of his belief. Persons of much more eminence than I have told Bill the same thing. Aryeh Neier, founding director of Human Rights Watch, former head of the ACLU, President Emeritus of George Soros’ Open Society Foundation, and a lecturer with Bill Schabas at the Paris School of International Affairs, concurs. So does Joseph Weiler, President of the European University Institute in Florence and Editor-in-Chief of the European Journal of International Law.

This issue is a tipping point, not because it provides a definitive legal case against him, but because in the current situation at the stage at which the commission is at, the process of dealing with the legal charge is so disruptive that the very legal process of adjudicating the issue would be an enormous distraction from the commission’s work. The information has set in process an unstoppable force which the ethical demands of impartiality had not. The information has resulted in a new and irreversible development which would make it impossible for Bill to continue no matter what the opinion might be of the legal department of the UN. The information was rovided by Israel on Friday in the full knowledge that it would serve to either tip the balance to force a resignation or, at the very least, undermine his moral authority as chair

Israel wanted Bill out now and believed it now had the case that would drive him out, and, as a fallback position, would undermine the work of the commission even further. Tomorrow I will deal with why Israel chose this time to push Bill over the cliff and why Bill agreed to jump rather than be pushed. I will also deal with the implications of his downfall on the contents of the report and its likely reception.

Tomorrow: Was He Pushed or Did He Jump? Why?

X: Reconciling Strategy and Just War Norms

X: Reconciling Strategy and Just War Norms

by

Howard Adelman

Some military strategies are much more compatible with international just war norms than others. Some are totally incompatible. Thus, in Iraq and Afghanistan, an application of strategy that makes the battle for the hearts and minds of a population rather than one which regards the whole population as potential enemies is almost bound to be more sensitive to just war norms, at least for the dominant power. However, even a war based on the belief that the enemy population must itself be demoralized and force must be used to destroy support for its leadership, but which purports to follow just war norms, is not a strategy of “total war” in which a dominant power simply blasts a civilian population to smithereens. The latter is totally incompatible with the application of just war norms.

An insurrectionary military group, such as ISIS, the Islamic State of Iraq and al-Sham (to be distinguished from the ancient Egyptian goddess, Isis), or ISIL (the Islamic State of Iraq and the Levant) is not the same as Hamas. When Ramadan began, Abu Muhammad al-Adnani announced that henceforth the ISIS leader, Abu Bakr al-Baghdadi, would be known as the caliph and ISIS itself would be just the Islamic State. The Islamic State, which fights by directly exterminating civilian populations of those it regards as heretics, is not to be equated with Hamas or the Muslim Brotherhood. Hamas is not an advocate of “total war” from an insurrectionist perspective. Yet it is quite willing to reign rockets on the civilian population of Israel, but does not advocate the extermination of Israelis as heretics. The Hamas military arm is not even made up of Jihadists even though Hamas and Islamic Jihad often collaborated in the war against Israel.

But Hamas may be more dangerous than ISIS when the hearts and minds of Westerners enter the equation. After all, Hamas won in a fair election and has a degree of political legitimacy. Though Hamas has murdered alleged collaborators and even Fatah lackeys when Hamas first took power, it has not targeted uninvolved civilians for slaughter. ISIS cannot even get along with other terror groups like al-Qaeda or the al-Qaeda-affiliated Al-Nusra Front. In contrast, Hamas has agreed to enter a coalition government with the Palestinian Authority without even getting any cabinet posts.

Whereas ISIS is fighting a bloody media war to gain recruits and conquer more territory and economic assets to become self-sustaining, the Hamas media war is aimed at the hearts and minds of Europeans and Arab states to gain support and help escape its economic isolation and its severely restricted geographical area. Hamas is an economic basket case with its society largely funded by external, including Western, donors, not an economically rich terrorist machine expanding its territory and sources of economic exploitation. Hamas is fighting a media war to win the hearts and minds of Europeans. Hamas has been able, in part, to rule for seven years because of Western “humanitarian” aid and Western human rights protesters opposed to the blockade, at least the blockade imposed by Israel.

The difference between the two organizations is best illustrated by the UN political attacks against Israel for firing rockets in its own self-defence against Hamas and Gaza while the UN largely silently cheers when a country like the US, which is not directly threatened by ISIS, uses drones and Western fighter jets to shoot up trucks loaded with armed jihadists as they cross the desert of Iraq. The UN even pays for the education of almost half the citizens of Gaza, openly criticizes Israel, and acts as an apologist for Hamas even though its schools are used not only to house refugees but to store rockets.

The most common thread connecting Hamas and ISIS is not the Muslim religion (which is so variable in the interpretations of its texts), but the reliance of each organization on the twin legs of militancy and martyrdom. Both are used to restore and enhance each organization’s popularity. Both are children of the modern age of communications. ISIS may broadcast its beheadings and Hamas may hide its kangaroo justice, but the reason in each case is the same – to selectively use different types of militancy to defend and advance their respective positions in the Muslim and then the larger world.

The most significant difference is that Hamas is embedded in a dense civilian population; ISIS is not. The main strike force used by Hamas was not its rockets but its military units on the ground who fought soldiers of the IDF. However, the question in whether they used “human shields”, that is embedded themselves so deeply in the civilian population and in such various ways that it became very difficult if not impossible for their enemies to fight them without killing civilians either in total error, as when significant numbers of civilians were in a location where there were no militants nearby and Israel could not offer a strategic reason for targeting that locale, or because a belligerent was close by without the knowledge of the Gaza civilians and sometimes without the IDF knowing that civilians were close by. However, sometimes civilians were coerced or induced or even cooperated to host militants, in which case is the civilian complicit and therefore subject to being attacked by the IDF? In each of these different cases, the ethical criticism of Israel would be quite different as would be the application of the norms by which the action is judged.

In the case of the air war, the rockets and mortars shot off by Hamas had no guidance systems so could not be used unless civilian targets were acceptable. Even if Hamas wanted to discriminate between Israeli civilians and military units, it was unable to do so without totally disabling its storehouse of rockets. If the types of weapons available to fight an air war are such that they, by their very nature, cannot discriminate between civilians and militants, does that make what Hamas does automatically a war crime. However, if, in actual practice, those rockets and mortars kill and maim relatively few civilians, if, in fact, one application of just war theory would lead to the total immobilization of Hamas’ air weapons – its rockets and mortars – does the imperative of Hamas to use the weapons trump concerns about discriminating between civilian and military targets? The very fact that we can ask this question means that Hamas is not outside the bounds of international humanitarian law and is accountable under that law. Hamas, to repeat, is not an extremist warrior jihadist group indifferent to moral and legal norms.

Both the Israeli government and Hamas fought a war in which each side was governed by just war norms. Both sides targeted civilian buildings, but there seemed to be no intention on either side of using its military hardware and firepower to wantonly kill civilians on the other side in spite of what Israel has said about Hamas or what Hamas has claimed about Israel. As Benny Morris described with respect to the latter, Israel demonstrated “no willingness to exact a heavy price in blood from the enemy’s civilians.” Nevertheless, Israel was willing to tolerate more collateral damage to civilian targets and to civilians than would otherwise have been the case if Israel had adopted a strategy of trying to win the hearts and minds of Gazans. Hamas was willing to adopt military weapons that landed on civilian targets and maimed and wounded civilians on the ground when faced with the alternative of being almost totally defanged

The problem of applying just war norms in an impartial and detached manner is much more difficult when a war strategy includes civilian demoralization as part of its strategy versus a war that tries to win over a population and alienate it from its leaders. Nevertheless, unless a more forceful response was the dominant strategy, it is unlikely we would be concerned very much about just war norms. For the norms of discrimination between civilians and militants and the principles of proportionality would be much more scrupulously followed.

This means that, in the Gaza War, just war norms can be applied since there is no a priori way of condemning either side. On the other hand, on each side there are bound to be cases where it is crucial to look into whether the norms of discrimination between civilians and militants and of proportionality were attended to properly in the conduct of the war.  However, it is first necessary to understand whether the war was just in the first place.

In the case of Israel, the answer is fairly easy — unless one already has a built-in prejudice in one’s approach to the Zionist state. The 2014 Gaza War was clearly and unequivocally a war of national defence against a party reigning rockets down on its civilian population. This is true even if Israel might have provoked the war by rounding up Hamas operatives in the West Bank after the killing of three teenage Yeshiva boys by Hamas operatives, either as a rogue operation or one under the direct control of Hamas. What makes the Hamas position problematic is that its ultimate aim is to exterminate Zionism and destroy the product of the self-determination of the Jewish people. If Olmert had not imposed a blockade when Hamas came to power, the aggressive intent of Hamas would have been clearer. But Israel would have won a moral battle in international eyes but at the cost of a much stronger, better armed and more militant Hamas. Israel is unwilling to bet on Hamas becoming moderate in order to legitimate itself when, if Israel loses the bet, its very existence is put at risk.

Nevertheless, the existential threat to Israel does not permit Israel to engage in total war against the civilian population of Gaza. And it does not do so and has not done so. But Israel has chosen to ignore the hearts and minds of Gazans and to win each battle by diminishing its military capacity and enhancing the fear of Israeli reprisals. As a result of adopting such an approach, Israel is more tolerant of collateral damage than it would be otherwise, and many more civilians in Gaza were maimed and killed than if the alternative strategy were adopted. But unless one is a Rousseauian purist with human rights trumping everything, just war norms are not there to determine strategy but to determine whether the execution of that strategy falls within just war norms.

In some cases, the implementation of the strategy may not have conformed with just war standards. In general, Israel clearly went out of its way to spare the lives of civilians, once the caveat is accepted that it adopted a more militant strategy than an opposing strategy which would have encouraged more attention and consideration of just war norms. This does not mean Israel in its militancy abused just war norms. There may indeed be instances where Israel was careless or indifferent to the civilian collateral damage. That has to be ascertained by gathering case-by-case evidence and cannot be accomplished by a priori begging the question.  

Hamas has to be judged by the same norms and within the context of the strategy it chose to adopt. It could have, and I think it should have, adopted the path of peace that Fatah eventually adopted to seek a resolution of the Palestinian-Israeli conflict. But the strategy it did adopt neither put it outside the application of just war norms nor allows independent judges to determine in advance that Hamas was guilty of criminal activity. Given the choices it faced and the military means at hand, could the killing of civilians be seen as collateral damage? However, if Hamas can be shown to have been complicit in the killing of the three Yeshiva students, that was a criminal act and should be seen as such. So probably was the kangaroo justice meted out to alleged collaborators. But given the context, the fact that either side chose to deal with the situation by a more militant strategy than I personally saw as imprudent and unnecessary does not mean either side broke the norms of just war.

I recognize that I am interpreting the application of just war norms from a contextual or Grotian perspective and not an absolutist Kantian perspective that makes human rights the absolute ruler in applying international norms to the exclusion of any real genuine concern with military strategy. The Kantian or deontological approach has become the reigning doctrine in human rights organizations and for international legal experts and philosophers, but it is not the dominant outlook for teaching the application of just war norms in military colleges. For obvious reasons. Military colleges are there to teach people how to win wars and to do so with sensitivity and consideration of just war norms. They are not there to prevent armies from adopting strategies and methods which might lead them to lose.

On a personal note, it is relatively easy to combat the realists who would totally ignore and subvert just war norms, and the moralists who also subvert just war norms by trying to use them to rule out war but in the end merely support the weaker party in a conflict and, thereby, indirectly contribute to the civilian death toll. What is really difficult is trying to uphold just war norms in the face of more militant strategies, whether employed by the Israeli government or by Hamas, but applying those norms in as impartial and objective way as possible.