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Reality Check

By Fredric Smoler

At our editor’s request, I write in response to Eugene Goodheart’s essays Hamas’s Self-Destructive Leadership and What Israel Must and Must Not Do. I share what I take to be two of Mr. Goodheart’s premises: that both Israelis and Palestinians have the right to national self-determination, and that combatants are obliged to observe the laws of war. While these premises are not wholly uncontroversial—it is pretty easy to find people who argue that that only one of the belligerents possesses the right to a state in any of the territory currently controlled by Israel, along with some who claim that the laws of war do not restrain the tactics of a people resisting occupation, and others who assert that they must not restrain a state facing existential threats—I shall not engage those arguments here. What follows are only a few reservations about some of Eugene Goodheart’s observations, although I should state in advance that two of the many things I admire about his writing are on display in both pieces: his avoidance of both the toxic pleasure of indignation and the comforting simplicities of a party line.

In the piece on Hamas, Mr. Goodheart asks “What if... Hamas joined the PLO in acknowledging Israel’s right to existence, but not its current borders? What if, in other words, a united Palestinian organization promising non-violent action to promote its cause called Israel’s bluff?” I agree that these methods, coupled to reported previous PA offers on the right of return, would be much likelier to achieve Palestinian statehood in Gaza and almost all of the West Bank than Hamas’s current and disastrous tactics. On the available evidence, however, Hamas has a profound and unyielding objection to Israeli statehood and a conviction that ‘what was taken by force can only be retrieved by force’, which I take to mean an unwavering insistence on its absolute right to use force, also on the necessity of violence, and perhaps on the ethical superiority of violence. There are some people in Hamas who have hinted that a long term truce might be possible, but on the current evidence expecting any more than that from Hamas seems at best quixotic, and even if Hamas offered a long term truce, it is far from clear that Hamas would be willing to use force to quash attacks on Israel by other militant factions operating on its territory. There is still a large political space for Palestinian rejectionism. Hamas now occupies that space but does not occupy it alone, and almost certainly fears the consequences of being seen to abandon that space. So while I agree with Mr. Goodheart’s advice to Hamas, I cannot imagine Hamas taking that good advice.

In his piece on Israel, Mr. Goodheart asserts that “the response must be proportionate to the provocation. It must be particularly scrupulous about avoiding killing innocent civilians—even in situations in which weapons are embedded where civilians live. Which seems not to be the case, despite the Israeli government’s claim to the contrary.” While the laws of war certainly prohibit targeting innocent civilians, absolutely avoiding killing innocent civilians is more than the law requires, and I think more than it is possible to achieve. On the other hand, I agree with Mr. Goodheart’s use of the word ‘seems’, because while we do not yet have too many undisputed facts, some of the facts alleged are deeply disturbing.

The standards that most obviously apply to Israel are set out in the 4th Geneva Convention (1949), although there are other relevant principles and statutes. Loosely speaking, Israel can endanger innocent civilians only in proportion to the military importance of its military necessities, an imprecise standard, which in particular cases will often be debatable even when the parties agree about the facts. As of now, a lot of the facts remain in dispute—were half of the Palestinian victims militants, or were a tenth of them? What would various ratios imply? For comparative purposes, the ratio of civilian to military casualties in WWII, Korea and Vietnam was on the order of 2:1; in Iraq, the ratio for Coalition forces’ killing through 2013 was 1:2, although for that period in Iraq as a whole the ratio was appreciably worse than 2:1. At the level of casualties the IDF claims, the most recent Gaza war ratio would be around half the 20th Century average, although worse than the IDF’s claimed ratio in the previous Gaza wars. But the raw ratio tells us very little: how many innocent civilians were killed by Israeli weapons vs. how many by Palestinian rockets and mortars, hundreds of which inevitably landed within Gaza? Most urgently, how often did Israeli fire endanger, wound or kill innocent Palestinian civilians for no proportionately important military purpose? How many were killed by Hamas as collaborators? Israel does not seem to have been completely indiscriminate—today’s New York Times notes that “The Times analysis, looking at 1,431 names, shows that the population most likely to be militants, men ages 20 to 29, is also the most overrepresented in the death toll...women and children under 15, the least likely to be legitimate targets, were the most underrepresented...”

When as many of the facts come out as will ever come out, will Israeli conduct generally satisfy the requirements of the 4th Geneva Convention as normally understood by the militaries of combatant states? My guess is that it may well meet that standard, although there will many hard calls and some ugly exceptions. But most people have not reserved judgment until the facts are in, and Israel’s legal obligations have been pretty consistently overstated, sometimes very grievously overstated, e.g. when UN officials furiously asserted that the immunity of hospitals is absolute, which is an absurd claim: the Fourth Convention’s Article 18 states that “Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict.”, but Article 19 immediately adds that “The protection to which civilian hospitals are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy...” This sort of officially-spouted misinformation matters, because in much of Europe the Israelis are being portrayed as peculiarly given to atrocity, with predictable results: Berlin crowds chanting “Jude, Jude, feiges Schwein, komm heraus und kämpf allein!", and what would once have been called Jew hunts just outside of Paris.

Mr. Goodheart also writes that “Israel needs to acknowledge Hamas as an enemy, not as a terrorist organization...One negotiates with enemies, if not with terrorists. This can occur only if Hamas recognizes the legitimacy of Israel as a state, if not its current borders. The immediate issue in negotiation would be the ending of the blockade of Gaza, a goal that could be reached if Hamas promises that freedom of movement will not be freedom to attack Israel…Settlements, the status of refugees, the location of a Palestinian capital of a new Palestinian state, all need to be negotiated without the threat of violence on either side.”

I think this is good advice, but again, I do not think that Hamas will give Israel the chance to take it. My sense is that between Oslo and the Second Intifada there was an Israeli majority for a two state solution, and that after the Second Intifada Israel’s sharp drift to the Right was a result of the discovery that there did not seem to be either a Palestinian leadership or a Palestinian majority committed to a two state solution. Recent PA proposals, as reported in leaks, seem to have been much more generous, and were, maddeningly, spurned. But rumored PA proposals are not always imaginable Hamas proposals. The negotiations are beginning as I write, and I very much hope that I am wrong, that Hamas takes Mr. Goodheart’s advice, and that in consequence an Israeli majority produces a government that will make that compromise peace.

From August, 2014

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