Response to Prof. Halbertal’s Article on the Goldstone Report

January 13, 2010
Richard Kuper

magneszionistResponse to Prof. Halbertal’s Article on the Goldstone Report – From Eight of His Former Students

Moshe Halbertal was involved in drafting the IDF’s ’s ethics code and since then since then has, in his words “been deeply involved in the analysis of the moral issues that Israel faces in its war on terrorism…” His New Republic article The Goldstone Illusion: What the U.N. report gets wrong about Gaza–and war, published on 6 November has become the touchstone of those who think Israel has done no wrong. Here is a response to it from eight of Halbertal’s students.

[See also David Shulman’s Israel Without Illusions: What Goldstone Got Right]

12 Jan 2010

Last week I received a copy of a letter addressed to Moshe Halbertal by eight of his former students, most of whom are junior faculty in philosophy or philosophy doctoral candidates in Israel and the US. The letter, a long response to Halbertal’s article attacking the Goldstone Report in the New Republic, was sent me by a colleague, who received it from an email distribution list. (The letter had been intended to be private, but it was leaked to somebody who sent it on the list.) After making inquiries I learned that Halbertal had invited the authors to discuss the matter with him, and that there indeed was a meeting. I do not know whether Prof. Halbertal plans to write a response.

In the meantime, I have received permission to make public parts of the letter. Since it is long, I will try to paraphrase the gist of the argument. This may seem unfair and one-sided, and it is certainly no substitute for an accurate translation. I also have no doubt that Prof. Halbertal’s response would be an important contribution to the debate. But the original letter stands on its own, and so I communicate its contents here.

The “Letter to Moshe Halbertal” begins as follows;

Your article in the New Republic, an attack on the Goldstone Report, surprised and disturbed us. We feel obligated to lay before you our objections and our criticism in a direct manner. The immediate subject of the article is the Goldstone Report, which is portrayed as biased and fundamentally flawed. But it is difficult to escape the impression that in doing so you justify, after the fact, the pretext for the Gaza war, as well as its manner of conduct, without the qualifications that we consider vital.

The authors first comment on Halbertal’s discussion of the transformation in Israel’s defense strategy wrought by asymmetric warfare. That discussion emphasizes the difficulties and limitations that a conventional army has in fighting “terrorists”, a move that strikes the authors as an attempt to diminish the real military advantage that the IDF possesses and to play upon the feelings of victimhood among Israelis. Such claims tend to ignore the connection between the asymmetry of conditions of warfare and the asymmetry in the power relations. Would it be a fairer, more symmetric, fight if Hamas had tanks and aircraft? The article accuses Hamas of not distinguishing between civilians and soldiers. Yet most of the IDF’s chief military installations are located in the midst of civilian areas, including the Central Command in Tel-Aviv. Would that justify Hamas firing rockets on urban areas? The same article mentions Hamas attacks on buses and cafes, but what does that have to do with Cast Lead, since most of these attacks did not originate in Gaza, had ceased for years before the Gaza campaign and were cliaimed by nobody to be the cause of the campaign?

The article claims that one has two alternatives when confronting assymmetric warfare: either to refuse to defend oneself against terrorist attacks or to fight without limitations against the enemy’s populace. But that, according to the authors of the letter, is a false dilemma. Most of those who opposed the Gaza campaign are not pacifists, and do not deny Israel’s right to self-defense. What they deny is the justification of all military activity in the name of security, and the separation of the war on terror from the broader political context; they question whether there were alternatives to military action. “Rejecting both extremes for the sake of pursuing a policy that is both militarily necessary and exceedingly cautious with respect to civlian life is still quite far from justifying a military offensive like Operation Cast Lead.

According to Halbertal, “Israel’s goal in its struggle with Hamas and Hezbollah is to reverse their attempt to strengthen themselves politically by means of their morally bankrupt strategy. Rather than being drawn into a war of all against all and everywhere, Israel has sought to isolate the militants from their environment: to mark them and “clothe” them with a uniform, and to force them to a definite front.” The authors note that this description of isolating the militants from their environment bears no resemblance at all to what is known about the Operation Cast Lead, or the IDF’s methods in Gaza in the last few years, which include the widespread destruction of infrastructure, houses, the siege and the limitations on imports, and the deliberate attempts to frighten the civilian population. To say that the former is the goal according to which the IDF operated, and to write off the collective punishment of the siege on Gaza as “ethically problematic and strategically unproductive” appears at the very least insufficient.

The second part of the article deals with the principles of just war and how they are reflected in the IDF Ethical Code. The first principle is that of military necessity, which holds that the use of force should be only as much as is militarily necessary. Halbertal admits in the article that the application of this principle in the case of assymmetric warfare is “problematic,” but that does not excuse him from examining every military mission, including those cited in the report. It seems to the authors that this principle was violated more than once during the campaign, and if that is the case, then the criticism of the IDF in the Goldstone report is justified.

The second principle is that of the distinction between combatants and non-combatants. This too is difficult, but not only for the IDF. A large number of the soldiers are civilians who may be called up to fight. Does that justify attacking them in their homes (as the terrorists claim)? Or when they are on military leave? And what about the IDF’s attack on the Hamas policemen? Contrary to what Halbertal writes, the Goldstone report did not consider them to be non-combatants, but rather that they were not part of the Hamas fighting organization against Israel. The Goldstone report mentions the IDF’s claim to the contrary, but no evidence has been provided for that claim. What should the Goldstone panel have done; accepted the IDF spokesperson’s word on the issue? After all, the IDF spokesperson has a credibility gap, considering the performance over the last few years.

The third principle is proportionateness. Here Halbertal cites Moshe Yaalon’s claim that had the IDF known that Salah Shahadeh was surrounded by civilians, they would not have bombed his house. He does not cite Dan Halutz’s defense of the bombing, or Yaalon’s praise of the bombers (“You did good work; you can sleep at ease during the night.”) He does not cite the more recent case of Nizar Riyan, who was killed together with fifteen civilians, members of his family, and which was justified by the IDF on the grounds that they were warned. So this gave the IDF a license to kill them?

The article criticizes the Goldstone Report criticism of “roof knocking,” but misses the point that the warning was useless since the residents had no where safe to flee to. In order to refute the criticism, Halbertal should have cited cases where the roof-knocking was effective and not dangerous. But in any event, merely warning the civilians did not excuse the IDF from adhering to the principle of distinction. A non-combatant does not lose his status because he has not fled his house.

The article justifies the shelling of houses in order to minimize casualties to the IDF. But the cases described in the report included those in which there were no danger to the IDF. In some of those cases, the IDF issued contradictory statements. Halbertal completely ignores the statements of IDF generals and Israeli politicians that said that disproportionate damage was an aim of the war in order to teach Hamas and the population a lesson. One cannot examine the question of proportionality without understanding th goals of the mission. If one of the goals was to destroy the motivation of the Hamas fighters and their supporters, then the search for proportionality is a fruitless one.

The authors then echo my criticism of Halbertal’s view that had the Goldstone report focused just on Gaza, the IDF would have had to respond. In fact, the IDF condemned and dismissed every human rights report on Gaza, including the one by the veterans’ group, Breaking the Silence.

Halbertal criticized the report’s decision to include the background to the Gaza campaign, and considered that presentation slanted. But Halbertals’ presentation is no less slanted. Is the only purpose of the wall snaking through Palestinian territory Israeli security? Even the Israeli High Court rejected that claim, when it said that the route was determined in part in order to absorb territory for West Bank settlements. And while Halbertal criticizes this part of the Goldstone report as biased and irrelevant, he provides his own background which is no less biased: Sharon withdrew from Gaza, Olmert wished to continue the withdrawal; all this was spoiled by the Kassam rockets. This completely ignores the fact that the peace process and the disengagement was accompanied with an incessant deepening of the Occupation by all Israeli governments. Is it possible to detach Operation Cast Lead from the continual expansion of settlements and outposts, the theft of Palestinian land, the expulsion of people from their homes, the destructions of homes, the targeted assassination, detentions without trial, restrictions on freedom of the prevention of movement, the unfair allotment of water, prevention of the right to be education. All these abuses have been well-documented by Israel human rights NGOs. If Goldstone’s presentation is slanted, then Halbertal’s is no less so – including his decision to start the historical narrative from the disengagement from Gaza. Why choose this date? The answer in the article is that from that time Gaza was no longer occupied is unacceptable; yet according to many experts and organizations this is not the case. Why didn’t Halbertal cite the remark of Dove Weisglass who said that the purpose of the disengagement was to prevent the establishment of a Palestinian state. Most astonishing is the failure to mention all the other IDF campaigns in Gaza after the disengagement: “First Rain,” “Southern Arrow” “Summer Rains”, etc., etc. and the fact that the IDF killed 1273 Gazans, among whom 522 uninvolved civilians (236 minors) , between the disengagement of Gaza and the onset of Cast Iron. Failure to mention the above creates the false impression that Israel adopted a hands-off policy of military restraint in the face of Kassam rocket fire from the disengagement to Cast Iron, and that the Hamas chose to fire rockets only because of an implacable and inexplicable hatred. And even if that were true, how can one explain Israel’s separation of the West Bank from Gaza despite its commitments to the contrary.

In this context it is also surprising that the article fails to discuss the question of the necessity of going to war. Even if the article focuses on the Goldstone Report (which did not question Israel’s decision to go to war), anybody who writes as an Israeli should discuss the legitimacy of the goals of the war (unclear to this very day), and of the means taken to achieve them. According to some Israeli leaders, the goal of the war was to eliminate Hamas. Wat this a legitimate goal. And the goal was to stop the Kassam rockets, were any less-deadly alternative courses of action feasible or possible? Isn’t it necessary to mention the cease-fire that had redyced the firing of rockets to a trickle, until Israel unilaterally violated it by killing ten Hamas men in one weekend? Is the South genuinely safer now because of the campaign, and if so, for how long?

The article characterizes Goldstone’s claim that Israel deliberately targeted civilians as false and slanderous. But it ignores entirely the evidence, including the statements by Israeli politicians, that the Goldstone Report adduces to support the claim. Is it sufficient just to reject Goldstone’s evidence and conclusions out of hand? And what of the number of civilians killed.

On the latter point the article raises one of its strangest claims: “Since the relation of soldiers to civilians in Gaza was one to 150, then any larger relation in terms of soldiers to fatalities indicates that there was no intention to deliberately harm civilians. In other words, any action which was more careful than random shooting would be justified. But will we absolve the Hamas from responsibility if it can be shown that the relation between soldiers that killed and their victims is greater than the relation of civilians to soldiers in Israel?

The last part of the article treats some of the abuses documented in the report as isolated incidents that should be investigated, and not as well-documented abuses that were part of a systematic war policy. Halbertal is convinced that there was no such policy, although he never gives any reason why he is convinced, nor does he rebut the Goldstone report’s evidence to the contrary. The many proofs of unnecessary and even criminal brutality – firing on civilians, destruction as a means of collective punishment, the use of illegal weapons, the deliberate frightening of the civilian population – merit at best a skeptical approach, and at worst, avoidance. Halbertal’s call to investigate completely ignores the fact that the IDF has ceased investigating Palestinian claims against soldiers since 2000. The call to investigate isolated cases avoids confronting the possibility of their being instances of broader policies.

Finally, it is impossible to avoid providing a more general evaluation of the article and its composition. It seems that political, ethical, and legal questions turn into “dilemmas” that emphasize the soul-searching of the individual soldier who goes out to battle (and the philosopher who serves his spiritual advisor) and blur the consequences of his actions. The historical and political context is brought in accordance with apologetic needs, whereas central facts – the repeated attacks in Gaza after the disengagement, the effective control in a region that has never ceased, the violation of the Cease Fire in the early part of November –are hidden or distorted beyond recognition. The concept of assymmetric warfare provides you with a sweeping justification of the IDF’s actions without mentioning the general context and basic asymmetry that is built into it.

Your article only asks how much the IDF ethical code was implemented. You accept without question the necessity of going to war because you accept without question the IDF and the Israeli public’s acceptance of the necessity of waging a war on terror. But some questions need to be asked: What led to the breakdown of the cease-fire? Could it not be renewed? Were there legitimate goals beyond revenge and giving the public what it wanted? Even when you argue with the report about context and background, you do not doubt for a moment the establishment’s version of the events, in which the operation is portrayed as a defensive move against an aggressive neighbor and is completely removed from its historical context of occupation and control.

Most of all, we speak out against the distortion of the role of the engaged intellectual in your decision to publish this article in this journal at this time. What sorts of things should one cry out against? Can one sit in silence while the IDF has carried out, and continues to carry out, all sorts of injustices in the context of the occupation and its associated activities, and cry out only against somebody who criticizes these actions? If you think that the siege on Gaza is wrong, then why didn’t you protest against it in public? If you claim that there are incidents that should be investigated, then why did you wait until the Goldstone report was published, and then in order to defend Israel from it, for you to come out in favor of an investigation?

You know as well as we do that we are not talking merely about a public expression of a position. The actions of the IDF in Gaza would not have occurred without the legal and moral support of publications such as yours. In this regard it is impossible not to protest against the hekhsher that you have given to the killing of the traffic police at the outset of the campaign. The army may still use this “certificate of kashrut” that you have granted them in future campaigns. At a time when the Occupation continues in full force, when civilians are killed and maimed daily, when theft, expulsion, and injustice under the auspices of the state increase daily, we find it hard to believe how you choose to defend the government who is responsible for all this against those who think otherwise.

The letter is signed: Yuval Ayalon, Amir Angel, Jonathan Ya’ari, Oded Neeman, Levi Spector, Avner Inbar, Yoav Kani, Yishai Rosen Tzvi, Assaf Sharon

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