Breaking the Silence — About Israel’s Assault on Gaza

by Kevin Jon Heller

The irreplaceable Breaking the Silence has released a new report on Operation Protective Edge — and it’s a doozy. Here are some particularly disturbing snippets from the Guardian‘s article on the report, which contains dozens of testimonials by past and present IDF soldiers:

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

Soldiers were also encouraged to treat individuals who came too close or watched from windows or other vantage points as “scouts” who could be killed regardless of whether there was hard evidence they were spotting for Hamas or other militant groups. “If it looks like a man, shoot. It was simple: you’re in a motherfucking combat zone,” said a sergeant who served in an infantry unit in the northern Gaza strip.

“A few hours before you went in the whole area was bombed, if there’s anyone there who doesn’t clearly look innocent, you apparently need to shoot that person.” Defining ‘innocent’ he added: “If you see the person is less than 1.40 metres tall or if you see it’s a lady … If it’s a man you shoot.”

In at least one instance described by soldiers, being female did not help two women who were killed because one had a mobile phone. A soldier described the incident: “After the commander told the tank commander to go scan that place, and three tanks went to check [the bodies] … it was two women, over the age of 30 … unarmed. They were listed as terrorists. They were fired at. So of course they must have been terrorists.”

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

You can find the report here. And if you’re interested in a predictable right-wing attempt to discredit the report — which basically just complains that Breaking the Silence doesn’t release the identity of the soldiers who gave testimony (gee, can’t imagine why not…) — see here.

http://opiniojuris.org/2015/05/04/breaking-the-silence-about-israels-assault-on-gaza/

70 Responses

  1. In Protective Edge, Hamas could have had a cease-fire any time it wanted, just by committing to a time when they would cease fire themselves and sticking to it. They were after all the ones who chose to wage war against Israeli civilians from a densely populated civilian area. They chose this course even before the blockade. In fact they chose it when they wrote their charter. I would not say Israel is thereby absolved, but the error here is plainly in demanding that Hamas must have the right to its style of war. If IHL cannot assimilate this, then that is a problem with IHL.

  2. Re: The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction.

    I’ve commented on those issues here in the past. Ironically enough, so-called “free fire zones” were part of the positive fire control procedures adopted during the Vietnam war that would have prevented exactly the sort of situations you and these soldiers have described during the IDF attacks on Gaza. The number of major weapon systems involved and their reported rate of fire simply rule out any possibility that commanders were exercising proper fire control procedures. In some cases, like the “Hannibal Directive”, we know for a fact that there were no such precautions exercised at all.

    The Vietnam era free fire zones were established to prevent casualties originating from overlapping crossfire directed at targets by the major weapon systems of friendly units operating adjacent to one another. A “free fire zone” was just an area where there was no overlapping fire from other friendly units in the region that required advance coordination prior to opening fire on elements of an enemy force located in the zone. The relevant field manuals stressed the fact that the customary precautions and prohibitions involving fire directed at or near unarmed civilians or civilian objectives still applied, without exception, even in the free fire zones. But the obvious miscommunication that resulted from the poor choice of words was only admitted belatedly, after the war, when the DoD jettisoned the terminology from its official vernacular altogether.

    Interestingly enough, Maj. Colin Powell was put in charge of investigating Spc. 4 Tom Glen’s letter to Gen. Creighton Abrams complaining about members of his unit who “for mere pleasure, fire indiscriminately into Vietnamese homes and without provocation or justification shoot at the people themselves.” If Powell had conducted a proper investigation, the details of the My Lai massacre would have come to light years sooner, but he dismissed the allegations and closed the unit-level official investigation.

    Gen. Powell’s autobiography actually contains a “money quote” on the criminal nature of the signature strikes that he condoned during the Vietnam era: “I recall a phrase we used in the field, MAM, for military-age male. If a helo spotted a peasant in black pajamas who looked remotely suspicious, a possible MAM, the pilot would circle and fire in front of him. If he moved, his movement was judged evidence of hostile intent, and the next burst was not in front, but at him. Brutal? Maybe so. But an able battalion commander with whom I had served at Gelnhausen, Lieutenant Colonel Walter Pritchard, was killed by enemy sniper fire while observing MAMs from a helicopter. And Pritchard was only one of many. The kill-or-be-killed nature of combat tends to dull fine perceptions of right and wrong.” — My American Journey, page 224

  3. Hostage: My Lai years sooner? Calley “was charged on September 5, 1969 … with premeditated murder on March 16, 1968 of not less than 102 Vietnamese civilians at My Lai….”

  4. Re: In Protective Edge, Hamas could have had a cease-fire any time it wanted, just by committing to a time when they would cease fire themselves and sticking to it. They were after all the ones who chose to wage war against Israeli civilians from a densely populated civilian area.

    For its own part, Israel has turned down several offers from NATO and President Abbas to deploy an international peace keeping force in the Occupied territories.

    During the operation, Israel and its allies in the Security Council demanded that the UN delay taking even symbolic action, until after the IDF had been granted sufficient time to locate and destroy tunnels. But that shouldn’t have amounted to a state of necessity, since the IDF could have done the very same thing in peace and comfort on its own side of the border. FYI, contrary to popular misconception, the Gaza tunnels have primarily been used for smuggling and to circumvent restrictions on freedom of movement, not for making attacks on the territory of Israel or Egypt.

    According to Hamas reports, the rocket fire was a consequence of the IDF going on a government-sanctioned weeks-long rampage throughout the West Bank after a new Hamas-Fatah backed coalition government had been sworn into office there by President Abbas. The IDF imposed the usual regime of intimidation and mass arrests. Members of the IDF murdered of a pair of Palestinian teenagers during demonstrations near Ofer prison in May 2014. That in-turn resulted in series of tit-for-tat retaliatory kidnappings and murders of Jewish and Palestinian teenagers in the West Bank and East Jerusalem. That led to the usual round of closures, curfews, searches, and more mass arrests prior to the relevant Israeli Security Cabinet decision to conduct the Gaza counter-terrorism operation.

  5. Re: Hostage: My Lai years sooner? Calley “was charged on September 5, 1969 … with premeditated murder on March 16, 1968 of not less than 102 Vietnamese civilians at My Lai….”

    Fair enough. But it was still disgraceful that it took a year and half to take action on reliable reports that surfaced almost immediately. Brig. General Young had ordered the commander, Col. Henderson, to conduct an investigation in March for some mysterious reason. When it was finally published in late April 1968 it falsely claimed that only 20 civilians had been killed by accident. Anyone who has seen the published photos of the mass casualties literally lining the fields and ditches knows that conclusion was contradicted by the very readily available evidence.

  6. Does anyone know of a UN S.C. Res. that has addressed Palestinian rocker and mortar attacks in 2014? a G.A. Res.?
    Thanks.

  7. hostage: Why can’t those clauses in the charters be permanently deleted? No voice votes, no shows of hands, just be done with the words. But but but …

  8. Re: hostage: Why can’t those clauses in the charters be permanently deleted? No voice votes, no shows of hands, just be done with the words. But but but …

    The terms of the Cairo reconciliation agreement between Fatah and Hamas had required the new interim coalition government, headed-up by Abbas, to pursue a peaceful two state solution through the United Nations and the international Courts. It also called for Hamas and Islamic Jihad to join the PLO.

    For that matter, Hamas-affiliated party lists of candidates were elected to the PA in internationally supervised elections. The PA was a legal entity created jointly by Israel and the PLO. Even back then the official spokesmen and the Politburo reportedly said they would accept a two state solution, e.g.:

    “The Hamas movement is ready to recognize agreements signed with Israel, and in fact recognize Israel, but only within the ’67 borders, senior Hamas member Khaled Suleiman said Wednesday.

    According to Suleiman, the movement will be ready to accept a Palestinian state inside the ’67 borders and will not operate to thwart diplomatic negotiations held by Palestinian Authority Chairman Mahmoud Abbas. Published:05.11.06, http://www.ynetnews.com/articles/0,7340,L-3249568,00.html

    I have to wonder if you are unaware of the fact that the last governing coalition of the State of Israel contained several parties that publicly rejected a two state solution and called for annexation of most, if not all, of the Palestinian territory?

    Furthermore, the formal coalition agreements between the parties required the adoption of a now infamous government-sponsored draft Basic Law that would have further entrenched the legal principle that the enlaged State of Israel would be a nation-state of the Jewish people (and only the Jewish people). That law was intended to serve as a not too subtle tool of racial incitement and a constitutional basis for denying equal protection under the law to members of the non-Jewish indigenous population. When two coalition parties declined to support Netanyahu’s version of the bill, he dissolved the Knesset and called for elections. I think its naive to assume that the Prime Minister will simply drop the issue now that he has won a landslide victory after shreying Gevalt! about the minuscule threat posed by the Arab unity party efforts to turnout the vote during the subsequent Knesset elections.

  9. The Ynet news story to which you link contains no real commitment from Hamas. Does it mean anything if they allow the PA to negotiate, when they do not oblige themselves to carry out the results of negotiations? “All the government can do is reach a calm, and we, Hamas, are committed to a calm up to this moment.”

  10. The gazans voted for hamas by an overwhelming majority. Hamas started the war. If you go over to a cop and punch him arent you going to get smacked down and arrested?

  11. Re: The gazans voted for hamas by an overwhelming majority. Hamas started the war. If you go over to a cop and punch him arent you going to get smacked down and arrested?

    Israel is not a cop. It is a co-belligerent that has refused to implement UN Security Council and General Assembly resolutions calling for the immediate and unconditional withdrawal of its armed forces from the occupied Arab territories. It has refused to permit the deployment of a NATO or other international peacekeeping force in the Palestinian territories as well. Nothing has really changed since 2003 when the ICJ advised that Israel had contributed to the creation of an illegal situation and that it can’t rely on a right of self-defense or on a state of necessity in order to preclude the wrongfulness of its actions.

    The Court found the Israeli administrative regime’s restriction on freedom of movement were illegal even before the blockade was adopted. FYI, even before the blockade was adopted, the Court declared that, with the exception of Israeli citizens, the associated administrative regime that Israel had instituted in the Occupied Palestinian Territory had violated the basic human rights of the inhabitants and was illegal (See paras 122, 134, 137, and 142). http://www.icj-cij.org/docket/files/131/1671.pdf

    Goldstone cited those ICJ findings of fact and Israel’s legislative measures which confirmed that:

    Despite prohibitions under international humanitarian law (IHL), Israel has applied its domestic laws throughout the Occupied Palestinian Territory since 1967. . . . .[T]he application of Israeli domestic laws has resulted in institutionalized discrimination against Palestinians in the Occupied Palestinian Territory to the benefit of Jewish settlers, both Israeli citizens and others. Exclusive benefits reserved for Jews derive from the two-tiered civil status under Israel’s domestic legal regime based on a “Jewish nationality,” which entitles “persons of Jewish race or descendency” to superior rights and privileges, particularly in land use, housing, development, immigration and access to natural resources, as affirmed in key legislation. Administrative procedures qualify indigenous inhabitants of the Occupied Palestinian Territory as “alien persons” and, thus, prohibited from building on, or renting, large portions of land designated by the Government of Israel as “State land” (para 206). . . . . From the facts available to it, the Mission believes that in the movement and access policy there has been a violation of the right not to be discriminated against on the basis of race or national origin (para 1548).

    The Goldstone Mission also noted that a Court could reasonably conclude that the measures employed amounted to the crime of persecution (para. 1936).

  12. Re: The Ynet news story to which you link contains no real commitment from Hamas.

    Point me at a story that contains a real iron clad commitment from the Israeli side to implement Security Council resolutions 1860 (2009), 1850 (2008), 1550 (2004), 338 (1973), or 242 (1967).

    The reconciliation agreement that Hamas and Fatah signed in 2014 committed them to recognize Israel; back the UN statehood bid, based upon the two state solution and the 67 frontiers; and required their explicit written consent to accept the jurisdiction of the International Criminal Court in any event. The consequences of those decisions has even been discussed at length here at Opinio Juris and elsewhere.

    Frankly, I don’t see the point in arguing the virtues of Israel’s counterclaims here, if it can’t even muster a defense of its actions against the public allegations and admissions of its own soldiers.

  13. The phrase “calm up to this moment” does not tell me about what Hamas will do in the future. Here is my copy of the H-F reconciliation agreement:

    http://www.jpost.com/Arab-Israeli-Conflict/Text-of-Fatah-Hamas-agreement-376350

    What I see here, under “Political Moves”, are a series of demands. I don’t see anything about the conditions under which Israel would be recognized. As for the “Jewish state” issue, let me point out that Palestine’s constitution defines it as a Muslim state.

  14. Re: The phrase “calm up to this moment” does not tell me about what Hamas will do in the future.

    UN SC 1515 and the Quartet Road Map was hastily introduced during the ICJ Wall case deliberations and was cited in the opinion. Israel quickly adopted 14 reservations and an indifferent attitude towards its own obligations. The Plan cited the “Mitchell Report” and required Israel to freeze construction in the settlements, including construction for so-called natural growth. The legal conclusions contained in the Sharm el-Sheikh Fact-Finding Committee Report (aka the “Mitchell Report”) said that Israel would have to withdraw its armed forces according to the terms of UN SC resolutions 242 and 338 before the Palestinians or Syrians could logically be expected to drop their corresponding belligerent claims. I predict that Hamas will not renounce violence until Israel does so too, and certainly not until Israel withdraws its armed forces from all of the Palestinian territory captured during the 1967 war.

    Gaza is still playing host to a large number of refugees because Israel is not in compliance with the multilateral mechanism agreed upon by the parties in article XII of the Declaration of Principles on Interim Self-Government Arrangements of 13 September 1993 in respect to the return of persons displaced by the 1967 war. Israeli leaders routinely claim that repatriating even one of those refugees would cross an imaginary red line. I predict Hamas will continue to insist upon their right of return.

    RE: As for the “Jewish state” issue, let me point out that Palestine’s constitution defines it as a Muslim state.

    Yes, but it explicitly stipulates: “Article 4(1) Islam is the official religion in Palestine. Respect for the sanctity of all other divine religions shall be maintained. …Article 9 Palestinians shall be equal before the law and the judiciary, without distinction based upon race, sex, color, religion, political views or disability.”

    UN GA resolution 181(II) contained a minority protection plan that required both states to adopt fundamental laws providing constitutional guarantees of non-discrimination and equality under the law. But Israel has always evaded that legal obligation and has postponed the adoption of any constitution wherein its embarrassing two-tiered system of municipal law and discrimination against non-Jews would have to be spelled out. See “MKs debate protection of ‘equality’ in future constitution: Religious MKs reject inclusion of ensurance of equality, saying it would contradict Judaism.” http://www.haaretz.com/news/mks-debate-protection-of-equality-in-future-constitution-1.234565 and Lapid: Israel’s definition as Jewish and democratic is an unsolvable contradiction http://www.jpost.com/Diplomacy-and-Politics/Lapid-Israels-definition-as-Jewish-and-democratic-is-an-unsolvable-contradiction-330067

    Russian Foreign Minister Sergei Lavrov refused to accept US demands that Palestine recognize Israel as the nation state of the Jewish people. So it has never been a Quartet demand.

    FYI, like resolution 181, the Quartet Roadmap also required the Palestinians to adopt a new democratic constitutional form of government under an “empowered Prime Minister”. Oddly enough, it did not contain a similar demand that Israel should finally adopt a democratic constitution too. In exchange for those added measures and improved security cooperation, the Quartet pledged that they would begin promoting recognition of the Palestinian State starting in December of 2003 (Phase II).

    Re: What I see here, under “Political Moves”, are a series of demands. I don’t see anything about the conditions under which Israel would be recognized.

    President Abbas was named as the head of state. He and the PLO already recognized Israel under the terms of the 1993 exchange of letters between Israel and the PLO. I already mentioned that the April 2014 agreement calls for Islamic Jihad and Hamas to join the PLO.

    In 2011, after the UNESCO vote, the Quartet asked Abbas to hold off on joining other UN agencies, signing UN conventions, or joining the ICJ and ICC. In exchange, they demanded that Netanyahu provide a map of Israel’s proposed borders within 90 days. He has talked around the subject since then, but there’s still no map. The Palestinian side has explained that, if Israel won’t accept the 67 lines, then, it should just show us a map of this “Israel” they keep talking about, and then we’ll be able to tell you whether we recognize it or not.

  15. Oddly, i seem to have missed Kevin’s post on the Merriam & Schmitt work on Israeli targeting policy. As Kevin is an objective and serious scholar analyzing the reality of IHL and not a partisan hack looking to highlight anti-Israel reports (no matter their credibility) and bury studies that show Israel in a better light, I’m sure he must have written one. Can someone link it please?

  16. Ooh, snap!

  17. Moshe Yaalon, new Israeli Defense Minister, at the Shurat HaDin love-fest last weekend: “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion… we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.”

    A nice counterpoint to the Merriam and Schmitt work — two scholars for whom I have great respect, but whose conclusions obviously reflect the limits and biases of the IDF members they were given access to.

  18. Yaalon also refused to take nuking Iran off the table. But, of course, the real problem is the genocidal Iran regime, which for the past three decades has been just days away from developing nuclear weapons…

  19. You sure Ya’alon’s comments were “a nice counterpoint to the Merriam and Schmitt work,” Kevin? I’ll reserve judgment until I’ve seen the video of his speech, but I’d be shocked if he said, or even insinuated, that the IDF would *target* “Lebanese civilians to include kids of the family,” or that it targeted civilians in Gaza. Much more likely, he was simply pointing out that, because of where enemy forces position themselves, attacks on legitimate military objectives are bound to result in tragic civilian casualties. That doesn’t answer the question, of course, whether such strikes satisfy the requirement of proportionality. But that’s a far, far different question from whether it is permissible, or conceivable, that Ya’alon would authorize deliberate attacks upon civilian targets.

  20. The Israeli Supreme Court has officially approved collective punishment. A Deputy Speaker of the Knesset from Netanyahu’s party has openly called for ethnically cleansing Palestinians. Yet you find it inconceivable that Ya’alon would encourage excessive collateral damage as a way of breaking Palestinian will?

    I have requested access to the video of Ya’alon’s speech. We’ll see then what he actually said.

  21. Kevin got his Ya’alon “quotes” from the Electronic Intifada report on the conference. (Note that both the “we’ll kill kids” and “threatened to nuke” claims come directly from the propaganda blog’s article here http://electronicintifada.net/blogs/asa-winstanley/israeli-defense-minister-promises-kill-more-civilians-and-threatens-nuke-iran)

    Here’s how EI describes it:

    “Speaking at a conference in Jerusalem, Yaalon threatened that “we are going to hurt Lebanese civilians to include kids of the family. We went through a very long deep discussion … we did it then, we did it in [the] Gaza Strip, we are going to do it in any round of hostilities in the future.””

    And here’s how the Jerusalem Post quotes Ya’alon http://www.jpost.com/Israel-News/Politics-And-Diplomacy/Yaalon-After-Gaza-war-decisions-I-can-still-look-at-myself-in-the-mirror-402189:

    “Ya’alon recounted targeting decisions in which he was involved when it first became apparent that Hezbollah was purposely placing weapons in civilian homes in Lebanon.

    The defense establishment had a “dilemma of what to do with it,” he said. “If we don’t intercept the rocket-launchers in advance, civilians will be hurt, if not killed. If we hit the launchers, it will hurt or kill Lebanese civilians.”

    He said a “long, deep discussion” regarding the “moral and legal considerations” took place before the final decision to strike the rocket launcher.

    “Later we were blamed for collateral damage and killing civilians,” he said. But he maintained that the IDF had done what it had to do then, “did it again in the Gaza Strip, [and] will do it in any round of hostilities in the future.””

    In other words, the IDF had serious discussions regarding the legal and moral implications of targeting specific military targets embedded in civilian homes, the known likelihood of injuring or killing Lebanese civilians – which the IDF felt created a “moral dilemma” – and determined that on balance, the military advantage and necessity of targeting those legitimate military targets outweighed the loss of civilian life that could reasonably be anticipated from striking them.

    By any rational standard, that type of analysis is precisely what the laws of war call for and precisely what we want military institutions to engage in. Far from “threatening to kill civilians” in some random and immoral way, the IDF assigned significant moral value to the lives of innocent civilians that would be impacted by striking those known military targets and thus required “deep discussions” to determine what to do with that “dilemma”.

    Only a propaganda site like EI could take that serious discussion of proportionality issues and turn it into a basis to assault Israel for “threatening to kill civilians, including children.”

    And Kevin, your taking that claim at face value – and then parroting it to a wider audience here, while cloaking it in your authority – is an absolute disgrace, for which you ought to apologize.

  22. “.. an absolute disgrace, for which you ought to apologize.z’

    C’mon Kevin. Man up so we can all move on.

  23. The JPost has already been caught completely distorting one speaker’s words in order to make him seem like he was defending Israel’s targeting practices — which he wasn’t. So there is no more basis to trust JPost’s selective quotation of Ya’alon than there is to distrust EI’s. When Shurat HaDin releases the unedited video of his speech, which it appears from their website they will eventually do, we will know who is correct.

  24. R@Kevin

    “When Shurat HaDin releases the unedited video of his speech, which it appears from their website they will eventually do, we will know who is correct.”

    You posted EI’s translation, and now you can’t vouch for it’s accuracy?

    Great!

  25. I guess I just lack your psychic ability to know whether or not the writing of others is accurate. Makes me wonder why someone as profoundly gifted as yourself would waste time trolling people who acknowledge that they can’t separate true and false simply through the sheer power of their mind.

  26. Thanks for the post Kevin . You know Kevin , I can live with the idea that you express your opinion , while :

    You don’t know Hebrew, you can’t read by yourself decisions of the Israeli supreme court, you are not so acquainted at all with what is going on in that: as hell complicated region ,it’s all right , you may be ” counter commented ” , and acquainted in accordance , yet :

    Claiming that the Israeli supreme court, one of the most experienced, perfected, sophisticated, skillful , just , tribunals in the world (if not the utmost, let alone , in light of amazing challenges it is facing) has:

    Authorized collective punishments , I must admit , it is too much , even for a guy like me .
    All the amazing means , the IDF is implying while fighting actually , in order to spare as much as possible , lives of innocent civilians , and according to you :

    The IDF , is exceeding the supreme court in it’s actions and protocols ?? I wonder how far false propaganda can go ??

    Kevin , when the supreme court has authorized the sealing or destroying houses of horrific terrorists , it has authorized to do it to their own houses , not of other’s !! their family members , had to suffer , collateral damage , like we all do suffer :

    A person is sent to prison , his family , his kids, his wife are deprived from livelihood , father model , protector and so forth ….. they are also punished according to you ?? No they are not !! they are not accused and indicted , but absorbing collateral damage .

    In civil life , they are not involved at all , there is no need even to deter them directly , from future criminality ( but to deter the general population ) while here , let alone that :
    Typically , they assist those terrorists , whether morally , whether physically sometimes .

    You know Kevin , that in civil life , and in war let alone , collateral damage , is far greater than this one , and considered legal !!

    P.S : The law , which permits destruction or sealing of such houses , is a british law , military british law , valid in west bank , and the Israeli state both , From the period of British occupation and military regime.

    Thanks

  27. Kevin , let me just enlighten you , concerning the Israeli supreme court , and the probability , that yaalon , the defence minister , said actually what is claimed :

    Dan haluz , the ex joint chief of staff ( the Israeli of course ) was candidate for that post at the time ( 2005-2004 ) . In that time, a petition to the Israeli supreme court, has been filed, for prevention of his appointment, due to his following saying at the time, I quote him (approximately, my translation) while interviewed , describing his feelings and perception, while dropping heavy bomb in an elimination of one of the greatest terrorists of the Hamas at the time , he replied so: well , no more than:

    ” a light strike in the wing ” ( of the jet , as if : no more than that , don’t repent too much …..no regrets …. )

    For that statement ( and others ) a huge row in public opinion ,did burst all over . you can reach the petition in that link here :

    http://elyon1.court.gov.il/files/04/570/057/O11/04057570.o11.pdf

    It’s in Hebrew of course , so my suggestion to you is as follows :

    Choose an anti Zionist , anti Israeli guy ( you can’t miss I guess ) one who masters Hebrew , and ask him , generally speaking , what is all about , you would understand :

    How heavy can be the price for such hasty statements, all in the Israeli state, and , how the supreme court treats such thinks (approved finally, I mean his appointment, but wasn’t a picnic !).

    You can read about that story, in English, here, just skip the irrelevant paragraphs, and reach the paragraph starting with:

    ” the appointment is expect to survive both ……” here :

    http://www.haaretz.com/print-edition/news/halutz-next-idf-chief-ya-alon-to-leave-post-in-june-1.151080

    Now , try to think again about the plausibility of such statement , the subject of comments and the post above .

    Thanks

  28. @Kevin

    “I guess I just lack your psychic ability.. ”

    It’s not psychic abiltiy, it’s called ‘fact checking, it’s called ‘vetting a source’.

    You chose not to ‘fact check’ because the target was Israel.

  29. So now we have an expert in criminal law praising an organization whose main activity is to spread anonymous claims whose veracity cannot be verified. I am not sure whether “breaking the silence” are indeed irreplaceable, but KJH certainly is. He sets a fine example how not to behave for young jurists. If you are a professional hater of Zion that picks up his knowledge from sources like Max Blumenthal, EI, breaking the silence and their like, try to avoid commenting in public about the topic, especially not as a law expert.

  30. `Yes, can’t imagine why soldiers calling attention to IDF crimes would choose to remain anonymous. It’s not like this happens in Israel. Or this.

    The comments on this post would be amusing if they weren’t so sad.

  31. So now KJH brings about two irrelevant examples that add nothing to the discussion except for highlighting his ignorance once again.

    The first example is of 43 reserve soldiers from an intelligence unit that announced that they would disobey certain orders. This is, of course, illegal, but to the best of my knowledge no disciplinary action was ever taken, despite the fact that the soldiers were interviewed every where, including by major TV channels.

    The second example is of the infamous Mordechai Vaanunu who sold Israeli nuclear secrets to the Sunday Times and was sentenced to 18 years of imprisonment for the offense. While in jail he was caught preparing various sketches of the Dimona facility where he was once employed. The court decided that he would be put under GSS surveillance.

    What is the relevance of the above example? Surely, a soldier that reports a war crime to the authorities, or even to the media – while not on uniform – is not in violation of any code. Can KJH come up with a counterexample to that? I doubt.

  32. @Jackdaw,

    That you describe quoting a JPost article — one that you have no way of knowing is more correct than the EI one — as “vetting” and “fact checking” pretty much tells us all we need to know.

    But, of course, it’s Israel. So by definition whatever account is most flattering to Israel has to be correct, right?

  33. Kevin, I have traced for you :

    ” The Defense (Emergency) Regulations, 1945″

    The original British martial law on Palestine , go to the link, look for article 119 (PART XII – MISCELANIOUS PENAL PROVISIONS , Forfeiture and demolition of property, etc.) The same form has been kept since then (concerning the mentioned article at least , I mean , concerning house demolition and so forth….. although there are some current amendments to other articles ) here is the link :

    http://nolegalfrontiers.org/military-orders/mil02?lang=en

    Thanks

  34. @Kevin

    Richard Silverstein, the Tikkun Olam blogger, is as anti-Zionist and anti-Israel as anyone.

    He speaks Hebrew and listened to Ya’alon’s video speech. Silverstein reports that Asa took things ‘slightly out of context’.

    http://www.richardsilverstein.com/2015/05/07/israels-new-government-the-power-of-one/#comments

    EI deliberately skewed Ya’alon’s words, making the JPost report the more accurate and reliable.

    If you don’t want to eat crow, try the jackdaw, they’re delicious.

  35. Kevin,

    Those are particularly mendacious examples, given that both involved crimes.

    More to the point, Breaking the Silence is an Israeli NGO, with publically known Israeli directors and spokespeople who very publically tout their reports … all without retaliation from the Israeli government. Because, well, their actions aren’t illegal. So it seems pretty hard to argue that individual soldiers would face legal difficulty.

    What anonymous testimonies do is prevent meaningful investigation or contradiction. There’s a reason a criminal law system that doesn’t give the accused the right to face his accuser would be unanimously rejected as unjust.

    But – like EI translations – so long as anonymous accusations confirm your preexisting biases, that doesn’t bother you in the least.

  36. smart move jackdaw , smart and rough !! lightning strike , you have a great future ahead …… Pity on those lawyers who will have to face you, you shall take them down at once….

  37. @el roam

    The Brooklyn, NY venue makes for smart and rough practice.
    Truth be told, I was a mediocre trial attorney.

  38. @Prof Heller

    Hi there, i would like to post a few links relevant to the points you have been making (and contra the points some of your interlocutors have been making against you).

    First of all, Breaking the Silence is definitely credible, since it has been mentioned even in the US State Department Country Reports on Human Rights of 2012:

    http://www.state.gov/j/drl/rls/hrrpt/2012humanrightsreport/index.htm?dynamic_load_id=204365&year=2012#wrapper

    I quote from the Report

    “Defence for Children International-Palestine (DCI-Palestine) and Breaking the Silence claimed Israeli security services continued to abuse, and in some cases torture, minors who frequently were arrested on suspicion of stone throwing, to coerce confessions.”

    I doubt that the US State Department would quote a completely untrustworthy source as an indicator of Israeli human rights abuses.
    But anyway, Amos Harel, probably the most respected military analyst journalist in Israel (respected by both Left and Right, even the hard Right) has granted that soldiers that testified to Breaking the Silence are not traitors. I quote him:

    http://www.haaretz.com/news/diplomacy-defense/.premium-1.654972

    “Pavlovian reactions to its [Breaking the Silence’s] report will no doubt accuse the testifying soldiers of besmirching the IDF and State of Israel, and try to label them as traitors to the homeland. Based on conversations with some of the these soldiers, it seems these accusations are baseless.”

    Ergo, the soldiers are not lying for “political reasons”, they are not traitors, they seem credible and their allegations need to be investigated — that’s what Amos Harel suggests.

    Coming now to one of the points you made, i.e., that Breaking the Silence soldiers are afraid to disclose their identities in public, i would like to make the point that you are absolutely correct for the simple reason that, irrespective of any reprisals that they might face from the Israeli Defense Forces, they will certainly face the hostility of a society whose mindset is becoming increasingly militarized, they will be the “the traitors” in the eyes of the Israeli public. The Israeli establishment is cognizant of this fear of the soldiers (becoming pariahs in their own country) so it targets this very anonymity:

    http://www.theguardian.com/world/2011/may/16/former-israeli-soldiers-break-silence

    “Since Breaking the Silence was launched in 2004, it has met with a hostile response from Israel’s political and military establishment, partly targeting the anonymity of some witnesses. There have been attempts to discredit supporters and block funding, and its leaders have been subject to interrogation. Censure increased after it published testimony by soldiers who took part in the war on Gaza in 2008-09.”

    No wonder then that many soldiers wouldn’t be willing to reveal their identities.
    Larry Derfner has a good piece which sheds a small light on the emotional dynamics that attend a soldier. He quotes a female officer(June 2013):

    http://972mag.com/why-soldiers-dont-break-the-silence-to-the-idf/73638/

    “The unit pride there is really strong and it’s hard to raise the slightest criticism. We all had it drilled into us, without end, not to think and to keep your mouth shut. Once I asked my commander if I could give some water to a few Palestinian prisoners who were sitting tied up in the sun. He gave me this look of contempt and I never dared open my mouth again. I became indifferent to people’s suffering, and even if I wanted to say something, I didn’t. By instinct, I kept quiet.”

    And he concludes that the Army cult puts enormous pressure on young soldiers and officers. I would venture that basically this is the fear not to look “soft”, not to look like a weakling. So that’s an additional (and complementary) explanation for the reluctance of the soldiers to reveal their names, along with the explanation that they are unwilling to face the public ostracism that the Israeli society reserves for the “traitors” whistleblowers who dare speak to Breaking the Silence — or for those who are satisfied with the pre-1967 lines as borders.

    And a final point that helps corroborate the callousness that is present in the IDF, partly as a result of the unwillingness of the IDF to investigate and punish any violators. I quote Amos Harel again, on how some soldiers shoot Palestinians just in order to get an adrenalin fix, or to escape boredom(May 2014):

    http://www.haaretz.com/news/diplomacy-defense/.premium-1.596113

    ” A fact that is not widely discussed is that for quite a few soldiers who participate in dispersing demonstrations it’s a chance to take part in the “action” – firing shots, albeit it with non-lethal ammunition, in the midst of the chaos, and the adrenaline rush of a confrontation. We can reasonably assume that the soldier was seeking an exciting experience, or an escape from boredom, and that the Border Police acceded to his request to allow him to fire rubber bullets at the demonstration.”

    Now, that is truly sick, and speaks volumes that the IDF is not really interested in uprooting the criminal elements that exist in its ranks –why else would such incidents not be “widely discussed”, as Harel tells us.

    Just to make sure that no one is going to try to discredit this Harel article, i just cite in defence of his credibility that even the hard right-wing pro-occupation org CAMERA considers him credible in general(April 2013):

    http://www.camera.org/index.asp?x_print=1&x_context=2&x_outlet=55&x_article=2434

    “On Friday (April 5), the usually sharp Amos Harel…”

    He was also a participant in some discussions that the hard right-wing (and awfully Islamophobic) Gatestone Institute was hosting, and he was introduced as “our fifth and last regular participant, Amos Harel, the distinguished military reporter and defense analyst for the Israeli newspaper Ha’aretz.”

    http://www.gatestoneinstitute.org/3252/the-call-something-has-changed-in-israeli

    Therefore, no chance that Harel can be dismissed as “delusional Lefty” who would lie for political reasons. And his revelation transmits the same aura of IDF callousness that the testimonies of Breaking the Silence do.

  39. Part 1

    &Prof Heller

    you said:

    “A nice counterpoint to the Merriam and Schmitt work — two scholars for whom I have great respect, but whose conclusions obviously reflect the limits and biases of the IDF members they were given access to.”

    It is surprising that the two scholars you mentioned would include in their analyses (both their papers were highlighted by hard right-wing pro-occupation blogs, such as CAMERA and the Elder of Ziyon) a talking point that comes from the Israeli hard right-wing:that Hamas wants civilian deaths of Palestinians. Now, it’s one thing to say that Hamas has something to gain even if the alleged human shields are struck, and another thing to say that this is their aim: for it is much more probable that Hamas does not want civilian deaths of Palestinians but prefers to gain the military advantage of, say, a Hamas commander’s staying alive because Israel aborted a strike to said commander, on the grounds that it would be disproportional. But the two scholars tell us that Hamas actually “hopes”” that Israel kill civilians(page 7 of one of the analyses of the aforementioned scholars,”Israeli Targeting: A Legal Appraisal”):

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2596836

    I quote:

    “In particular, Israel’s foes hope to draw the IDF into strikes that cause civilian casualties and destroy civilian infrastructure so as to intensify international pressure on Israel and exacerbate its isolation.”

    Now, this is egregious repetition of right-wing hasbara, i.e., that Hamas wants to see Palestinian civilians die, rather than gain any military advantage that the alleged human shields would provide by forcing the IDF not to strike. And it is a ridiculous point, that goes against human nature: Hamas members prioritize their own survival and the survival of their military machine over any possibility to badmouth Israel through accusations about dead Palestinian civilians. If we ask a Hamas commander if he prefers that this or that rocket stash is preserved or that it be destroyed but with some Palestinian civilian fatalities, he will definitely prefer the military advantage gained by the preservation of the rockets, because that’s the tool of his trade, it is resistance that he is engaging into, and it is this that is his primary aim. The placing of military objectives near civilians is meant to deter Israel so as NOT to strike, not in the hope that Israel will strike. Any possibility of badmouthing of Israel that might accrue from an Israeli operation that results in civilian deaths will be exploited but is not an “aim” of Hamas, actually it is contradictory to Hamas’ primary objective which is to preserve its military machine as much intact as possible.

    continuing to Part2

  40. After successive attempts to post Part 2 of my comment i give up and hope that the moderators will be able to sort it trough(there is nothing unsavory in it, wordwise or else). It just disa ppears, it doesn’t show like it is in moderation.

  41. Dionissis, i think you’ve managed to completely miss the point – which is that shielding is viewed by Hamas as win-win. Either it deters a strike or they get propaganda value out of it. The last favorable outcome, for hamas, is a stroke with no collateral damage.

  42. Part 2

    &Prof Heller

    As for the claim made by the two scholars that hamas wants to “draw” Israel to destroy civilian infrastructure, the obvious reply is that Israel does so on its own, it doesn’t need cajoling by Hamas. Military attacks have been ordered by Israel even for Public Relations purpose, as we know, and in fact in this last war, Protective Edge, Israel admits that it destroyed civilian buildings belonging to influential Gazans so as to make them pressure Hamas to accept the ceasefire terms that Israel proposed. I quote from the Israei Institute for National Security Studies(INSS): http://www.inss.org.il/index.aspx?id=4538&articleid=8720

    “During Operation Protective Edge, it was necessary to damage Hamas’s strategic capabilities (the rockets and the offensive tunnels), its operatives, the infrastructures serving the organization, and its senior commanders (by targeted assassinations) before Hamas would accept a ceasefire and be deterred from continuing the fighting. But this cumulative achievement[of the IDF] was not enough to motivate Hamas to agree to a ceasefire, because Israel chose not to threaten the organization’s future or act to undermine its rule of the Gaza Strip. Only after causing damage to the assets of Gaza’s social elite, which provides legitimacy to Hamas’ rule, by bombing the city’s residential high rises, did Hamas’s profit-loss calculus change.”

    He is a Maj. General referring to the IDF’s actions during the last phase of Protective Edge. I quote two Israeli University Profs again from INSS(page 4 of the pdf, “Can Declaration of War Be Part of a Strategy to Offset the Asymmetry of the Israeli-Hamas Conflict in the Gaza Strip? Kobi Michael and Ilana Kwartin”):
    http://www.inss.org.il/uploadImages/systemFiles/6_Michael_Kwartin760393647.pdf

    ” In fact, it was only during the operation’s last week, after Israel bombed prominent symbols of Hamas’s rule, especially the high-rise apartment buildings in downtown Gaza City, that Hamas changed its conduct. To borrow from Defense Minister Ya’alon, the turnaround in this operation – Hamas’ agreeing to a ceasefire on Israel’s terms – occurred only after Israel “removed the gloves” in the last week and dared do what it hadn’t done before.”

    But who is the Major General who just admitted to targeting civilian buildings for no other reason than to secure a ceasefire? I quote from his profile in the INSS: http://www.inss.org.il/index.aspx?id=4300&researcherid=6142

    “With the approval of Defense Minister Moshe Yaalon and Chief of Staff Lt. Gen. Benny Gantz, Maj. Gen. Yair Naveh has been seconded from the IDF to the INSS research staff as a distinguished visiting senior fellow.”

    Oops, he speaks for the IDF. Now, that is disconcerting because, if we believe Prof Yoram Dinstein, the Israeli international Law expert, we have a violation of international Law. I quote from Dinsteins “The conduct of hostilities under the Law of International Armed Conflict(LOIAC), second edition page 93:

    “LOIAC does not condone an attack against objects that are not military objectives only because the attack serves as a catalyst to an early cessation of hostilities (see infra 311). A potential political outcome is not an admissible consideration in asse3ssing the character of the object as a military objective. And ‘forcing change in the negotiating attitudes’ of the enemy cannot be deemed a proper military advantage”.

    Well, that’s what Israel did, no? Anyway, i am an ignorant when it comes to International Law so i just quote Prof. Dinstein in the hope that someone will enlighten me if Israel indeed committed a crime by bombing buildings with the sole purpose of securing a ceasefire, as Israel (unwittingly?) admits.

    However things stand on this, it is certain that the two scholars that Prof Heller mentioned (John J. Merriam and Michael Scmmitt) have got it all wrong when they say that Hamas hopes that Israel destroy civilian infrastructure. In fact, as Israel tells us, it was this destruction of civilian buildings that prompted the acceptance of a ceasefire by Hamas on Israel’s terms, as the links from the INSS prove. If Hamas wanted destruction of civilian infrastructure so as to badmouth Israel(as the two scholars John J. Merriam and Michael Scmmitt tell us), it would have welcomed the destruction and hope for even more, not try to avoid it by agreeing to a cease-fire.

  43. Hi Akiva

    you said:

    “Dionissis, i think you’ve managed to completely miss the point – which is that shielding is viewed by Hamas as win-win.”

    Akiva, i don’t think i missed this win-win point, i am perfectly aware that Hamas stands to gain something in terms of public relations if civilians die. Actually, i even said so.Here is what i said:

    “The placing of military objectives near civilians is meant to deter Israel so as NOT to strike, not in the hope that Israel will strike. Any possibility of badmouthing of Israel that might accrue from an Israeli operation that results in civilian deaths will be exploited but is not an “aim” of Hamas”

    I made explicit that the relative value for Hamas of avoiding an Israeli strike is overwhelming compared to the value of a public relations gain if Palestinian civilians die in case the IDF strikes, so it is completely unnatural to describe Hamas as “hoping” that Palestinian civilians die, as the two scholars did.

    The reason that i explained that this alleged hope of Hamas is a talking point coming from the pro-occupation right-wing advocates is that this camp is consistently trying to present Hamas as impervious to reason, so that the pro-occupation side will have an excuse to prolong the occupation(“if we retreat from the West Bank,Hamas will take over and rockets will be fired from there too”). So, in their minds, it pays to portray Hamas as a sadistic monster that rejoices (“hopes”)in seeing Palestinian civilians die, instead of portraying the situation as it really is, namely that Hamas stands to gain if civilians die,but stands to gain far more if the alleged civilian shields deter the IDF strike. Therefore Hamas does not “hope” that civilians die, but rather that the IDF abort the hypothetical strike. The subtext of the exaggeration in this distortion of the Hamas image is that such an enemy will never want peace and that all the civilian deaths are on Hamas. It is a demonizing talking point, more rhetoric than accurate window into Hamas’ way of thinking.

    You said:

    ” Either it deters a strike or they get propaganda value out of it. The last favorable outcome, for hamas, is a stroke with no collateral damage.

    But the two scholars, through their misleading use of language (“hopes”) were not only misrepresenting as the most favorable outcome for Hamas the death of Palestinian civilians(it isn’t the most favorable) but also demonized the psychology of Hamas

  44. Dionissis,

    Great point about the desire of Israel apologists — in these comments and elsewhere — to portray Hamas as irrational and impossible to deal with. It’s the same tactic we’ve seen regarding Iran and nuclear weapons. Indeed, it’s more than a little ironic, and deeply perverse, that Israel apologists constantly emphasise the nuclear threat Iran supposedly poses to Israel — despite the fact that Iran does not have nukes and has been six months away from acquiring them for the past 20 years — while ignoring the fact that powerful officials in Israel, which does have nuclear weapons, consistently refuse to take nuking Iran off the table.

  45. The Hamas Charter declares that Freemasons, the Rotary and Lions Clubs are ‘cells of subversion and saboteurs’.

    Rational or irrational?

    BTW. Bensouda said her office was trying to get a copy of the Breaking the Silence report “to see how it can assist us in the preliminary examination phase.” She said the report must be studied before her office can take a position on it.
    http://www.ynetnews.com/articles/0,7340,L-4656758,00.htmlI

    I wonder if Breaking the Silence will roll over when they’re served with a subpeona from the ICC demanding the identities of their sources.

  46. The ICC has no power to subpoena anything from an NGO. Nor do the rules of evidence prohibit the judges from relying on hearsay by anonymous witnesses. But thanks for playing.

  47. Right. ‘Playing’ international law, as opposed to practicing it. That’s because it’s ephemeral, fairy law, where the parties tilt at each other on pink unicorns while shooting zephyres. International law is the province of academics, moot court enthusiasts and one-worlders.

  48. Hi prof. Heller

    Alas i know firsthand this pro-occupation( usually right-wing but not exclusively) attempt to cast Hamas as the boogeyman that will spoil the alleged Israeli preference for a two-state solution: i used to be an online defender of Israel (the reason being that i was swallowing the hasbara emanating from pro-occupation blogs wholesale, never questioning their veracity). I hope that God, if She exists (contrary to my atheism) will forgive me this particular sin, especially in light of the fact that i am right now atoning:):):):)

    The second most widely respected military analyst/journalist in Israel is, i think, Avi Isacharoff. Here is how he puts the matter about Israel’s exploitation of the Hamas-as-an-irredentist-spoiler-of-any-two-state-solution meme (June 2014, emphasis mine):

    http://www.timesofisrael.com/the-government-is-unified-but-the-palestinians-arent/

    ” The group[Hamas] had cracked down on the rogue Kassam launchers. That, plus the fact that it wouldn’t accept the existence of Israel, meant Jerusalem had a perfect excuse for not making peace with the Palestinians. Now, a single government has been formed in Gaza and the West Bank which says it will accept all the conditions set by the Quartet for Mideast Peace (recognizing Israel, keeping to previous agreements and renouncing terror).”

    The truth is that Hamas, like all bureaucracies/factions has as its ultimate objective the preservation of, and maybe even the increase of, its power. If Hamas is brought into the peace process, and Israel is willing to make appropriate territorial sacrifices (I shall explain which are these) that would allow Hamas to save face in the Arab/Muslim world in case Hamas accepted the hypothetical agreement,then there is a chance that Hamas, lured by the possibility of taking over the Palestinian Authority and becoming the sovereign of a newly founded Palestine, would agree to such a two state solution which would make Hamas beneficiary of the western and Arab economic aid that is currently directed to Abbas, the Palestinian President, and his faction (a rival of Hamas) Fatah.

    Hamas has enough muscle to take down the Palestinian Authority if Israel lets it, and is the only faction that has enough muscle to guarantee to Israel that any hypothetical final peace agreement will be respected –Hamas has already shown that it is capable of maintaining quiet with Israel with regard to rockets by chasing smaller factions that attempt to fire rockets Israel.

    But in order for Hamas to be able to recognize Israel and abandon the right of return of Palestinians(no way Israel can accept this) it has to show some honour-gain to the Arab public and to the Muslim public, a gain that cannot be anything less than full sovereignty over East Jerusalem and especially, the Temple Mount. Jerusalem, with its supposedly holy places, is at the root of this conflict(i can prove it with a billion links), given the ethno-religious honor concerns of both sides of the conflict, and in case Hamas becomes able to score the ethnoreligious-honour victory of regaining the Prophet’s city from Israel, it will probably be able to sell such a gain to the Muslim world and to the Arab world as worth an end-of-conflict agreement. Hamas would be in a position to say that it managed to save Allah’s city from the Jews, and this would hopefully make the aggrieved Arab and Muslim world(who is thirsty for any victory over Israel, after consecutive lost wars) see this gain as removing any shame that Israel has brought upon them in the past. On the other hand, no other offer that Israel can make will help Hamas save as much face as it needs in order to accept Israel’s right to exist. Any offer to the Palestinians less than East Jerusalem is bound to be seen as condescending by the whole Arab and Muslim world, and Hamas won’t be able to take such an offer: if it does the Palestinians will be seen as the same of the Arab and Muslim world.

    But Israel is as intransigent as Hamas when it comes to ethno-religious honour, so there is no way it will ever consider putting the sovereignty of East Jerusalem on the negotiating place. It seems that even Rabin, the Nobel Peace Prize winner&architect of the Oslo peace process, knew beforehand that the issue of sovereignty over East Jerusalem would preclude any peace agreement in the end, and the whole peace process was a charade given that the Palestinians would never agree over East Jerusalem. I quote from the hard right-wing Israpundit:

    http://www.israpundit.org/archives/63606403

    “A representative of the settlers, Rabbi Yoel Ben Nun, who had Rabin’s ear, met with him to discuss the agreement. The Rabbi asked, “If this is what you are giving away now, what will you have left to offer in a final-status agreement?”

    Rabin replied, “There will be no final-status agreement. It is impossible to reach an agreement on Jerusalem. We will continue to manage the interim agreement and proceed in stages. i.e., “To expand the Palestinian areas, to give them more authority.”

    In the end, Israel does not intend to make the sacrifices it might take for real peace, and this shows that Israel is not placing peace and Israeli lives above anything, as it likes to claim. Israel actually values its ethno-religious honor much more than a hypothetical real and everlasting peace. If the Israeli public is presented with a thought experiment that offers Israel a choice between real and enduring and safe peace with an accompanying loss of East Jerusalem and the preservation of East Jerusalem but without peace, Israelis would go for the second option en mass(relevant polls definitely hint in this direction). So i blame Israel.

    It is not double standards not to blame the Palestinians, even if they are intransigent on Jerusalem, and to concentrate on Israel: it is quite intuitive to have greater moral expectations from western nations (Israel included) in such situations, because the western nations have all the assets that are needed to help them swallow their honor in the interest of peace. Western nations are collectively, richer, more educated, more strong militarily, hence they have enough privilege that can help them assuage any (parochial, to be sure) feeling of “hurt honor”. The Palestinians on the other hand, or many other non western nations, are more excused to be falling victims of honour concers, since their honour(parochial concern as it is)is the only thing they have to stick to. So it is ok to have greater expectations from western nations than from the less privileged nations. Which means that under the circumstances we should be holding Israel accountable mostly, because it costs much less to Israel to let go of its honour than it is for the Palestinians. Israel is, under the circumstances, more capable of sacrifice. Yet Israel remains intransigent over East Jerusalem, thus not giving peace a chance.

  49. Correction of a sentence of mine. I said

    “Hamas won’t be able to take such an offer: if it does the Palestinians will be seen as the same of the Arab and Muslim world.”

    I obviously meant:

    “Hamas won’t be able to take such an offer: if it does the Palestinians will be seen as the sHame of the Arab and Muslim world.”

  50. &Prof Heller

    Concerning your point about Israel and Iran, the discourse in certain salient Israeli circles is quite deleterious.I quote from the Times of Israel:

    http://www.timesofisrael.com/op-ed-calls-on-israel-to-nuke-germany-iran/?utm_source=The+Times+of+Israel+Daily+Edition&utm_campaign=336cc7193d-2015_03_11&utm_medium=email&utm_term=0_adb46cec92-336cc7193d-54585481

    “Op-ed calls on Israel to nuke Germany, Iran

    Right-wing media outlet Israel National News published an opinion piece Tuesday calling on Israel to launch nuclear bombs at Iran and Germany…”

    Arutz Sheva, the media outlet in question, is the settlers’ media outlet, and the settlers are an influential part of Israeli society. If that is the discourse that emanates from such circles, one cannot help wondering how much militarized the Israeli mindset is becoming and how much incitement of any form against the “enemy” is becoming normative, acceptable, everyday discourse.

    God, i can’t believe that me, a post- nationalist in every respect (i don’t believe in nationalities) was defending Israel in the past.

  51. Kevin , the issue of hearsay , is much more complicated than that :

    1) first , we deal with investigation , not trial . the prosecutor has the power , proprio motu , to decide and investigate ( preliminary one ) . He has investigatory power, not trial power!! It’s not like the adversary system were, parties are gathering admissible evidence for trial, but rather, like a police officer, investigating crimes, collecting evidence, digging leads, in order to consolidate findings, or, reasonable basis for suspicion of crime committed. here , articel 54 clause 3(a) says so :


    3. The Prosecutor may:
    (a) Collect and examine evidence; ”

    You see, collect evidence, creating it, digging for it, consolidating it, it’s not a trial, were a person is judged, and substantial rights may or must be violated. So , he is authorized for exe. to surf the net of course , and dig as he wishes , leads or whatever , but not breaking the law of course , and not hurting the rights of no one , without due process .

    2) However, those alleged testimonies of those soldiers, are not precisely a hearsay. why is that ?? Well, Kevin, a hearsay has two dimensions by definition :

    One , the person , giving his testimony , or statement , wasn’t a direct witness , by his own senses , to the occurence , subject of trial . I mean : Jordan heard from Ben , heard in it’s turn from kevin , that : Jhon got hurt in an accident . Jordan it giving testimony , not for the accident , but what he has heared about it from Ben , so his senses ( smelling , seeing , touching ) are not putting to the test in relation of the occurring , but what he has heared from someone else about . What he has heard, can be investigated by the prosecutor, but, he or she , apparently, can’t rely on it, as an admissible evidence, yet, as a lead for further investigation , yes indeed !! surly in preliminary investigation .

    Those soldiers, allegedly, have experienced through their own senses, first hand, the occurrences, on which they testify for , so, it’s not exactly hearsay, but rather question of weigh over admissibility , or rather authenticity .

    However , when we deal with investigation , not trial , it doesn’t matter at all , since for the prosecutor , it’s a lead , a header for reaching and digging further .

    Don’t have time further ….. maybe latter , thanks

  52. @el roam: Statements by IDF soldiers in the Breaking the Silence report are hearsay, pure and simple. They are out of court statements introduced for the truth of the matter asserted (namely, the various IDF policies and actions). And those statements are admissible, pure and simple, because no international criminal tribunal has ever excluded hearsay. It is admitted with the acknowledgment that, as hearsay, its probative value is reduced.

    @jackdaw: your willingness to publicly tout your own ignorance is truly impressive. As is your willingness to announce to the world that you are nothing but a troll — after all, there is not much point in reading this blog if you think international law is an illusion.

  53. Kevin ,

    Out of court statement , doesn’t define at all , whether a testimony is a hearsay or not . A person can give a statement, out of court, for an occurrence, directly perceived by his own senses, and, later, being a witness in court, and being investigated by the opposing party for it.

    So , the fact that has been given out of court ( the statement ) would render it , a hearsay ??

    here for exe , definition of ” hearsay ” in oragon state glossary :

    ” Evidence presented by a witness who did not see or hear the incident in question but heard about it from someone else. With some exceptions, hearsay generally is not admissible as evidence at trial.”

    And indeed , a testimony of an expert for exe , is an admissible hearsay , or , exception for that rule , why ??

    Typically , hasn’t experienced by his own senses the occurence or incident itself , but he gives , his expert opinion on it .

    Think again Kevin , read again . Thanks

  54. The legal definition of hearsay, as stated in UK law (and representative of the definition in all legal systems), is “a statement not made in oral evidence in the proceedings that is evidence of any matter stated” Section 114 (1) Criminal Justice Act 2003.

    By definition hearsay statements refer to statements that are not made in court. Many statements made out of court, however, are not hearsay, even when introduced to prove the truth of the matter asserted — such as present sense impressions, excited utterances, and dying declarations.

    Experts are entitled to rely on hearsay in forming their opinions, as long as the hearsay statements are the kinds of statements experts in his field normally rely on. See, for example, Rule 703 of the US Federal Rule of Evidence. The expert is not permitted, however, to recount the hearsay to the jury, unless the hearsay falls within another hearsay exception.

  55. kevin , it is not so simple and pure as been stated by you , all in the ICC , here I quote from : Prosecutor V. Tadic :

    ” The trial chamber may be guided by , but not bound to , hearsay exceptions generally recognized by some national legal systems , as well as the truthfulness , voluntrariness , and trustworthiness of the evidence , as appropriate ” .

    And indeed, the ICC is less rigid in its admissibility of such, since, incidents, crimes, took place in alien remote places, and gathering and examining direct evidences, become much more complicated. So , the directness of the testimony indeed , is crucial factor in the hearsay definition and admissibility generally speaking .

    Thanks

  56. The directness of the testimony is irrelevant to its admissibility. As I said before, and as your own quote indicates, hearsay is admissible in international trials. The only question is how much probative value a hearsay statement has.

  57. Who precisely can be indicted based on these anonymous testimonies? Even in case that the above commands were really given, and that they are illegal, how can you possibly know who gave them? This whole report is good for nothing, except for attacking Israel in the media.

  58. @Kevin

    “after all, there is not much point in reading this blog if you think international law is an illusion.”

    I enjoy fairy tales, comic books and sci-fi.
    What of it?

  59. Dionissis: You said that:

    “The reason that i explained that this alleged hope of Hamas is a talking point coming from the pro-occupation right-wing advocates is that this camp is consistently trying to present Hamas as impervious to reason, so that the pro-occupation side will have an excuse to prolong the occupation(“if we retreat from the West Bank,Hamas will take over and rockets will be fired from there too”). So, in their minds, it pays to portray Hamas as a sadistic monster that rejoices (“hopes”)in seeing Palestinian civilians die, instead of portraying the situation as it really is, namely that Hamas stands to gain if civilians die,but stands to gain far more if the alleged civilian shields deter the IDF strike. Therefore Hamas does not “hope” that civilians die, but rather that the IDF abort the hypothetical strike. The subtext of the exaggeration in this distortion of the Hamas image is that such an enemy will never want peace and that all the civilian deaths are on Hamas. It is a demonizing talking point, more rhetoric than accurate window into Hamas’ way of thinking.”

    Yet, honestly, I don’t see how could this be seen as irrational. On the contrary, it is a very rational attitude on their part to place themselves in a win-win situation (which you seem to acknowledge its tactics lead to).

    More importantly, you seem to be missing the point: Since, as you said, Hamas and the other Palestinian militias are seeking to deny Israel of a military advantage (i.e. killing their men) through the use of civilians as cover, it is fair to say that the welfare of those civilians is a secondary priority to them and that they seem to realize that it does have some value, in the realm of propaganda, to see civilians die from collateral damage.

    Of course, one may always argue that Hamas and the oher Palestinian militia have no other realistic way of defeating Israel – but this would only further attest to their strongly rational strategy.

    The fact that, even under Hamas’ rule, there are Palestinian militias who launch rockets against Israeli targets despite Hamas’ opposition to that, would suggest that Israel would take a risk if it left the West Bank, particularly considering that Israel’s population centers are closer to the West Bank. Likewise, I also don’t see any willingness from Hamas’ to actually talk to Israel, so the idea that leaving east Jerusalem under negotiations between them would bring peace is just wishful thinking.

    And at last, but not least, the existence of other Palestinian militias would suggest that even Hamas doesn’t command a consensus among hardline Palestinians – there are sectors of the population that are, if anything, who take a harsher position with regards to Israel than Hamas does, and who also take a more strict or fundamentalist view of Islam than Hamas (such as the Salafist militias that operate in Gaza).

  60. PART 1

    Hi Adrian

    You said:

    “Yet, honestly, I don’t see how could this [Hamas’ alleged hope to see Palestinian civilian deaths] be seen as irrational. On the contrary, it is a very rational attitude on their [Hamas] part to place themselves in a win-win situation (which you seem to acknowledge its tactics lead to).”

    Adrian, i understand your argument to be this: since i (dionissis) claim that the right-wing pro-occupation circles want to portray Hamas as irrational, why would they present Hamas as desiring to place itself in a win-win situation? Doesn’t this cast Hamas as rational?

    My answer is that the particular presentation of Hamas that the two scholars gave us (i.e., Hamas cast as hoping to see Palestinian civilian deaths, simpliciter, so as to be able to badmouth Israel), is plainly making Hamas look irrational: such a hope that prioritizes the need to badmouth Israel through incurring losses of Palestinian civilians over the need to preserve Hamas’ military capabilities would indeed be irrational because no regime would prioritize anything over its self-preservation, and the preservation of the Hamas military machine is a matter of self-preservation for Hamas. If Hamas preferred Palestinian civilian deaths over the survival of Hamas’ commanders then indeed it would be irrational. But this is not the case, Hamas does not prioritize badmouthing Israel over its own survival.

    You said:

    “More importantly, you seem to be missing the point: Since, as you said, Hamas and the other Palestinian militias are seeking to deny Israel of a military advantage (i.e. killing their men) through the use of civilians as cover, it is fair to say that the welfare of those civilians is a secondary priority to them and that they seem to realize that it does have some value, in the realm of propaganda, to see civilians die from collateral damage.”

    I don’t think i am missing the point. Hamas indeed puts Palestinian civilian lives at a lower priority than successful resistance. But this was not the point that the scholars were making through their paragraph that i cited. Besides, the majority of nations would prioritize resistance over their civilian lives (heck, isn’t Israel turning civilians into soldiers so as to preserve the occupation?). If you ask me, no amount of land, or ethnoreligious honor, is worth a single drop of blood. I am not a pacifist, i believe in the moral right to kill so as not be killed (though i don’t consider those who are pacifists as lunatics, in fact if they are genuine i admire them)but i would be willing to engage in the killing only as a last resort. If instead of killing i could shed some of my property (game theoretic scruples that this might encourage aggression aside) i would be glad to do it. If i were a Palestinian i would have taken any offer the zionists offered. If i were an Israeli, i would have been ready to withdraw to pre-1967 lines for my borders. Well, easy for me, i am post-nationalist, i believe we are citizens of Planet Earth, so ceding national territory means nothing to me. But most people would call me a coward (or a freiher, if i lived in Israel, i.e. sucker)for this attitude of mine of prioritizing life over (assumed) legitimate resistance/war or over ethno-religious honor. So i don’t see how this attitude (resistance over the life of my civilians) could be seen as a moral drawback of Hamas — not that Hamas has any shortage of immorality. But i insist that the one who is in a better position to make the possibly decisive sacrifice for a possible peace agreement is Israel (by putting East Jerusalem(j/s) on the negotiating table.

    “Of course, one may always argue that Hamas and the oher Palestinian militia have no other realistic way of defeating Israel – but this would only further attest to their strongly rational strategy.”

    Philosopher Cohen has made a few points on whether there is a right to terrorism if you have been deprived of the means to resist.

    http://www.ucl.ac.uk/~uctytho/TerroristsCohenJerry.html

    It’s a very interesting paper, it concerns what analytic philosophers call “standing (noun) to blame”, or “the ethics of blame”.

    It goes against all my moral intuitions to allow the targeting of civilians unless you are threatened (as a people) with annihilation(so i excuse Jewish terrorism for the creation of Israel) but i have no established moral argument against it (i.e. against killing civilians in case you have been deprived of all other means of a resistance that falls short of being resistance against annihilation). I need to think further through this moral issue. I hope i will be able to vindicate my non-permissible-to-kill-civilians intuitions.

    continuing in part 2

  61. REPOSTING Part 1 (i messed up the italics)

    PART 1

    Hi Adrian

    You said:

    “Yet, honestly, I don’t see how could this [Hamas’ alleged hope to see Palestinian civilian deaths] be seen as irrational. On the contrary, it is a very rational attitude on their [Hamas] part to place themselves in a win-win situation (which you seem to acknowledge its tactics lead to).”

    Adrian, i understand your argument to be this: since i (dionissis) claim that the right-wing pro-occupation circles want to portray Hamas as irrational, why would they present Hamas as desiring to place itself in a win-win situation? Doesn’t this cast Hamas as rational?

    My answer is that the particular presentation of Hamas that the two scholars gave us (i.e., Hamas cast as hoping to see Palestinian civilian deaths, simpliciter, so as to be able to badmouth Israel), is plainly making Hamas look irrational: such a hope that prioritizes the need to badmouth Israel through incurring losses of Palestinian civilians over the need to preserve Hamas’ military capabilities would indeed be irrational because no regime would prioritize anything over its self-preservation, and the preservation of the Hamas military machine is a matter of self-preservation for Hamas. If Hamas preferred Palestinian civilian deaths over the survival of Hamas’ commanders then indeed it would be irrational. But this is not the case, Hamas does not prioritize badmouthing Israel over its own survival.

    You said:

    “More importantly, you seem to be missing the point: Since, as you said, Hamas and the other Palestinian militias are seeking to deny Israel of a military advantage (i.e. killing their men) through the use of civilians as cover, it is fair to say that the welfare of those civilians is a secondary priority to them and that they seem to realize that it does have some value, in the realm of propaganda, to see civilians die from collateral damage.”

    I don’t think i am missing the point. Hamas indeed puts Palestinian civilian lives at a lower priority than successful resistance. But this was not the point that the scholars were making through their paragraph that i cited. Besides, the majority of nations would prioritize resistance over their civilian lives (heck, isn’t Israel turning civilians into soldiers so as to preserve the occupation?). If you ask me, no amount of land, or ethnoreligious honor, is worth a single drop of blood. I am not a pacifist, i believe in the moral right to kill so as not be killed (though i don’t consider those who are pacifists as lunatics, in fact if they are genuine i admire them)but i would be willing to engage in the killing only as a last resort. If instead of killing i could shed some of my property (game theoretic scruples that this might encourage aggression aside) i would be glad to do it. If i were a Palestinian i would have taken any offer the zionists offered. If i were an Israeli, i would have been ready to withdraw to pre-1967 lines for my borders. Well, easy for me, i am post-nationalist, i believe we are citizens of Planet Earth, so ceding national territory means nothing to me. But most people would call me a coward (or a freiher, if i lived in Israel, i.e. sucker)for this attitude of mine of prioritizing life over (assumed) legitimate resistance/war or over ethno-religious honor. So i don’t see how this attitude (resistance over the life of my civilians) could be seen as a moral drawback of Hamas — not that Hamas has any shortage of immorality. But i insist that the one who is in a better position to make the possibly decisive sacrifice for a possible peace agreement is Israel (by putting East Jerusalem(j/s) on the negotiating table.

    “Of course, one may always argue that Hamas and the oher Palestinian militia have no other realistic way of defeating Israel – but this would only further attest to their strongly rational strategy.”

    Philosopher Cohen has made a few points on whether there is a right to terrorism if you have been deprived of the means to resist.

    http://www.ucl.ac.uk/~uctytho/TerroristsCohenJerry.html

    It’s a very interesting paper, it concerns what analytic philosophers call “standing (noun) to blame”, or “the ethics of blame”.

    It goes against all my moral intuitions to allow the targeting of civilians unless you are threatened (as a people) with annihilation(so i excuse Jewish terrorism for the creation of Israel) but i have no established moral argument against it (i.e. against killing civilians in case you have been deprived of all other means of a resistance that falls short of being resistance against annihilation). I need to think further through this moral issue. I hope i will be able to vindicate my non-permissible-to-kill-civilians intuitions.

    continuing to part 2

  62. Part 2

    @Adrian

    you said:

    “The fact that, even under Hamas’ rule, there are Palestinian militias who launch rockets against Israeli targets despite Hamas’ opposition to that, would suggest that Israel would take a risk if it left the West Bank, particularly considering that Israel’s population centers are closer to the West Bank.”

    I believe it is a matter of how well engineered a peace agreement would be . I have made some important (to my mind!) points on the issue in this discussion:

    http://www.theguardian.com/world/2013/dec/13/kerry-netanyahu-abbas-us-peace-deal#comments

    My points are more or less in a sequential order in the comments section(lots of them, around 70). I post this link so as to avoid to have to repeat every contingency of my proposal. So let me address your point, for which i didn’t have the chance to reply in the above discussion because no one asked.

    If Israel becomes ready to put east jerusalem (j/s) on the negotiating table, it must not cede it immediately. Any agreement should allow for a period after it has been signed (5 years? ten years? 40 years? quaeritur. Whatever satisfies the Israeli rational sensitivity to safety) before Israel will actually cede the city. The agreement must be of the form:”No rockets should fall in Israel, not a single act of incitement should be perpetrated in the Palestinian territories from official and influential circles, mosques, schools, government. Any rocket, or any act of incitement, sets the clock at the beginning”. (i.e. the Palestinian will have to wait for the full time period of, say, 30 years, that was hypothetically stipulated as the deadline for handing j/s to the Palestinians. If they start the rockets after 10 years, then they will have another 30 yrs to wait, not another 20 as they would have if the clock was not restarted. So the Israelis will feel safe after such a period passes without rockets or incitement(because it will be a time period that the Israelis themselves have stipulated). Besides, the peace agreement might stipulate that after the city is ceded, all UN nations are obliged to boycott the newly founded Palestine until it stops terrorism. The Israelis have the right to ask for any conceivable guarantee they can think of with regard to legal obligations of third parties. If the Israelis bring themselves to be ready to cede j/s for peace, they can ask anything they want. If the international community refuses, then the blame will be on them, not on Israel, if the two state solution does not materialize. But Israel will never cede j/s, and that’s why i blame it.

    “”Likewise, I also don’t see any willingness from Hamas’ to actually talk to Israel, so the idea that leaving east Jerusalem under negotiations between them would bring peace is just wishful thinking.

    It’s not wishful thinking, Hamas talks to Israel, it has back channels with the IDF, it lets the IDF know when an errant rocket wasn’t Hamas’. Here is Amos Harel(emphasis mine):

    http://www.haaretz.com/news/diplomacy-defense/.premium-1.632885

    “The Israeli security establishment believes that a relatively small Palestinian faction was responsible for Friday’s rockets, and they say Hamas took steps to rein in rocket-launching militants immediately after the rockets fell. This is what Hamas did for many months before last summer’s conflict began.

    From time to time, a single rocket was fired, after which urgent messages were conveyed to Israel[by Hamas] that the incident was not acceptable to the Gaza leadership.

    If it serves its purposes, Hamas will talk to Israel. Then again, Israel will not cede the city immediately, as i suggested. First it will put it on the negotiating table. If Hamas decides to take the offer, an agreement can be reached and the clock will start running for the stipulated time period until the city is given to Palestine. If Hamas refuses to talk to Israel, then how can anyone ever again accuse Israel that it did not do anything for peace? If the Israelis decide to cut their heart in half and put it on the negotiating table(that’s how it will feel to most Israelis to agree to cede east jerusalem) who will be able to ever again blame Israel? So it is a win-win for Israel. Either Hamas takes the offer and there will be peace, or Hamas refuses and Israel keeps East Jerusalem plus a knock-out argument against the world that Israel did the utmost sacrifice for the two state solution but the Palestinians refused.

    “And at last, but not least, the existence of other Palestinian militias would suggest that even Hamas doesn’t command a consensus among hardline Palestinians – there are sectors of the population that are, if anything, who take a harsher position with regards to Israel than Hamas does, and who also take a more strict or fundamentalist view of Islam than Hamas (such as the Salafist militias that operate in Gaza).”

    Yes there are other factions but Hamas can take them down easily if it decides to go for peace. Right now, no peace is in the horizon, and attacking Israel is a great honour symbol. Therefore, Hamas loses face in the eyes of the Palestinian public when it cracks down on rocket-throwers: I quote from the INSS(emphasis mine):

    http://www.inss.org.il/index.aspx?id=4538&articleid=6841

    For its part, Hamas must contend with the complex problem of preserving its control over Gaza, which in turn requires preventing extensive or frequent confrontations with Israel while not jeopardizing its[Hamas’] credibility as the “Islamic resistance”. A sharp decline in credibility or popularity could indeed encourage other actors such as the PIJ to present themselves as a better alternative to Hamas. For these reasons, the group has alternated between a zero tolerance policy with respect to uncoordinated attacks against Israel, with periods when it relaxed its hold on the Strip, wary lest crackdowns on other militant organizations damage its reputation.

    Keeping internal challengers at bay is especially important to Hamas, given its increasingly complicated position…

    Hamas thus has even more of an interest in not entering another round of direct military confrontation with Israel. This then requires defusing escalations and obtaining greater control of the Strip. Hamas continues to have conflicting relations with a number of smaller armed factions operating in Gaza, including the small and loosely organized Salafi-jihadist camp. In the past year, these groups have often been behind the periodic escalations in the form of rocket attacks, and with the increased activism of jihadist groups in neighboring Syria, Lebanon, Sinai, and Egypt itself, these groups may feel the desire to raise their profile in Gaza as well. Even though their military capabilities are relatively minor, these groups have in the past been a political nuisance for Hamas, by attacking its governance record, criticizing its “moderation,” and launching uncoordinated attacks against Israel regardless of the consequences for Gaza. The relationship with the Islamic Jihad is also potentially problematic, even though both Hamas and PIJ leaders aver that their relationship is strong and their actions are coordinated. However, the rise in the PIJ status and its freedom of action can become an increasing source of friction between the two groups, which have a history of recurrent tension. This is especially the case given PIJ’s historical and current closeness to Iran and its interest in raising its profile domestically at the expense of Hamas by attacks against Israel.

    Hamas could easily delete those groups, because the difference in muscle between Hamas and the rest is overwhelming. But it would lose face if it were to do so during a period of resistance against Israel. But if a peace agreement is reached that is acceptable to the majority of the Palestinian and to Hamas, then the honour dynamics change:hurling rockets at Israel can be cast as an act of treason that delays the agreed ceding of jerusalem (we have stipulated that the clock restarts every time there is rocket fire). Hamas can in effect say to the people:”these traitors of org. X are delaying our recapturing sovereignty over our holy Al Aqsa mosque, they are traitors and we will drag them dead in the streets”. Hamas has the power to do it, but right now, with nothing to promise to the Palestinian public, it lacks the legitimacy to exterminate fellow co-fighters against Israel. Bur a conditional peace agreement, which makes the ceding of jerusalem depend on no rocket firing, will give an excuse to Hamas to settle its scores once and for all with all hardliners of the other factions. In fact, i speculate that Hamas will prefer the israel-palestine peace agreement to stipulate a long time period before the city is ceded to Palestine, so that they will find excuses to wipe off all competitive hardliners.

    Let’s think a little about i: in case such a peace agreement is reached Hamas would be ready to lay its hands on the western aid and to become the leader of Palestine –worldwide recognition and all. If they have already agreed to peace, wouldn’t it be to their benefit to eradicate all competition? And the Palestinian public will have already agreed to peace(if not, Hamas will not agree in the first place anyway, they can smell what the palestinian public wants) so there will be no loss-of-face concerns to hinder Hamas:to hurl rockets at Israel will be seen as dishonorable because it delays the recapturing of the holy jerusalem, that’s how Hamas will be selling publicly the execution of those who engage in rocket-firing.

    Adrian, peace can have a chance, but only if Israel brings itself to be willing to sacrifice east j/s in exchange for real peace. It can do so with perfect peace of mind because it can stipulate the most stringent terms for such an agreement. But the Israelis have to be willing to cut their heart in two. If not, they will stay occupiers of a defiant people and they will be becoming increasingly more and more emotionally callous. Do the Israelis really want a future where they will be killing children every now and then — no matter if it is the Palestinians’ or the Israelis’ fault? Israel until now answers my question with a mixture of smugness and defensive self-righteouseness:”It is the Palestinians that suffer most from this conflict, let them suffer, we are not ceding East jerusalem even if it is going to bring real peace. And the lives of Palestinian children is on them, not on us. They make us kill them — tough for them”.

    Adrian, i don’t want to kill anyone’s kids, even if it is the kid’s parent who is throwing it in my way. I’d rather give him what he wants, with bulletproof guarantees that i will never have to see him again.

  63. I posted part 2 and initially it was in moderation(big one in size, with around 4 links), but now that i refreshed the page it disappeared. I hope the moderator will sort it through.

  64. Dionissis:

    “Adrian, i understand your argument to be this: since i (dionissis) claim that the right-wing pro-occupation circles want to portray Hamas as irrational, why would they present Hamas as desiring to place itself in a win-win situation? Doesn’t this cast Hamas as rational?”

    That’s correct: It’s pretty rational if you ask me, at least under our differing perceptions of their priorities.

    “My answer is that the particular presentation of Hamas that the two scholars gave us (i.e., Hamas cast as hoping to see Palestinian civilian deaths, simpliciter, so as to be able to badmouth Israel), is plainly making Hamas look irrational: such a hope that prioritizes the need to badmouth Israel through incurring losses of Palestinian civilians over the need to preserve Hamas’ military capabilities would indeed be irrational because no regime would prioritize anything over its self-preservation, and the preservation of the Hamas military machine is a matter of self-preservation for Hamas. If Hamas preferred Palestinian civilian deaths over the survival of Hamas’ commanders then indeed it would be irrational. But this is not the case, Hamas does not prioritize badmouthing Israel over its own survival.”

    Well, I’d say that even then, it depends. The costs of Gazan collateral damage are not only beared by the Gazan population – with the victims thmselves obviously bearing the highest cost, but Hamas and other Palestinian militias bearing a part of it as well – but by Israel itself. Israel most certainly faces a political cost whenever a Gazan kid dies, and Hamas and the other armed groups know and cares about it as propaganda and public relations are just another front in any war.

    “I don’t think i am missing the point. Hamas indeed puts Palestinian civilian lives at a lower priority than successful resistance. But this was not the point that the scholars were making through their paragraph that i cited.”

    Indeed, their point seems to be that Hamas and other Palestinian militias seem to see a net benefit for them in Palestinian civilian deaths. That assessment is probably correct, in my view – there is effectively no meaningful consequence for them when Palestinians get killed as part of collateral damage, particularly since civilians cannot really challenge its rule and in any event many Palestinians seem to blame only Israel for the collateral damage.

    “Besides, the majority of nations would prioritize resistance over their civilian lives (heck, isn’t Israel turning civilians into soldiers so as to preserve the occupation?). If you ask me, no amount of land, or ethnoreligious honor, is worth a single drop of blood. I am not a pacifist, i believe in the moral right to kill so as not be killed (though i don’t consider those who are pacifists as lunatics, in fact if they are genuine i admire them)but i would be willing to engage in the killing only as a last resort. If instead of killing i could shed some of my property (game theoretic scruples that this might encourage aggression aside) i would be glad to do it. If i were a Palestinian i would have taken any offer the zionists offered. If i were an Israeli, i would have been ready to withdraw to pre-1967 lines for my borders. Well, easy for me, i am post-nationalist, i believe we are citizens of Planet Earth, so ceding national territory means nothing to me. But most people would call me a coward (or a freiher, if i lived in Israel, i.e. sucker)for this attitude of mine of prioritizing life over (assumed) legitimate resistance/war or over ethno-religious honor. So i don’t see how this attitude (resistance over the life of my civilians) could be seen as a moral drawback of Hamas — not that Hamas has any shortage of immorality. But i insist that the one who is in a better position to make the possibly decisive sacrifice for a possible peace agreement is Israel (by putting East Jerusalem(j/s) on the negotiating table.”

    I’m not sure if they would, it depends on the case. If they did, there would be virtually no peace processes in any conflict – there is a point in which societies simply get tired of the whole thing.

    In the Palestinian case, however, it is probably more complex than that since they are effectively in a civil war (yes, that’s the correct term for the conflict between Hamas and Fatah, along with the other militias as long as we see Gaza and the West Bank as a single unit) and it is not a democratic regime.

    “Philosopher Cohen has made a few points on whether there is a right to terrorism if you have been deprived of the means to resist.

    http://www.ucl.ac.uk/~uctytho/TerroristsCohenJerry.html

    It’s a very interesting paper, it concerns what analytic philosophers call “standing (noun) to blame”, or “the ethics of blame”.

    It goes against all my moral intuitions to allow the targeting of civilians unless you are threatened (as a people) with annihilation(so i excuse Jewish terrorism for the creation of Israel) but i have no established moral argument against it (i.e. against killing civilians in case you have been deprived of all other means of a resistance that falls short of being resistance against annihilation). I need to think further through this moral issue. I hope i will be able to vindicate my non-permissible-to-kill-civilians intuitions.”

    I don’t really think I agree with that article. Cohen says that the Israeli military is not really different from the Palestinian militias despite his admission that Palestinian civilian casualties due to the IDF’s actions are collateral damage while Israeli civilian casualties arising from those of Palestinian armed groups are not (and in fact are a goal), mainly because more Palestinian civilians die or are harmed by the IDF (both in absolute and relative terms).

    However, I think he’s overlooking a possibility: What if, due to the fact that the fighting takes place in places with civilians, it is not feasible for the IDF or any other army to avoid civilian casualties?

    For example, suppose that Palestinian militants and Israeli soldiers are fighting to take control of a Palestinian city and that some Palestinian civilians remain there. What if:

    1. Israeli soldiers and Palestinian militants try to take over a neighborhood, and a shootout (and only a shootout) ensues, with some civilians trapped in the middle and caught in the crossfire. Suppose that some die, maybe killed by the Israeli soldiers, maybe killed by the Palestinian militants (e.g. as in the al-Dura case). Furthermore, suppose that a huge number of them die. Is this really morally comparable to deliberately targeting a smaller number of civilians?

    2. Assume that a clear military target is in a Palestinian city and that civilians are right next to it. Furthermore, assume that the target is physically hard enough to require a heavy bomb for its destruction, but that in the process many civilians would die. Despite this, assume that the target’s military importance for Palestinian armed groups is such that the attack would be undoubtly proportional under IHL (so we can get that out for now). At last, assume that bombing it is the option that minimizes Palestinian civilian casualties (for instace, destroying it with a ground operation would require an invasion of this area and a repeat of scenario 1 at a large scale – a protracted, house-by-house fight between the IDF and Palestinian militants). Is it morally worse for Israel to bomb it than it is for Palestinians to intentionally target and kill some (and less) Israeli civilians?

    At last, but not least, Cohen’s argument amounts to saying, basically, that if Israel allows Palestinian militias deliberately kill enough Israeli civilians until the collateral damage arising from Israeli operations is not disproportionate (e.g. perhaps if the Iron Dome system didn’t exist, it lacked any sort of defensive measures to safeguard civilians such as bomb shelters and early-ish warnings) and Palestinian militants used more powerful rockets, and as a result their rockets killed many more Israeli civilians, Israeli operations would enjoy more international support – in essence, Israeli civilian casualties would improve Israel’s position in the propaganda and PR front). Is this apparent deliberate inaction ethically sound?

    And to get back to a legal discussion, would it be legal under international law for Israel to do just that? i.e. turn the Iron Dome and its early warning systems off, and simply destroy its bomb shelters, with the aim of suffering more civilian casualties to improve its standing with regards to world public opinion, and to alter the calculation with regards to the proportionality (under IHL) of its attacks in Gaza? IIRC defenders have a duty to do everything they can to prevent civilian casualties arising as collateral damage due to enemy attacks. That is, defenders have a legal prohibition to use civilians and civilian infrastructure to alter the proportionality calculation of the attacker – the prohibition of using human shields, essentially. Just how widely should it be understood, and also, could there be a reverse proportionality calculation for defenders? For instance, maybe the risk of collateral damage to civilians arising from a possible attack must be lower than the military advantage of the target’s presence in the area (e.g. for instance, maybe it is more militarily sound for a defending army to have its base inside a city than ouside it because it might be hard to successfully hold it in the event of an enemy attack if the base is outside the city).

  65. @Adrian

    Wait, you haven’t seen my part 2 comment yet:):):)
    I hope the moderators will see it(it has disappeared from my screen)

  66. Dionissis:

    Well, I can see part 2 of your response now. 3 points:

    1. You say that Israel should offer East Jerusalem to the Palestinians as part of a peace deal, as it would be a necessary condition to actually achieve it. I agree, though it should be said that Abbas essentially accepted to take the Arab-populated neighborhoods of Jerusalem and to give most Jewish-populated ones to Israel (including the Jewish Quarter of the Old City) during the Annapolis talks in 2008, at least according to the Palestine Papers (see: http://www.theguardian.com/world/palestine-papers-documents/2648 ), while Israel offered simply to hand out Arab-populated neighborhoods of East Jerusalem to the Palestinians and leave the Old City for a later stage (see: http://www.theguardian.com/world/palestine-papers-documents/4736 ). Note that the Palestinian offer seems to be a counter-offer to the Israeli one, hence the higher details.

    It seems, then, that Jerusalem and the broader territorial swap issues are not such a big obstacle to a peace deal – at least with regards to Fatah

    And, that’s exactly the issue. If I want to talk to the Palestinians, where exactly do I have to call to, to Ramallah or Gaza? I mean, if I want to talk to Israel you do know where you have to call, but I don’t know about the Palestinians.

    Note: That’s leaving aside that the refugee issue and security arrangements are a completely different problem, however, at least if you see some public opinion polls on the matter to both populations.

    2. With regards to Hamas, it talks to Israel through back channels and via shuttle diplomacy but it doesn’t seem to be willing to talk about the big issues, i.e. a final status agreement. While indirect diplomacy has been a stage in previous processes between Israel and its neighbors (Egypt), they reached a stage in which talks were conducted publicly and directly before any deals were signed – and this defnitely requires having some political capital to expend in the process as they imply a mutual recognition. In any event, I’m not all too sure Hamas wants a final status agreement (see next point).

    3. Hamas might be the strongest armed group in Gaza for now, but as the INSS article you cited says, it is currently engaging in a balancing act to avoid having to fight other militias, which seem to be strong enough to extract a major cost on Hamas if they decide to attempt to fight it.

    And this brings us to point 2: If Hamas, which currently groups most of the hardline Palestinians, has to tread carefully with other armed groups in Gaza, what makes you believe that it would be able to stop them if it decided to directly talk about a final status agreement to Israel? After all, it is reasonable to assume that, if it did so, many members would become disenchanted with the movement and join other ones (e.g. the Islamic Jihad) and it would end up weakened as a result.

  67. Part 1

    Hi Adrian

    you said:

    “You say that Israel should offer East Jerusalem to the Palestinians as part of a peace deal, as it would be a necessary condition to actually achieve it. I agree, though it should be said that Abbas essentially accepted to take the Arab-populated neighborhoods of Jerusalem and to give most Jewish-populated ones to Israel”

    Abbas is not popular on the Palestinian street. He is seen as a collaborator by the Palestinians. I quote from the pro-Israel think tank Washington Institute for Near East Policy:

    http://www.washingtoninstitute.org/policy-analysis/view/preserving-israeli-palestinian-security-cooperation

    ” …the widespread criticism[against Abbas’ Palestinian Authority] that security cooperation with Israel is tantamount to collaboration.

    In response to growing tensions with Israel and public dissatisfaction with security cooperation, the Palestine Liberation Organization recently decided to cut off security cooperation with Israel.”

    Abbas survives from Hamas only thanks to Israel, who protects him. Here is the hard rightwing Spengler:

    http://pjmedia.com/spengler/2015/03/23/the-great-and-powerful-ob/

    “…Mahmoud Abbas survives on the support of the Israeli Army,…

    Hamas would have already overturned Abbas, were it not for Israel.Here is the epitome of journalist-advocate(pro-occupation, of course) Abu Toameh, writing in the Islamomophobic Gatestone Institute:

    http://www.gatestoneinstitute.org/5622/palestinians-vote-hamas

    “Without Israel’s help, the PA will not be able to prevent Hamas from taking over the West Bank.”

    The reason Israel helps him is because he cooperates with Israel, as Israel’s then Foreign Minister (July 2014) explained:

    http://www.timesofisrael.com/fm-west-bank-status-quo-can-be-model-for-gaza-reoccupation/

    “Abbas understands that the coordination between IDF and his security forces helps him stay in power, the foreign minister added.”

    In a nutshell. Abbas is not respected in the Palestinian Street, and he doesn’t have the clout to deliver rocket-suspension to Israel in case a peace agreement is reached –Hamas will never truly commit to any peace agreement if it is not Hamas that will be the beneficiary of such an agreement. So it doesn’t matter what Abbas offers in any negotiations(even assuming he really meant to follow through with his offers when the time came). Israel won’t have peace if he stays in charge.

    You said:

    “It seems, then, that Jerusalem and the broader territorial swap issues are not such a big obstacle to a peace deal – at least with regards to Fatah “

    Sovereignty over East Jerusalem(especially the Temple Mount is the core of this conflict. Here is Dror Eydar from Netanyahu’s newspaper, Israel Hayom:

    “Anyone [Israeli] who believes in dividing Jerusalem and handing over our holy sites will never be a true leader among our people • Though Jerusalem is plagued with problems, nothing will keep us[Iasraelis] away from the city to which we yearned to return for 2,500 years.”

    http://www.israelhayom.com/site/newsletter_article.php?id=25511

    And he continues by explaining that the Palestinian side places the utmost importance on East Jerusalem.

    “The Arabs understand that the battle over this land, and the Jewish presence in it, begins and ends in Jerusalem.”

    No way peace will come unless the Palestinians have sovereignty over the Temple Mount. But Israel too is as intransigent as the Palestinians, as Dror Eydar’s words made clear — and as a billion more links i could post on this make clear. Israel is adamant on Jerusalem.

    continuing to Part 2

  68. Part 2

    @Adrian

    You said:

    “And, that’s exactly the issue. If I want to talk to the Palestinians, where exactly do I have to call to, to Ramallah or Gaza? I mean, if I want to talk to Israel you do know where you have to call, but I don’t know about the Palestinians.”

    Gaza, that’s who you should be talking to, Hamas. If you want to talk to someone who has the power to impose a hypothetical peace agreement on hardliner Palestinians, you need the strongest hardliner to talk to. And that’s Hamas.

    You said:

    “With regards to Hamas, it talks to Israel through back channels and via shuttle diplomacy but it doesn’t seem to be willing to talk about the big issues, i.e. a final status agreement.”

    Well, unless Israel puts East j/s on the table, we will never know whether Hamas can be swayed towards peace, can we? All the messages that Israel has been sending until this day is that Israel is not going to make the sacrifice of handing over sovereignty of east j/s.

    You said:

    ” Hamas might be the strongest armed group in Gaza for now, but as the INSS article you cited says, it is currently engaging in a balancing act to avoid having to fight other militias, which seem to be strong enough to extract a major cost on Hamas if they decide to attempt to fight it.”

    The INSS link i posted made clear that the other militant groups were not strong militarily compared to Hamas, here is what the link said:

    http://www.inss.org.il/index.aspx?id=4538&articleid=6841

    “Even though their[the militant groups’] military capabilities are relatively minor, these groups have in the past been a political nuisance for Hamas”

    A “political”, not military, nuisance for Hamas. Why? Because, as the article says, Hamas loses face in the eyes of the Gaza Street if it cracks down on these militant groups who, though not strong, are fighting Israel the enemy. I quote once again from the link:

    “…[Hamas was]]wary [to crackdown on other militant groups] lest crackdowns on other militant organizations damage its reputation.”

    It is only a matter of reputation that has Hamas worried, not that these groups can challenge it militarily.

    You said:

    ” If Hamas, which currently groups most of the hardline Palestinians, has to tread carefully with other armed groups in Gaza, what makes you believe that it would be able to stop them if it decided to directly talk about a final status agreement to Israel?”

    As i said,Hamas has a reputation to worry about now that it is still in war with Israel, because now fighting Israel is seen as honourable. But if there is something of honour-value that Hamas can deliver to the Palestinian public, then the honour dynamics change, Hamas will be able to crackdown on the hypothetical roket-firing hardliners without any loss of reputation, because firing-rockets after a peace agreement can be cast as treason, as an activity that delays the recapturing of holy jerusalem.
    I quote myself from the previous answer i gave you:

    “Hamas could easily delete those groups, because the difference in muscle between Hamas and the rest is overwhelming. But it would lose face if it were to do so during a period of resistance against Israel. But if a peace agreement is reached that is acceptable to the majority of the Palestinian and to Hamas, then the honour dynamics change:hurling rockets at Israel can be cast as an act of treason that delays the agreed ceding of jerusalem…

    … but right now, with nothing to promise to the Palestinian public, it[Hamas] lacks the legitimacy to exterminate fellow co-fighters against Israel. Bur a conditional peace agreement, which makes the ceding of jerusalem depend on no rocket firing, will give an excuse to Hamas to settle its scores once and for all with all hardliners of the other factions.”

    You said

    “After all, it is reasonable to assume that, if it did so, many members would become disenchanted with the movement and join other ones (e.g. the Islamic Jihad) and it would end up weakened as a result.”

    If Hamas militants, from the lowest to the highest rank, see that they have a chance to become the liberators of East Jerusalem(through the peace agreement)and that they will also make huge money(western aid to Palestine, in a hypothetical peace agreement with Hamas ruling Palestine all the aid will be in Hamas’ hands to distribute as it sees fit, hamas members are going to be the first to benefit) then there is a chance they will agree to such a peace agreement with Israel(provided that the Palestinian street will have shown enough signs of agreement). If finally Hamas decides to go for peace, then the few dissenting hardliners of Hamas will be executed — you can’t have missed the way Hamas deals with Palestinian enemies! If the number of dissenters is going to be big, then Hamas, cognizant of this fact and of the attendant danger of a damaging split in its ranks, it won’t agree to peace in the first place, so Israel won’t have to cede East Jerusalem after all.

    But Israel is guilty of not giving peace this chance.

  69. Adrian, i posted also a part 1 in my reply to your latest post, but it is still in moderation

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  1. […] at the London Review of Books here, and a shorter commentary by Kevin Jon Heller at Opinio Juris here. […]