The Israeli High Court Strikes Again

Not surprisingly, the Israeli High Court rejected the petitions of the human rights groups Gisha and Adalah to compel the state to restore power and fuel supplies to the Gaza Strip. Read about it here.

The High Court is, of course, the Court of the Occupier, and has always reserved the right to rule in favor of the claims of the Occupier. As the Israeli High Court, it rules in what it considers to be the interest of the State, and not the interest of justice or human rights. That is to be expected, of course, and I see nothing wrong with that. That is why there are transnational courts like the International Criminal Court in the Hague, courts which transcend, or should transcend, national interests.

Still, it is instructive to look at the Court's reasoning to illustrate what the Justice of Occupation sounds like. Thus:

"The Gaza Strip is controled by a murderous terror organization, which works tirelessly to harm Israel and its citizens, and breaks every possible rule of international justice in its violent actions against men, women and children," Justice Beinisch wrote.

This sort of emotional rhetoric, characteristic of Beinisch (in her fights with Daniel Friedman), is demeaning of the High Court. Even allowing that Hamas is a terrorist organization, not a single human rights organization or international law body has claimed that it "breaks every possible rule of international justice," even when it has been criticized, as has been Israel, for targeting civilians. Beinisch doesn't mention Hamas offers' of cease-fires and hudnas, or its unilateral cease-firings when targeted assassinations continue, or for that matter, the siege of Gaza which began, unprovoked by any Kassam rockets, after democratic elections.

Beinisch wrote that in war, civilians were the first to suffer.

However in the actions against Israel, civilians were the intended target.The High Court of Justice said Israel was not required to transfer unlimited supplies of goods and fuel, but only to fulfill its obligations by international law.

They said that this is the case, because Israel has not had effective control of the Gaza Strip since the disengagement.

First of all, in Israel's siege against Gaza, civilians are the intended target and understandably so. By targeting civilians, Israel wishes to advance its security goals of protecting its citizens. The thinking is that if life becomes miserable for the Gazans, they will rise up against Hamas. So Israel's targets civilians in order to further its political and security goals.

That is no different from what Hamas does, as any non-partisan will agree.

Beinisch ought to go back to reading her Just War theory, especially the theory of double effect. Her logic justifies the actions of the suicide bomber who expresses regret for the civilians he blows up, but who blames the actions of the enemy for what he is doing. His intention is not to spread terror, he says, but to liberate his people and to inflict a blow on the Occupier. The argument is a bad one, whether it is used by Hamas or by Israel, as the human rights organizations tell us.

Israel possesses no less "effective" control over Gaza than it did before its troop redeployment. Hence it is still the occupying power and responsible for the well-being of the civilian population, under the fourth Geneva Convention.

Why doesn't the High Court's ruling surprise me? As Hebrew U Law Professor David Kretzmer pointed out in his ground-breaking study, The Justice of Occupation, the High Court sees its role as defending the security of the State of Israel, even when that violates human rights and international human rights law. True, it reins in the goverment occasionally, but only when it thinks that it knows better than the government how to meet Israel's security needs.

Norm, Ted, Michel, and Ghada at the Oxford Union

My blogger friend Richard Silverstein once advised me to stick with a story. So since I wrote on Norman Finkelstein at the Oxford Union last Fall -- his invitation, his disinvitation (which I called "disinvitement"), and his reinvitation, I thought I would report to my readers about his appearance there last Thursday night.

The only problem is that I don't live in Oxford, and as far I know, there is no podcast of the event. And even were I to attend Oxford, wouldn't I be morally bound to heed the advice of the anonymous "Zionist Federation official" who was quoted in the Jerusalem Post as having said, "All Oxford students with sense should stay away from this farce."

Oh, I forgot to mention that the "farce" was the debate, "This House believes that the State of Israel has a right to exist." Arguing in favor were Norman Finkelstein and Ted Honderich, a prominent British philosopher who has argued that Palestinian attacks against Israeli civilians are morally justifiable. Arguing against were to have been Ghada Karmi and Ilan Pappe, but the latter bowed out and was replaced by Michel Massih, a Palestinian barrister.

Of course, where there is Norman Finkelstein, there must be his Inspector Javert -- I mean, Dershowitz -- hounding him. And Alan, true to form, expressed his moral outrage in his blog

But back to our story. My Zionists readers will be pleased to know that even with the odds stacked against Israel, the proposition carried the day. Apparently, the Zionist Federation official's advice was heeded. Still, there are some liberal Zionist students at Oxford with abundant sense who attended, preferring engagement rather than boycott. One such student sent me the following report of the evening.

The debating chamber was almost full, but not as crowded as I thought it would be. In the end Ilan Pappe could not come - some university obligations I was told. In his place was a Palestinian barrister, called Michel Massih. The Union always opens its debates with student speakers. For Israel's existence, the opening student speaker was Jessica Prince, a very good Canadian debater. The Opposition student debater was called Lewis Turner - a prize winning debater.

Before any debate begins, the Union President (currently Emily Partingdon) always asks the Audience seomthing like 'does any honourable member wish to raise any business with me'. So I did, and gave a short speech based (I wasn't looking at the page as I made it so it might have been slightly different) on the text below:

"Thank you Madam President. I have a question for you which I know I am asking on behalf of many students, who like me, are absolutely baffled and disappointed by the bizarre choice of Norman Finkelstein and Ted Honderich to be the guest speakers proposing tonights motion: ‘this house supports the right of Israel to exist’.

"Both men have supported the actions of terrorist organisations intent on the destruction of Israel. Norman Finkelstein has described Hezbollah as ‘representing the hope’, while Ted Honderich has written that the use of terrorism against Israeli civilians is morally justifiable. What's more, Finkelstein has stated that (and I quote): "No, I do not support a two-state solution. I don't support states. I remain an old-fashioned communist. I see no value whatsoever in states" - and doesn't make him the most obvious candidate for tonights debate!"

"The two speakers are certainly not representative of the views of mainstream supporters of Israel’s existence, and the fact that they have been invited to, in effect, speak on our behalf, and make the case for Israel’s existence, is peculiar, and frankly insulting. That said, I do hope that both men will do what they were invited to do, and offer compelling and convincing reasons for Israel's existence.

"But to come to my question - If the Oxford Union were to invite two right-wing Zionists - say Melanie Philips and Ariel Sharon on life support - to speak for the motion ‘This House supports the existence of a Palestinian State’, then such a debate would be rightly denounced as a farce. With far left detractors of Israel making the case for its right to exist, Madam President, is tonight's debate any different?"

She answered by saying that the speakers are not representing anyone's views but their own, and that she has been having discussions with me, and that she is open to be e.mailed if anyone has any problems at any time. Immediately after she said that, someone else stood up to bring up business with her, explaining that he HAD e.maled her on this issue and had not received an reply for a week. She claimed that she invited him to a meeting, which he didn't bother coming to - he responded by saying that if she bothered to read his e.mail, she'd know that he couldn't come to it, and that she hadn't bothered to replly. In any case, what I said got a clap.

Then the debate started. Jessica began with something of a caveat, reiterating wht I had said about the Finkelstein and Honderich, and pointing out how peculiar it was that they were on her side. She got a laugh. She continued by saying that it was important to be clear on what is and what is not being debated. We are not, she explained, debating the occupation or any other Israeli policy. We are not debating what occured in 1948, and we are not debating the exact borders of the state. We are simply debating the existence of a Jewish state. She then stressed the usual points - the right to national self determination; the history of Jewish persecution; it's a democracy; the fact that no one debates the existence of Syria or saudi Arabia etc, so why always Israel?

Lewis Turner than came back by saying that you cannot divorce Israel from its racist policies. Because Israel is a zionist state, and Zionism is a necessarily racist ideology. (Law of return, demographic fears etc). Whereas, he said, if Saudi Arabia stopped persecuting homosexuals, it would remain Saudi Arabia, if Israel stopped haveing its racist law of return, it would cease to be Israel. This was the thrust of his talk.

Then, Finkelstein. He explained that the notion of an abstract right to a state is irrelevent, and meaningless; therefore what he believed on that matter is 'totally besides the point'. What matters, he explained, was that there is tremendous suffering in the area, and we had to examine the best way to end and deal with that suffering. Which was, he argued, an Israel and a Palestine. I think what he was trying to say was that if you pursue a one state solution, you risk leaving the Palestinians in the state of suffering that they are in for a far longer period of time. He several times stressed the point that 'this [ how to end their suffering] is real' and 'this is serious'. He then spoke briefly on the legal right for Israel to exist. It boiled down to: The UN said it exists, therefore it does. He also raised the question of why the two state solution hasn't happened, and blamed America and it's tiny allies like Micronesia for blocking votes in the UN. I have to say, while he didn't really speak for the motion, explaining Israel's right to exist, or rebutting the other sides argument (which is what is expected in a debate...) he wasn't as bad as I thought he would be. He also spoke vry quietly, and I'm told people at the back struggled to hear him.

In accordance with Union custom, speakers from the floor were then invited to give 2 minute speeches. The first for Israel, wearing a Palestinian and an Israeli flag around him, urged the audience to consider the implications of saying Israel should not exist - a one state solution, he argued, is a prelude to more fighting, more tensions, and potentially civil war. He then said the usual about why not ask about other countries...

The next student, speaking against Israel, accused the 'man in the flags' of being a racist. He said that one shouldn't fear the multiculturalism of a one state solution. He then said that Israel is not a democracy, because its democracy was based on having so much immigration so as to make the interests of one group marginal.

An Israeli law student then spoke. He stressed the link between Israel and the Jews throughout history - our prayers, our literature, the archeology etc.

The final speaker was a Palestinian student, who argued that Israel had neither a legal nor a moral right to exist. No legal right, because it was breaking resolution 183 [194?], and no moral right, because it had ethnically cleansed the Palestinians in 48.

Then Massih spoke. He focused on the law of return, stating that is racist, and giving a personal anecdote about how at Ben Gurion airport, he wasn't allowed back into Israel with his family when he wanted to go to Jerusalem, where he was born. He was very funny and charismatic, but had a slightly condescending and aggressive side to him as well - when a friend of mine made a point of information, to ask why, if he believes that bad policies deny a state its right to exist, he isn't concerned with the unnaceptable laws of Saudi Arabia etc, Massih pointed at him and asked 'Are you a Jew?' 'Why does that matter?', my friend replied. He went on 'Are you a Jew? Tell me, are you a Jew?' The audience was quite surprised, and I think one or two people may have mumbled shame at this point. My friend then said, 'Yes I am a Jew, but why does that matter?' and Massih replied 'Because you can go back and I cant, even though I was born there'.

Then Honderich spoke. He (somehow) managed to speak for 8 minutes wihtout talking about Israel once. Given that speakers are gven only 10 minutes overall, this was quite a problem. During those 8 minutes he tried to outline some philosophical principles - democracy, rights. But he wasn't particularly clear, and people after the debate joked about wanting to go to sleep during his talk. Someone said they thought his tatic was to bore us into submission. In any case. In the 7th minute I stood up to make a point of information. I was going to ask him to kindly finish his philophy lecture and do what he was invited to do, and explain why Israel should exist. He wouldn't take my point though. Had I thought more carefully, I would have made a point of order, and asked the President to please remind Honderich to stick to the conventions of a debate and actually debate. In any case. In the final two minutes (after the Union secretary had notified him he had only 2 minutes left) Honderich rushed through an explanation of the distinction between zionism and neo zionism. Zionism is legitimate he said - Jews have a right to national self determination, especially given their history. Neo-zionism - the settlements etc, is immoral. He concluded by saying that he supports the right of Palestinians to use terror against Israelis in historic Palestine. This statement was received with heckles of 'shame'.

Ghada Karmi was the final speaker. She was tremendously unpleasant in my opinion. She began by stating that she is totally confused about why this debate is even happening, and about why it was chosen - its madness to think that Israel has a right to exist. Karmi then spoke about the current situation in Gaza without electricity, and about how brutal the occupation was in general. I tried to make a point of information, to say that I'm an Israeli and I hate the occupation but that the occupation is not a necessary part of Israel's existence and how dare she speak of it as though it is. Anyway, she wouldn't take a single point of information throughout her talk. At one point she made a slip and spoke of the Jews replacing the Palestinian state, to which about a dozen people stood up to say 'point of inforamtion', to point out that in fact there was no Palestinian state, and that she was being ahistorical. When talking about the occupation, she also said that the settlers have their own roads because they cannot bear to look at Arabs. A student made a point of order, and asked the President to tell Karmi to retract her racist statment that all settlers are themselves racists. Karmi then clarified her point - something like: 'I am saying that Israel is a racist state'. Another funny point was when she looked to Finkelstein and Honderich and said 'I respect what you said a lot - you should be on our side but...' At which point myself and several others shoulted 'we know!' and got a laugh. Karmi finished her talk by ridiculing the notion of a Jewish connection to Israel, by explaining that the Jews were once canaanites, who then became Jews, many of whom then became Christians, and then became muslims. So all Palestinians are in fact the descendents of these canaanites, and have a stronger claim to the land than the Jews who left it. Karmi also likened the situation in Gaza to the Warsaw ghetto.

Phew. That's all, except to say that Honderich switched sides during Karmi's talk (there was a reason why but I cant remember it...) and that the vote went in Israel's favour, I am told, but only by 158 to 132. A friend of mine claimed to have seen Finkelstein walk out through the 'nay' door (against the motion)...but I'm treating "that claim" with a pinch of salt.

From the above it seems to me that the speakers didn't really speak to the question, either for or against; instead, they reverted to the one-state vs. two-state question, which had been the topic of the Fall debate. And that was as I predicted.

As for the question of Israel's "right to exist"....that is the subject for another post. Stay tuned.

Why I Still Support Obama

I have no illusion that Barack Obama will be any better (i.e., worse) for Israel than Hillary or any of the Republican contenders for the nomination. When he gave the "pro-Israel" (i.e., anti-Israel) speech at AIPAC last March, I wasn't surprised. When he sent a letter last week to the UN Security Council claiming that the Kassam rockets had "forced" Israel to increase the siege on Gaza, I wasn't surprised either. If he manages to pull off the impossible and upset Hillary, he will sound more and more "pro-Israel" and less and less balanced. I would like to think that all this is just rhetoric to get elected, but I am more realistic than that. The best I can hope for is a return to the liberal-Zionist position.

As I have written here before, the "moderate" position in the Democratic party -- and, indeed, in the liberal press and much of America -- is liberal Zionist a la Clinton, Dennis Ross, etc. To expect the Palestinians and their allies to have the clout in the US that the Jews have is wishful thinking. To be a Palestinian moderate in this country, you have to appear to be either a liberal Zionist, or somebody who has no problem with Zionism. So Palestinian groups like the American Task Force on Palestine have to buy into the two-state solution a la Clinton or Geneva, whereas a voice like the Electronic Intifada's Ali Abunimah is considered extreme, at least for now. Abunimah wrote last March a very poignant article on Obama's conversion to a "pro-Israel" stance as he became a mainstream national politician. His tone was one of profound disappointment, since he knew Obama before the Chicago politician had to pander to the Lobby. But Abunimah wasn't surprised at Obama's conversion. Nor was I.

So why do I still support Obama?

For one thing, since I don't believe that US policy towards Israel will change in any event -- unfortunately -- then there seems no reason not to prefer a progessive like Obama over a liberal hawk like Hillary for other reasons.

Second, I have been told that one of my personal "heroes" -- Rob Malley -- has become associated with the Obama camp. Malley co-wrote with Hussein Agha the seminal NYRB article that challenged the Israeli spin on Camp David -- and that provoked the response from Benny Morris (one of my favorite bigots) and Ehud Barak (a bigot, without Morris's charm) to utter the infamous remark about Arab "mendacity".

But most important, the enemy of my enemy is my friend. And Obama's enemies within the Jewish camp -- the liberal-hawk-neocon-chorus of zealots who advocate policies that destroy the Jewish state morally and physically, while they celebrate their tough-Jew mafia morality -- over here in the diaspora, of course -- are getting nervous about Obama. It's not that they don't want to go on record blasting the first serious African-American contender for president -- they abandoned all appearances of concern for social justice in favor of ethnic loyalty a long time ago. It's that they have to view anybody who considers the Palestinians to be human as an existential threat to the State of Israel. That is why they go after Jimmy Carter, who did more for the State of Israel than the world Jewish community ever did, or why liberal hawks like Richard Cohen, still smarting from Alvin Rosenfeld's chutzpah of coupling his name with that of Tony Judt, feel compelled to call Obama on the carpet for not actively dissociating himself from his Chicago church's minister. Look how the rightwing Jews went after Condi Rice for daring to compare the Israeli treatment of Palestinians with Southern discrimination against blacks (the Palestinians should be so lucky.)

I once wrote a column urging American Jews to vote Republican so that when a Democrat is elected, he would not have any political obligations to the Jews. That, of course, was a liberal fantasy. But more and more "pro-Israel" supporters will leave the Democratic party for the Republican, and that is just dandy in my eyes -- because there are a whole lot of progressive Democrats out there who are not Jewish, who support Israel and the Palestinians, and don't see why one people should get more than the other. When Jonathan Tobin, the rightwing Krauthammer-wannabee who edits the Philadelphia Jewish Exponent, writes an article critical of Obama on Israel, how can any real supporter of Israel not vote for Barack?

No doubt true lefties out there -- and not wimpy liberals like yours truly -- will have a lot of reasons to find fault with Obama. They will back a marginal candidate with no hope of winning, and I am sympathetic with that...after all, that's what I do in Israel, when I vote for Hadash.

Still, if for no other reason, Obama needs support from progressives now across the board -- and Jewish progressives should be part of that rainbow coalition for change which gave him South Carolina.

We can worry about his "pro-Israel" positions later.

Welcome, Bernie

Bernard Avishai's name is familiar to anybody familiar with Zionism and Israel. He has been writing on the subject for years, and if I may say so, he is one of the best. This is no small compliment, coming from somebody who is on Bernie's left, and who abandoned his sort of liberal Zionism after thirty years of Peace Now rallys. So it is with great pleasure that I welcome him to the list of liberal Zionist bloggers. And, anyway, he lives a few blocks from away from me, on the other side of Emek Refaim.

The nice thing about the blogging business is that when one blogger gets weary, there is another one ready to jump in fresh as a daisy. I have been morose lately --the Gaza madness wears heavy on my soul -- and I have found it difficult to put fingers to keyboard. I am also en route to the galut of Washington, DC -- from one mad capital to another. So if you got here and are still reading this, please check out Bernie's analyses here

Gideon Levy wrote last week about the Israeli -- the human -- need to "do something" whenever the other side strikes. The Israeli reaction resembles an elephant trying to swat his backside with his trunk; the move is reflexive, not well-thought out, and always futile. The image works for both Lebanese wars and both intifadas. If we Israelis don't "do something" then we let the bad guys get away with murder, or kidnapping, or random shelling. But our response is always dispropotionate, ill-considered, and counter-productive. After Nasrallah's speech about willing to trade Israeli body parts, the minister of justice Meir Shitrit, one of the most moronic men in Israeli politics, announced that the proper response to Nasrallah is targeted assassination. Forget the question of morality and law, Shitrit's elephantine response is understandable but dumb. OK, so Meir Shitrit is not the Israei government. But we are condemned to repeat the same process every time this happens.

And why must we "do something"? It is not to solve the problem, or to stop the other side. It is always to make our side feel better. It wounds our national pride that these guys can hit us using Davidkas, sorry, Kassam launchers. So we hit back hard. Then we can say, "Sure they are shelling us, but look how many of them we are killing. Hey, we could wipe them out, but we are civilized, so we don't see things like that." So the real purpose of the exercise is Le-shahrer lahatz; to let off steam. The rightwing is at our back, etc., etc.

All this happens all over the world. But in a country which has been in a perpetual state of war for all its existence, which is run either by military men, or by civilians who usually defer to the military, then this is the pattern of our existence. Afghanistan and Iraq-like reactions aren't inevitable in the US; had there been another president, history would have been different. But they are inevitable, or nearly inevitable in Israel.

And that should lead us to ask more fundamental questions why this so. I have my answers.

I look forward to hearing Bernie's

How Do You Know When the IDF Lies? The Brian Avery Case.

Ok, so you are an intelligent, reasonable, human being. You have learned to be skeptical of the claims of dyed-in-the-wool ideologues, government agencies, politicians, journalists, lawyers, etc. You know that people and organizations have agendas and will lie to cover their tushies and to protect their agendas, always in the service of a noble cause. But, still, there are people who will speak the truth even when it is not in their interest.

So how do you know when somebody or some organization, say, the Israel Defence Forces, is telling the truth or lying?

Almost five years ago, International Solidarity Movement volunteer Brian Avery suffered a wound in his face which disfigured and partly disabled him. Avery said he was shot be an IDF patrol. The IDF says that the bullet ricocheted against a wall, and he was filled with shrapnel in his face (i.e., the soldiers did not shoot directly at him). The IDF's rules do not now require it to open a military investigation when civilians are hurt (this, of course, is a change from the First Intifada.) So the IDF didn't at first launch an investigation; they just relied on the field commander's report. Later, in a fit of superogatory kindness typical of people who have been caught with their pants down, they decided "lifnit mi-shurat ha-din" to launch a military investigation. Of course, this was after Avery had petitioned the high court and looked like he would win.In the meantime, Avery has withdrawn that petition, but now has a suit against the state for damages he suffered.

So how do you know who is telling the truth? That's simple. If you are pro-Israel, you will believe the IDF. If you are not, you will believe Avery. Who the hell cares about truth and justice for one American goy, who shouldn't have been there in the first place? Just read the talkbacks of the Jerusalem Post article.

But who do you believe when the "he-said/she-said" is not between the IDF and the leftwing enemies of Israel, but between the soldiers who allegedly did the shooting and their military superiors?

For some of my rightwinger readers, again, it is no brainer. "So what, we shot him. Big deal. He is lucky he is not dead. OK, so we lied about shooting him. That's good for Israel, maybe. Who cares?"

These are the folks who would not oppose Brian Avery's mother being gassed and turned into soap if they thought it was in the interests of the Jewish State. I really don't care to write for people like that. It is enough that I have to breathe the same air that they do.

But I still have at least one reader out there who genuinely believe that the IDF is different from other armies, that while there may be a few bad apples, like in any army (see: Abu Ghreib), the IDF can be trusted to police its own, etc., to take appropriate steps when necessary, to balance, based on its own Code of Ethics, military exigency with human rights.

So for those readers (including the editors of Reform Judaism Magazine, who last summer featured a cover story on the IDF's "ethical behavior") let Jerry tell you how the IDF works.

Step One. Somebody shoots and disfigures an American civilian, a leftwing loony.

Step Two. The field commander, or whoever has to, writes up a report of the incident in a way as to cover his tush. It's accepted by the higher ups, of course. After all, the guy shot was a goy, and with any luck, his family won't be able to fight for him in court.

Step Three. Surprise! The attorneys representing the civilian petition the High Court for a full-scale military investigation.

Step Four. The state, representing the military, argues that this is unnecessary. When the state's attorneys sense that they are going to lose in court, they hastily change their position and declare that they will investigate. (Note to state -- try to weaken the authority of the High Court)

Step Five. Surprise! The wounded civilian sues the state for damages and receives affidavits from the soldiers that contradict the sworn reports of the IDF Military Adjunct General.

Step Six. The lawyers "leak" the petitioner's claim to left-of-center Haaretz on January 10, 2007, making the army look bad.

Step Seven. A few days later, right-of-center Jerusalem Post picks up the story, this time, giving ample space to the "sources in the Military Advocate General's office" to rebut the charges.

Step Eight. The rebuttals are weak, unconvincing, and partial, but it doesn't matter. Until the matter is settled in court, the story will have passed.

That's how it works. It usually doesn't get past Step Two.

A comparison of the story in Haaretz and the story in the Jerusalem Post, shows that the latter publicized only some of the claims found in the soldier's affidavits that contradicted the Military Advocate General's office.

The story in the Post can be read here and on Haaretz (only in Hebrew!) here

Let me just give you one example. Here is how the Post reports the contradiction:

In his response to the petition, the Military Advocate-General wrote that after the soldiers spotted suspicious figures, the machine gun operator fired eight to 10 bullets "in the direction of the highway, close to the wall of a building."

In the affidavit, however, A.S. said he had ordered L.C. to fire "at the road, between the Armored Personnel Carrier [APC] and the figures," purposely aiming short.

According to Haaretz, the soldiers' affidavits say that the soldiers fired at three suspicious figures.

According to the Post:

• Contrary to the army's claim that the soldiers in the APC did not know (and therefore did not report) that they had hit someone, a detailed report of the incident was registered in the brigade operation's log that night. The first entry was recorded one hour after the incident and stated that "an American was severely wounded in the face by a bullet. Brian Avery is in a hospital in Jenin. They want to evacuate him to Israel."

The "sources" response?

The brigade only heard of the shooting from the IDF Spokesman's Office, which called to inquire about media reports it had received concerning an American allegedly shot in Jenin. Following the phone call with the IDF Spokesman's Office, the brigade operations officer recorded the shooting in the operations log.

According to the Haaretz article, however, the affidavits show that the soldiers themselves told the brigade operations officer that one of the people had fallen.

Look, I don't know who is getting the material in the affidavits right -- the Post, which used its sources in the IDF, or Haaretz, which used the plaintiff's attorney. The army claims it made a thorough investigation, and the affidavits claim that the soldiers themselves were not interviewed till a year and a half after the incident.

But that is how the system works. Were it not for one American's family, a human rights lawyer, and an Haaretz journalist, and the ability, interest, and time, of readers to sift through this stuff, the IDF would get away with murder.

Which they do all the time...and which doesn't matter -- because no matter what they do, you will not find them criticized, certainly not by the pro-Israel supporters.

The IDF is no better or worse than other armies in long-term occupations. Such occupations inevitably corrupt. For every Brian Avery there are tens of thousands of Palestinian civilians who have suffered and who will never see redress. Avery's case attracts attention because he is an American. And because there are no Americans lobbying kassams in Sderot.

Believe, if you will, that Israel must act brutally, immorally, monstrously, and barbarously, in order to survive. Believe that this is the price that must be paid for a Jewish state. I disagree, but one can make that argument.

But don't deceive yourself into thinking that the IDF is the most moral army in the world. You can have all the Michael Walzerian theories of just-war, served up with all the side dishes of Asa Kasherian Ethical Codes for the Army, you like.

The reality on the ground -- something not even considered in the aforementioned article in Reform Judaism Magazine, which, I guarantee you, will not discuss the Avery case -- will still make any healthy person sick to her stomach.

I used to believe that garbage about the IDF being "the most moral army in the world." After all, my four children are moral, and they all served in it. Heck, I am not that bad, and I served in it.

Then I heard what it does on a routine basis. No, not widespread murder or rape. Only torture and thousands, hundreds of thousands, of petty humiliations -- which are part and parcel of the Occupation, every occupation.

So who do you believe?

Don't give anybody the benefit of the doubt.

Norman Finkelstein at the Oxford Union -- Round Two

When Norm Finkelstein was disinvited from appearing at the Oxford Union last term, the then president, Luke Tyrell, said that he would be invited back. I wrote about it, and then it was picked up by Tikun Olam and Muzzlewatch.

Well, he will be back all right. Although this time he will be debating the question: "The House Believes that the State of Israel Has a Right to Exist." Read about it here.

And, needless to say, he will be arguing for, not against, the proposition.

Finkelstein's partner will be Ten Honderich, a prominent British philosopher (who has written a good deal about the free will problem) But he is best known as a leftwing philosopher who has taken stands that make the average liberal philosopher queasy. From Wikipedia:

His Humanity, Terrorism, Terrorist War: Palestine, 9/11, Iraq, 7/7...justifies and defends Zionism, defined as the creation of Israel in its original borders, but also reaffirms that Palestinians have had a moral right to their liberation -- to terrorism within historic Palestine against what Honderich calls the ethnic cleansing of Neo-Zionism, the expansion of Israel beyond its original borders.

Against the proposition will be Ilan Pappe and Ghada Karmi. Both had been scheduled to argue in favor of the One-State solution last year. But they and Avi Shlaim walked out when Finkelstein was disinvited.

This debate looks virtually the same as the one that caused the brouhaha last term. If you believe in Israel's right to exist, you are a two-stater; if you don't, you are a one-stater.

So will Alan Dershowitz get involved? Will the Brit liberal Zionists go ballistic again?

May I suggest that the proper Zionist response is not to claim that Finkelstein and Honderich are being disingenuous. In fact, they both are in favor of recognizing the State of Israel within its 67 borders. The proper Zionist response is to claim that a debate betweeen leftwing advocates of Israel and leftwing detractors, leaves out the Zionists, and that is unfortunate. After all, it seems odd that no Zionists are on the program.

Odd, yes; unfair, no. If Zionists are not invited to this one, let them sit it out. Maybe they should ask for the following debate: ""The House Believes that the Palestinians have a Right to a State." The Zionist left will argue in favor; the Zionist right against. That would be a nice attempt to balance.

Stay tuned for more...

Prof. Ruth Gavison vs. International Humanitarian Law

I have been sitting on this way too long. Sol Salbe was kind enough to translate an article from Haaretz, untranslated on their website, that fits into my recent theme -- the struggle of some Israeli academics against international human rights organizations and institutions. The last post was about Gerald Steinberg's NGO Monitor. This one is about law professor Ruth Gavison's criticism of International Humanitarian Law before the Winograd Commission, which is investigating the government's handling of the Second Lebanon War.

The article is long but worth going through. A companion article, by ultra-rightwinger Caroline B. Glick, has a different perspective on international humanitarian law. Basically, she assumes that everything Israel does is moral (because we are Jews, right, and she is, too), and so anybody who criticizes Israel (not from the right, of course) is immoral. So Caroline is worried that unwarranted concern with international humanitarian law may be tying the hands of the Israeli government. This is the 'we-lost-the Lebanese-war-because-we-were-stabbed-in-the-back-by-the-lawyers' claim.

You mean you don't know about Ms. Glick, one of the most famous "journalists" in the world because in the heady days of the Iraq war,she "scooped" all her colleagues by reporting the discovery of an Iraqi plant that manufactures weapons of mass destruction? This was huge news until it was discovered that Glick fabricated the whole thing. Of course, any responsible news agency would have sent her to hell for letting her biases manufacture a cock-and-bull story. But since she works for rightwing tabloids which aren't exactly known for their journalistic ethics, she stayed on. Now she is the deputy managing editor of that yellow rag for the Anglo-Israeli subculture, the Jerusalem Post, and works for a neocon think-tank in DC -- both ideal outlets for her rare talents.

Anyway, please notice how former head of the Association of Civil Liberties in Israel, Ruth Gavison, and possibly a future Supreme Court Justice, wants to do away with -- oh, sorry, "modify the application of" -- International Humanitarian Law.

When it comes to her contempt for international humanitarian law and its institutions, Gavison out-Dershowitzes Dershowitz. She argues that international humanitarian law prolongs conflicts because states are hampered in their ability to come to a decisive conclusion. Wouldn't it be better for civilians to have a nasty, brutish, and short war instead of a long, protracted conflict conducted according to Hoyle?

The mind boggles.

Ruth and Caroline, rest assured. No lawyers, government or military, hampered Israel's military activities during the Second Lebanese war, nor will they ever do so. Like any good lawyer, the attorney general and the IDF judge advocate office will always see their job as protecting their client's tukhes -- nothing more.

I am not making this up. Read on.

Are the rules of war worth having?

Meron Rapaport

The testimonies to the Winograd Commission, which were suddenly released for publication out of nowhere, are reminiscent of a marathon runner who arrives at the starting line after the race has been run and everyone has gone home. They are simply not related to anything real. MK Zahava Gal-On of Meretz took up the cudgels and fought for a full release of the transcript. The commission objected. Bagatz (the High Court of Justice) concurred with Gal-on. The Commission remained adamant and Bagatz went to water. Eventually there was an agreement that sections of the testimonies would be released after being vetted and censored by the commission itself. The commission has carried out that task at its own pace – so much so that it has already developed a reputation for tardiness. Comparing the released testimonies to cold spaghetti is unfair to cold spaghetti,

On Tuesday 18 December, precisely eleven months after they were given, two testimonies were released, that of the Attorney-General [Menachem] Meni Mazuz and the Military Advocate General Avihai Mandelblit (who had resigned in the meantime). Their testimonies dealt with the legal aspects of the Lebanon war. It is hard to make the case that the commission members made it tough going, at least to go by the published excerpts. (Certain sections of the testimonies were deleted, although not as much as from other testimonies.) The central question that preoccupied the commission members was not whether the IDF had struck at Lebanese civilians without sufficient reason. Nor were the commissioners concerned with the issue of possible IDF transgression of international law. No, the commissioners wanted to know whether the law officers had tied the hands of the IDF during the war.

Mazuz and Mandelblit set them at ease and assured them they had not interfered [with operations]. The commission members concurred. They acknowledged that none of the other officers who testified before them had complained about the law officers getting in their way. At any rate, the commission’s transcript suggests that Israelis view international law as a flexible concept.

Commission member Professor Ruth Gavison reported that some ministers put forward proposals “that on the surface seemed to be not quite in accord with international law” (maybe she had Haim Ramon’s and Eli Yishai’s proposals to flatten Bint Jbail in mind). But in their testimony, the two ministers stated that their proposals were indeed in line with international law. “They adopted the need to argue that they operated within international law”, said Gavison, and it is hard to tell if she is expressing satisfaction or cynicism.

Gavison is the central protagonist of these testimonies. She asks most of the questions. She also shows a profound theoretical interest in what’s allowed and what’s forbidden in war. Her curiosity is not accidental. It is derived straight from her background. Two of the commission’s members – Menachem Einan and Haim Nadel – are former generals. Professor Yehezkel Dror has always dealt with systems, not people. But Gavison used to be the president of the Association of Civil Rights in Israel, and these are the kind of matters that interest her. This led to an interesting exchange between her and Mazuz.

Gavison raises a question that has troubled her for some time: “War is an attempt to resolve a conflict through force. Sometimes it is better for all sides if the conflict is resolved quickly rather than lasting for decades… If there is no resolution, then perhaps in the short run fewer people are killed, but the corollary is that we do not eventually arrive at a stable situation and further years of calm.”

International law, as it stands now, for all its limitations, actually prolongs conflicts, argues Gavison. “A situation exists in which the legal system is the very system that inhibits a quick resolution to a conflict,” says the former president of the Association of Civil Rights in Israel. “… An argument can be made that on some occasions it is permissible to take steps that will result in higher civilian casualties in the short run, not on the simplistic level, but on the deep fundamental level of the functioning of international law.” In short, Gavison is wondering if one should not permit, legally speaking, a higher civilian casualty toll in order to hasten the end of a war.

Mazuz appears startled. “I’m not familiar with any fundamental concept in international law that will lead one to the view that seeing the laws of war are hindering the fighting sides, the limitations of these laws should be eliminated in order to ensure a clear outcome, even if the means to achieve this…”

Gavison: “Not necessarily give up altogether, but a modification is a possibility.”

Mazuz: “This implies giving up on some of the principles. I am unfamiliar with this viewpoint. The predominant tendency in international law is to move in the opposite direction of a tightening of the rules and imposing increasingly stricter limits.” According to him there is an increased emphasis on the prevention of civilian casualties rather than the opposite direction. He subscribes to this direction. That’s the way a law-abiding states ought to behave, in his view. In addition he observed that past wars, those took place before international law began to crystallise about a century ago, were neither fast nor clean, on the contrary, they were the very opposite.

Gavison remains perturbed: “We are not about to get into a seminar here, but I must confess that I find your analysis rather difficult to comprehend,” she tells Mazuz. According to her, international law is political and it is biased and therefore troublesome. “The rule of law in the context of international jurisprudence is something that can be used rhetorically but adopting it as an actual stance runs the risk of a strategic threat.” Like the minister who wanted to flatten Bint Jabil, Gavison wants to address the world with international law, but not actually adopt it,

Given that this was the committee’s prevailing attitude, it is no surprise to discover that both Mazuz and Mandelblit quickly skip over the difficult moral and legal questions raised during the Lebanon war. There are barely two or three sentences devoted to the question of civilian fatalities. Mandelblit says that “he does not have a clue” why there are no clear data as to the number of fatalities. Mazuz “surmises” that “hundreds of Lebanese civilians” were killed in the IDF’s bombardments. The question of Israel’s massive use of cluster bombs, which a few months later led to an internal investigation within the IDF, does not rate a mention at all in the January testimonies. In the material that is not blanked out, only one operational incident gets examined in detail, and that is the bombardment of Kafr Kana. On that score, Mazuz says: “The incident complies in an enhanced way with the full gamut of international law.”

If Mazuz sounds philosophical and contemplative, Mandelblit is positively smug. He explains the innovative work of the military advocate-general to the commission’s members. In other word,s the MAG’s office came up with the notion of defining the Second Intifada as an “armed confrontation” which in turn removed some of the constrictions on IDF operations. This “innovation,” treated as if it were the product of a high-tech start-up outfit, has now been adopted around the world, says Mandelblit. Gavison compliments him. “Israel is doing pioneering, sacrosanct work” in this field,” she says.

According to Mandelblit’s testimony, he was not exactly run off his feet with work during the war. He had to explain to the Chief of Staff that artillery fire directed towards a town centre was illegal under international law because of the “indiscriminate nature” of civilian casualties. But that was a purely theoretical explanation. “I don’t think that they (the IDF) want to attack civilian targets, there is no such thing. I don’t think that you’ll ever hear of the State of Israel attacking civilian or prohibited targets.”

Gavison and the rest of the commission’s members put the brakes on slightly. Maybe it would be better, they argued, for the MAG to move aside altogether during war, and thus commanders would be able to act freely. Afterwards the MAG would be able to punish them appropriately, if applicable. Naturally Mandelblit soothes them down. Matters already operate in this fashion anyway. He, as the Military Advocate General, moved aside during the war. “And therefore during the war I did not wear my law-enforcement hat. My role is to help the IDF win. Like every other IDF officer… During the war only advice was provided, no other thought was contemplated about just how to assist the operational units.” So now, to paraphrase the Hebrew, how do you go about catching those who fired cluster bombs on towns and villages in south Lebanon?

The Campaign in Israel Against Human Rights Organizations

It has been fascinating to witness over the last few years Israel's loss of moral stature by going after international human rights groups like Amnesty International, Human Rights Watch, Doctors without Borders.

Why isn't it enough that Israel merely violates human rights? Why does it have to oppose the human rights agenda? The answer is simple enough. Because Israel views itself, without much justification, as a moral and civilized country, it has to confront the overwhelming amount of counter-evidence gathered by the human rights groups, be they Israeli, Palestinian, or international. So it uses the same techniques that any of use when arrested for criminal activity: claiming unfair application of the law, crying double-standard, etc., etc.

When Alan Dershowitz wrote the Case for Israel, a self-serving book that praised Israel's record on human rights, he could not cite a single mainstream human rights organization that agreed with him. Norm Finkelstein's book, Beyond Chutzpah, cited case after case of human rights violations according to Israeli and non-Israeli human rights organizations -- all of which were dismissed as biased by Dershowitz, in the best tradition of defense attorneys who try to divert a jury by crying foul.

It's not enough that we Israelis commit crimes; we whine about being punished unfairly.

Of course, this technique doesn't really work effectively with the human rights organizations whose agenda is, uh, human rights. Because they go after everybody who violates human rights -- Israeli, Palestinian, Arab, Chinese, African, etc. Just look at the websites of HRW and Amnesty International. The vast majority of their activities don't concern Israel. They are much more critical of Israel's enemies in the Arab world then they are of Israel.

If you want to spend an entertaining hour, you can either stare at the ceiling, or visit Gerald Steinberg's NGO Monitor. Steinberg is a right-wing poli sci professor at Bar Ilan, whose academic specialty is arms control. But he appears a lot in the media as a defender of Israel. During the second intifada and the second Lebanese war, when Israel was universally condemned -- I mean UNIVERSALLY condemned for human rights violations -- his website went after Ken Roth's Human Rights Watch.

Now, if NGO Monitor were serious in showing NGO bias, it would not just look at the human rights organizations' reports on Israel. It would examine all of the human rights organizations reports, in all parts of the world, for signs of bias.

For example, it is argued by right-wingers that most human rights organizations are anti-statist, post-national, yada, yada, yada. And there may be truth to some of these claims, just as there may be truth to the claim that putting human rights at the forefront is inevitably going to clash with the rights of states, or at least, their interests. I suppose that one could be a right-wing libertarian and agree, but there are few of those out there; it is mostly the left that backs the human rights groups (although traditionally, doctrinaire left-wing organizations have not exactly been champions of human rights.) Of course, states that violate human rights always chafe at any criticism. Some may claim that in the long term, human rights are best protected by a system of responsible states, that the value of protecting human rights must be balanced against other values connected with states and their responsibilities to their citizens, etc.

Steinberg could also get more credit if he were willing to agree with some of the serious criticisms of the groups. After all, even according to its supporters, Israel violates the human rights of Palestinians, but only in order to protect the human rights of their own citizens.

But let's face it -- if you are on record as criticizing as biased Amnesty International,Human Rights Watch, Oxfam, the Ford Foundation, Be-Tzelem, etc., nobody, except the loonies on the far right, is going to take you seriously. Of course, you could be right and all the groups could be wrong. But unless you are the sort of Jew who believes that the world is against us, and that these organizations are populated by antisemites and self-hating Jews -- AND that organizations that spend most of their energy slamming even more serious human rights violators than Israel are doing so either because they are bored, or in order to cover up their antisemitism...well, if you believe that, please don't leave a comment on this blog, but get treatment for acute paranoia.

I am willing to allow that all these groups make mistakes, but if that's the case, I don't see why they are more likely to make more mistakes in their reports on Israel than in their reports on Saudia Arabia or Hamas or Pakistan or China.

I wouldn't have even brought the NGO monitor up if I hadn't wanted to use it as an example of how Israel, which once thought it had the moral high ground, has lost it in the eyes of the world. When you are going after the human rights organizations, you are going after human rights. Pure and simple.

What happened? Well, World War II happened. The Holocaust Happened. Hiroshima happened. Dresden happened. The Twentieth Century happened. A whole system of International Humanitarian Law came into place to deal with crimes against humanity. That's right -- in a sense, both the State of Israel and International Humanitarian Law are legacies of the madness that happened in the middle of the twentieth century. And that has taken the Jewish state by surprise. Because it turns out that not everything you do to protect your own people is legal, much less moral. Humans have rights that are inalienable, or at least so it is claimed. And according to the the human rights organizations, those rights take precedent over your manifest, national destiny.

I want to make it clear that this approach is not self-evidently correct. Human rights may not be worth defending at all costs.

But you can't credibly go after the human rights organizations when your motives are so transparently self-serving. You will be about as convincing as the criminal who complains that the police are always picking on him and on nobody else. The argument will sound reasonable to the criminal and to the criminal's family -- but to nobody else.

Happy New Year from the Magnes Zionist

May 2008 bring some relief to the peoples of the world under Occupation, and to their Occupiers. I hope my readers won't mind if I feature, for this New Year's post, a picture from the current production of Gilbert and Sullivan's Mikado at the Hirsch Theater by the Jerusalem Gilbert and Sullivan Society, of which I have been a loyal member for the last 24 years.

This is a wonderful production with full chorus and orchestra. Anybody within 100 kilometers of Jerusalem should come and see the remaining six performances. For details, see the poster below.