Sunday, January 3, 2010

Moshe Halbertal and the Goldstone Commission Report

A note to readers: For ease of reading, I have broken up this long blog into two parts. Part I is below; Part II will appear tomorrow. In accordance with academic standards I have included a number of citations and references; they are placed at the end and general readers can safely disregard them. You will also note that the appearance of these articles leaves something to be desired. The problem has something to do with formatting instructions being lost in the process of copying my Word document into the blog. I will be working on correcting these problems, to the extent feasible. Meanwhile, should you prefer to read the original Word document itself, please email me and I will be happy to send it to you as an attachment.

As an academic of nearly fifty years, I take seriously that the core principle and highest calling of our profession is to seek and tell the truth, as best as one can. For those who know the full historical facts about the Israeli-Palestinian conflict, one of the most shocking and depressing phenomena is the extent to which many leading Israeli and American Jewish intellectuals and academicians ignore, conceal, or willfully deny them.

I am not speaking here of ordinary citizens, who might simply be unaware that many of the most cherished Israeli mythologies are historically unsustainable; rather I refer only to the media commentators, political scientists, historians, and even moral philosophers who regularly write about the conflict and whose distortions or outright falsifications cannot be explained away by ignorance.

What, then, does explain this situation? For some, their ideology is simply so impenetrable that the facts can’t get through. For others, I assume that they knowingly, or at least semi-knowingly, conceal the truth because they fear that revealing it will harm Israel. If so, they are also wrong about the consequences--over sixty years of Israeli repression of the Palestinians has done incalculable harm to Israel’s own best interests. In any case, no matter what their motives, the academics who seek to defend Israel against the most reasonable criticisms betray their calling.


I intend to often write about such academicians. I begin here with Moshe Halbertal’s attack on the Goldstone Commission (“The Goldstone Illusion”) in the November 6th issue of New Republic. Halbertal is a Harvard PhD, a professor of Jewish thought and philosophy at Hebrew University, the author of a number of books on those subjects, and a former visiting professor at Harvard Law School. In light of those impressive credentials, together with the surface appearance of moderation and sophistication in Halbertal’s argument, his attack has received wide and generally respectful attention.

Halbertal has four main arguments against the Goldstone Commission. First, he charges that in several ways it was biased against Israel. Second, he strongly suggests that by ignoring the allegedly new threat of “asymmetrical warfare,” the Commission undercut Israel’s right of self-defense. Third, he claims that Israel is a victim of double-standards, on the grounds that the allegedly unintended civilian casualties in Gaza were far less than those caused by U.S. actions in Afghanistan as well as by the US/ Nato bombing of Serbia in the 1990s, neither of which have led to international condemnation. Finally, in the article’s longest section Halbertal charges that the Commission’s discussion of Israeli violations of human rights and war crimes are “false,” “slanderous,” and “the weakest, the most biased, and the most outrageous” part of its report.

Today I will examine Halbertal’s first three arguments. Tomorrow, Part II, examines the question of whether Israel deliberately attacked civilians in Gaza. In addition, Part II argues that the Goldstone Commission, far from engaging in an unfair attack, in several ways actually understated the case against Israel, especially by accepting the premise that Israel, however unjust its methods, was acting in self-defense when it attacked Gaza.

Was the Goldstone Commission Biased Against Israel?

The Mandate Issue

The Goldstone Commission was “biased” against Israel in a number of ways, Halbertal contends. He begins by arguing that the Commission exceeded its mandate, which in Halbertal’s view was to focus “only on the Gaza operation.” It had no right, he argues, (1) to consider “the context of the history that led to the war,” or (2) to make “an assessment of Israel’s strategic goals,” or (3) to include “long sections on Israel’s occupation of the West Bank.”

In what he appears to think is a damning rhetorical question, Halbertal asks: “Why should a committee with a mandate to inquire into the operation in Gaza deal with the Israeli-Palestinian conflict at large?” His answer: “The honest reader of these sections cannot avoid the impression that their objective is to prepare a general indictment of Israel as a predatory state that is geared toward violating human rights all the time.”

One might think that a moral philosopher would be interested in whether the Commission’s conclusions were in fact accurate, even if they weren’t within its “mandate.” That aside, it is demonstrably false that the Commission exceeded its mandate. Although Halbertal claims that “unlike many who responded to the report, in praise or blame, I gave this immensely long document a careful reading,” he evidently missed its very first paragraph, which stated the mandate: “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.” (emphasis added)[1].

Several paragraphs later, the Commission elaborated: The Mission is of the view that the events that it was mandated to investigate should not be considered in isolation. They are part of a broader context, and are deeply rooted in the many years of Israeli occupation of the Palestinian Territory…” How could one argue with that? Indeed, if anything the Commission may have interpreted its mandate too narrowly, for it limited its historical review to the 2002-2008 period. To be sure, it did allude to the earlier history, drily noting that “Due to obvious space limitations, the historical context does not make reference to the numerous important events that took place during this period (such as the 1973 War, the Camp David Accords, the peace treaty with Jordan, the 2006 Lebanon War and many others).”

Perhaps space considerations were not the only factor—the Commission might well have decided that a fuller review of the historical context would have made its report still more politically explosive, for it would surely demonstrate that while Israel doesn’t violate human rights “all the time,” it has been violating Palestinian human rights throughout the history of the Israeli-Palestinian conflict. Not being bound by political considerations, in Part II I will provide a brief overview of that history, particularly of Israeli attacks on civilians.

The Commission’s Methodology

As part of his overall argument that the Goldstone Commission stacked the deck against Israel, Halbertal asserts that the Commission’s methodology precluded a fair analysis, for it did not interview Israelis but only Gazans, who were under the “watchful eye of Hamas authorities… rendering them vulnerable and partial.” To be sure, he admits that it was the Israeli government that refused to cooperate with the Commission which, as its report stated, was even “prevented from travelling to Israel” or “meeting Israeli government officials.” Halbertal concedes this was an Israeli “mistake;” nonetheless, he argues, it resulted in “a grave limitation… and methodological and empirical shortcoming” in the Commission’s report.

It takes considerable chutzpah to make such an argument By Halbertal’s reasoning, any investigation designed to discover the facts about possible crimes would be illegitimate if the target of the investigation refused to cooperate. In any case, as Jeremiah Haber has pointed out, Halbertal’s accusation that the Israeli version of events is not examined is “simply false….the Israeli version of events is on every page, culled from official reports, news reports, and websites…What Halbertal and most Israelis find galling about the report is that…[the Israeli version] is consistently rejected as less credible than the Palestinian testimonies. There are reasons for all this.”[2]

The Commission devotes seven pages of its report to describing and defending its methodology, in light of Israel’s refusal to cooperate. In ascertaining the crucial facts, the Commission states, it relied on hundreds of interviews, many public hearings, dozens of site visits, a wide variety of expert testimony and reports, and extensive reports by newspapers, international organizations, and human rights organizations, including those of Israel. As the Commission summed up, its “final conclusions on the reliability of the information received were made taking into consideration the Mission’s assessment of the credibility and reliability of the witnesses it met, verifying sources and methodology used in reports and documents produced by others, cross-referencing the relevant material and information, and assessing whether, in all the circumstances, there was sufficient information of a credible and reliable nature for the Mission to make a finding in fact.”

None of the Commission’s major factual findings have been refuted.

Hamas’s Ideology

Another way in which the Commission was biased, Halbertal charges, is that it ignored Hamas’ ideology: “there is no mention of Hamas’s role and its ideology….which calls for the destruction of Israel and the genocidal killing of Jews.”

It is true that the Goldstone report does not discuss the legitimate issue of Hamas’s religious fundamentalism and vehement anti-Semitism, especially as it is unmistakably revealed in the Hamas founding Charter. However, though the report could and probably should have made it explicit, its obvious reasoning was that it is Israeli and Hamas behavior and actions that matter, not their explanations, which in any case are disputable. Halbertal fails to notice that the Commission also didn’t discuss Israeli ideology—namely the religious and nationalist insistence that the occupied territories, known to the world as Jerusalem, the West Bank, and Gaza, but to many Israelis as “Judea and Samaria,” belong only to Israel.

In any case, it is far from clear that Hamas’s behavior is primarily driven by its ideology, as opposed to its determination to resist the Israeli occupation and repression of the Palestinian people. Moreover, there is increasing evidence that Hamas’s ideology is less and less relevant to understanding its behavior, as I shall shortly argue. Finally, whatever the explanation of either Israeli or Hamas behavior, it is quite irrelevant to the question of whether Israel committed war crimes in Gaza: again, I can’t improve on Jeremiah Haber: “Suppose the historical context had included…[the Hamas] anti-Semitic charter, its history of suicide bombings (briefly mentioned), its refusal to recognize Israel’s right to exist? Of what significance would that be to Israel’s conduct of the war and considerations of jus in bello?”

Did the Goldstone Commission Deny Israel Its Right of Self-Defense?

It is striking that while strongly critical of the Israeli methods of war, in effect the Goldstone Commission accepted the premise that Israel did have a just cause, the right to defend itself against Palestinian rocket attacks. In Part II of this analysis, I will argue that this argument is unpersuasive, and the Commission may have committed a serious error in accepting it.

Despite the Goldstone Commission’s acceptance of the self-defense argument, Halbertal argues that the report’s criticisms of the Israeli methods had the effect of denying that right in practice. The Commission, he argues, failed to understand “asymmetrical warfare.” He explains: “What was mainly a clash between a state and armies has turned into a clash between a state and paramilitary organizations.” As a result, he strongly implies, even the possible Israeli excesses are primarily the fault of Hamas, which refuses to wear uniforms, disguises its militants as civilians, and mingles with the population in order to employ them as “human shields” against legitimate methods of self-defense. “When faced with such an enemy,” Halbertal asks rhetorically, “what should Israel do?”

“Asymmetrical warfare” is hardly new, for it is merely the current jargon for guerrilla warfare, in which poorly-armed insurgents rise up against much more powerful state armies, necessitating that they don’t make themselves easy targets. Of course there’s a reason that Halbertal prefers the term “asymmetrical” to “guerrilla” warfare, for it implies that the asymmetries somehow give Hamas an unfair advantage. Although it is true that in guerrilla warfare it is more difficult to distinguish combatants from noncombatants, just war morality requires that every effort be made to do so--as opposed to making the complexities an excuse for indiscriminate warfare, if not worse.

Two of Israel’s leading political philosophers have provided appropriate responses to Halbertal’s logic and his complaint that the Goldstone Commission “does not state what the alternative should be.” Jeremiah Haber writes that the Commission should not have been expected to counsel Israel on the appropriate military strategy to fight Hamas, and adds that “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).”[3] Similarly, Zeev Sternhell asks, “What is it that Israel wants? Permission to fearlessly attack defenseless population centers with planes, tanks and artillery?”[4]

The obvious “alternative” to present Israeli policy is for it to end its occupation and repression of the Palestinians and allow the creation of a genuinely independent and viable state in the 23% of historical Palestine that remained after the end of the 1948 Arab-Israeli war. However, Halbertal considers that to be “an extreme position,” held in Israel only by “the radical left.”

Was the Israeli Attack Justified by the Principle of Last Resort?

Just War theory includes the principle of “last resort,” which requires that even in wars of self defense, every effort must first be made to resolve conflicts by peaceful means. As part of his argument that the Goldstone Commission effectively denied Israel its right of self-defense, Halbertal in effect claims that Israel met the last resort requirement by unilaterally withdrawing from Gaza in 2005, only to be met with Hamas’s “unrelenting shelling of Israeli cities and villages,” which “torpedoed” Israel’s efforts to promote a peace settlement.

The facts are otherwise. To begin, there is a wealth of evidence that the main purpose of Ariel Sharon’s withdrawal of Israeli settlements from Gaza was not to take a first step towards ending the overall Israeli occupation of the Palestinians, but on the contrary to gain U.S. consent to a consolidation of Israel’s occupation of the much more important West Bank and East Jerusalem, as well as to ease the overall burden of the occupation not on the Palestinians but on Israel.

Dov Weisglass, a member of the Israeli government at the time as well as Sharon’s closest personal friend and political advisor, described to Haaretz his “negotiations” with the Bush administration: "What I effectively agreed to with the Americans was that part of the settlements [i.e., the major settlement blocs in the West Bank] would not be dealt with at all, and the rest will not be dealt with until the Palestinians turn into Finns.... The significance [of the agreement with the United States] is the freezing of the political process. And when you freeze that process you prevent the establishment of a Palestinian state and you prevent a discussion about the refugees, the borders and Jerusalem. Effectively, this whole package that is called the Palestinian state, with all that it entails, has been removed from our agenda indefinitely.” [5]

In any case, there was no true end to the Israeli occupation of Gaza, for Israeli forces retained control over its borders, coastline, and airspace; refused to allow Gaza a functioning airport or seaport; continued to control Gaza’s electricity, water and telecommunications networks; and reserved the “right” to launch military incursions at will---which it has repeatedly done since its “withdrawal.” Consequently, as the Goldstone Commission concluded, “the international community continues to regard [Israel] as the occupying Power [which] has without doubt at all times relevant to the mandate of the Mission exercised effective control over the Gaza Strip.”[6]

Finally, even if Israel had genuinely withdrawn from Gaza and ended all its other means of repression of its people, that hardly would have met the need and the right of the Palestinians as a whole for a viable independent state of their own. The Palestinians living in Gaza are not a separate nation from those living in the West Bank and East Jerusalem; to believe otherwise is the equivalent of believing that if in the 1770s the British had withdrawn from New Jersey but continued to occupy New York, the residents of New Jersey would no longer have the right to take up arms in support of American independence.

Who “Torpedoed” the Chances for a Nonviolent Settlement?

It was Israel rather than Hamas that was primarily responsible for the continuing cycle of violence. Prior to the Israeli attack there were a number of indications that Hamas was becoming increasingly amenable to, at a minimum, a prolonged ceasefire and perhaps even to a genuine political settlement. The Goldstone Commission pointed to some, but not even all of those indications.


*According to ex-Mossad Chief Ephraim Halevy, in 1997 King Hussein of Jordan conveyed to Israel an offer from Khaled Meshal, the chief Hamas leader, to reach an understanding on a ceasefire to last 30 years. Israel not only ignored the offer, but a few days later, Israeli operatives tried to assassinate Meshal in Jordan.

*According to Matti Steinberg, former head advisor on Palestinian affairs to the Shin Bet, Hamas refrained from attacking civilians inside Israel until the Israeli fanatic Baruch Goldstein’s February 2004 murder of twenty-nine Palestinians in a Hebron mosque. When Israeli prime minister Yitzhak Rabin refused to withdraw the settlers from Hebron in the aftermath of the massacre, Hamas then retaliated with suicide bombings of its own.

*Sporadic terrorist attacks on Israel in the ensuing years typically followed Israeli undercover operations that killed Hamas or other militants, and often civilian bystanders as well. Beginning in February 2005, Hamas unilaterally declared a ceasefire; while Israel then temporarily suspended its assassinations in Gaza it continued to target Islamic Jihad activists inside the West Bank. That led the Gazan wing of Islamic Jihad to declare it would not abandon its people in the West Bank and would retaliate, which it did with several rocket attacks inside Israel. Israel then responded by resuming its assassinations in Gaza.

*It was Israel rather than Hamas or even Islamic Jihad that violated the de facto truce that followed in the first months after the Israeli withdrawal of its Gaza settlements in August-September 2005, for Israel continued its extensive assassination operations in the West Bank.

*It is now known that soon after the January 2006 election of Hamas in Gaza, Ismail Haniyeh, the new Gazan prime minister, sent a written message to George Bush in which he offered Israel a truce for many years in exchange for a compromise political settlement; the Bush administration did not reply to this and additional overtures.[7] At about the same time, Hamas secretly conveyed a message to the Israeli government that it “would pledge not to carry out any violent actions against Israel and would even prevent other Palestinian organizations from doing so,” provided Israel stopped its assassinations and military attacks in Gaza and the West Bank.[8]

*Israel continued its assassinations and other attacks on Hamas or Islamic Jihad leaders. According to the Israeli human rights organizations B’tselem and Physicians for Human Rights, throughout 2006 Israeli raids killed 660 Palestinians, most of them unarmed noncombatants and up to a third of them minors. Hamas did not retaliate and continued to press for a long-term truce--even Islamic Jihad stated that it would refrain from suicide or rocket attacks if Israel ended its attacks. Consequently, for the first ten months of 2006 there were no Hamas rocket attacks and very few from Islamic Jihad, which was prevented from retaliating against the Israeli attacks by stringent Hamas restrictions.

*In November 2006, following an Israeli artillery attack in which a shell struck several homes, killing 19 people, most of them women and children, Hamas retaliated with an attempted suicide bombing in Israel, its first such attack in nearly two years. Following that, however; in the next year there were few attacks inside Israel, whether by Hamas or Islamic Jihad. Consequently, even according to official Israeli records only seven Israeli civilians were killed in 2007.

*Nonetheless, throughout 2007-08 Israel stepped up its assassination and other attacks on militants in Gaza as well as the West Bank, using indiscriminate methods that resulted (according to an independent Haaretz investigation) in the killing of 816 Palestinians in Gaza alone, 360 of whom were civilians and 152 of them minors.

*In January 2008 Israel closed the border crossing points, drastically reducing supplies of fuel, electricity, and other crucial goods into Gaza. Hamas then briefly resumed firing rockets into Israel (few Israelis were killed), but in April the Hamas leader Khalid Meshal stated that Hamas was ready to stop attacking civilians if Israel did the same. As a result, in early June a negotiated six-month Israeli-Palestinian truce went into effect. According to Hamas, the ceasefire included an understanding that Israel would open the border crossing points and ease its economic sanctions and blockade. For awhile, Israel did allow a minor increase of goods into Gaza, but far less than Hamas had expected--or, more to point, far from sufficient to truly lift the economic siege.

*In September and October of 2008 there were two Islamic Jihad rocket attacks but none from Hamas. Nonetheless, Israel then greatly tightened its siege of Gaza, especially over food supplies, medicines, fuel, and repair parts for water and sewage systems—and six Hamas men were killed in a November 5th Israeli raid on a Gazan tunnel. Following that attack, Hamas fired rockets into southern Israel and announced it would no longer abide by the latest ceasefire agreement when it expired in December—even so, it stated, it would be prepared to negotiate a new truce if Israel agreed to ease its siege.

*The Hamas offer was effectively confirmed by Israeli intelligence, for according to Israeli newspapers, just before the Israeli attack Shin Bet head Yuval Diskin told the Israeli cabinet that Hamas wanted to continue the truce if Israel accepted a ceasefire and ended its blockade. Israel refused these terms; even so, no Israelis were killed until after the full-scale Israeli attack on Gaza that began on December 27, 2008.[9]

Reflecting on this history, the Israeli columnist Yitzhak Laor wrote: “Who still recalls that before the war Israel rejected attempts to renew the tahadiyeh [truce]? Who still remembers that the months before the war were relatively quiet, despite the siege on Gaza? Who still recalls that the siege itself was a blatant violation of the tahadiyeh agreement, which Israel signed?”

In short, the chronology establishes that Israel has had many opportunities to bring about a negotiated end to missile or other terrorist attacks from Gaza, if that it had been its true goal. However, because its underlying purpose is to destroy all resistance to its continued occupation of the West Bank and external control over Gaza, using both economic siege and military force as its weapons, Israel has repeatedly provoked Palestinian violence.

Political Settlement

Aside from its willingness to negotiate ceasefires or truces with Israel, there have also been a number of indications that Hamas may be in the process of moving towards accepting a two-state settlement rather than seeking to destroy Israel and regain all of Palestine. If so, Hamas would be following in the footsteps of Arafat’s PLO, as well as of many other radical movements that became much more moderate when they had countries to run. Granted, there are no guarantees that Hamas will duplicate the evolution of the PLO, for it has remained committed—at least verbally—to its anti-Semitic founding ideology and 1988 charter, which explicitly states that it is a religious obligation to eliminate Israel and the Jews from the Islamic holy land.

It is clear that there are internal divisions within Hamas--particularly between the relatively more moderate Hamas officials in Gaza, led by Ismail Haniyeh, and Hamas officials in exile, led by Khaled Meshal--over the extent to which this ideology must give way to practical realities. Even so, by 2006 there were a number of signs of emerging Hamas flexibility, even among the hardliners.

* In January 2006 Hamas published its official platform for the upcoming Palestinian elections; it included no language calling for the destruction of Israel and the creation of an Islamic state in all of Palestine. To be sure, the apparent change in Hamas’s position was ambiguous, for it continued to proclaim that it did not reject any means, “including armed resistance,” in order to “end the occupation… and establish a state whose capital is Jerusalem.”

As Israeli analysts noted, the Hamas platform did not specify whether such a state would be limited to the West Bank and Gaza and did not clarify whether “the occupation” to be ended referred only to the post-1967 Israeli expansion or to the entire Jewish state.[10] Even so, the very ambiguity greatly differed from earlier Hamas extremism and even suggested that despite its ideology, the operational goals of Hamas now might not substantially differ from those of Abbas and other Palestinian moderates.

*Soon after its election, Hamas began to go public with its new position. For example, in May 2006 Haniyeh told Haaretz that the Hamas government would agree to a long-term truce with Israel if it withdrew to the 1967 lines, and a few months later he told an American scholar that “We have no problem with a sovereign Palestinian state over all of our lands within the 1967 borders, living in calm.”[11] (emphasis added)

*Perhaps even more important was the May 2006 joint statement of senior Hamas and Fatah members who were imprisoned in Israel. The prestigious “Prisoner’s Declaration” went much further than the earlier Hamas overtures: abandoning the previous ambiguities, it called for the establishment of a Palestinian state “in all the lands occupied in 1967,” and reserved the use of armed resistance only in those territories.[12] (emphases added)

Israel and its U.S. ally ignored all these overtures or contemptuously termed them “tricks”; indeed, it is now known that in the months after the 2006 Hamas electoral victory in Gaza, the Bush administration sought to foment a Fatah coup against Hamas.[13] The coup attempt not only failed, but was undoubtedly instrumental in the Hamas decision to seize total control of Gaza in June 2007. Nonetheless, throughout 2008 Hamas’s political position continued to evolve, including that of its hardliners: by early 2007 there were indications of a shift in Khaled Meshal’s position, and in April 2008 he publicly announced his support of a ten-year truce if Israel withdrew to the 1967 borders.[14]

It is undeniable that the Hamas position still contains many ambiguities and inconsistencies. First, it calls only for a truce rather than a permanent settlement—but at various times Hamas officials have suggested that the truce “will be renewed automatically” and extended indefinitely.[15] Second, sometimes Hamas officials say that they accept Israel as a “fact” but will “never recognize its legitimacy,” but on other occasions they strongly imply that their formal position has no practical importance and could eventually change.[16] One day a Hamas official sounds particularly conciliatory and the next day other officials back away. Sometimes Hamas stresses its commitment to the return of all Palestinian refugees to Israel, perhaps the most difficult obstacle to a permanent settlement, but at other times it downplays the issue. And so on.

Yet, the general direction is clear and in historic terms the evolution has been rapid, as has even been acknowledged by some former high-level Israeli government officials. For example, in late 2006 Yossi Alpher, a former deputy head of the Mossad and a pillar of the Israeli establishment, wrote: “Hamas’ conditions for a long-term hudna or ceasefire…are almost too good to be true. Refugees and right of return and Jerusalem can wait for some other process; Hamas will suffice with the 1967 borders, more or less, and in return will guarantee peace and quiet for ten, 25 or 30 years of good neighborly relations and confidence-building.”[17] Going even further, Ephraim Halevy, the former head of Mossad, does not even qualify his observations as “almost too good to be true,” for he states that Hamas militants “have recognized…[their] ideological goal is not attainable and will not be in the foreseeable future.” Instead, “they are ready and willing to see the establishment of a Palestinian state in the temporary borders of 1967.” Halevy concludes, dryly, that “Israel, for reasons of its own, did not want to turn the ceasefire into the start of a diplomatic process with Hamas.” [18]

As well, many other Israeli analysts today (including Ami Ayalon, past head of the Shin Bet) now argue that the Hamas evolution is meaningful and that the organization is not al-Qaeda but is becoming a movement fighting for limited national goals rather than uncompromising religious ones. Some have even gone so far as to suggest that Hamas’s anti-Semitism just might have something to do with the decades of Israeli occupation and repression rather than being simply an a priori and immutable product of religious fanaticism.

In the final analysis, the key point is that the only way to resolve the ambiguities is through negotiations in which Hamas’s true intentions would be tested. Since no serious peace proposal requires Israel to withdraw from the occupied territories until a reasonable and enforceable political settlement is reached, the Israeli government’s refusal to talk to Hamas decisively demonstrates that it is Israel at least as much as Hamas that is unwilling to accept a genuine two-state solution.

Was Israel a Victim of Double Standards?

. Halbertal’s third argument, like those of many other defenders of Israeli policy, in effect is that Israel is a victim of a moral double standard. The US/NATO bombing of Serbia in the 1990s and the military actions of the U.S. and its allies in Afghanistan today have killed far more civilians, he argues; yet it is only Israel, seeking merely to defend itself against a “terror organization,” that faces serious charges of war crimes.

It is not a convincing argument. To begin with, it is a moral nonsequitur: even assuming that Halbertal is right about the facts concerning civilian casualties in Afghanistan or elsewhere, the behavior of other states is irrelevant to the question of whether Israel committed war crimes in Gaza. At most, it might justify a rather pathetic complaint that the war crimes of others are worse than those of Israel. However, even that argument is not available to Halbertal, for he denies that Israel (possibly excepting some individuals) committed war crimes. Consequently, the structure of his argument comes close to this: We didn’t do it, and besides others were worse.

Second, unlike Israel’s behavior towards the Palestinians, the allies didn’t occupy and repress the people of Serbia and Afghanistan and they had just causes for going to war: humanitarian intervention in the case of Serbia, self-defense (and, for that matter, humanitarian arguments as well) in the case of Afghanistan following 9/11. These are not arguments available to Israel--not even self-defense, as I shall argue in Part II.

Third, in the case of Afghanistan—as well as in Iraq, not discussed by Halbertal but often cited by other critics of the Goldstone Report—there is no reason to suspect the allies of deliberately indiscriminate attacks, since the killing of civilians clearly undermines the war effort, as openly acknowledged by top U.S. leaders. For that reason, the argument is persuasive that civilian destruction in Afghanistan and Iraq genuinely is unintended and unwanted collateral damage. Of course, that doesn’t preclude the conclusion that greater efforts should be made to minimize civilian casualties, for both moral and strategic reasons. In fact, that is the conclusion of the U.S. military, which has greatly cut down on inherently indiscriminate attacks in Iraq, and is reportedly now doing the same in Afghanistan. On the other hand, the Israeli military has concluded that in the next war it must take “much harsher action.”[19]

We can have a pretty good idea of the kind of “much harsher action” that Israel has in mind, for its entire history demonstrates that it has been consistently indifferent—at a minimum--to the moral consequences of its repeatedly indiscriminate methods of warfare. Worse, the evidence is very strong that it has sometimes deliberately targeted civilians and/or their crucial infrastructures—both in the past and in Gaza since its 2002 “withdrawal.” I will have much more to say about this in Part II.

Finally, there is a much more persuasive case that Israel historically has been the beneficiary rather than the victim of double moral standards. For reasons of both Holocaust guilt and the widespread Gentile acceptance of our own Jewish self-image—a particularly civilized and moral people, a “light unto the Nations”— it has been far more typical for Westerners of good will to disregard the evidence and minimize rather than exaggerate the extent of Israeli criminality towards the Palestinians.

In a way, the true moral double standard is really a high compliment to the Jewish people, for the Western world hasn’t been able to quite believe the extent to which Israel is making a mockery of Jewish and Western moral values.[20] However, this innocence born of good will is coming to an end, and a good thing too: a withdrawal of the West’s moral free pass for Israel might be the best hope that it can be saved from itself.


[1] Goldstone told Bill Moyers that he wrote the mandate himself, precisely because he thought the original one from the UN Human Rights Council was one-sided, in that it focused only on Israel. (“Bill Moyers Journal,” PBS, Interview with Richard Goldstone, October 25, 2009

[2] The Magnes Zionist, November 9,2009 (

[3] The Magnes Zionist, November 8, 2009. Subsequent to the Report, in his interview with Bill Moyers Goldstone did comment that a morally appropriate military strategy would have been commando operations.

[4] “With a Conscience That Is Always Clear,” Haaretz, October 30, 2009.

[5]Cited, among others, by Henry Siegman,“Hamas Is Not the Real Problem,” Haaretz October 23, 2009.

[6]And not just the international community. As early as March 2005, B’tselem, the leading Israeli human rights organization, released a report—entitled “One Big Prison”-- on the continuation of Israeli repression in Gaza after the withdrawal of the settlements.

[7]Barak Ravid, “In 2006 Letter to Bush, Haniyeh Offered Compromise With Israel,” Haaretz, November 10, 2008.

[8]Schiff, “Hamas Says Ready for Two-State Solution,” Haaretz, April 7, 2006.

[9] “The National Choir,” Haaretz, Sept 21, 2009.

[10] Arnon Regular, “Hamas Platform Mentions Armed Struggle, But Not Israel’s Destruction,” Haaretz, January 11, 2006.

[11] Scott Atran, “Is Hamas Ready to Deal?” New York Times, August 17, 2006.

[12]Arnon Regular, “Hamas, Fatah Prisoners Agree to Two-State Solution in Joint Draft,” Haaretz, May 11, 2006.

[13]Fatah is the largest group within the PLO confederation. The investigative journalist David Rose obtained the confidential documents describing the plot, later corroborated by U.S. sources; see David Rose, “The Gaza Bombshell,” Vanity Fair, April 2008.

[14] Zvi Bar’el, “Meshal Declaration a Basic Shift in Hamas Position,” Haaretz, January 11, 2007; Avi Issacharoff, “Meshal: Hamas Backs Palestinian State In ’67 Borders,” Haaretz, April 2, 2008; Barak Ravid, “Meshal Offers 10-Year Truce for Palestinian State On ’67 Borders,” Haaretz, April 21, 2008.

[15]Danny Rubinstein, “Hamas PM Haniyeh: Retreat To 1967 borders Will Bring Peace,"

Haaretz, May 23, 2006. A major story in the British news magazine, Economist, reported that “depending on circumstances on whom in Hamas you talk to” the truce “could be 18 months, ten years, or even 50.” (“Will the relationship change? Yes it can,” February 12th 2009.

[16]The Economist assessment put it this way: “Some of the religious zealots may well believe in the obnoxious charter. Others, including Meshal and Haniyeh, try to brush it off and then, if pressed, dangle it as an item for negotiation, much as Fatah used the dropping of the PLO’s charter, which equally rejected Israel’s existence, as a bargaining tool.”

[17]bitterlemons, January 28, 2009

[18] Quoted in Johann Hari, “The True Story Behind This War Is Not the One Israel is Telling,” The Independent (of London), December 29, 2008.

[19] There have been a number of such stories in Haaretz. Even the New York Times, normally reticent about such matters, has taken note: “Tough Military Stance Stirs Little Debate in Israel,” Isabel Kershner, December 25, 2009.

[20] In a recent joint statement—tellingly entitled “Failing Gaza”--Amnesty International UK, Oxfam, and fourteen other European human rights, church or medical groups charge that by largely ignoring Israel’s continuing repression, the governments of Western Europe are failing their moral responsibilities to the Gazan people.


David said...

I haven’t had time to read through this entire blog, but I am already impressed by the poorly reasoned argument put forth at the very beginning. Slater quotes the Goldstone’s mandate as evaluating “at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after” and concludes from that that Goldstone could investigate any subject it chose going back decades. That is by no means the way any normal person reading the mandate would understand it even with the encouragement of Mr. Slater’s underlines. “Before, during or after” quite obviously means in the days, weeks and months before and after. Any other conclusion is sophistry. The fact that the commission engaged in just such sophistry and awarded itself a broad mandate it was clearly not given doesn’t change the facts. Therefore, it is quite reasonable to conclude, as Moshe Halbertal did, that the Goldstone chose to extend its mandate in order to write a general indictment of Israel. Score one for Halbertal.
I am very impressed that Slater’s proof that the commission conducted its investigation fairly, comprehensively and accurately is that is what the commission itself said it did. I’m not sure what passes for proof at the State University of New York/Buffalo, but surely Mr. Slater wasn’t expecting the commission to say otherwise. Score zero for Slater.
Finally, Mr. Slater pronounces in boldface italics that “none of the Commission’s major factual findings have been refuted.” Now, we leave the land of sophistry to outright fraud. There have been plenty of critiques of the facts, but I suspect that in order to create a such powerful argument Mr. Slater chose not to undermine his case by studying them. In any event, the Goldstone report also suffered from dubious interpretations and conclusions, not just erroneous facts. Slater, down to a minus one.
Mr. Slater says that even though Israel didn’t cooperate with the investigation, this didn’t have any effect on its findings. Now that argument is positively ridiculous. I assume even professors up in Buffalo can understand that for better or worse if you don’t have all the facts in front of you, you can’t draw definite conclusions. Perhaps it was a mistake that Israel didn’t cooperate, but that the bottom line is that Goldstone didn’t have both sides of the argument. In any fair court of law, the defendant gets his say. It would be a miscarriage of justice if, because the defendant didn’t cooperate, that the prosecution is allowed to present its case unchallenged. The defendant is entitled to a defense as part of a fair trial. Since Goldstone surrounded itself with the aura of a serious body making considered and weighty decisions, it behooved its members to at the very least acknowledge the limitations of their investigation and stop short of reaching wide-ranging and significant conclusions. One can therefore reasonably conclude that the commission was intent of indicting Israel and had no intention of letting any niceties get in the way.

Anonymous said...

Your conclusion that Israel is responsible for perpetuating the cycle of violence between itself and Hamas is based on flimsy evidence and ignores quite obvious evidence to the contrary:

1) You start by mentioning that ex-Mossad Chief Ephraim Halevy, in 1997 King Hussein of Jordan conveyed to Israel an offer from Khaled Meshal, the chief Hamas leader, to reach an understanding on a ceasefire to last 30 years and said that Israel ignored the offer. You failed to mention any "conditions" of this offer, and neither does Halevy, which makes this source relatively meaningless. A more reliable piece of evidence would have been the 10 year "truce" offered to Israel provided it withdrew from all of the Gaza strip, West Bank, and East Jerusalem. 10 years of "truce" in exchange for a full withdrawal sounds decidedly less like a reasonable offer Israel should have taken to avoid perpetuating a "cycle of violence."

2) You then quote Matti Steinberg, former head advisor on Palestinian affairs to the Shin Bet, as stating that Hamas refrained from attacking civilians inside Israel until the Baruch Goldstein massacre - you provide no source for this quote and even though you use it as evidence of Hamas' moderation vis-a-vis Israel's desire to perpetuate violence, you fail to mention that the same Matti Steinberg said of Hamas, - "Hamas' political maneuverability is confined to 'conflict management' can agree to a [cease-fire] or a [truce] only as respites of longer or shorter cannot cross the Rubicon to reach the model of the conflict's resolution...Thus a political settlement, which the majority of the Palestinian public supports, is the great enemy of Hamas." (

Anonymous said...

3) Perhaps most shockingly - you reduce all Hamas terror attacks during the 11 year period from 1994 to 2005 as "typically followed Israeli undercover operations that killed Hamas or other militants, and often civilian bystanders as well" thereby painting a picture of Hamas attacks as simply reacting in self-defense, or perhaps adopting a model of deterrence by punishment to protect themselves from Israel. Surely as a serious academic dealing with these issues you can not reduce Hamas' intentions and interests so simply. Anyone who has followed Israeli-Palestinian history during this period knows that Israeli public opinion swung wildly in favor of concessions to the Palestinians following the assasination of Rabin, and that the more dovish Shimon Peres who campaigned on continued concessions towards the Palestinians was leading Netanyahu in polls by up to 40%. A wave of Hamas attacks that killed over 60 Israelis immediately prior to the elections helped Netanyahu win by less than 1 percentage point. If Hamas had any sort of political sensibility whatsoever they understood what they were doing and their bombings were meant to torpedo a settlement between Israel and their rival that would have marginalized them. You completely and conveniently ignore all of this.

3) You then mention that after the election of Hamas, Haniyeh sent a message to Bush which you claim "offered Israel a truce for many years." In fact, Haniyeh never mentioned the word Israel and a dictated letter to an American Professor which he told to pass on to Bush that said, "We are so concerned about stability and security in the area that we don't mind having a Palestinian state in the 1967 borders and offering a truce for many years," is much less a reliable indicator and historical proof of Hamas; desire for peace, accommodation, and non-violence than their repeated rejection of any of the three conditions put forth by the Quartet, the US, and Israel which stated PUBLICLY that Hamas government would be recognized and negotiated with if they simply 1) Renounced violence 2) recognized Israel 3) abide by previous agreements.

Hamas leaders responded with statements like, "The Palestinian people are already jaded by this one-sided truce, and preparing for a new round of fierce struggle with the Israeli occupation to retrieve every tiny village in occupied Palestine, which we recognize as our sole homeland." (12Khalid al-Mish'al, leader of Hamas, in a speech held at a rally in Damascus, Palestinian Information Center - official Hamas website - December 10, 2005) and "Neither the liberation of the Gaza Strip nor the liberation of the West Bank or even Jerusalem will suffice us. Hamas will pursue the armed struggle until the liberation of all our lands. We don't recognize the state of Israel or its right to hold onto one inch of Palestine. Palestine is an Islamic land belonging to all the Muslims."(Dr. Mahmud al-Zahar, Hamas leader in Gaza, The Jerusalem Post, August 18, 2005)

The fact that the three conditions the world community asked of Hamas repeatedly and publicly and were subsequently rejected did not even merit a single mention from your post on Hamas' intentions proves you are not serious about research into Hamas' intentions but rather cherry picked information (such as a undetailed mention by Ephraim Halevy or a dictated letter to an American professor) to support a hypothesis of Israeli violence torpedoing Hamas efforts at reconciliation. A view NOT shared by many Palestinians and members of Fatah that Ive spoken to who viewed Hamas violence as calculated to torpedo political support for the Fatah movement and its program of negotiation with Israel rather than the ludicrous propostion that you put forth that most Hamas violence is motivated simply by Israeli assassinations.

Anonymous said...

Dear Jerry,

I am a longtime follower of your excellent scholarship. It is great to see you join the blogging world. You have done it in style with an excellent piece.

All the best,

Idrees (co-editor PULSE)

cavard said...

To Jerome Slater:

THANK YOU for writing this. I've been waiting for a well-reasoned, tightly-argued response to Moshe Habertal's article in The New Republic. I'm sure this will make a stir and get people to really question the assumptions Habertal made. This really was needed. Thanks again.

Christian Avard
Contributing writer, PULSE

Joachim Martillo said...

I put the following comment up on Jeremy Haber's blog.

The Goldstone Report was rather lenient to the State of Israel in that it did not apply Nuremberg Tribunal Law (NTL) in any way.

I live in Boston and have been asking local international legal experts what the basis is for excluding NTL from consideration.

I have yet to receive a satisfactory answer.

Anyway here are my two blog posts on the subject:

(1) Whither After Goldstone?

(2) Zionism in Goldstone Report

[Perhaps I am the only person that has actually bothered to read the Nuremberg Tribunal transcripts in recent years, but I have yet to receive an answer about Nuremberg Tribunal Law (NTL) and its applicability to the conflict over Palestine.]

David said...

Regarding the first comment by my namesake (unfortunately I am not techno-savvy enough to change my name on this comment from David to David Samel): David's remarks are nonsensical. I cannot believe that critics of the Goldstone report are still carrying on about the mandate. When the report was first issued, the usual suspects -- Alan Dershowitz, David Harris, Jeffrey Goldberg -- wrote scathing condemnations that falsely claimed that the mandate was one-sided against Israel and that Mary Robinson had rejected it for that reason. The truth was that Goldstone had changed the mandate to a more even-handed one. Robinson herself publicly refuted this nonsense, and stated that the mandate she had rejected was also rejected by Goldstone, who had conducted an even-handed investigation. Now we get this silly complaint that Goldstone spent a minuscule portion of the report briefly outlining relevant history. Second, David complains that Prof. Slater ignored the factual refutations of the Goldstone report. Actually, he took on the most comprehensive and thorough criticism published, the one by Halbertal. David names no other refutations, and Slater's point that the individual factual conclusions reached by Goldstone have not been disproved is simply true, despite David's hopeful accusation of "sophistry," an appropriate description of his own argument. David's final complaint manages to exceed these others in sheer frivolousness. He claims that the Goldstone report is discredited because it did not take into account Israel's side of the story, which it refused to give! David makes a useful and apt analogy to criminal law, but betrays a spectacular and comic misunderstanding of it. He says: "It would be a miscarriage of justice if, because the defendant didn't cooperate, that the prosecution is allowed to present its case unchallenged." Actually, criminal defendants exercise their Fifth Amendment rights and do not "cooperate" or even testify in their own defense in the vast majority of cases. That does not stop the prosecution from “presenting its case unchallenged.” If it did, we criminal defense attorneys would have a field day, telling our clients: "Keep your mouth shut and you walk free." David knows that “The defendant is entitled to a defense as part of a fair trial,” but somehow is ignorant of the fact that the defendant can waive that right. Israel decided not to cooperate, and cannot complain that Goldstone did not take into account its version of the events, that it did not give, any more than a criminal defendant can complain if he is convicted after exercising his right not to testify. Besides, Israel gave its various versions of the events in innumerable public statements it made during the course of the war, which were fully available to Goldstone. The fact that it gave ridiculously implausible excuses and rationales, sometimes even contradictory ones, is no doubt one of the main reasons it decided not to cooperate with the Goldstone Mission.

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