Tag Archives: law

Yom Ha’atzmaut – Israel’s Independence Day

Yom Ha’atzmaut – Israel’s Independence Day

by

Howard Adelman

It is Memorial Day for Israel’s fallen. Tonight, the celebration of Israel’s independence begins. In yesterday’s blog, I referred to three sources of discussion of Israel – one by Emanuel Adler on the drift in Israel towards illiberalism, one on the Torah justification for an independent Jewish polity in Israel and a third, the sermon in my synagogue by the Israeli Consul in Toronto. Today I will concentrate on the most basic one, the justification in the Torah, the one considered irrelevant to most Canadian Jews and most others, except for evangelical Christians. The reference to archeology, history, political realities, what Israel has accomplished in Eretz Israel, the Land of Israel, need based on security and humanitarianism as justification for the State of Israel and its domination by Am Israel (the Jewish people) awaits another discussion.

Torah study began with Rashi’s well known question of why the Torah, if it is the constitution of the Jewish people, begins with cosmology. Why does the text not start with Genesis 17:1 when God initially forges a covenant with Abram, renames him Abraham and promises that he will be “a father of a multitude of nations,” not just the Israelites or the Jewish people, but many nations. (17:4) Further, in chapter 8, Abraham is promised that, “I will give the land you sojourn in to you and your offspring to come, all the land of Canaan, as an everlasting possession.”

The answer usually given for starting at Genesis 1 rather than Genesis 17 is that it was necessary to establish that the whole earth was made by and belonged to God and that God was totally free to distribute the land to whomever He chose. Nations are not owners of the land, only trustees. Further, if the Torah is to be followed, there is no prior right to a land by people long settled there before another group of people arrived.

But there is a prior question – why refer to the Bible as a source of authority for establishing a state? Rashi comments on the first Psalm, “But his delight is in the teaching (in Hebrew, the Torah) of the Lord, and, in his teaching, he studies day and night.” Psalm 1 reads:

Psalm 1
1 Happy is the man that hath not walked in the counsel of the wicked, nor stood in the way of sinners, nor sat in the seat of the scornful.
2 But his delight is in the law of the LORD; and in His law doth he meditate day and night.
3 And he shall be like a tree planted by streams of water, that bringeth forth its fruit in its season, and whose leaf doth not wither; and in whatsoever he doeth he shall prosper.
4 Not so the wicked; but they are like the chaff which the wind driveth away.
5 Therefore, the wicked shall not stand in the judgment, nor sinners in the congregation of the righteous.
6 For the LORD regardeth the way of the righteous; but the way of the wicked shall perish.

Verse 2 makes it clear that the function of studying Torah is critical to forging an ethical life. Verse 3 declares that an ethical life is sustained by planting oneself in a land where one can be fruitful and creative, implying possibly both a physical land and a land of learning. Whatever else it will be, the land will be one based on the rule of law that must serve the development of an ethical life.

The principle of Judaism, as distinct from the reference points of other nations, including other nations descended from Abraham, is that the Torah, which initially is a possession of (not necessarily written by) God, becomes a possession of Jews when they study Torah. Jews may infer that they have rights to live in the land from their studies, but not (thus far) that they are entitled to a state of their own. Further, there is no suggestion that other nations should not live in accordance with the rule of law for the sake of forging an ethical life and do so in the land of Israel. There is no guarantee that the land of Canaan should be the exclusive territory for Jews or that it is a land on which a Jewish state should be constituted and developed.

Genesis 12:1-7 says:

1 Now the LORD said unto Abram: ‘Get thee out of thy country, and from thy kindred, and from thy father’s house, unto the land that I will show thee. 2 And I will make of thee a great nation, and I will bless thee, and make thy name great; and be thou a blessing. 3 And I will bless them that bless thee, and him that curseth thee will I curse; and in thee shall all the families of the earth be blessed.’ 4 So Abram went, as the LORD had spoken unto him; and Lot went with him; and Abram was seventy and five years old when he departed out of Haran. 5 And Abram took Sarai his wife, and Lot his brother’s son, and all their substance that they had gathered, and the souls that they had gotten in Haran; and they went forth to go into the land of Canaan; and into the land of Canaan they came. 6 And Abram passed through the land unto the place of Shechem, unto the terebinth of Moreh. And the Canaanite was then in the land. 7 And the LORD appeared unto Abram, and said: ‘Unto thy seed will I give this land’; and he built there an altar unto the LORD, who appeared unto him.

In Genesis 13:14-17, the Bible says: “The Lord said to Abram, “Lift up now your eyes, and look from the place where you are northward, southward, eastward and westward: for all the land which you see, to you will I give it, and to your seed forever… Arise, walk through the land in the length of it and in the breadth of it; for I will give it to thee.” In Genesis 15:18, the land promised becomes very extensive. “18 In that day the LORD made a covenant with Abram, saying: ‘Unto thy seed have I given this land, from the river of Egypt unto the great river, the river Euphrates.”

The covenantal promise is repeated in Genesis 17:4-8:

My covenant is with thee, and thou shalt be the father of a multitude of nations. 5 Neither shall thy name any more be called Abram, but thy name shall be Abraham; for the father of a multitude of nations have I made thee. 6 And I will make thee exceedingly fruitful, and I will make nations of thee, and kings shall come out of thee. 7 And I will establish My covenant between Me and thee and thy seed after thee throughout their generations for an everlasting covenant, to be a God unto thee and to thy seed after thee. 8 And I will give unto thee, and to thy seed after thee, the land of thy sojournings, all the land of Canaan, for an everlasting possession; and I will be their God.

There are many promises in these quotes. First, the land is promised to all the nations that spring from the seed of Abraham and not just Jews. Second, the extent of the land promised varies, sometimes extending well into Iraq and through the Sinai desert right up to the Nile River. Since various tribes of Canaanites lived on both sides of the Jordan River, the promise can even be seen to include Jordan. This is confirmed in Deuteronomy 9:1-4:

“Hear, O Israel: You are to cross over the Jordan today, and go in to dispossess nations greater and mightier than yourself, cities great and fortified up to heaven, a people great and tall, the descendants of the Anakim, whom you know, and of whom you heard it said: ‘Who can stand before the descendants of Anak?’ Therefore, understand today that the LORD your God is He who goes over before you as a consuming fire. He will destroy them and bring them down before you; so you shall drive them out and destroy them quickly, as the LORD has said to you.” (Deuteronomy, 9:1-4)

On the other hand, with respect to specific parts of that territory, there is no promise in the Torah that the seed of Judah will reside in Jerusalem, for Jerusalem is not even mentioned once in the Torah though it is referred to approximately 600 times in the rest of the Bible.

There is a more disturbing part of the covenant stated above and repeated elsewhere in the Torah: the settlement of the nations that stem from the seed of Abraham will occupy the land by means of war and not simply ethnic cleansing, but genocide, for the existing nations of Canaan will be expunged from the land: “the Hittites and the Girgashites and the Amorites and the Canaanites and the Perizzites and the Hivites and the Jebusites, seven nations greater and mightier than you, and when the LORD your God delivers them over to you, you shall conquer them and utterly destroy them. You shall make no covenant with them nor show mercy to them.” (Deuteronomy, 7:1-2)

Quite aside from the extent of the land promised and those to whom it is promised, in addition to the land of Canaan, quite aside from the means of acquisition, the land of Israel is promised, not just as a place to live, as a place to thrive, but as a place to study Torah and as a place to raise ethical individuals. Further, Israel is a land where the bones of the seeds of Israel that flow through Isaac and Jacob are to be buried. In Genesis 50:4-14, Joseph keeps the promise made that the bones of his father will be returned to Canaan to be buried next to his first wife, Leah, who bore him his eldest four sons. Even, Joseph, who lived most of his life in Egypt, has his bones disinterred and brought back to the land of Canaan to be buried in Shechem (Hebron). (Exodus 13:15)

In Genesis 50:24-26, just after Joseph had ensured that his father Jacob’s bones would be buried in Israel, Joseph told his brothers and made the sons of Israel swear that, like Jacob, “you shall carry my bones up from here.” This suggests that even more importantly than living an ethical life in accordance with the rule of law on a land promised by God is the promise of burial in that land even if one is raised and achieved success in the diaspora. The fight over burial rights is not exclusive to Israel. In Canada, we recently went through the Oka crisis, a land dispute instigated by Mohawk aboriginal peoples over an allegedly sacred burial site. Near my cottage on Georgian Bay in Ontario, there was a fight over Grave Island claimed by some Ojibway as a sacred burial ground. One reason we fight over land, in addition to the right to live on it, is to die and, more importantly, be buried in that soil.

Israel, therefore, is a land where the “ghosts of the past meet the ghosts of the future,” where one’s deep seated longings are satisfied, where “my father’s store was burned there and he is buried here.” In the “port on the shore of eternity” in “the Venice of God.” (Yehuda Amichai, “Jerusalem 1967”), there shall I be buried insists the ardent Zionist.

But none of the citations of sacred text justifies a Jewish state in Israel or Jerusalem as its capital or Israel as an exclusive state for the Jewish people. Israel is a place for Jews to live, a place for Jews to die and be buried. What else justifies the independence of Israel in a specific boundaried territory? Whatever it is, the state must be governed by the rule of law and dedicated to raising an ethical people if the Torah is to be a guide.

 

To be continued: Historical and Political Justifications

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Korah Number 16

by

Howard Adelman

The section is most often labelled Korah’s Rebellion and not just Korah. I initially avoid such a heading lest we beg the question in labeling Korah’s protest as a rebellion. Instead, one of the questions I ask is whether this is fair question.

The text says that Korah and his fellow “rebels,” each a chief of a congregation, each chosen by that congregation, each a well-recognized leader among them. The text does say that they “rose up.” But that could simply mean that they stood up at a general meeting of the Israelites. They certainly stood up in opposition to whatever Moses and Aaron were planning to do. But according to the text, Korah began with a personal attack. Korah accused both Moses and Aaron of elitism, of giving themselves a special holy status denied to the rest of the Israelites.

“You have gone too far! For all in the congregation are holy, every one of them, and the LORD is among them. Why then do you exalt yourselves above the assembly of the LORD?” (16:3)

How did Moses respond? Like a Muslim today, he “fell on his face,” he lowered himself in a beseeching way to Korah. At the same time, his words were anything but beseeching. They were defiant. Wait until morning, Moses told Korah. Then God will determine who is holy and who is not, that is, whom God favours and whom he does not. The determination of holiness and favouritism seem to have been equated. Favouritism means that they have been chosen. How is this determined? By the one God chooses to draw near to Him? So holiness, favouritism, proximity to God and the determination of holiness are all equated.

It is self-evident that Korah has made a serious tactical error in challenging both Moses and Aaron. He had allowed his words to be twisted so that the protest was made in Moses’ terms. Korah had asked why Moses and Aaron were acting “holier than thou” and Moses twisted that to mean a question, not about arrogance and self-inflation, but about proximity to God and His holy word. Moses then raised the stakes even further. He accused Korah of going too far in charging Moses and Aaron with arrogance and self-importance. For it was NOT they that has assumed their roles. God had cast them to perform those tasks. The challenge was really against God’s choice, not the actions of Moses and Aaron.

Then Moses made a third charge. He accused Korah and his co-protestors of ingratitude, not to Moses but to God. “Hear now, you sons of Levi: is it too small a thing for you that the God of Israel has separated you from the congregation of Israel, to bring you near to himself, to do service in the tabernacle of the LORD and to stand before the congregation to minister to them, 10 and that he has brought you near him, and all your brothers the sons of Levi with you?” (Numbers 16:8-10) God chose you to be rabbis. Now you challenge God’s choice of me to be your political leader and Aaron to be the High Priest. In other words, the charge of arrogance was just a cover and a superficial attack. They were challenging whether or not Moses and Aaron had been chosen by God. “I’ll show you,” Moses seemed to be saying, “who God has chosen. Who is the holier one!”

Then the fourth charge comes like a hammer blow. Not only are they accused of demeaning Aaron and Moses, challenging the holiness of each and challenging God’s choice, but of seeking the priesthood. Not political power. Not of trying to take his position. But of trying to displace Aaron. That is not just a question about God’s choice, but defiance against it. “And would you seek the priesthood also? 11 Therefore it is against the LORD that you and all your company have gathered together. What is Aaron that you grumble against him?”

Moses then summoned Dathan and Abiram before him in an effort to divide the opposition. But both disobey his summons. They are sticking with Korah and the protest. And now we first learn of the substantive issue behind the protest while trying to reverse the path of the verbal sparring back to the home ground of the protest, accusations that Moses and Aaron are being arrogant and self-important. “Is it a small thing that you have brought us up out of a land flowing with milk and honey, to kill us in the wilderness, that you must also make yourself a prince over us?” (Numbers 16:14) Moses and Aaron were leading them back to the wilderness for forty years ostensibly because 10 out of 12 scouts reported back about how strong their enemies were and challenged the attack plans.

Now on top of challenges of arrogance, efforts to push themselves as occupying the holy ground, naming their protest an exercise in ingratitude to God given their own chosen status as religious leaders among the people, and even efforts to usurp the position of High Priest, Moses turned to God and pleaded innocence of any effort to act against them. They feared being tortured and their eyes burned out and refused to come before Moses. “And Moses was very angry and said to the LORD, ‘Do not respect their offering. I have not taken one donkey from them, and I have not harmed one of them.’” (Numbers 16:15) Moses claims innocence of any power trip because he neither threatened them nor took anything from them. But he did ask God to reject their sacrifices. He did ask God to take away their religious roles. Is that not an act of revenge simply for launching a verbal protest and alleging that Moses and Aaron had been arrogant?

So Moses went back to his original position. He gave up on trying to divide the protesters but, instead, summoned them to come beside him and Aaron before the Lord. “We will now see who is right.” Each one of the 250 rabbis was to bring his censer (see Numbers 4:14; also Leviticus 16:12), the brass bowl in which they put coal and burned incense, What happens? It is unbelievable! God appears before the whole congregation of the protesters and asks Moses and Aaron to step aside so He can “consume” the others. Then Moses reverts to divide and rule again, this time not asking Dathan and Abiram to back away from Korah, but asking the other 247 local religious leaders to back away from the rebellious triumvirate.

They presumably refuse and stay loyal to Korah and the other two leaders. The protesting priests, as well as their families and children, are summoned to watch whether Korah, Dathan and Abiram will be consumed by the Lord, giving an ironic twist to the report of the ten scouts that the land would consume them. The earth literally opens up and swallows them, not just the three leaders, but all 250 of the protesters – and before their wives and children. Then they seemed to have been destroyed a second time and in a second wave, God consumed them in fire.

The two versions are not incompatible. Imagine earth torn with a big rift and hundreds being swallowed up and falling into the hot lava. But the issue is really not how two sources are merged in a single story, but the politics of escalating a verbal protest into a rebellion and sentencing the rebels to death for simply criticizing the leadership. Further, the Israelites themselves and not just their leaders lose 14,700 people to a plague before Aaron manages to stay the wrath of God.

Today we might compare the actions of Moses and Aaron to that of Kim Jong-un of North Korea, but without displacing the initiative onto God, for Kim Jong-un is revered as if he were a god. Today we watch Kim Jong-un subjected to American sanctions for the first time while Moses (and Aaron) are treated as the heroes of the story. I am not suggesting that the initial protest against the high-handedness of Moses was correct and certainly not that it was carried out in the best way given that Moses and Aaron held all the reins on the use of coercive power. But Moses’ response has to be read objectively as extremely unfair in both the interpretation of the challenge and certainly grossly unfair and even wicked in the response.
But that is not the interpretation handed down. Moses’ assertion that they were not just accusing him of usurping authority but accusing them of undermining God’s authority is presumed to be valid by religious fundamentalists.

“Korah and his rebellious group had no idea who God is and they ultimately had no fear of God. The bible said they gathered against God and his anoited and the Lord destroyed them. You would believe that the rest of the people would have learnt a lesson, but they continued to rise against the anointed of the Lord and paid again with their lives. People have to learn obedience.”

Reform Judaism does not dissent either. Here is the official summary.
“Korach and his followers, Dathan and Abiram, lead a rebellion against the leadership of Moses and Aaron. God punishes the rebels by burying them and their families alive. Once again, God brings a plague on the people. (16:1-17:15)”

Korah is relegated to the status of one of the great villains of the Torah and Moses is not only totally exonerated, he is virtually beatified for his behaviour. Incivility is attributed to Korah and not to Moses simply because Korah accused his leader of arrogance against the background of Moses and Aaron leading the people back to the wilderness simply because 10 of the 12 scouts thought success in conquest would be too costly and that there was a high risk of failure. Instead, the narrative is treated as a tale of obedience and disobedience, and the punishment, deemed appropriate, for the latter. Simply challenging authority and suggesting it is arrogant and insensitive is enough to deserve being condemned to death. It is outrageous!

With the assistance of Alex Zisman

UNHRC Report 2014 Gaza War.III.Methodology

The UNHRC Report on the 2014 Gaza War

Part III: Methodology

by

Howard Adelman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next: Context and the Justification for Going to War

Torture.18.03.13

Torture 18.03.13

by

Howard Adelman

In my piece on The Gatekeepers, I deliberately left out one item because I wanted to discuss it separately. Avraham Shalom who served as head of Shin Bet from 1980-1986 mentioned it in the context of insisting that when it comes to terrorists, there is no morality with respect to their treatment. Candidly, he tells the story of some of the torture techniques used. One was shaking. In one case, he said, the victim was a slight person and when he was shaken he suffered from the equivalent of Shaken Baby Syndrome, the condition a young infant suffers when violently shaken. His brain was badly damaged and the suspect died after being tortured.

When we were going into the film, we crossed paths with Dr. Charles (Husky) Tator and his wife, Carol, who had just seen the film. Husky and I had been in medical school together. He is now a world renowned neurosurgeon. In recent years, he has received wide publicity because of the results of his research on the permanent damage done as a result of concussions in sports like football and hockey. His research, and the publicity about his research, can be credited with the ThinkFirst $1.5 million initiative, the partnership between The Canadian Centre for Ethics and Sport, the Coaching Association of Canada and Hockey Canada to reduce brain injuries in team sports in Canada. When I saw that scene I wished that Husky had gone to the 5:30 p.m. movie instead of the earlier showing so I could have had the benefit of his reflections on that scene.

My own reflections were about the ethics, or the lack of ethics, that Avraham Shalom expressed in discussing torture. He gave the usual reference in justifying torture to the ticking bomb theory – that intelligence people could not be bothered with moral scruples when a bomb may have been planted targeting civilians and time was of the essence. In The Landau Commission of Inquiry (Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity) set up by the Israeli government in 1987 following the death of the two captured hijackers referred to in yesterday’s blog that formed a key part of the film, The Gatekeepers, Supreme Court Justice Moshe Landau confirmed what Avraham Shalom had said in the movie, that Shin Bet or Shabak (formally the General Security Service or GSS) used physical force to interrogate prisoners. Further, the interrogators then covered that up by perjuring themselves when giving testimony in the trials of the Palestinians.

One of the most important outcomes of that Commission was a set of guidelines that governed interrogations in the future. The proposed guidelines were quickly approved by the Israeli cabinet in 1987 that allowed physical pressure on prisoners, but restricted that pressure to moderate means. These recommendations, specified in Appendix 1, were initially secret but were eventually leaked and published in 1991 by Human Rights Watch, "Prison Conditions in Israel and the Occupied Territories – A Middle East Watch Report."

The general principles, however, were available at the time. As the heads of Shin Bet following Avraham Shalom indicated, the use of violence against prisoners was considered acceptable when interrogating prisoners. The question was of degree. The Commission accepted the ticking time bomb theory under the principle of "the lesser evil" and said that actual torture could "be justified in order to uncover a bomb about to explode in a building full of people . . . whether the charge is certain to be detonated in five minutes or in five days." The violence allowed included threats and physical violence, such as slapping, but the Commission insisted that, "The means of pressure should principally take the form of non-violent psychological pressure through a vigorous and extensive interrogation, with the use of stratagems, including acts of deception. However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided." (my italics)

At the very least, the danger was that such techniques could slide into abhorrent practices, a danger that the Commission fully recognized. Each interrogator could take "matters into his own hands through the unbridled, arbitrary use of coercion against a suspect" thereby undermining the reputation of the state as a law abiding polity and protector of the rights of the citizen. To prevent this, "disproportionate exertion of pressure on the suspect" was deemed inadmissible. Five guidelines were specified. "The pressure must never reach the level of physical torture or maltreatment of the suspect or grievous harm to his honour which deprives him of his human dignity." (my italics) Second, the measures used must be proportionate to the immanence of the anticipated danger given the information available to the interrogator. Third, permitted physical and psychological pressures must be defined and limited in advance by binding directives. Fourth, implementation by interrogators must be subjected to strict supervision and monitoring. Fifth, in the case of even the slightest deviance from these guidelines, the interrogator’s superiors had to react swiftly and effectively, imposing punishment and even using criminal procedures against the interrogator if the interrogator was found to have exceeded the guidelines.

Ironically, the Landau Commission Report and the rapid adoption of its recommendations occurred just prior to the beginning of the first intifada triggered on 8 December 1987 when four Palestinian refugees in Jabalaya were hit and killed by an Israeli trucker, and rumours spread that the deaths were not accidental but a revenge killing for a businessman stabbed and murdered in Gaza two days previously. After all, in addition to the perceived abandonment by Egypt and Jordan, and propelled by large numbers of unemployed youth as well as restrictions on the use of land for building, the intifada was as much a revolt against mass detentions, torture, extrajudicial killings, house demolitions and deportations as against the occupation in general.

The Commission and adoption of the guidelines took place twenty-five years ago. By all accounts, and in my case studies on torture in Israel, the guidelines were effective in limiting the use of excessive force in dealing with prisoners and prisoner interrogation. Nevertheless, force was still permitted to extract confessions. Interrogation methods using moderate violent methods in the nineties following the Landau Commission Report continued. It would have been hard to conclude that these methods respected the dignity and honour of the prisoners. The methods were very moderate compared to many used under Avraham Shalom, but, in addition to shaking, poor food and the use of threats and curses, still included: "depriving the interrogee of sleep for a number of days by binding him or her in painful positions; playing loud music; covering their head with a filthy sack; exposing the interrogee to extreme heat and cold; tying them to a low chair, tilting forward; tightly cuffing the interrogee’s hands; having the interrogee stand, hands tied and drawn upwards; having the interrogee lie on his back on a high stool with his body arched backwards; forcing the interrogee to crouch on his toes with his hands tied behind him."

These results were published by Betselem, the Israeli Human Rights organization, in response to the decision of the Israeli Supreme Court that deemed that causing discomfort and putting pressure on the detainee were only lawful as side-effects of an interrogation; the techniques could not be used to "break" the detainee. The Supreme Court determined that the Shin Bet lacked any legal authority to use physical means of interrogation that cause the detainee to suffer and that are not "reasonable and fair". In 1997, the United Nations Committee Against Torture had already determined that the modified methods following the Landau Report still constituted torture in breach of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which Israel was a signatory. Israel had ratified the convention in 1991. After the Supreme Court ruling, torture overwhelmingly ceased in the treatment of Palestinian prisoners and detainees. (Cf. The Public Committee Against Torture in Israel)

After the end of the first intifada, the number of Palestinian prisoners and administrative detainees held in Israeli jails declined dramatically until the outbreak of the second intifada when they rose to very high levels. As of the end of 2011, there were only 4,722 security prisoners left, 552 sentenced to life terms.

One would not have known this was the case from watching The Gatekeepers.

As an aside, and in reference to an earlier blog on Obama’s use of drones and targeted killings, The Public Committee Against Torture in Israel took the Israeli government before the Supreme Court on this issue. On 14 December 2006, the Supreme Court of Israel determined that a continuous situation of armed conflict existed between Israel and various Palestinian terrorist organizations. In considering whether the terrorists and their organizations were to be defined as combatants or civilians, the court concluded that it was necessary to obtain well-founded and verifiable information about civilians allegedly taking part in hostilities before attacking them. Civilians taking a direct part in hostilities may not be physically attacked if less harmful means (arrest, interrogation and trial) could be employed against them. Even if employing targeted killings is legal, the customary principle of proportionality must apply. Further, after any action, an independent investigation should be undertaken to ascertain whether proportionality and targeting norms had been respected. The lawfulness of such killings was to be determined on a case-by-case basis.

Compare and contrast this situation with the American use of "torture" and targeted assassinations after the Israeli Supreme Court had outlawed the use of torture to extract "confessions" from prisoners. On 13 November 2001, President George W. Bush signed an order entitled: "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism". (Cf. Jill Lepore, "The Dark Ages: Terrorism, counterterrorism, and the law of torment" in The New Yorker18 March 2013) The order authorized the detention of suspected terrorists abroad, but they were not to be tried, if they were tried at all, under conventional military law in contrast to previous practice when they were tried domestically under civilian law. John Yoo, Deputy Assistant Attorney General of the United States, drafted the broad rules for America’s "enhanced interrogation techniques. These legal opinions were known as "The Torture Memos" or the "Bybee Memo" because, though drafted by Yoo, they were signed by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. Though neither called detainees nor prisoners, these so-called "unlawful combatants" were tortured. Only the infliction of "severe pain" that contributed to loss of significant body function, very serious injury or death was said to constitute torture. A 14 March 2003 memo, just before the USA invaded Iraq on 19 March, concluded "that federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects."

These methods went well beyond those that were authorized by Avraham Shalom in the 1980s and subsequently banned in Israel after 1997, and included waterboarding and the use of dogs. By the next year, two "prisoners" had already died while being tortured at Bagram Air Base. Further, the evidence to bring the suspects to trial even before a military commission were simply paraphrases of what the suspects had admitted under torture. No decent court of law would have permitted them to be used as evidence. Further, the very conservative Supreme Court of the United States in June 2006 also ruled that the President lacked any legal authority to set up these military commissions to act as quasi-legal courts.

Two days after Obama took office, torture was banned.

[Tags: torture, Israel, law, detainees, prisoners,
terrorists, suspects, rule of law]