The Epistemic Dimension of Antisemitism: The Case of Navi Pillay

The Journal of Jewish Identities just published my most recent article, "The Epistemic Dimension of Antisemitism." Basically, the article looks at antisemitism through the prism of "epistemic injustice" -- wronging Jews in our capacity as knowers. This is distinct from more "traditional" forms of antisemitism like overt hatred or disdain (though obviously they can be related and support one another). 

To give an example: One can (and many antisemites do) view Jews as a world-dominating cabal that controls critical social enterprises like the media, Hollywood, and the financial industry. Unsurprisingly, those who hold that view often also are affectively antagonistic towards Jews (few think Jews run the world and are thankful for what a bang-up job they think we're doing). But it's also likely that someone who holds this view will take certain stances about Jewish credibility. They're liable to think that Jews cannot be trusted, that we're always working the angles, that our testimonial offerings are likely in service of a deeper game. Even if, for whatever reason, they do not have an explicitly hateful attitude towards Jews, they might be distinctively mistrustful or dismissive towards Jews when we venture opinions in the public square -- even, or perhaps especially, if those opinions are on matters that are central to Jews' own experience.

The essay, of course, goes into more detail. But as it happens, an incident that occurred almost simultaneously with the publication of the essay provides a solid real-world illustration. In an interview with the pro-Palestinian website Mondoweiss, Miloon Kothari, a member of the United Nations Human Rights Council's special commission into Israel and the Palestinian territories, made several remarks which generated a swift backlash from American and Jewish diplomatic officials. 

In particular, Kothari alleged that the "Jewish lobby" controls social media to the detriment of his work:

“We are very disheartened by the social media that is controlled largely by – whether it is the Jewish lobby or specific NGOs, a lot of money is being thrown into trying to discredit us.”

(Elsewhere, he appeared to question the validity of Israel's membership in the UN -- we'll leave that part aside).

Unsurprisingly, these comments were, to say the least, not well received in the Jewish community. But Kothari's colleague Navi Pillay, former United Nations High Commissioner for Human Rights, rose to Kothari's defense and claimed that he was the victim of a "deliberate" campaign to misquote and falsify what Kothari actually said. Kothari's comments, Pillay argued, were "deliberately been taken out of context" and Kothari was "deliberately misquoted to imply that 'social media' was controlled by the Jewish lobby."

Kothari's comment about "the Jewish lobby", expressing frustration by and antagonism towards what he takes to be the "Jewish lobby's" ability to "control" social media, seems an easy case of antisemitism under traditional articulations. Pillay's defense of Kothari, by contrast, sounds in a epistemic dimension. She dismisses the testimonial offerings of Kothari's critics who claim antisemitism by claiming they are engaging in a "deliberate" campaign of falsification. The purpose is to sabotage the basic testimonial validity of those claiming antisemitism by declaring the allegations to violate basic norms that undergird legitimate discourse (e.g., honesty and sincerity).

For starters, Pillay does not actually identify, or even attempt to identify, any misquote or missing context that has undergirded those criticizing Kothari. To the contrary,  most of the media sources I've seen reporting on the story have quoted Kothari verbatim. They haven't, for instance, just said something like "Kothari attacked the 'Jewish lobby'" and left readers to wonder what the relevant sentence actually said. They have by and large included most if not all of the above block quote. Meanwhile, the quotations themselves were taken from Mondoweiss, an outlet which is supremely unlikely to have misquoted Kothari or taken him out of context in a manner that would assist pro-Israel commentators. Pillay's claim of false testimony is not just unsupported, it does not even gesture at anything that might support it. So how could she possibly think her contentions will carry any credence? The most likely answer is that she thinks -- and she's probably correct -- she can draw on a reservoir of epistemic antisemitism where people are predisposed to believe that Jews and those advocating on our behalf are liars, manipulators, cheats, and bad-faith actors. Only in a world where such epistemic beliefs about Jews are taken for granted could such naked and obviously unsupported complaints about misquotes be thought to stand a chance of success.

All of that would be bad enough. But there's also on top of this Pillay's choice to say that these alleged-but-not-demonstrated falsifications were "deliberate". This is a charge Pillay repeats, so it is no stray bit of rhetoric. Supposing, for sake of very strained argument, we did think there was something to the notion that Kothari was being taken out of context. That still hardly would establish that Kothari's critics were acting deliberately. Even if, for some reason, one thought there was a perfectly innocent explanation for what Kothari said, surely it is not unreasonable to think that Jews could in good faith perceive that passage about "the Jewish lobby" as being problematic. The most likely explanation for the divergence between how Jews interpreted what Kothari said and how Pillay does so would be such good faith disagreement. 

But Pillay refuses to allow for anything other than conscious malice. It is not just that Kothari's critics are wrong, they are intentionally wrong, they are lying, they are smearing. In my article, I make the following observation:

[A]ntisemitism allegations are divided into a sharp binary: those which are incontestable and those which are in bad faith. In this binary, there can be no such thing as an antisemitism claim which one, personally, doesn’t agree with but which is accepted to lie within the legitimate boundaries of argument. Every instance of supposed antisemitism that is disputable must be invalid altogether. The “zone of contestation,” where we agree to investigate claims under a posture of open receptivity, because we concede we’re not immediately sure of the right answer, implodes because there’s never actually any controversy: either a claim is so obviously true that it smacks us in the face or it is so obviously false that it can dismissed out of hand.

Pillay defaults to making unsupported, and unsupportable, claims of deliberate lies because the architecture of epistemic antisemitism assumes that the only reason Jews would ever level a claim of antisemitism that one might disagree with is because they're lying about it. Pillay thinks Kothari is not antisemitic, therefore, anyone arguing otherwise simply must be lying. The false allegations of misquotation or missing context flow naturally from this.

Certainly, I don't mean to set up a sharp dichotomy between "traditional" and "epistemic" varieties of antisemitism. One sees elements of each in the conduct of both Pillay and Kothari -- one could easily view Pillay as expressing not just mistrust but antagonism towards the (Jewish or Jewish-coded critics) whom she cavalierly smears as liars, and Kothari's claims about the "Jewish lobby's" outsized influence on social media obviously has epistemic implications about the validity of their discursive contributions to debates over Israel and Palestine. Nonetheless, this incident I think does a decent job of highlighting the distinctive nature of the epistemic strain. It is unfortunate, but not surprising, to see UN officials at the center of such a story. But nobody should be under any illusions that Turtle Bay or Geneva is the only location where it occurs.

UNHRC Releases Report on Rights Violations in Gaza "March of Return" Protests

The UNHRC has released the results of its investigation into alleged human rights violations that occurred during the "Great March of Return" on the Gaza/Israel border last year (see my contemporaneous post on use-of-force issues written at the time of the protests). It concludes that there is "reason to believe" that Israeli forces committed human rights violations related to the excessive use of lethal force against protesters. Pro-Israel NGOs, unsurprisingly, rejected the findings.

I read the report. And I have some quibbles with some of its conclusions, which I'll mention at the end. As has become usual in these cases, it was unable to take testimony from the Israeli side (because Israel refused to cooperate with the investigation, arguably with good reason). In general, I take a relatively dim view of the UNHRC, and I think it is fair to appropriately discount any of its findings simply based on the source. The UNHRC, as a body, really is structurally biased against Israel.

Still, at the end of the day? I read the report. And I think it's pretty fair. It does mention Palestinian rights violations (notably, the use of incendiary devices to torch the Israeli countryside, but also violent attacks on Israeli border guards). It expressly considers cases where Israeli soldiers resorted to lethal force in circumstances where there was an ongoing or imminent attack, and declines to find cause for a rights violation in those cases. Where someone is firing a rifle at Israeli soldiers, the Israelis are allowed to fire back.

But the big problem here is that the Rules of Engagement Israel put in force for dealing with the protests really were too loose. I agree with the commission that the March of Return cannot, in toto, be cast as a military operation -- it was primarily a civilian campaign, albeit one that at various times Hamas tried to infiltrate into a military one (this is one of my quibbles -- the report doesn't treat with sufficient seriousness the problem of Hamas' admixture of its military operations into civilian protests -- a decision which bears significant responsibility for putting the protesters at risk).

In such a circumstance, Israel is acting in a law enforcement capacity, and can only resort to lethal force in cases where there is an imminent threat to life or limb. "Imminent" threat, as the Commission correctly notes, is measured as a matter of "moments", not hours.

Yet the Israeli RoE was considerably more expansive -- it effectively authorized the use of deadly force as a riot dispersal technique, including targeting "main inciters", which was recklessly irresponsible and predictably would lead to the use of lethal force in inappropriate circumstances. Even assuming marchers breaching the fence could constitute an "imminent" threat, it does not warrant the use of deadly force against persons who are still a football field's length away.

The problems with the RoE are one of the reasons why I'm less (not un-) concerned that the commission wasn't able to get the Israeli "side" of the story. Yes, that might make a difference in assessing individual cases. But there isn't much serious dispute regarding what the RoE was, and it is reasonable to infer that an RoE which viewed riotous protests at the border as tantamount to an "imminent" threat would at least somewhat predictably lead to uses of lethal force that are indefensible under international law.

The common objection to reports like these is that they act to "second-guess" on-the-ground military decision-making in a hot zone. And in a sense, they do -- though, again, it seems wrong to characterize the entirety of the protests as "hot" in the relevant sense. The widely shared clips of violence occurring by protesters are, if not irrelevant, than certainly incomplete. In cases where protesters were violent, that can warrant the use of deadly force; but the existence of violence among protesters does not create a blanket authorization for firing live ammunition anywhere and anywhere. Again, this is the point of the "imminence" requirement: lethal force is justified in particular moments characterized by a particular threat; the justification of using lethal force in this spot at this moment does not transfer to any use of lethal force at any time during the broader protest. Indeed, the core of the problem is the proposed transitivity, which is what ends up getting you to Avigdor Liberman's "there are no naive people in Gaza" claim and sanctions anyone and everyone as a target.

But more broadly: the reason we have rules regarding laws of war and international humanitarian law is, in a sense, to do that "second-guessing". It is to judge conduct in precisely the sort of situations that occur here. To dismiss such judgments as second-guessing is to moot this entire arena of law. That simply cannot be right.

This broad endorsement of the report is not wholly unqualified. I mentioned one problem already -- the report in my view gives the short-shrift to the manner in which the intentional mixing of military or otherwise violent actors into the civilian protests played a role in creating dangerous conditions for the civilians. Likewise, the report doesn't seem to take much account of the obvious fact that bullets travel and sometimes miss their intended target -- it is too much to assume that any bullet that hits any civilian actor is necessarily aimed at that actor. While some of the incidents described in the report attempt to paint a reasonably full spatial picture of where the victim was in relation to other protesters (most importantly, those who were acting violently or in ways that otherwise could have warranted a lethal response), the authors were inconsistent on this score.

Yet, reading the report holistically and taking theses shortcomings into account, they do not ultimately negate the core conclusion -- that there are reasonable grounds to believe (which is not, it is worth noting, the same as "definitively proven") that Israeli forces -- likely as a result of decisions made regarding the rules of engagement -- violated international law regarding excessive use of lethal force against Gazan protesters.

I remarked in my post from last year that too many people who style themselves "pro-Israel" seem more concerned with calling the IDF "the most moral army in the world" than in it being such. To be a "moral army" requires actually adhering to certain rules and standards, and punishing people when they violate them. It's not simply a matter of assertion; there is no law of the metaphysical universe which makes it conceptually impossible for the Israeli army to commit rights violations. We figure out whether they did or did not by investigating the possibility seriously, and without predisposition to either a "guilty" or "innocent" verdict.

In terms of that project, it is indeed unfortunate that the UNHRC has shot its credibility to hell and back on the matter of Israel; it makes it easy to reflexively dismiss this report based on its provenance. But dismissal and then silence should not be an adequate response -- indeed, it is just as partial and biased as the UNHRC is (fairly) accused of being. If one does not trust the UNHRC investigation, the right call is to launch one whose partiality is less questionable. Either the results will confirm that Israeli forces fired only when there was an imminent risk of death or serious injury -- or they won't. We cannot prejudge that outcome based on what we hope the answer will be.

It's the Bad Law ... That You Just Didn't Pass

The UNHRC has added Israel to its list of countries which restrict the activities of human rights groups. The reason is a proposed law that restricts foreign funding to domestic NGOs. Now, I'm no fan of this law (though I don't know how it compares to other regulations countries have about international funding of domestic groups), indeed, I view it as another instance of waxing illiberalism in Israel's political sphere.

But there's a reason why "proposed" is in the other sentence: the law never actually passed the Knesset. Prime Minister Netanyahu ordered it frozen after it was determined that the law likely wouldn't pass muster with Israel's high court. So one would think happy ending, yes? Not according to UNHRC chieftain Navi Pillay:

“In Israel, the recently adopted Foreign Funding Law could have a major impact on human rights organizations, subjecting them to rigorous reporting requirements, forcing them to declare foreign financial support in all public communications, and threatening heavy penalties for non-compliance.”

Obviously, Pillay has a different definition of "recently adopted" than most people, who would presumably require the law to be, you know, adopted at all. But when the subject is the UN and the opportunity is to flambe Israel, there is no need to get hung up on such technicalities. It's repulsive.

Retaliatory Measures

The Israeli foreign ministry is contemplating various retaliatory measures against Turkey after the latter expelled the Israeli ambassador, cut military ties, and is threatening to provide military escort to any new flotilla seeking to break Israel's blockade of Gaza. It's typical Lieberman fare: pugnacious, probably counterproductive, and forcing the Prime Minister's office to distance itself. The main highlights are beginning cooperation with the PKK (a Kurdish terrorist organization working to establish an independent Kurdish state in Southeast Turkey), including potential weapons sales, and flooding the UN with complaints about Turkey's treatment of minorities (such as the Kurds).

I'm obviously not wild about supplying weapons to a recognized terrorist organization. But I will admit to finding ironically appealing sending a convey to southeast Turkey filled with Kurdish-language instruction books and other educational materials geared towards the Kurdish people. Totally non-violent "solidarity" measures, but I guarantee Turkey would flip out (Kurdish language and culture is heavily suppressed by the Turkish government). And hey, if we're talking about supporting national self-determination for local populations under the heel of another power, well, what's good for the goose....

As for the human rights complaints, both Israel and Turkey long have a habit of using such proclamations as proxies for diplomatic conflicts (see, e.g., declarations regarding the Armenia genocide). Still, it's not as if there aren't serious points of concern that deserve public airing: For example, the Turkish prime minister threatened to expel 100,000 undocumented ethnic Armenians if resolutions regarding said genocide were passed (ironic, no?).

On the other hand, there is no reason to think that UN human rights bodies will give Turkey anything but a clean bill of health no matter how serious its violations are. After all, countries in the UNHRC's good graces can get away with quite a bit: Sri Lanka earned laudations for its actions against the Tamils in the midst of killing up to 1,000 civilians a day. There is no reason to think that the UN holds any particular interest in holding Turkey accountable for wrongdoing, and it will be particularly resistant to doing so when it seen as acting on Israel's instigation, so it is not clear what any Israeli complaints would accomplish.

The UNHRC Gay Rights Resolution

The UNHRC passed today a South Africa-sponsored resolution supporting equal rights for all without respect to sexual orientation. The vote tally was 23-19, with three abstentions. I'm having trouble finding a precise listing of which countries voted in what way, but the line seems to be that most of the support came from Europe and the Americas (including the USA), while most of the opposition was concentrated in African and Islamic countries.

UN Watch quotes some excerpts from speeches by various UNHRC members -- South Africa apparently received criticism from other African states for its sponsorship of the resolution, which Nigeria asserted "90% of South Africans do not support". Mauritania wondered if this issue was really on par with such important issues as the rights of women, while Saudi Arabia -- currently facing widespread protests by women seeking the right to drive cars -- complained that it "is not acceptable and reasonable to impose views on other countries and that this is not only contrary to Sharia but also to all other monotheistic religions" (of course, many denominations of many monotheistic religions have no problem with gay equality).

As pleased as I am that the normally-repellent UNHRC managed to squeak past a worthwhile resolution, I have to ask why folks even care. In New York, there is a razor-thin vote coming up in the state Senate on whether to legalize gay marriage. That's an important vote, because the consequence will be the enactment of real rights for the gay and lesbian community.

Resolutions at the UNHRC don't do that. They don't have force of law, and they have no impact on anyone's rights or responsibilities. What they provide, at least nominally, is moral force. And moral force is only as powerful as the moral credibility of the body making the statement. This, the UNHRC lacks. And I see no reason to ascribe it any.

Why should the LGBT community hinge the moral credibility of their case on the beliefs of the UNHRC? Why should they care about the perspective of a body in which a significant minority believes their equality constitutes "contempt to human rights" (Nigeria) or that they "jeopardize the entire human rights framework" (Pakistan)? Where tangible rights are on the line, one has to deal with repugnant minorities who have such views (presumably, some of the nay votes in New York have a similar perspective to that forwarded by Nigeria and Pakistan). But if all we're talking about is moral force, what has the UNHRC done to deserve the right to speak on the question?

Don't get me wrong: I'm happy this resolution passed. It's a good thing when any body (however narrowly) can commit itself on the record to supporting the equal rights and human dignity of all persons. But in terms of marking some sort of milestone or important accomplishment -- I don't see it. I don't believe in ascribing to the UNHRC that sort of normative legitimacy -- a legitimacy it has yet to, and I doubt will ever, earn.

Syria Poised To Join the UNHRC?

They're in a good spot, as they are among the four candidates for four open slots in the Asia bloc (the other three are India, Indonesia, and the Philippines). It is, of course, possible that other candidates will emerge or that Syria's candidacy will otherwise be rejected. But I'm predicting a more Libya-like path -- election, then eventually suspension as what we all already know becomes too embarrassing to bear even for a body as deeply stained as the UN's human rights apparatus.

In related news, Syrian tanks are reportedly firing into the homes of sleeping families.

Another Goldstone Clue

Not to keep bragging, but I think this NYT article is yet another confirmation of everything I've been saying about Judge Goldstone and his motives from the get-go.

Goldstone Reassesses

The blogosphere is abuzz over Judge Richard Goldstone's reconsideration of his commission's report on Operation Cast Lead. Judge Goldstone, more or less, states that he's satisfied with the results of Israel's investigation into the accusations, that he no longer believes Israel can fairly be accused of targeting civilians as a matter of policy, and that he regrets that Israel did not cooperate with his commission's inquiry, as the evidence they have mustered would have substantially changed their conclusions. I had wondered what Judge Goldstone thought of Israel's ongoing investigations, and now we have our answers.

Jeffrey Goldberg calls this admission "as shocking as it is unexpected". I'm not sure I agree. I actually think it coheres pretty well to my read on Judge Goldstone as an arch-formalist. One of the things Judge Goldstone reemphasized in his reappraisal was that his investigation was not and was not meant to be "judicial" (in that it wasn't meant to offer definitive conclusions, only raise issues worthy of investigation). I observed that, technically true or not, Judge Goldstone was "the only person on the planet who hasn't taken the report as a definitive pronouncement of guilt and innocence." Ditto Judge Goldstone's clear disappointment that Hamas has not investigated the war crimes accusations against it, and the UNHRC's marked unwillingness to hold human rights violations against Israelis accountable. I remarked at the time that Judge Goldstone's surprise at these omissions is genuine if incredibly naive, and I think that's still accurate.

My line on Goldstone had always been that the problems in his report were structural, not the result of a malignant heart. It was Goldstone's determination to play a straight hand in a marked deck that was his undoing. Judge Goldstone was trying his level best, but there was no way to have a full and fair investigation -- no matter how diligent one is at crossing t's and dotting i's -- when the propagating party is the UNHRC and the investigation occurs within a context (the international legal community) that is shot through with bias and prejudice. There seems to be some belated realization by Judge Goldstone that this is true, but I fear it is for naught. Like his original report, his mea culpa is too legalistic to have much of an impact -- it is, shall we say, unlikely that the UN will accede to PM Netanyahu's demand that the original report be retracted in the wake of Judge Goldstone's recantation. We are, and always were, in the realm of politics, not law. Judge Goldstone tried as hard as he could to imagine that was not so, but there is no way to extract oneself in cases such as this. His colleagues in the system understood the game, and he got rolled.

I imagine some will question the reliability of Judge Goldstone's change of heart. We are, after all, dealing with the full weight and fury of the global Zionist monster -- Judge Goldstone could have simply finally cracked under the pressure. This strikes me as extremely unlikely. The Goldstone report had, frankly, fallen out of the news. It wasn't a story anymore, and the Jewish and pro-Israel community had moved on. This op-ed came out of the blue, and it is hard to imagine what leverage the Israel Lobby had over Judge Goldstone yesterday that outweighed the incredible fire he took in the immediate aftermath of the report's release. It's also difficult to imagine that Judge Goldstone's reputation or place in history will change all that much even with this op-ed. His legacy, for better or for worse, is tied to that report.

And even beyond what we think of Judge Goldstone, there is a larger sense in which this all doesn't matter. Nobody expects the folks who were Goldstone's greatest cheerleaders to reassess their evaluation of Israel's conduct. The people who excoriated may have an extra rhetorical arrow in their quiver, but they don't really need him either -- he's simply belatedly affirming the position they took all along. The world will spin on as normal. When the system is as badly broken as the UN's human rights apparatus is, it takes a far more herculean effort to see real change than what we see here.

Iran Drops UNHRC Bid

The Washington Post reports Iran has abandoned its bid for a seat on the UN Human Rights Council. This is good news, though the interesting question is "why?" If it's because they wanted to avoid a humiliating defeat in the Asia group, I would be most pleased.

Oh, Here We Go Again

Someone call the waaaaambulance. The UNHRC once again is throwing a hissy fit because not everyone treats it as God's gift to human rights (or Judge Goldstone as His messianic messenger himself). Honestly, I don't think I know of any substantial political body with as thin a skin as one finds on the UN Human Rights Council. Maybe it's due to the incredible dissonance of existing as a living mockery to the very idea of justice, fairness, and equality. That's got to do some serious psychological scarring.

It Could Be, But Probably Won't Be

The UNHRC is apparently set to consider resolutions relating to the "organ theft" charges recently leveled against Israel, upon the submission of a Libyan NGO. Now, obviously, simply making spurious accusations against Israel isn't grounds for contesting the accredition of an NGO body -- that treatment is reserved for Jews who don't display the proper degree of reverence towards a body that views them with the respect of a spit bucket. Likewise, the High Commissioner on human rights cannot be expected to review or screen the language of such NGO submissions -- that practice, too, seems restricted to Jewey-Jew organizations with their offensive Jew language.

But I keep on hoping -- maybe this will be the "contradiction-closing case". A phrase coined by Derrick Bell, it refers to a case by a generally prejudicial body that goes in favor of the party it spends most of its time subjugating, normally because the case is such an outrageous departure from generally norms of equity that even the subjugaters can't help but notice it. The decision is proof that the body is fair, the system is just, and that it rules "merely according to law" and facts. The credibility gained by the case then can be drawn upon as it goes back to its standard operating procedures of maintaining an oppressive sphere.

It won't be, though. Despite the UNHRC's demonstrated track record of being a one-track Israel-bashing machine, whose concern for human rights is 8,522 square miles wide and an inch deep, there has been little substantive pressure on them to modulate their stance even a teeny bit. I'm genuinely curious if there has ever been an anti-Israel resolution forwarded to the council that they've voted down. I doubt it. Maybe this will be the first. I doubt that too.

Broomball Roundup

They play with weak-sauce rules here at Chicago, but I'm just excited to retake the ice.

* * *

Early reports of a possible coup attempt in Niger.

Crazed South Carolina state Rep. wants to eliminate the use of US currency in his state.

Given that I don't drink at all, I found Alyssa Rosenberg's story of how she learned to drink surprisingly fascinating. Then again, she is just a really good writer.

BBC interviewee: One million Jews are secretly available to aid Mossad assassins.

Phoebe Maltz says she's too tired to give thoughts on the Wieseltier/Sullivan quasi-anti-Semitism throw-down, but even her exhausted contribution is pretty spot-on. Still, you should scope the older, longer version.

It must be tough being a news writer who can't even rely on he said/she said. Sometimes, one side is just wrong.

Whaling protesters as pirates?

This strikes me as pretty thin gruel in terms of a benefit for joining the UNHRC.

Israeli foreign ministry apologizes for snubbing J Street-linked American Congressman. This is yet another case of Deputy FM Danny Ayalon unilaterally embarrassing his country.

My Own Lyin' Eyes

There's a new controversy* brewing about a Goldstone report contributor, this one being Irish Col. (ret.) Desmond Travers.

Travers rejects the idea that Israel launched the offensive in Gaza on December 27, 2008, as an act of self-defense in response to Hamas rockets.

The Jerusalem center report says he bases this idea on a "fact" that he presents that in the month prior to start of the war, only "something like two" rockets that fell on Israel.

The report quotes an extensive interview with Travers in the Middle East Monitor, in which he also says that Hamas had sought "a continuation of the cease-fire" prior to Israel's offensive in Gaza.

Travers also rejects Israel Defense Forces photographs as proof that Hamas hid weapons in mosques during the conflict.

"I do not believe the photographs," Travers said, describing the IDF evidence as "spurious."

Now I'm going to confess something here. Whenever I'm shown intelligence photos demonstrating, for example, that the Cubans have Russian missiles, they don't look like anything to me. But I imagine that with intelligence training, what looks like grainy blocks is actually meaningful data, since the analysts draw conclusions pretty confidently from them (and the reveal of the photos is always considered quite the dramatic trump card). So I assume that unless Travers is alleging the photos are doctored, he's simply deciding that he doesn't like evidence that contradicts his pre-existing conclusions. It's a tough world when the facts are established by those who aren't interested in one side's iteration of them.

You might recall that, when pressed about the alleged bias in another panel member (Christine Chinkin), Judge Goldstone's response was that since the panel was a "fact-finding" commission, not a judicial inquiry, recusal was unnecessary. I noted at the time that Judge Goldstone seems to be the only person on the planet who continues to blithely assert that his panel wasn't making any assertions regarding guilt and innocence. As he put it, "if this was a court of law, there would have been nothing proven." Alas, it seems that Col. Travers is with the majority interpretation of what the panel did:

Travers also criticized Israel's past presence in Southern Lebanon, asserting that Israeli soldiers had "taken out and deliberately shot" Irish peacekeeping forces in the area.

He accused "Jewish lobbyists" of influencing British foreign policy in the Middle East and said that efforts to block the Goldstone reports findings have failed.

"The court of world opinion seems determined to see the report prevail," he said.

We'll skate on by yet another instance of "Zionist" slipping back into "Jewish" (I hate when Jews influence things. So much better when they're under the dominion of their superiors). A fact-finding probe, of course, does not "prevail" or not, particularly when it (in theory) is meant to begin, not end, the process. Once again, Judge Goldstone takes the lonely dissenting view, saying that if the allegations in his report are disproven, "I will rejoice."

And here we return to the problem. Judge Goldstone is a true believer in the system, surrounded by cynics. He didn't mind that his compatriots on the panel were "biased", because, he thought, the was nothing judicial going on. Everything he did was predicated off of taking the system at face value. His panel members are impartial and will evaluate evidence fairly. The world will take the report exactly as far as its technical mandate (fact-finding, not judicial), no further. Testimony received is without question truthful and unimpeachable. Refusal to give evidence means there is no countervailing evidence to be had.

His colleagues were wiser, or at least more attuned to reality. Col. Travers knew he wasn't participating in a "fact-finding commission". He knew that the report would be taken as a definitive pronouncement on guilt and innocence, and he knew that given the subjectivity of conflicting evidence and legitimate fears of bias leading to non-cooperation, he could write a report saying virtually anything he wanted while staying within the boundaries of the process. And so long as he colored inside the (infinitely malleable) lines, Judge Goldstone, he of great faith, would have no thought to protest.

* There is another allegation Col. Travers urged Hamas to demand more for the release of Cpl. Gilad Shalit. The passage cited for this is as follows:

Travers claims that the Palestinians should really demand that more prisoners be released for Shalit: “When the Palestinians sign up to, say, the release of Shalit for 2000 Palestinians, they degrade their own value system. They ought not to do that. But then no civilized country ought to detain 8000, is it 8000 Palestinians? Very nearly 9000.”

I'm not entirely sure what Travers is trying to say here, but it's not at all clear he means that Hamas should have demanded more for Shalit. If anything, I think he's arguing the opposite -- that the 2000:1 ratio implies that Palestinian prisoners are worth 1/2000 of an Israeli one. Then, of course, he pivots to attacking Israel for detaining the prisoners in the first place. In any event, since I don't think it is clear that Col. Travers made the claim alleged, I don't think its appropriate to attack him for it.

Another Brick

International law prof Julien Ku directed me to yet another critique of the Goldstone Commission, this one by Wachtell partner Trevor Norwitz (for what few non-law school friends I have left in the world, Wachtell is one of the most prestigious law firms in the world, bar none).

Maybe I've gotten my fix after the Halbertal piece, but, even though I found the criticism technically quite sound, it just didn't drive me that much. I did appreciate that the author both resisted the temptation to personally demonize Goldstone, while at the same time not let him off the hook for some severely problematic assumptions and extensions that, ultimately, lie on his head. (I hope I reached a similar balance).

Mr. Norwitz, like Professor Halbertal, like myself, have adopted a pretty robust consensus position that says Israel should investigate all credible allegations of war crimes and other improper activity, regardless of the problems in the Goldstone Commission. I wish that this position was being forwarded more aggressively in the court of public opinion, but it seems to have the advantage of being agreed to be everyone and the disadvantage of being implemented by no one.

Halbertal Reflects on Goldstone

A very, very good piece by Moshe Halbertal -- professor of Philosophy at Hebrew University as well as at NYU law school -- giving his thoughts on Cast Lead and the Goldstone commission. Would that everyone approach the issue with such thoughtfulness.

At the highest level, his position is the standard one held by myself and most fair-minded progressives: that the report had severe problems shot through it, and that this fact has precisely zero bearing on Israel's obligation to fully and credibly investigate all allegations of human rights violations (including several very serious ones).

But another point the article raises in pretty stark terms is the degree to which asymmetrical warfare tactics are, in part, organized around taking advantage of the terrain of international law just as much as they are about taking advantage of topographical terrain. Halbertal's account of how Hamas militants, clad (of course) in civilian gear, did not carry arms while moving from position to position (instead relying on arms caches awaiting their arrival is a great example (I have to admit, my first thought on reading that was: "clever!"). The goal is to exploit the blind spots of the current legal regime so as to render ones opponents helpless and give your own operative impunity (in a way that nearly completely subverts the goal of the legal system it is exploiting). This is the logical extension of lawfare -- if law and legal categories are weapons, then we should expect savvy parties to manipulate their conflict so as to maximize their impact.

And this goes back to another problem with the Goldstone commission, and, I honestly suspect, with Judge Goldstone himself. Judge Goldstone, I genuinely believe, is an honest, conscientious man who really saw himself as simply applying facts to law. The problem is that international law is simply too weak at this point for the sort of staid formalism Judge Goldstone exemplifies to be effective. International law is still mostly political -- it doesn't have much existence beyond the specific political desires of actors powerful within UN institutions. This explains, at least in part, why (as Mr. Halbertal noted) Judge Goldstone was able to give so little guidance as to what sort of behavior would have been legally required out of Israel: what sort of civilian : militant death ratio is legally acceptable, what sort of precautions satisfy the obligation to protect civilian lives, and so on and so forth. The doctrine is worse than unsettled -- it is mostly applied in an ad hoc manner based on the political system's preconceptions of bad things and good things (it really doesn't get much more specific than that).

Judge Goldstone, I've often thought, is like a very judicious, public-spirited, personally fair-minded person who volunteers to be the judge at the Scottsboro trial.* The instinct is equal parts admirable, naive, and egomaniacal. Admirable, because of the belief (which I think Judge Goldstone had) that what the situation really needed was for someone who wasn't infected by the endemic prejudice to step in and be a fair arbiter. Naive, because it drastically underestimates the degree to which the prejudice infects the entire system, and thus is perfectly complimentary with formal legal categories -- Jim Crow ate up and spat out formal constitutional doctrine with a near-careless ease (it took rather dramatic changes in how we viewed American law for institutional racism to be rooted out). Egomaniacal, because of the belief that one messianic person could effectively counter an entire system simply by playing by its own rules. Formalism, no matter how judiciously applied, only works when the surrounding system is just. When that quality isn't present, following the rules will do virtually nothing, because they mean virtually nothing.

I really think Judge Goldstone was surprised and dismayed that the UNHRC completely ignored his comments on Palestinian war crimes, just as he, God bless him, continues to assert that his inquiry wasn't "judicial", despite being the only person on the planet who hasn't taken the report as a definitive pronouncement of guilt and innocence. It's because he's coloring inside the lines, and he thinks that if he is absolutely committed to dotting every i and crossing every t, then all the biases and problems and unfairness and double-standards will melt away.

Again, it is partially admirable. But it's far more naive and dangerous, and it just doesn't exhibit a handle on what world he's actually playing in. As they say, the master's tools will never dismantle the master's house. If the system is corrupted from top to bottom, even the noblest paladin won't get anywhere from the inside.

* This article actually weakened that sentiment somewhat, because it presented decisions by Judge Goldstone that seemed like conscious injections of additional bias, rather than a mere unwillingness to transcend the straitjackets of the system imposed upon him.

Goldstone Says Gaza Op Legal?

In a debate with former Israeli UN ambassador Dore Gold, Judge Goldstone stated (in response to criticisms that his report neglected Israel's right to defend itself):

"Israel not only has the right to defend its citizens, but the duty to do so according to international law. The military operation is legal. In this context, the committee found that Hamas and other organizations had committed war crimes against civilians in southern Israel. The rockets terrorized women and children every day. This was mentioned in the report in detail," the judge argued.

Emphasis added. It's a little unclear, but Judge Goldstone has persistently sought to distinguish the jus ad bellum aspects of the conflict (the decision to go to war) from the jus in bellum aspects (how the war is prosecuted), claiming his mandate was only to investigate the latter. Of course, he is perhaps the only person who has held to that distinction in the ensuing debate over the controversy. I think the contours of how Goldstone's report was received would have changed dramatically if he had written: a) Israel unambiguously was within its rights to launch a military strike into Gaza in response to rocket attacks, and b) the manner in which the campaign was prosecuted at times amounted to war crimes. Part "b" of that formulation came through quite prominently, part "a" not at all.

But the passage above is still slightly opaque, so I don't want to say with total confidence that Judge Goldstone is endorsing the jus ad bellum legality of Cast Lead.

Non-Goldstone Report

Ha'aretz reports that Israel was already investigating several human rights allegations regarding Gaza prior to the Goldstone report, but now is leery about continuing lest it be seen as caving to international pressure:

While the IDF is opposed, in principle, to setting up a committee of inquiry into the allegations against Israel made in the Goldstone Report on the fighting in the Gaza Strip, the military advocate general, Brig. Gen. Avichai Mendelblit, has ordered investigations into a number of allegations, currently being carried out by the Military Police.

Mendelblit has ordered investigations into 12 incidents that were, even before the report, the focus of Military Police investigations or part of operational investigations. Two involved civilian deaths, based on Palestinian claims. In the 10 other incidents, Palestinians claimed their property had been destroyed. Coordination of the investigations is being handled by the chief of Military Police in the Southern Command, Lt. Col. Gil Mamon. Mendelblit is part of a team of senior legal experts the government established last week to formulate recommendations on dealing with the report. The findings are to serve as the backbone for a counter-Goldstone report that is expected to be ready in a month.

One of Mendelblit's arguments against creating a committee of inquiry following the Goldstone Report is that such a committee has never been set up as a result of external pressure, and says that surrendering to international pressure will constitute a dangerous precedent.

This is hardly a new problem. Our desire for formal international inquiries often conflicts with pragmatic considerations of what best will protect human rights on the ground. It's a delicate dance, particularly because its undoubtedly true that some amount of international pressure is likely a good thing, but too much and you start to see a backlash from the targeted nation.

I don't think anybody can really be that surprised that one of the net results of a UNHRC investigation was to make it near-impossible, politically speaking, for Israel to conduct a strong investigation of their own -- I honestly think it's less about it being "international pressure" per se and more about it being the UNHRC particularly, a body which Israel (rightfully) feels is entirely disrespectful of the rights of the Jewish state.

Does that mean that international investigations should be off limits? No. But there's a weighing that should be going on here -- between the need for international pressure and the need to account for pragmatic local political behavior -- and I don't think that it's actually being done, because there is little evidence that the policymakers at issue actually care about the on-the-ground effects of their actions on Israelis and Palestinians. Instead, the fingers on the scale press near-entirely on the side of isolating and humiliating Israel. It's like if America's policy towards Iran stopped being about whether they got nuclear weapons, and became solely focused on promoting the idea that Iran is evil and should be shamed (which, to be sure, seems to be a close approximation of what many conservatives want our Iran policy to be). That discourse always claims to be concerned about the human rights and non-proliferation issues, but it actually is quite willing to subordinate them on the altar of moral superiority. What should be a delicate balancing act between ideals and practices falls away, because we don't actually care about the "cash value" of the values we claim to be supporting.

Congress Passes Anti-Goldstone Commission Resolution

The final tally was 344 in favor to 36 opposed (22 "present"). Among the nays were three Republicans: Charles Boustany (LA), Geoff Davis (KY), and Ron Paul (TX), with two more GOPers voting present (Walter Jones (NC) and John Duncan (TN)). All the folks who have represented me in Congress (Chris Van Hollen (D-MD), John Kline (R-MN), and Bobby Rush (D-IL) voted aye (full roll call here).

I blogged about the resolution here, but since that time the resolution was altered mildly to clarify Judge Goldstone's efforts to get the mandate expanded, and his relative lack of success in doing so.

Congress' Goldstone Resolution

The text is here. J Street says it cannot support the resolution in its current form, wanting (a) an acknowledgment that Judge Goldstone sought and received a change in his investigation's mandate, and (b) a call for both Israel and Palestine to investigate allegations of human rights violations committed by their respective sides (via Matt).

I agree with the second point, and I think that it could be incorporated quite easily into the clause of the report lauding Israel for having "an independent judicial system with a robust investigatory capacity [which] has already launched numerous investigations, many of which remain ongoing, of Operation Cast Lead and individual incidents therein." I find it worth noting, again, the bizarre tension I've been observing whereby some pro-Israel supporters both laud Israel for having this independent investigative capacity and find it completely appalling that they actually be asked to use it.

By contrast, I find the first objection quite banal -- particularly given the fact that the UNHRC quite clearly didn't accord any true weight to the extra-legal "permission" Judge Goldstone received to superficially investigate Palestine. There is this sense that we should be nicer to the Goldstone report because Judge Goldstone doesn't personally harbor ill-will towards Israel and Jews (something that, admittedly, does distinguish him from much of the UNHRC). But the problem is that he was a cog in a broader biased machine -- his good intentions simply weren't enough to overcome the fog of prejudice which enveloped the entire system. Which is why, despite his section on Hamas rocket attacks, that organization hasn't come under any substantive pressure; which is why the UNHRC essentially ignored that section of the report entirely; which is why none of the ensuing discussion around his report has taken into account his caveats about "nothing having been proven" and his (no doubt sincere) anger over the UNHRC's adopting resolution. This isn't about whether Judge Goldstone is or isn't a decent person. This is about a corrupt system -- a tree that has been poisoned root to branch.

Consequently, while I do support amendment to clarify our desire that Israel (and Palestine) investigate all allegations of human rights violations, by and large, the thrust of the resolution (most of which J Street agrees with -- particularly the condemnation of the UNHRC for endemic bias against Israel) I think makes it worth supporting.

Investigation Team, Go!

B'Tselem, an Israeli human rights group, took a position held I think by many Jews and Israelis, arguing that the Goldstone commission was fatally flawed, but that nonetheless the Israeli government should launch an investigation into alleged misconduct during Operation Cast Lead. And it looks like Israel is, somewhat belatedly, setting up a review team to do just that (albeit not as extensive as many might like).

There's been a weird thread running through the debate about how Israel should respond to the Goldstone report. On the one hand, the Israeli government rightfully points to its record of investigations following human rights allegations as a showing that the commission wasn't necessary. On the other hand, many "pro-Israel" defenders seem adamant that Israel should not conduct an investigation here, sacrificing that very moral high ground. I understand the politics, and I understand how infuriating it must be to appear to be giving into the UNHRC -- this dynamic is one that Judge Goldstone should have taken into account but obviously didn't. Nonetheless, an investigation is the right thing to do -- and it would have been just as right if (in some fantastical land) the world's eye wasn't fixated on Israel.

In any event, hopefully this is a move that lets everyone save face. Israel conducts an investigation, thus once again demonstrating its commitment to rule of law. Goldstone defenders get to pat themselves on the back as being the precipitating cause of the investigation (whether that's true or not). The question of whether Israel should be referred to the ICC is taken off the table (as the Commission's only request of the investigated parties was that they conduct a credible internal investigation). Hopefully, some justice will be served and some truth will come out for any victims of improper or criminal behavior. Lemonade is served.

UPDATE: I just received an email from a member of B'tselem, wishing to clarify that they never labeled the Goldstone investigation "fatally flawed". "Although B'Tselem has indeed criticized aspects of the Goldstone report, it has also stated very clearly that this critique does not nullify the report or it's main recommendation: that Israel hold an independent, credible investigation into 'Cast Lead'." Their full position is outlined here.