When the Philosopher Meets the Judge -- Moshe Halbertal On the Goldstone Report: Part One

Recently we have been witness to the curious spectacle of Israelis criticizing vehemently the Goldstone Report, yet at the same time calling for an independent investigation of the IDF's actions in Operation Cast Lead. I am not referring to those who believe that a pro forma investigation is necessary in order to stop the damage caused by the Goldstone Report. No, I mean those folks who say, "The Goldstone Report is one-sided, biased, and denies Israel the right to defend itself (or doesn't explain how it can do so)" and then turn around and say, "Still, there is enough evidence in the report to require an investigation." The latest one to do so is Prof. Moshe Halbertal in a rather long essay in the current issue of the New Republic, in which he criticizes the Goldstone report as a "terrible document…biased and unfair," which offers "no help in sorting out the real issues." And yet it took the Goldstone Report to arouse Prof. Halbertal from his dogmatic slumbers and to call for an independent investigation.

Barukh ha-Shem for that.

A word of introduction. Prof. Moshe Halbertal is a professor of medieval Jewish thought and the philosophy of Jewish law. Although he has done some work with the IDF, he would be the first to admit that he is not an expert in the field of military ethics, just war theory, or international humanitarian law. (Neither am I.) So it was with some surprise that I saw that he had written on the subject, especially when much of it accepts uncritically the Israeli narrative and thus will be rejected as one-sided and biased by non-partisans. The first section of the essay begins with many pronouncements on the subject of just war, asymmetric warfare, etc., without any reference at all to the highly contentious literature on the subject, or to historical or legal precedent. For Prof. Halbertal, the war that Israel is fighting against Hamas militants is quite simply a "war against terrorism" Here is a typical statement:

Since the early 1990s, the nature of the military conflict facing Israel has been dramatically shifting. What was mainly a clash between states and armies has turned into a clash between a state and paramilitary terror organizations, Hamas in the south and Hezbollah in the north. This new form of struggle is now called "asymmetrical war." It is defined by an attempt on the part of those groups to erase two basic features of war: the front and the uniform. Hamas militants fight without military uniforms, in ordinary and undistinguishing civilian garb, taking shelter among their own civilian population; and they attack Israeli civilians wherever they are, intentionally and indiscriminately.

In fact, the term "asymmetrical war," not to mention the phenomenon, predates the 1990's; some consider the American Revolutionary War to be a good example of an asymmetrical war. The ethics and law of asymmetrical wars – where one side has considerably less resources and power than the other -- has also been much discussed, though one would not know it from the essay. Contrary to what Halbertal writes, paramilitary organizations made up of combatants without uniforms may or may not be terror organizations; in fact, it would be better to leave the term "terrorist organization" for those groups whose goals are nothing more than to terrorize the other side, something that cannot be said either of Hamas or, for that matter, the Hagganah and Lehi. It is much better to talk of illegal tactics and actions, such as the indiscriminate targeting of civilians, which both Israel and Hamas appears to have been guilty of, at least according to the Goldstone Report, and a number of other human rights reports.

The essay barely refers to international humanitarian law, the law of war, the protocol of Geneva Conventions, etc. For Halbertal, a professor at NYU law school (albeit a professor of Jewish law), this omission is rather striking. Thus, from the paragraph above it would appear that those combatants who do not distinguish themselves from civilians are ipso facto "terrorists," despite the fact that article 44 of the Geneva Convention recognizes "that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself".

In short, Prof. Halbertal stacks the deck of his critique against the Goldstone Report from the outset by presenting a highly partisan picture of the conflict between Israel and Hamas in the guise of a neutral philosophical introduction to the issues. We are told of the ways in which Israel is hampered from conducting war, whereas we are not told of the ways in which Hamas, or the Palestinians, are so hampered. All the restrictions, self-imposed or not, on the stronger party in an asymmetric war still leave that party with considerably more resources and military options than the weaker one. Of course, if the latter is defined as terrorist, the only courses available to it are to surrender or die.

The second section of the essay describes current IDF "code of ethics concerning moral behavior in war." Presumably that is a reference to the new IDF code for the War on Terror authored in 2004 by Yadlin and Kasher (I have been told that the IDF has distanced itself from the discussions of the committee composed of Profs. Halbertal, Avi Sagi, Saul Smilansky, and Daniel Stetman.) There is no question that the code is full of high-minded principles; the question is whether the code is ever actually applied, or that, when it is applied, its purpose is to provide cover for IDF actions that are contrary to international humanitarian law. For example, Halbertal writes:

In 2002, for example, Israel bombed the Gazan home of Salah Shehadeh, who was one of the main Hamas operatives responsible for the deaths of many Israeli civilians. Fourteen innocent people were killed along with Shehadeh. The Israeli chief of staff, Moshe Yaalon, claimed that the collateral deaths were not only unintentional, they were not even foreseeable. The innocent people who were killed lived in shacks in the backyard of the building, which, in aerial photographs, looked like storage units. Yaalon claimed that, had Israel known about this collateral harm, it would not have bombed Shehadeh's hiding place. It had already aborted such an operation a few times because of concern with foreseeable civilian death. I believe that such care is right. It is better to err on the side of over-cautiousness concerning collateral damage.

Halbertal accepts Yaalon's statement at face value; he never once expresses skepticism at the truth of an IDF spokesperson, and implies that this is the IDF policy. He also doesn't mention that in Operation Cast Lead, the IDF dropped a two thousand pound bomb on the house of Niyar Rayan, a Hamas leader, killing him, his four wives, and eleven of his children, despite the IDF's knowledge that his family had not left the building (six months later it changed its story). This is a perfect example of how the IDF does not put in practice what its own ethical code suggests.

As for the duty of soldiers to risk themselves rather than harm civilians, one of the principal authors of the IDF code of ethics, Asa Kasher, has famously argued against Avishai Margalit and Michael Walzer that no such duty exists. Halbertal disagrees with Kasher and points to the battle in the Jenin refugee camp as a case where IDF soldiers took risks. (He attributes their motivation to a concern with civilians; as I recall, the concern was how not to repeat the public relations nightmare of the Kana Village bombing in Operation Grapes of Wrath) But in Operation Cast Lead, soldiers took minimum risk; mortars and bombs did their work for them, and the result was death and destruction. On this Halbertal is silent.

So where does the Goldstone Report fail, according to Halbertal? For one thing, it doesn't treat Israel's moral dilemmas with sufficient complexity:

These are not simple issues. They are also not political issues. They are the occasions of deep moral struggle because they are matters of life and death. If you are looking for an understanding of these issues. Or for guidance about them, in the Goldstone Report, you will not find it.

Halbertal, the philosopher, finds the Goldstone Report insufficiently complex and quite insensitive to Israel's legitimate military needs. Yes, the Goldstone Report recognizes that Israel has a right to defend itself, but it doesn't provide guidance on how to do it. It does not occur to Halbertal that the report of a UN fact-finding mission is not the appropriate place for philosophical complexity or what military strategy one should pursue in the "war against terror". As I recall, the report also doesn't counsel Hamas how to proceed with its war against Israel. (Putting on uniforms and sleeping in army camps? Not a great idea.)

Sections 3 and 4 deal with the Goldstone Report's account of the background to the conflict, and the specific charges it levels against the IDF that Halbertal finds worth investigating. I will discuss those tomorrow.