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Unpicking the peace process impasse/ Goldstone's illusions

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Update from AIJAC

November 19, 2009
Number 11/09 #05

This Update focuses on analysis of the current impasse in negotiations between Israelis and Palestinians, as well as creative ideas for moving beyond the deadlock. It also contains an additional take on the deeply flawed assumptions which powered the Goldstone Report - from a highly knowledgeable and credible source.

First up, Executive Director of the Washington Institute Dr. Robert Satloff explains the contribution to the current impasse in the peace process made by some well-meaning but ill-conceived steps from the US Obama Administration. Satloff believes that the initial US insistence on a complete settlement freeze was counterproductive - particularly in terms of damaging the Palestinian Authority. However, he argues that deadlock was likely in any case, and points out some positive approaches which now can continue some momentum in the meantime, including a focus on Palestinian PM Salam Fayyad's state-building plan. For all of his argument and analysis. CLICK HERE Former top Bush Administration Middle East official Elliot Abrams also wrote recently highlighting what he see as the mistakes of the Obama Administration.

Next up, noted American foreign policy analyst Walter Russell Mead largely concurs with Satloff, arguing that the Obama Administration has made clear mistakes that have damaged its reputation in Israel and the Arab world -  listing four things that went badly wrong in US Middle East policy. Mead has an original take on the barriers to a two state solution: A two-state solution will not satisfy a segment of the Palestinian population, and thus "Many Israelis, including Israeli voters, believe that a two-state solution is desirable in theory, but won’t work in practice because there isn’t a partner—a Palestinian government that can not only sign the peace but enforce it against the inevitable radicals and extremists that are sure to pop up on the Palestinian side." He has some interesting ideas how to overcome this problem as well, and to read them, CLICK HERE.

Finally, Prof. Moshe Halbertal, who lectures in both philosophy and law - delivers a fascinating analysis of the ethical code of the Israel Defence Forces (which  he helped develop) and its relationship with asymmetrical warfare of the sort seen in Gaza. Utilising the Goldstone Report as his backdrop; Halbertal identifies many aspects of the IDF’s ethical responsibilities while highlighting the significant difficulties the IDF faces while fighting an asymmetrical war. Halbertal slams the Goldstone Report for its inaccuracies, but particularly its absurd assumption avoiding all the real moral and ethical questions associated with the reality of assymetrical conflict in a built-up environment -while  also posing some confronting questions about Israel’s behaviour during the conflict. For this serious stab at an ethical exploration of a difficult conflict and an unethical report, CLICK HERE. Also on Goldstone, a recent Washington Post editorial accuses the Goldstone Report of missing a great opportunity to define the laws of asymmetrical warfare, while Israeli researcher Jonathan D. Halevi dissects the report's claims about an attack on a mosque.

Readers may also be interested in:


Stuck in Neutral? Diagnosing the Impasse in the Middle East Peace Process


Robert Satloff

PolicyWatch #1601
November 13, 2009


The following is an edited version of Dr. Robert Satloff's November 6, 2009, Policy Forum presentation at The Washington Institute.

How is it possible that an administration that came to office committed to the pursuit of Arab-Israeli peacemaking is today further from even getting the parties to talk with each other than at almost any point since the peace process began at the Madrid conference more than eighteen years ago?

Change and Continuity from the Bush Years

All administrations come to power not caring much about -- or convincing themselves that they don't need to care much about -- their predecessors. The Obama administration is no different in this regard. The new team came to office promising, in effect, a policy of "anti-Bushism," and this was the case particularly when it came to the broader Middle East.

The contrasts the Obama administration sought to draw were stark: where Bush did not pursue the Middle East peace process until year seven, Obama would start from day one; where Bush isolated our adversaries and declared countries either "with us" or "against us," Obama would engage these adversaries and offer to work with all comers based on "mutual interests and mutual respect"; where Bush hectored friends to promote democratic institutions, Obama would use quiet diplomacy; where Bush pushed in a general sense for regime change, Obama would focus solely on behavioral change; and where Bush saw America's ideological adversary as Islamo-fascism, jihadism, or radical Islam, Obama would view outreach to the world's Muslims as a high and urgent priority, and his senior officials would reject use of terms like jihadism. With regard to the peace process, where Bush was willing to reach quiet, practical, de facto, but very real understandings with Israel on settlement activity, Obama would deny that such understandings ever existed and demand something that no Israeli government could deliver (and, as a result, what no Palestinian leader since the years of the Oslo Accords had ever insisted on): an absolute, 100 percent, not-one-brick freeze on construction in any non-Arab site in either the West Bank or Jerusalem.

A dispassionate analysis of Obama administration Middle East policy, however, reveals -- despite the rhetoric -- some important areas of continuity from the Bush years. The Obama team deserves praise, not because the policies it has continued were originally Bush's, but because those policies were wise then and remain wise today. In the Arab-Israeli arena, several stand out: a commitment to protect the gains of the March 14 revolution in Lebanon and to prevent Hizballah's victory in Lebanese parliamentary elections; a commitment to maintain sanctions on Syria and pursue a tough-minded, results-oriented, incrementalist engagement with Damascus; and a commitment to insist that Hamas fulfill the conditions for diplomatic engagement outlined by the Quartet (the UN, EU, United States, and Russia) in its 2003 Roadmap peace initiative, dashing the hopes of those who argued that "talking with Hamas" was the best way to jumpstart the moribund peace process.

This last item being noted, the Obama administration had a certain ideological inclination to engineer a "big bang" in peacemaking that would transform the regional environment, launch high-level talks, and give a huge boost to the goal of reaching a final-status agreement between the Israelis and Palestinians. This big bang would result from two critical ingredients: an Israeli promise to freeze all settlement construction and an Arab (read: Saudi) commitment to take fairly minor steps toward normalization with Israel. At the same time, the administration came to believe, not unreasonably, that the best option for addressing the Iran nuclear file would be to hold its nose and try to seek a deal with the odious leadership of the Islamic Republic.

Mugged by Reality: Part I

In one fateful week in June, the administration's approach toward both the Israeli-Palestinian issue and Iran's nuclear ambitions was mugged by reality. First, on his maiden visit to Riyadh, the president was rebuffed by the Saudi king, who refused to offer any steps toward normalization with Israel. (A high-level Saudi official then compounded the insult to the president by writing in the New York Times that taking such steps would be "immoral.") The result was that the administration found itself with a public fight with Israel over settlements, in effect freeing the Arab states from taking any responsibility to contribute to the success of the administration's efforts, and with a full-blown diplomatic impasse. Then, several days later, the other key pillar of Obama U.S. policy -- willingness to resolve the nuclear file with Iran by negotiating a deal directly with the Iranian leadership -- was upset by the inconvenient uprising of the Iranian people against the theft of their presidential election, exposing the most serious fissures in the regime since the Islamic Revolution thirty years ago.

The period from mid-June through Labor Day saw a shift in the administration's approach: a shift in advisors (namely, Dennis Ross's move from the State Department to the White House), a shift in peace process strategy (recognition of the need to find a way out of the settlement impasse with Israel), and a shift in Iran policy (Washington's Iran time frame narrowed: discussion of engagement moved from the active to the passive voice, and the administration began serious discussions with allies and friends on sanctions options.) Eventually, these shifts led to a week of positive news for the administration -- starting with the late September meeting in New York between Israeli and Palestinian leaders, engineered by the president, and followed by the October 1 tentative agreement in Geneva by Iran on a P-5 + 1 offer on uranium enrichment. For a moment, things looked like they were falling into place.

Mugged by Reality: Part II


Then things fell apart -- again. The side effect of Washington's ultimately more realistic approach on the question of Israeli settlements was to leave Palestinian president Mahmoud Abbas (Abu Mazen) out on a limb. Despite this, people thought Abbas would be strong enough to uphold his commitment to Washington to postpone international action on the UN Goldstone report on Gaza for six months, during which (it was assumed) peace diplomacy would be restarted in earnest. Alas, he was not strong enough to do this. Palestinian politics overwhelmed him, and he has been running for cover ever since. On Iran, the initial assessment in Washington was that the combination of a united international front and domestic political pressure had compelled the Iranian leadership to accept the Geneva deal. In reality, the powers opposed to the deal -- or at least the powers of indecision -- seem to have won out. So, by the end of October, the era of good feelings engendered by the meeting between Abu Mazen and Israeli prime minister Binyamin Netanyahu, on the one hand, and the Geneva deal, on the other, had already fizzled out.

U.S. diplomacy efforts exacerbated this situation. What Netanyahu offered the United States on settlements was certainly constructive and helpful but probably did not merit the accolade "unprecedented," as Secretary of State Hillary Clinton said in Jerusalem. Here, the failing was the administration's unwillingness to accept the original understandings on settlement activity reached by Ariel Sharon and George W. Bush. If those understandings had not existed, then Bibi's offer would have been, in a sense, unprecedented, but everyone -- Israelis, Palestinians, other Arabs -- knew that the Sharon-Bush understandings did exist. Washington was caught in a web of its own making. And the outcome is truly amazing. Now, after the Palestinians had begged the United States to compel Israel to discuss a two-state solution, the Israelis are begging the Palestinians to discuss a two-state solution -- the Palestinians are refusing to come to the table. History has truly been turned upside down.

My own view is that despite these self-inflicted wounds, the situation is probably not much different from what it would have been had we not gotten ourselves stuck in the settlements muck for the past nine months. Yes, the situation has been exacerbated, but the reality is that, first, Netanyahu is highly unlikely to offer the Palestinians what former Israeli prime minister Ehud Olmert offered in his private talks with Abu Mazen last year. Second, Abu Mazen has been led to believe over the years -- after watching Yasser Arafat at Camp David and Taba and then participating in his own talks with Olmert -- that with time, the Israelis can only improve their offer, so there is no reason for him not to wait. An impasse was in the cards. The one we face today may be different in degree, but not in kind, from what it would have been without the administration's miscues.

Directions for U.S. policy

As we consider potential next steps for America in the Middle East peace process, we should keep in mind the following critical factors:

    * Obama is not a foreign policy president. He was elected principally to solve America's economic problems and to address other pressing domestic issues like healthcare. He is not yet in the legacy-building phase of his administration -- like Bill Clinton or George W. Bush's final year in office -- when he might commit great time and resources to an issue like the Middle East peace process.

    * In the foreign arena, he is a reluctant war president. That issue dominates all other foreign policy issues.

    * In the broader Middle East, the Iran nuclear file is a much higher priority than the Arab-Israeli peace process. The stakes are higher; the urgency is greater; the clocks are ticking faster. It is a sad but very likely reality that we will still be talking about the Israeli-Palestinian issue two years from now. Yet chances are much lower that we will still be talking about the potential Iranian nuclear bomb in two years' time -- that issue will have been addressed, one way or another, for better or for worse. Indeed, Obama will be judged by Middle Easterners and world leaders far more on whether he fulfills his promise to prevent Iran from acquiring nuclear weapons capability then on whether, on his watch, America helps local parties reach the permanent resolution of the Arab-Israeli conflict.

    * On the peace process itself, despite the glum forecast, vitally important work remains to be done. And we should not lose sight of two very positive developments: first, the post-2007 strategy of "isolate Hamas and build up the West Bank" is working; second, as a result, many Palestinians are beginning to accept the idea that they will have to build their own state from the bottom up and the inside out, as evidenced most recently by the state-building plan advanced by Palestinian Authority (PA) prime minister Salam Fayad. While one can quibble with the details, no objective observer can contest that this plan represents the most constructive idea to emerge out of the peace process in years. We should embrace the idea -- not any particular person or institution -- work aggressively with international partners to support it. By itself, though, the plan will not fly. It needs, in my view, political cover. This is where the complementary ideas of my colleagues Ehud Yaari and David Makovsky point us in the right direction. In essence, they remind us that we should not be handcuffed by the Roadmap proposition that the path to peace has only two phases -- a state with temporary borders (phase 2) and a final settlement (phase 3). Many other options for progress exist -- a narrow negotiation over borders and security, as David Makovsky has proposed; actions by Palestinians that would allow either a third Israeli redeployment or an Israeli withdrawal in the West Bank to the pre-September 2000 lines; or the pursuit of an Israeli-Palestinian armistice agreement, for which Ehud Yaari has argued. To reiterate, many options for substantive progress could be explored.

Will there be a partner for such a strategy? On the Israeli side, I think the answer is yes. And on the Palestinian side, I think the answer is probably yes, too. After all, when all is said and done, Abbas (or what Abbas represents) has no option but to make a strategic choice for negotiations over confrontation. If he prefers confrontation, then he might as well turn the keys to the PA over to Hamas, which is more authentic as a "resistance" movement. The real question is whether the Obama administration has the stomach for the hard work of peace building, which is what this strategy rests on. Some suggest that the president could adopt the "call us when you're ready" approach of former White House chief of staff James Baker. I do not think this is a real option. Given the president's commitment on this issue, given the attachment so many in the administration have to the idea that progress on the peace process is essential for progress on wider U.S. regional interests, and given the political reality in the Democratic Party, I do not think Obama can disengage from Middle East diplomacy. But the Jim Baker question is the wrong question -- the real question is whether Obama can become Bill Clinton at Wye River: a president willing to work overtime for an important but very incremental deal. For Israelis and Palestinians hoping for progress in peace process diplomacy, that is a great unknown.

Robert Satloff is executive director of The Washington Institute.


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How Obama Lost the Middle East

by Walter Russell Mead

Daily Beast, November 10, 2009 | 11:25pm

With the Palestinian leadership threatening to walk, Walter Russell Mead breaks down the president’s mistakes—and how we can get the peace process going again.

The Obama administration’s attempt to relaunch the Middle East peace process isn’t just dead. The decomposing corpse is stinking up the room. The president’s personal prestige has been dinged—in the Arab world, in Israel, and in Europe and beyond. He has undercut his core strategy of reaching out to the Arab and Muslim world by showing a new, more “even-handed” American policy in this bitter dispute.

There was nothing more predictable than this embarrassing and damaging public flop. The administration dug a hole for itself and jumped merrily in.

Four things went wrong, one after the other.

First, Obama made what Arabs heard as a promise: that he was going to get Israel to stop all construction in all settlements in both the West Bank and East Jerusalem. This was rash and wrong; there is no way the Israeli government would accept this condition of its own free will—and Obama lacks the power to force this deal down Israel’s throat. Second, Israeli Prime Minister Benjamin Netanyahu refused to cash the check Obama rashly wrote. He declined to accept the full construction freeze that the president wanted. Third, the Arab world then refused to help Obama by making some concessions to Israel in exchange for the partial freeze Israel proposed. Finally, in those conditions, Muhammad Abbas, a weak leader of an even weaker proto-state (the Palestinian Authority), threatened to throw in the towel, saying that he can’t carry on anymore under these conditions.

The administration’s initial mistake was easy to make. Almost everyone underestimates the ability of small powers to blow off their larger, more powerful allies—and to get away with it scot-free. Look at Karzai in Afghanistan, or Maliki in Iraq. Without American troops and American money, both these guys would be living in exile paying through the nose for security guards; as it is, both men thumb their noses at American diplomats whenever it suits them. Even tiny little Honduras handed Obama his hat, rejecting his well-intentioned though poorly designed compromise.

It’s not just Americans who can’t keep their Mini-Me allies in line. Eight hundred thousand Greek Cypriots gave the other 26 member states of the European Union the raspberry when they rejected a solution to the Cyprus crisis blessed by Turkey, Greece, and the EU in 2004. Isolated, starving North Korea defies China—its only friend and protector—whenever it wakes up on the wrong side of the bed. Zimbabwe scoffs at South African pressure; Bolivia yanks Brazil’s chain.

“I will shake my little finger and Tito will fall,” said Joe Stalin in 1948. Stalin shook fingers and his fists and he stamped his feet; he screamed and he sanctioned and tried everything he could think of, but Tito still ruled Belgrade 30 years after Stalin died.

Not only did the administration fail to take note of this general fact in international life; it ignored the special case of American-Israeli relations. American public opinion strongly prefers a pro-Israel foreign policy to any other available option; mindful of this, Congress just isn’t going to let an American president do anything drastic. Israeli prime ministers read the opinion polls. They know the rules of the game.

Now Arabs—and Europeans—look at Obama’s failure to extract a complete construction freeze from Netanyahu and they jump to one of two possible conclusions: The American president must be either cynical or weak. Either he was cynically trying to court the Arabs, yet again, with more empty promises and empty words, or he sincerely wants Israel to stop all settlement activity, but is too weak to deliver.

The question for many Arabs now will be whether Obama is “a tool of the Jews” (in much of the Middle East, Jews are widely assumed to control American foreign policy and the media) or their victim. In Europe, they will ask similar questions, though with much more sophistication and nuance.

The whole situation is a godsend for Arab leaders who don’t want to break with the United States—but worry about public unrest if they make concessions to Israel. Now they can tell Obama that if Israel accepts his proposal they will move forward also. They know Israel won’t accept his proposal; this gives them a perfect excuse for refusing to take difficult and costly steps for peace. Loudly, they curse Netanyahu’s intransigence in public; quietly, they toast him at home.

Worst case for the Americans: Hamas wins another election on the West Bank. That is more likely now in the wake of Obama’s failure than it was last spring, and it would make everything in the Middle East even harder.

Besides the United States, Abbas and the Palestinian moderates are the real losers. Obama’s failure to extract the construction freeze from Netanyahu makes it almost impossible for Palestinian leaders to engage in serious peace talks. Abbas’ (rumored) threats to resign and (public) promises not to run for reelection the next time Palestinians vote may be partly an expression of genuine personal frustration and despair. But threatening to resign is also about the only move he can make that keeps him out of trouble with both the Americans and the Palestinian street. The Americans must now beg him to stay on; his threats to leave, meanwhile, show the Palestinians that he shares their frustration and feels their pain.

Worst case for the Americans: Hamas wins another election on the West Bank. That is more likely now in the wake of Obama’s failure than it was last spring, and it would make everything in the Middle East even harder.

So where do we go from here?

We do what the United States has been doing in the Middle East since the British gave up on settling the Arab-Israel dispute back in 1947. We bury the old plan and bring out something new.

Here’s my two cents: The United States needs to try getting “out of the box” on Middle East peace. The core problem we face is that the two-state solution based on the 1967 borders with some minor modifications leaves too many Palestinians out in the cold. West Bankers who still have their original houses and land might be willing to settle for the two-state solution (the original West Bankers and East Jerusalemite notables usually tend toward the moderate wing of the Palestinian movement). Refugees huddled in miserable camps (especially in Gaza, a desert with no resources or discernable prospects for economic development) are less enthusiastic. For exiled Palestinians, whether in Lebanon, Syria, or the broader diaspora, the right of return to an overpopulated, violent, and poor homeland is not very attractive—nor do crowded Palestinians in Gaza and the West Bank look forward to welcoming hundreds of thousands of “foreign” Palestinians into their camps.

Israeli leaders are not stupid, and they know this. They know that even if some Palestinians sign a peace treaty with Israel, violent resistence will continue. Look at what happened in Northern Ireland. Eighty years after partition, bombs still sometimes go off in Belfast. Israeli leaders aren’t enthusiastic about making territorial concessions that, in the end, won’t bring them the kind of security they crave.

Many Israelis, including Israeli voters, believe that a two-state solution is desirable in theory, but won’t work in practice because there isn’t a partner—a Palestinian government that can not only sign the peace but enforce it against the inevitable radicals and extremists that are sure to pop up on the Palestinian side.

Washington needs to figure out how to make the deal work better for Palestinians. This can’t be about land or the right of return. There isn’t any more land to divide, and there isn’t any room in pre-1967 Israel for the descendants of the Palestinians who fled more than 50 years ago. That cake is baked, that ship has sailed.

So what else can we put on the table? Inevitably the answers come down to two things: dignity and money. That’s what Palestinian moderates need to produce in order to make the two-state solution something that Palestinians can not only accept, but fight their own radicals to enforce and make stick. Working with our friends and allies in Europe, Asia and the Middle East, the United States needs to take the lead in developing workable and dignified solutions to the concrete problems Palestinians face—not as a substitute or distraction from the negotiating process between the two sides, but as a way to energize it and make both sides more willing and able to make the tough choices they both know lie ahead.

President Obama’s credibility may have been dinged by this mishap, but he still has the stature and the authority to reboot. Instead of trying and failing to force Israel to do things he now knows it won’t do, he needs to start looking at creative ways to help Palestinians get more of what they want and need to build a sustainable peace. No American leader in our history is better positioned than President Obama to start this process, and trying something new and different may be his best hope to ensure that the next time the Nobel Committee gives him a medal, it will be for services rendered, not pie in the sky.

Mead is the Henry A. Kissinger Senior Fellow for U.S. Foreign Policy at the Council on Foreign Relations and the author of God and Gold: Britain, America, and the Making of the Modern World. He writes a blog at The American Interest.

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The Goldstone Illusion

What the U.N. report gets wrong about Gaza--and war

Moshe Halbertal

The New Republic, November 6, 2009 | 12:00 am

I.

In 2000, I was asked by the Israel Defense Forces to join a group of philosophers, lawyers, and generals for the purpose of drafting the army’s ethics code. Since then, I have been deeply involved in the analysis of the moral issues that Israel faces in its war on terrorism. I have spent many hours in discussions with soldiers and officers in order to better grasp the dilemmas that they tackle in the field, and in an attempt to help facilitate the internalization of the code of ethics in war. It was no wonder that, when the Goldstone Report on the Gaza war was published, I was keen to read it, with some hope of getting a perspective on Israeli successes or failures in this effort to comprehend war, and to fight it, morally. Unlike many who responded to the report, in praise or in blame, I gave this immensely long document a careful reading.

Let us begin with a sense of the moral stakes. 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. During the Gaza operation, for example, some Hamas militants embedded in the civilian population did not carry weapons while moving from one position to another. Arms and ammunition had been pre-positioned for them and stored in different houses.

In addressing this vexing issue, the Goldstone Report uses a rather strange formulation: “While reports reviewed by the Mission credibly indicate that members of the Palestinian armed groups were not always dressed in a way that distinguished them from the civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from the attack.” The reader of such a sentence might well wonder what its author means. Did Hamas militants not wear their uniforms because they were inconveniently at the laundry? What other reasons for wearing civilian clothes could they have had, if not for deliberately sheltering themselves among the civilians?

As for the new “front” in asymmetrical warfare, we read in another passage, which is typical of the report’s overall biased tone, that, “On the basis of the information it gathered, the Mission finds that there are indications that Palestinian armed groups launched rockets from urban areas. The Mission has not been able to obtain any direct evidence that this was done with the specific intent of shielding the rocket launchers from counterstrikes by the Israeli armed forces.” What reason could there possibly be for launching rockets from urban centers, if not shielding those rockets from counterattack? And what is the moral distinction that is purportedly being established here?

By disguising themselves as civilians and by attacking civilians with no uniforms and with no front, these paramilitary terrorist organizations attempt nothing less than to erase the distinction between combatants and noncombatants on both sides of the struggle. Suicide bombers exploded themselves on buses and in restaurants in Tel Aviv, Jerusalem, Haifa, Dimona, Eilat, and many other places. Qassam rockets and Katyushas were fired randomly at various Israeli civilian centers, as far as their range allowed. So the war had no defined place and was waged by unidentified murderers. It justifiably felt like a change in the very nature of warfare. The goal of this momentous transformation was to create a war of all against all and everywhere. It aimed at shifting the Israeli population from a healthy sense of cautious fear attached to a particular place-a border, a security zone--to a generalized panic that has no location. Everywhere and everyone is now regarded as dangerous. This is not paranoia. It has a basis in a new reality, and is the outcome of a new strategic paradigm.

Faced with this unprecedented and deeply perplexing situation, two extreme positions have emerged in Israel. The radical left claims that, since such a struggle necessarily involves the killing of innocent civilians, there is no justifiable way of fighting it. Soldiers ought to refuse to engage in such a war, and the government has only one option, which is to end the occupation. This view is wrong, since Israel has the right and the obligation to protect its citizens, and without providing real security, it will fail also to achieve peace and to put an end to the occupation. The radical right claims that, since Hamas and Hezbollah initiated the targeting of Israeli civilians, and since they take refuge among their own civilians, the responsibility for harming Palestinian civilians during Israel’s attempt to defend itself falls upon the Palestinians exclusively. This approach is also wrong. The killing of our civilians does not justify the killing of their civilians. Civilians do not lose their right to life when they are used as shields by Hamas and Hezbollah. In fighting the militants, Israel must do as much as it possibly can do to avoid and minimize harm to civilian life and property.

The aim of the IDF ethics code is to strike a coherent and morally plausible position that provides Israel with the effective tools to protect its citizens and win the war while also setting the proper moral limits that have to be met while legitimately securing its citizens. In debating the code, I heard many times that it imposes constraints upon Israeli action that would limit the capacity of the army to win the battle and to provide security. In fact, the moral constraints and the strategic goals are mutually reinforcing. Radical groups such as Hamas start their struggle with little support from their population, which tends to be more moderate. They increase their base of support cynically, by murdering Israeli civilians and thereby goading Israel into an overreaction (this is not to deny, of course, that Israel can choose not to overreact) in a way that ends up causing suffering to the Palestinian civilians among whom the militants take shelter. The death and the suffering of the civilian Palestinian population, in the short run, is a part of the Hamas strategy, since it increases the sympathy of the population with the movement’s aims. An Israeli overreaction also leads to the shattering of Israel’s moral legitimacy in its own struggle. In a democratic society with a citizen’s army, any erosion of the ethical foundation of its soldiers and its citizens is of immense political and strategic consequence.

And so, Israel’s goal in its struggle with Hamas and Hezbollah is to reverse their attempt to strengthen themselves politically by means of their morally bankrupt strategy. Rather than being drawn into a war of all against all and everywhere, Israel has sought to isolate the militants from their environment: to mark them and “clothe” them with a uniform, and to force them to a definite front. The moral restraints in this case are of great strategic value. I am convinced, for this reason, that targeted killing, especially of the militants’ leadership, is an effective and legitimate endeavor. It is for this same reason that I believe that Israel’s siege of Gaza, and its harsh effect upon general civilian life, is morally problematic and strategically counterproductive.

II.

In accordance with the just war tradition in Western history and philosophy, three principles are articulated in the IDF code concerning moral behavior in war. The first is the principle of necessity. It requires that force be used solely for the purposes of accomplishing the mission. If, for example, a soldier has to break down the door of a home in order to search for a suspected terrorist, he has no right to smash the TV set on his way in: Such gratuitous use of force has no relation to the mission. This is a straightforward principle, professionally and morally, though its implementation might be complicated if the mission is not well-articulated or if there are serious arguments about what kind of force is necessary to accomplish a given mission. In ordinary war, the collapse of the enemy’s army is a more or less clear event; but in an asymmetrical war, victory is never final--the mission seems not so much to end as to shift; and so it may be difficult to apply the necessity principle.

The second principle articulated in the code is the principle of distinction. It is an absolute prohibition on the intentional targeting of noncombatants. The intentional killing of innocent civilians is prohibited even in cases where such a policy might be effective in stopping terrorism. At the height of the violence in 2002, some suggested that the only deterrence against suicide bombers who wish to die anyway is the killing of their families. But such a policy is blatantly murderous, and it is prohibited. An Israeli soldier is prohibited from intentionally targeting noncombatants, and, in the event that he is given such an order, he must refuse it. He is obligated to engage in fighting only those who threaten his fellow soldiers and civilians.

The implementation of the principle of distinction is also very difficult in an asymmetrical war. Since the enemy does not appear in uniform and there is no specified zone that can be described as the battlefield, the question of who is a combatant becomes crucial. In the process of identifying combatants, a whole causal chain must be established and marked as a legitimate target. This “food chain” of terrorism is made up of people whose intentional actions, one after the other, will end up threatening Israeli civilians or soldiers. This chain includes the one who plans the attack, the one who recruits the bomber, the one who prepares the bomb, the driver of the car that transports the bomber to his or her target, and so on. It is clear that such an attempt gives rise to difficult cases, and even the most scrupulous effort will leave some room for doubt. What about the financer of the bombing, for example?

It is also clear that applying the international law of war to this new battlefield is fraught with problems. Consider a painful issue that comes up in the Goldstone Report--the matter of the Gaza police force. In the first minutes of the war, Israel targeted Hamas police, killing dozens. There is no question that, in an ordinary war, a police force that is dedicated to keeping the civilian peace is not a military target. The report therefore blames Israel for an intentional targeting of noncombatants. But such a charge is only valid concerning a war against a state with a clear and defined military institution, one that therefore practices a clear division of labor between the police and the army. What happens in semi-states that do not have an institutionalized army, whose armed forces are a militia loyal to the movement or party that seized power? In such situations, the police force might be just a way of putting combatants on the payroll of the state, while basically assigning them clear military roles. Israeli intelligence claims that it has clear proof that this was the case in Gaza. This is certainly something that Israel will have to clarify. But it is clear to me that Goldstone’s accusation that targeting of the police forces automatically constitutes an attack on noncombatants represents a gross misunderstanding of the nature of such a conflict.

The third principle,the most difficult of all, is the principle of proportionality, or the principle of avoidance. Its subject is the situation in which, while targeting combatants, it is foreseeable that noncombatants will be killed collaterally. In such a case, a proportionality test has to be enacted, according to which the foreseeable collateral death of civilians will be proportionate to the military advantage that will be achieved by eliminating the target. If an enemy sniper is situated on a roof, and 60 civilians live under the roof, and the only way to kill the sniper is to bomb the roof, which is to say, bomb the house, such bombing is prohibited. The military advantage in eliminating the sniper is disproportionate to the probable cost of civilian life.

In discussing the proportionality constraint, there emerges a natural pressure to provide an exact criterion for measuring the proper ratio between collateral deaths and military advantage. I must admit that I do not know the formula for such a precise calculation, and I do not believe that a clear-cut numerical rule can be established. Different people have different intuitions about strategic value and moral cost. And yet, the Israeli army has traditions and precedents that can be relied upon. 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.

Besides the difficulties that are raised by the proportionality test, there is a far greater and more momentous issue at stake in the principle of avoidance. The IDF code states that soldiers have to do their utmost to avoid the harming of civilians. This principle states that it is not enough not to intend to kill civilians while attacking legitimate targets. A deliberate effort has to be made not to harm them. If such an active, positive effort to avoid civilian harm is not taken, in what serious way can the claim be made that the foreseeable death was unintended? After all, the death occurred, and could have been expected to occur. So the proper ammunition has to be chosen to minimize innocent deaths; and, if another opportunity is expected to arise for eliminating the target, the operation must be aborted or delayed. Civilians have to be warned ahead of time to move from the area of operation if this is possible, and units have to be well aware that they must operate with caution, even after warning has been given, since not all civilians are quick to move. A leaflet dropped from the sky warning of an attack does not matter to the people--the sick, the old, the poor--who are not immediately mobile.

In line with such principles, the Israeli Air Force developed the following tactic. Since Hamas hides its headquarters and ammunition storage facilities inside civilian residential areas, the Israeli army calls the residents’ telephones or cell phones, asking them to move immediately out of the house because an attack is imminent. But Hamas, in reaction to such calls, brings the innocent residents up to the roof, so as to protect the target from an attack, knowing that, as a rule, the Israeli army films the target with an unmanned drone and will avoid attacking the civilians on the roof. In response to this tactic, Israel developed a missile that hits the roof without causing any actual harm in order to show the seriousness of its intention. The procedure, called “roof-knocking,” causes the civilians to move away before the deadly attack.

It is rather a strange point in the Goldstone Report that this practice, which goes a long way to protect civilians, is actually criticized. Concerning such a practice, the report states that, “if this was meant as a warning shot, it has to be deemed reckless in the extreme.” The truth is that this is an admirable and costly effort to avoid civilian collateral harm. As is true with many of its criticisms, the report does not state what the alternative should be. What should Israel do in such a case? Attack the house without calling on its residents to move, or attack it while they are gathered on the roof? Or maybe avoid attacks altogether, allowing the enemy to take effective shelter among civilians? 

In the deliberations about the Israeli army’s code of military conduct, a crucial question emerged in connection with the requirement that efforts be made to avoid harming civilians. For such efforts surely must include the expectation that soldiers assume some risk to their own lives in order to avoid causing the deaths of civilians. As far as I know, such an expectation is not demanded in international law--but it is demanded in Israel’s military code, and this has always been its tradition. In Operation Defensive Shield in 2002, for example, Israeli army units faced a tough battle in the Jenin refugee camp. The army refused to opt for the easy military solution--aerial bombardment of the camp--because it would have resulted in many civilian deaths, and it elected instead to engage in house-to-house combat, losing 23 soldiers in the battle. This norm of taking risks with soldiers’ lives in order to avoid civilian deaths came under criticism in Israel, but I believe that it is right. Innocent civilian lives are important enough to obligate such risks. And, if commanders are told that they do not have to assume such risk, then they will shoot at any suspicious person, which will result in widespread killing.

Yet the application of such norms in battle raises difficult moral quandaries. One of them comes up in the Goldstone Report. When the operation started, Hamas militants mostly avoided face-to-face battles with Israeli soldiers. They withdrew into the civilian heartland and fired mortar rockets from within their own population, targeting Israeli units. Mortar locations can be detected by radar, but the crew can move the mortar to a new location in a few minutes, and then fire from there. It is therefore impossible to target these mortars and their crews with a helicopter or in any other way that would provide a direct visual of the target and use accurate ammunition: Such means simply take too much time to deploy. The only option is to fire back with mortars that can be quickly and accurately directed at the coordinates of the mortars on the other side.

The problem with such a tactic is that such mortars are of 120 millimeter caliber and the radius of their hit is 50 meters. This means that collateral damage to civilians might occur while hitting the legitimate target. Of course, the commanding officer can choose not to fire back and put his soldiers at risk from the next rounds of mortar shots. It is important also to note that, when returning fire, the commanding officer cannot know whether there are civilians in that radius and how many of them are there. In “fog of war” conditions, and under pressure to react, such information is not available.

The Goldstone Report claims that the shooting of mortars caused disproportionate collateral harm, which is, of course, an empirical matter; but it is important to understand that this can be known only after the fact. So what to do? My own view is that, if the fire that the unit is taking is not accurate, and if the commander can move his own unit to another location, he should do so rather then fire back and endanger civilians. But this is a very difficult choice, and sometimes this choice might not be available. It is wrong to give the commanding officer a blank check to shoot anytime his soldiers are at probable risk--but he must be given the means of protecting them as well. The Goldstone Report is very critical about the firing of the Israeli mortars, but it does not take seriously into account the problems that such a situation imposes.

It is my impression that the Israeli army in Gaza did not provide clear guidance on the matter of whether soldiers have to assume risk. Some units took risks in the Gaza in order to avoid the collateral killing of civilians, while some units accepted the policy of no risk to soldiers. This does not amount to a war crime, but it is a wrong policy. It also might be a cause of unnecessary civilian deaths: It could inspire a reason for a misguided order to shoot whoever crosses a certain line on the map in proximity to an Israeli unit. Given the fact that anyone in the battle zone could be a militant, and that warnings were given, such an order might make sense--and yet, the order should refer to someone who seems to pose a threat rather than to anyone who crosses the line, since fear and confusion might cause innocent civilians to move too close to the line and even to cross it.

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.

III.

In discussing the code of ethical conduct with Israeli officers, many times I encounter the following complaint: “Do you want to say that, before I open fire, I have to go through all these moral dilemmas and calculations? It will be completely paralyzing. Nobody can fight a war in such a straitjacket!” My answer to them is that the whole point of training is about performing well under pressure without succumbing to paralysis. This is the case with battlefields that have nothing to do with moral concerns. Do I attack from the right or from the left? How do I respond to this new tactic, or to that? And so on. This is why moral considerations have to be an essential part of military training. If there is no time for moral reflection in battle, then moral reflection must be accomplished before battle, and drilled into the soldiers who will have to answer for their actions after battle.

Besides the great difficulty of adjusting the norms of warfare--the principles of necessity, distinction, proportionality, and avoidance--to a non-traditional battlefield without uniforms and without a front, there is still another pedagogical challenge. In a traditional war, the difficult moral choices are made by the political elites and the high command, such as whether to bomb Dresden or to destroy Hiroshima. But in this new kind of micro-war, every soldier is a kind of commanding officer, a full moral and strategic agent. Every soldier must decide whether the individual standing before him in jeans and sneakers is a combatant or not. What sorts of risks must a soldier assume in order to avoid killing civilians while targeting a seeming combatant? The challenge is to make these rules part of the inner world of each soldier, and this takes more than just formulating the norms and the rules properly. It is for this reason that I looked to the Goldstone Report to learn whether these norms were in fact applied, and in what way Israeli soldiers did or did not succeed in internalizing and acting upon them.

The commission that wrote the report could have performed a great service if it had concentrated on gathering the testimonies from Gaza and assessing them critically, while acknowledging (as it failed to do) that they are partial and incomplete. This would have forced Israel to investigate various matters, provide answers, and take appropriate measures. (I do not imagine Hamas engaging in such an investigation of its own crimes. This is yet another asymmetry.) But instead the commission opted to add to its findings three unnecessary elements: the context of the history that led to the war; its assessment of Israel’s strategic goals; and long sections on Israel’s occupation of the West Bank. Why should a committee with a mandate to inquire into the operation in Gaza deal with the Israeli-Palestinian conflict at large?

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. It will naturally follow from such a premise that the Gaza operation was yet another instance of Israel’s general wicked behavior. These long sections are the weakest, the most biased, and the most outrageous in this long document. They are nothing if not political. In Goldstone’s account of the history that led to the war, for example, Hamas is basically described as a legitimate party that had the bad luck to clash with Israel. The bloody history of the movement--which, since the beginning of the Oslo accords, was determined to do everything in its power, including the massacre of civilians, to defeat the peace process--is not mentioned.

The Israeli reader who actually experienced the events at the time remembers vividly that Hamas terrorists murdered Israeli men, women, and children all over Israel while a peace process was underway. Hamas was doing all this in accordance with its religious ideology, which is committed to the destruction of Israel and is fueled by Iranian military and financial support. In the supposed context that the report analyzes, there is no mention of Hamas’s role and its ideology as reflected in its extraordinary charter, which calls for the destruction of Israel and the genocidal killing of Jews. In its attempt to stop Hamas’s vicious attacks on Israel’s citizens, Israel built a long fence--an obstacle to prevent a suicide bomber in Kalkilya from rolling out of bed and driving to the heart of Kfar Saba and Netanya in five or ten minutes. (The distances between life and death are really that short.) The Goldstone Report mentions the fence, of course--but as a great violation of human rights, as motivated sheerly by predatory desires.

Hamas was responsible in many ways for torpedoing the next opportunity for ending Israel’s occupation. After the collapse of the Oslo agreement, Ariel Sharon, then the prime minister, decided to withdraw unilaterally from Gaza, in the belief that there was no reliable partner on the Palestinian side and that Israel had to start putting an end to its control of the Palestinian population. Ehud Olmert, Sharon’s successor, was elected on a platform that committed him to unilateral withdrawals from the West Bank. But the implementation of this policy of continued Israeli withdrawal was cut short by the unrelenting shelling of Israeli cities and villages from recently vacated Gaza. Such ongoing attacks made Israelis rightly concerned that an evacuation of the West Bank would expose Israel’s population centers to such attacks, and the possibility of unilateral evacuation from the West Bank collapsed.

In the last ten years, Israel has withdrawn unilaterally from south Lebanon and Gaza. In both cases, the vacuum was filled by militant Islamic movements religiously committed to the destruction of Israel. Anyone who supports a peaceful two-state solution must ponder the role of Hamas in destroying such a prospect--and yet, quite astonishingly, nothing of this is mentioned in the Goldstone Report. It also avoids mentioning the legitimate concern of Israel about the ongoing rearmament of Hamas in Gaza, which supplies them with more lethal long-range missiles to wreak destruction on Israeli population centers. The commission should not have dealt with the context leading to the war; it should have concentrated on its mandate, which concerned only the Gaza operation. By setting its findings about the Gaza war in a greatly distorted description of the larger historical context, it makes it difficult for Israelis--even of the left, where I include myself--to take its findings seriously.

Then there is the report’s conclusion concerning Israel’s larger aims in the Gaza war. It claims that Israel’s objective in Gaza was a direct and intentional attack on civilian infrastructure and lives: “In reviewing the above incidents the mission found in every case that the Israeli armed forces had carried out direct intentional strikes against civilians.” In another statement, intentional destruction of property and attacks against civilians are lumped together: “Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy.” Now, there is a huge moral difference between the accusation that Israel did not do enough to minimize collateral civilian death and the claim that Israel targeted civilians intentionally. It might well be that Israel should have done more than it did to minimize collateral deaths--it is a harsh enough claim, and it deserves a thorough examination. But the claim that Israel intentionally targeted civilians as a policy of war is false and slanderous.

There are different accounts of the numbers of civilian deaths in Gaza, and of the ratio between civilian and militant deaths. B’Tselem, the reliable Israeli human rights organization, carefully examined names and lists of people who were killed and came up with the following ratio: Out of the 1,387 people killed in Gaza, for every militant that was killed, three civilians were killed. This ratio--1:3--holds if you include the police force among the civilians; but if you consider the police force as combatants, the ratio comes out to 2:3. There are 1.5 million people in Gaza and around 10,000 Hamas militants, so the ratio of militants to civilians is 1:150. If Israel targeted civilians intentionally, how on earth did it reduce such a ratio to 1:3 or 2:3?

The commission never asks that question, or an even more obvious one. In operating under such conditions--Gaza is an extremely densely populated area--is such a ratio a sign of reckless shooting and targeting? One way to think about this is to compare it with what other civilized armies achieve in the same sort of warfare. I do not have the exact numbers of the ratio of civilian to militant deaths in NATO’s war in Afghanistan, but I doubt that it has achieved such a ratio. Is it ten civilians to one combatant, or maybe 20 civilians to one combatant? From various accounts in the press, it certainly seems worse. The number of collateral deaths that are reported concerning the campaign to kill Baitullah Mehsud, one of the main Pakistani militant operatives, is also alarming: In 16 missile strikes in the various failed attempts at killing him, and in the one that eventually killed him (at his father-in-law’s house, in the company of his family), between 207 and 321 people were killed. If such were the numbers in Israel in a case of targeted killing, its press and even its public opinion would have been in an uproar.

Besides the 500 civilians who were killed in the bombing of Serbia, how many militants were killed? The inaccurate high-altitude bombings in Serbia, carried out in a manner so as to protect NATO pilots, caused mainly civilian deaths. What would have been the ratio of deaths if NATO forces were fighting not in faraway Afghanistan, but while protecting European citizens from ongoing shelling next to its borders? And there are still more chilling comparisons. If accurate numbers were available from the wars by Russia in Chechnya, the ratio would have been far more devastating to the civilian population. Needless to say, the behavior of the Russian army in Chechnya should hardly serve as a standard for moral scrupulousness--but I cannot avoid adducing this example after reading that Russia voted in the United Nations for the adoption of the U.N. report on Gaza. (The other human rights luminaries who voted for the Goldstone Report include China and Pakistan.) So what would be a justified proportionality? The Goldstone Report never says. But we may safely conclude that, if the legal and moral standard is current European and American behavior in war, then Israel has done pretty well.

IV.

So a good deal of the outrage that has greeted the Goldstone Report is perfectly justified. And yet its sections devoted to the Gaza war do make claims and cite testimonies that no honest Israeli can ignore. They demand a thorough investigation, and I will enumerate them in their order of severity.

The worst testimonies are of civilian deaths, some of which sound like cold-blooded murders. In the report, such cases amount to a few individual incidents, and they call for criminal investigation of particular soldiers. Was there indeed a killing at close range of a mother and her three daughters carrying white flags? Then there are a few cases of alleged civilian deaths that are the result of the reckless use of firepower. The most disturbing of them is the testimony about the Al Samouni neighborhood in Gaza Ci

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