Daniel Taub in The Boston Globe:
…The UN Special Rapporteur on Human Rights in the Palestinian territories, […] Richard Falk, recently issued a report that goes one remarkable step further. In the conditions existing in Gaza, he asserts, any Israel military response would be “inherently unlawful.” According to Falk’s understanding of international law, Israel has no right whatsoever to defend itself.
Taub’s claim here — that Falk ever said “Israel has no right whatsoever to defend itself” — is not a fair or reasonable summary of what Falk wrote.
It’s true that Falk said, in essence, that under the conditions that existed in Gaza, there was no legal way for Israel to engage in a large-scale attack on Gaza. Taub’s trick here is to ignore that Israel could have changed “the conditions existing in Gaza.”
For example, Israel didn’t exhaust all diplomatic remedies before attacking; had they done so, that would have changed the legal basis of their attack, according to Falk.
Falk also emphasizes that Israel closed Gazas borders, essentially trapping all Gazans, including the elderly, the ill, and children, in a war zone. That’s another condition that Israel could have tried to alter.
Israel could also have really ended the occupation in Gaza — giving Gaza true independence — in which case, Israel would have had the right to treat Gaza as an attacking nation. But since Israel has for all practical purposes never ended the occupation, Israel has taken on the legal responsibility to protect the well-being of the citizens of Gaza — a responsibility which is incompatible with bombing the shit out of those citizens.
Israel has a right to defend itself. That doesn’t mean that Israel has a right to do anything to defend itself, or that it doesn’t have a responsibility to fully pursue all possible diplomatic routes before engaging in an attack that killed or injured 1 in every 225 Gazans.
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Taub also writes:
I met with a group of eminent jurists who were on a fact-finding mission, examining Israel’s military operation in Gaza. After listening to their concerns and criticisms, I asked them: “Considering the rocket attacks launched against Israel by terrorist groups in Gaza, what in your view would have constituted a lawful response?” The answer was total silence.
I really wish I could talk to those “eminent jurists,” and get their account of that conversation. Call me cynical, but my bet is that their recollection would not entirely match Mr. Taub’s.
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A total of 1,434 Palestinians were killed, of whom 235 were combatants. Some 960 civilians reportedly lost their lives, including 288 children and 121 women; 239 police officers were also killed, 235 in air strikes carried out on the first day. A total of 5,303 Palestinians were injured, including 1,606 children and 828 women.
This was in response to Hamas rockets that — horrible as they were — still killed fewer than five Israelis.
Marty Perez dismissed Palestinian concerns the hundreds of civilian casualties as “whining” and wrote:
this is what I would say to Hamas and to the people of Gaza: “If a rocket or missile is launched against us, if you take captive one of our soldiers (as you have held one for two and a half years), if you raise a new Intifada against us, there will be an immediate response. And it will be very disproportionate. Proportion does not work.”
When people argue that the appropriate response to the deaths of four Israelis is for Israel to kill a thousand Palestinians, their unstated premise is that Palestinian lives are worth enormously less than Israeli lives.
Hat tip: The Debate Link.
Great post.
Honestly, this is just propaganda. Taub is using doublespeak and refuses to actually analyze the judge’s opinions with any nuance. Looking for excuses.
He treats things as if everything was peaceful between Israel and Gaza, Israel had done nothing wrong and then one day the Gazans launched a massive onslaught of rockets without provocation that killed many Israelis. The reality is Gaza was blockaded and starved since 2005, and occupied before that.
Israel has the right to defend itself against real aggression with a response that does not target civilians after exhausting diplomatic options. This it clearly did not do.
Do you think there exists only the specific rule that Israel has a responsibility to fully pursue all possible diplomatic routes before engaging in an attack, or are you promoting a general rule that everyone has a responsibility to fully pursue all possible diplomatic routes before engaging in attacks?
I can’t speak for Amp, but I doubt that he would hold Israel to any higher (or lower) standards than any other state.
I personally believe that war should always be a last resort. As a matter of fact, I vascillate between extremely reluctant belief in Just War Theory and full-blown-pacifism, but I’m coming around to the idea that violence can be justifies if it saves more people than it kills, and there was no other way to save those people.( I’ll probably have changed my mind back and forth fifteen times by teatime, though.)
Israel has the right to defend itself against real aggression with a response that does not target civilians after exhausting diplomatic options. This it clearly did not do.
When you say “does not target civilians”, does that mean “did not deliberately attack civilians as the primary target” or “no civilians got killed”?
When one claims “Israel didn’t exhaust its diplomatic options,” that statement implies:
1) Israel had diplomatic options which it could offer;
2) Those options were diplomatically reasonable to Israel, and it is reasonable to demand that the offer(s) be made;
3) Any concessions demanded by Israel in exchange for the offer(s) were appropriate and reasonable;
4) Palestine would have accepted the options were they offered by Israel;
5) Any concessions demanded by Palestine as a condition of acceptance were appropriate and reasonable; and
6) Had the options been offered and accepted, the Gaza situation (including the war) would not have occurred, or would somehow be materially improved.
Let’s start with the parties. If you’re talking “diplomacy” then you’re talking “national governments.” That means that the focus departs from what the citizenry thinks or feels; the diplomatic realm is populated by their representatives and is not a democracy.
In other words, this is not “Palestinians” negotiating with “Israelis;” it is Hamas negotiating with the Israeli government. This means that the conclusions may be significantly different from the conclusions reached by analyzing individual choice. As has been discussed here at length, the Palestinians themselves may not, on average, support the views and actions of their elected leadership. This is probably true for many electorates (including Israel) but when you’re talking diplomacy, it’s not as much of an issue.
It seems pretty facile to count Israel as the continuing belligerent occupier of Gaza when “effective control of the territory” is the test for occupation, and if rockets are being launched against Israel, that is not “effective control.”
Hamas doesn’t control Gaza’s borders. Hamas cannot choose what to import or export; Israel makes that choice. Hamas cannot decide what food, medicine, infrastructure, etc, it has access to; Israel makes that choice. Gazan scholars and artists can’t choose to travel to other countries for conferences, exhibits, etc, because Israel decided not to allow that. Palestinians living abroad are refused entry to Gaza.
That’s an occupation. If it happened to whatever country you live in, it would be considered an belligerent act of war.
By your definition of “occupation,” since the US has never brought violence in Iraq to a complete halt, the US has never met “the test for occupation,” and therefore Iraq was never occupied by the US. In fact, no occupation in human history has ever happened, according to your definition, if there was any resistance at all. Your definition bears no relationship at all to the real world.
Ron, imagine that the police have cornered a terrorist group in a boy scout meeting hall, where hundreds of adult scouts and their children & spouses are meeting. Some of the terrorists are believed to be dressed as boy scouts. So the police seal off the packed hall, letting no one out.
The police then use bombs and rockets to turn the hall into a living hell, and while they’re doing this they don’t let anyone out of the packed hall – not the injured, not the children, not the elderly, not the pregnant.
The terrorists aren’t wiped out by this action (and no one ever thought they would be). For every terrorist killed by the bombs, 9 scouts are killed by the bombs.
Was the way the police acted in this example acceptable, in your opinion? After all, they weren’t specifically targeting scouts. They just refused to allow the scouts to leave a building they were bombing.
Wow. I guess you could have come up with a more insulting question to ask, SM, but it would have been hard.
My answer is, everyone. (Which is one major reason I objected to our invasion of Iraq.) Falk’s report makes it clear that he’s talking about obligations that apply to all countries, not just to Israel.
But if they had let people out, some of the terrorists might have got out!
Amp,
Your analogy to the U.S. occupation of Iraq would work if Iraqis were resisting the occupation by becoming suicide bombers in American shopping malls. They’re not; they’re fighting the Americans who have invaded Iraq. Palestinian resistance that occurs within the Territories would not call Israel’s ability to act as an occupying power into question, particularly if that resistance targeted the government agents carrying out the occupation. But launching attacks on civilians in the occupying power’s country indicates a fairly piss-poor job of occupying.
While Peretz is typically inhumane toward Palestinians, the idea that Israel shouldn’t be able to respond to Hamas with a level of firepower comparable to what Hamas has used on Israel (in 2008, a total of 3,278 rockets and mortar shells landed in Israeli territory) seems strange. So if Hamas is doing its best to kills lots of Israelis (if each rocket or mortar shell had killed one person, the death toll would be twice that experienced by Palestinians), but isn’t very good at it, whereas Israel does not use human shields and does its best to avoid death and injury from these attacks; Israel can’t fire a comparable number of rockets and mortar shells against an enemy that does use human shields and that does not invest in protecting its civilians’ lives?
I’m not clear that’s an answer to my question, Amp. I want to know what Aishtamid means by the phrase “targeting civilians”.
I didn’t mean to insult you. But you seem to have concluded that Israel did not use its diplomatic options, and that this puts the responsibility for Gaza on Israel.
Why ignore Palestine? Although Palestine’s military options are fairly limited, their diplomatic options are still reasonably flexible–including, as a particular example, their stance regarding the existence and/or elimination of the state of Israel. And their stance regarding whether they do or do not support rockets and/or bombings. Etc. Militarily, Palestine is not a huge threat. Diplomatically, it is an enemy. And that is within Palestine’s control.
Fact is, Israel has done a lot of bad shit in and out of Gaza. But when you look to diplomacy you’re on a different playing field. Then, the stuff in the Hamas charter and all that becomes a hell of a lot more relevant. And that “failure of diplomacy” starts being apportioned a bit differently.
After all, the main goal of the Israeli government is to take care of Israeli citizens. The main role of the Palestinian government is to take care of Palestinian citizens. Like all governments we hope that they will both consider all humans, and like all governments they rarely do. But with an inevitable war on the horizon, the cost of which would surely be borne primarily by Palestine… which government has a higher obligation to protect Palestinian citizens? Israel?
PG: Launching attacks on the occupying power’s country indicates that they share a border! Resistance doesn’t negate an occupation. Gaza is controlled by Israel, and Israeli troops can enter at any point for any reason, while Gaza has no troops – only terrorists. It’s an occupation.
Froth,
Could you provide examples of past occupations in which there was a resistance that put significant effort into launching attacks on civilians in the occupying country? There are dozens of examples of Country A that shares a border with B and occupies B (easiest country to occupy, in many respects; makes supply lines and troop movement easy), and the people of B resisted: Germany occupied countries that bordered itself during WWI and II and there certainly were resistance movements, particularly during WWII. I just can’t think of many where a major part of that resistance involved killing A’s civilians in their own country, rather than undermining the people who were carrying out the occupation in B.
The only exception that comes to mind would be Northern Ireland when the IRA was protesting Direct Rule by carrying out attacks on civilian targets in England, and that’s not very comparable considering that a) the IRA’s activities in England were tiny compared to the operations within Northern Ireland itself; and b) Britain was supposed to act as a peacekeeper between Catholic and Protestant groups and did not behave as a military occupier.
Again, if withdrawal of troops on the ground isn’t enough to end an occupation, it’s obvious that we’ve entered a special zone where Israel is always at fault. The fact is that Israel’s occupations don’t end when the UN says they do if Hezbollah doesn’t like it. So a UN-certified withdrawal was worth nothing to Israel in Lebanon, and the UN’s refusal to certify the Gaza withdrawal is just more of the same.
PG, I’m wondering what your point is. Are you claiming that Israel has NEVER occupied Gaza or the West Bank? Because if your argument is “if there are attacks on civilians in the occupying country, then it’s not an occupation,” that would lead to the conclusion that not only is Israel not now occupying Gaza, but it never was.
Eurosabra, I don’t have a lot of time today, so please forgive me for quoting extensively from B’Tselem:
The argument is not that Israel can do no right; it’s that in real and substantial ways, Israel is still controlling the Gaza strip, and while that remains true the occupation has not substantially ended.
It seems that you’re coming into this discussion with the assumption that I’m not arguing in good faith. If that’s the case, why don’t you just leave? There’s not much point in you staying here to tell me I’m just bigoted against Israel and there’s no logic to my position. If you are going to stay here, however, I’d appreciate it if you’d actually acknowlege my arguments.
If we count the Indian intervention in Sri Lanka as an occupation, rather than assistance to the Sri Lankan government, then the LTTE did indeed strike at Indian civilians (Rajiv Ghandi in particular) in a bid to end that occupation. The scale of Hamas’s response, along with their Charter, seem to indicate that a UN-recognized termination of Israeli intervention would not end Hamas’s claims on Israel, as the end of Israel’s occupation of Lebanon has not ended Hezbollah’s territorial claims on Israel on behalf of the Lebanese state.
The OP said,
I think it’s reasonable to question whether Israel ever has been an effective occupier of Gaza, such that it is legally tasked with the responsibility for the welfare of Gaza’s citizens. I haven’t read up enough on the full history of the Israeli presence in Gaza to say for sure, but it seems strange that Israel can’t prevent 3000+ rockets and shells from being fired on it from the Palestinian Territories, but nonetheless can ensure the welfare of Gaza’s citizenry.
The scale of the Israeli response was a measure of Hamas’s success of transforming the conflict using 4GW, in ’48 and ’56, one controlled and pacified Gaza simply by occupying the major military bases and the roads, in ’70-’73 infantry-based quadrillage of civilian areas using police tactics was adequate, now the war is on a conventional-forces scale using rocket artillery and in civilian areas, a melding of previous trends. For the IDF, this is an old, old story and a new development.
Eurosabra,
If we count the Indian intervention in Sri Lanka as an occupation, rather than assistance to the Sri Lankan government, then the LTTE did indeed strike at Indian civilians (Rajiv Ghandi in particular) in a bid to end that occupation.
Sure, except it’s an unusual occupation that involves the troops in question being there at the invitation and under the direction of the government of the country supposedly being “occupied,” and that withdraws promptly at that government’s direction. If U.S. troops had shown up in Iraq at the invitation of a duly-elected government and left when that government told them to leave, I’m not sure I would have opposed the war. I would oppose any abuses that took place (as the eventual abuses by the Indian peace keeping force were horrible), but the intervention qua intervention doesn’t seem obviously bad.
SM, I think it’s certainly true that both sides are responsible for doing their best to negotiate. However, that Hamas has screwed up doesn’t excuse Israel’s actions.
Furthermore, at the time of the assault on the Gaza Strip, Hamas was willing to negotiate an extension of the cease-fire, while Israel was not willing to negotiate with Hamas. (Israel has recently revised their position, although they’re still using an intermediary, which may be for the best for the time being).
I agree that Hamas should revise its charter. But that’s more likely to happen through a long, slow process of negotiation, than it is through bombing a densely populated area with closed borders.
PG, I can’t even see any logic here. You’re claiming that because Israel can’t prevent people from firing homemade rockets, they couldn’t have prevented their own army from bombing Gaza?
Amp,
it’s not that you’re arguing in bad faith, but I think you are coming to it from the wrong angle.
Let me try a different presentation:
1) The current situation is untenable.
2) Neither party has done all they could to resolve the current situation:
ISRAEL could obviously resolve the situation by withdrawing its troops surrounding Gaza, opening borders and/or passage; allowing shipments; etc.
PALESTINE might or might not be able to resolve the situation: it can’t open the borders on its own, but it may be able to persuade Israel to do so. This would almost certainly involve a formal declaration that they would accept Israel’s existence; a formal attempt to stop and/or minimize attacks; and a stated willingness not to rearm.
3) Both parties have very different reasons for their current stubbornness.
ISRAEL worries–accurately or not, though I believe it is accurate–that opening the borders will result in immediate danger to its citizens, from Palestinian terrorists. Israel also worries that any concessions will strengthen the government of Hamas, which continues to be openly opposed to Israel’s existence.
PALESTINE worries–accurately or not–that… well, I’m not really entirely sure what Palestine’s worries are based on. Internal politics, obviously, but not so much external stuff. Also the worry that they will concede and not get anything from it.
4) Their concerns are of different bases:
ISRAEL’s concerns address the safety of its citizens from attack, which is known to be a problem given that Gaza contains (a) an unknown number of terrorists; (b) with the stated goals of targeting Israel; and (c) a government who seems either supportive of or neutral regarding such attacks.
PALESTINE’s concerns address the future survival of its citizenry and of its state, which is currently in jeopardy. I would say that PALESTINE’s concerns are more major, and the threat to its citizenry more severe.
5) But Israel’s concerns are more valid, because once they give concessions, they cannot be retracted.
If ISRAEL allows Gaza to be reopened, then it cannot “undo” the effects of such a reopening absent another Cast Lead-type assault. Any arms which enter Gaza will stay there. Any enhancements to Israel’s enemies cannot be taken back except by force. The victims of any new attacks cannot be revived.
If PALESTINE makes political concessions and they do not work, they can retract them. If they change the charter to acknowledge Israel, they can change it back. If they make a promise to actively go after attackers, they can retract the promise. If they send police out to patrol rocket sites, they can elect to stop the patrols at any time. If they stop attacks, they can restart them.
6) Given that (a) Palestine’s government has primary responsibility for Palestine’s citizens; (b) Palestine’s theoretical role in a peace is political, not militaristic; and (c) because those concessions are political in nature Palestine retains the ability to reverse course if concessions are unsuccessful; then Palestine cannot blame Israel for failing to “do all it can” to resolve the Gaza situation until it has done its best. And Palestine has not done so.
What nonsense. Israel could have decided to open negotiations for a cease-fire. That’s a decision that could be retracted. Israel could have decided to recognize the democratically elected government of Gaza — and then later withhold the recognition, if they decide to. Israel could have decided not to do an all-out assault on Gaza — a decision that you seem very hesitant to talk about Israel’s responsibility for.
The idea that Israel had only nonrecoverable diplomatic options is simply not true.
* * *
I’m going to be staying off this thread for a while, so I can get more drawing done. Apologies to all.
Which actions are we talking about here? Cast Lead (much more problematic) or the sealing of Gaza pre- or post-CL, or all three?
And Israel was willing to negotiate with fatah at the time.
Want to take bets on whether or not Israel would have resumed negotiations with Hamas if they had taken Abbas on as PM, or if they had made a coalition government, or if they had adopted something resembling the Fatah platform, or…?
There’s a reason that I keep harping on this: That is politics and diplomacy. Cast Lead was ages in the making. There was plenty of time to play a new tune there if Hamas had wanted to do so.
Seriously: you think it is harder to work a security cordon around an entire country than it is to get together party leaders and remove the “Israel sucks and they should all die” clause from a piece of paper?
Amp,
You’re claiming that because Israel can’t prevent people from firing homemade rockets, they couldn’t have prevented their own army from bombing Gaza?
No, I’m talking about welfare in a broader sense. If the only thing you mean by Israel’s legal responsibility for Gazans’ welfare is not-attacking Gaza, then that’s only as much as legal responsibility as Canada has for my welfare. You seemed to be thinking Israel had a greater responsibility here than that.
Ireland.
PALESTINE worries–accurately or not–that… well, I’m not really entirely sure what Palestine’s worries are based on. Internal politics, obviously, but not so much external stuff. Also the worry that they will concede and not get anything from it.
Let’s say that the Palestinian government decided to unequivocally recognize Israel’s right to exist and cease all hostilities (including the support of any NGO’s that do not share this position) in exchange for cessation of all hostilities on Israel’s part, formal diplomatic recognition of Palestine as a sovereign nation (and the concomitant return of control of various borders to Palestine), and the dismantlement of all settlements on what would then become sovereign Palestinian land. Let’s say the only thing that Israel holds out is that no part of Jerusalem becomes part of the new Palestine.
What do you think would happen? How long would that Palestinian government survive as a functioning government? For that matter, how long would it’s members as individuals survive?
The reason I ask this is that I keep hearing questions about whether or not Israel is willing to accept a two-state solution. Given the rhetoric I see coming from organizations like Hamas, it seems to me that there are at least one or two well-armed Palestinian groups that are unwilling to accept a two-state solution – or any Palestinian government that is so willing.
sanabituranima,
Did you read the second paragraph of my comment @ 16?
Algeria. Indeed, I think of the Battle of Algiers as the prototypical terrorist insurgency movement.
Plus I think there were also some troubles involving the United Kingdom and a neighboring state. It’ll come to me as soon as I hit the SEND button, I know it…..
Algeria doesn’t share a border with France. Also (similar to IRA attacks in England versus the violence in Northern Ireland), the violence within France was minute compared to the level of violence in Algeria, and even more tiny when you look only at the effect on civilians who were not of Muslim/ Algerian descent (i.e. people who had mainland French citizenship that was not based on colonial ties). The vast majority of violence in France itself was concentrated in an internal battle (something like Hamas v. Fatah), intimidation of the community the groups purported to represent (again, similarities to Hamas), and against law enforcement.
Can someone refresh my memory? As I recall, Israel withdrew from Gaza, at which point Hamas significantly increased the rocket and mortar attacks, now with more of Israel in range. At that point, Israel and the US encouraged Abbas to crack down on Hamas militants in Gaza. Because Arafat wasn’t willing to give up control of security forces or negotiations, those are both solely under the control of the President. That would be Abbas. Sure, many members of Hamas won election to the Parliament, but that didn’t make Hamas a legitimate security force. So, when the PA tried to exercise the government’s monopoly on violence, a civil war ensued. And here’s where my recollection seems to really diverge from everyone else’s, so correct me if I’m wrong:
It was at that point that Israel and Egypt both tightened restrictions on their borders with Gaza, creating a blockade. Though I find it misleading to call the blockade a continuation of the occupation, it seems to me that even by that standard Israel did end the occupation of Gaza. And then acted in half-measure against “Gaza as an attacking nation.”
Some might claim that doesn’t matter because Israel didn’t end the occupation in the West Bank. But that seems to me to be a very different sort of claim.