Grieving Choices Not Made

The big diplomatic news of the week is the rush of longtime Israel-supporting countries -- Canada,  France, Australia, and the UK among them -- announcing their formal recognition of Palestine as a state. Israel and its supporters have sought to discredit this move as "rewarding" Hamas for its 10/7 terror initiative. To that, my semi-sardonic response has been to say that it is indeed very important that initiatives like these not be presented as "rewarding Hamas" -- they must instead be framed as "punishing Israel". Punishing Israel for its intransigence, for its hyper-aggressiveness, and for its brazen acts of sabotage towards the possibility of a two-state solution.

In all seriousness, I think that is a more plausible description of what is going on. These countries have no interest in elevating Hamas -- indeed, they've presented their recognition as in explicit opposition to Hamas (and the PA, for admittedly self-centered reasons, affirms the same). What has motivated them to action is a complete (and completely justified) collapse in any faith that Israel is operating in good faith -- that it harbors any serious commitment to securing a just peace with the Palestinians, that its campaign in Gaza is remotely compatible with the laws of war or even is (at the point) significantly motivated by a desire to see the hostages return, and that the far-right racist extremists in Netanyahu's government aren't entirely running the show. This collapse in confidence is reflected here too -- a dramatic shift in public opinion against Israel, not just amongst Democrats but (younger) Republicans as well, that threatens to leave Israel as a super-Sparta Hermit Kingdom.

I think there are a lot of Jews who look at these developments, look at how they are the bitter harvest of Israel's own choices, and think "I wish they would have chosen differently." Why did they have to go down this route? Why did they have to choose the path of the most bloodshed, the most extremism, the most intransigence, the most of everything awful?

And "choose" is critical here. Anyone who has spent time in Zionist circles is familiar with the old complaint that the world acts if the Palestinians lack agency -- as if none of the current situation is the result of their decisions, it's all just thrust upon them by the big bad Israel. Yet right now, I think it is the Israel apologists who are refusing to reckon with the concept of agency -- they act as if there was nothing (or only the most marginal tweaks) that Israel could have done differently post-10/7: it had to fight Hamas this way, it had to use starvation as a weapon of war, it had to kowtow to settler extremists launching pogroms, it had to publicly announce that blocking the formation of a free Palestinian state was the government's raison d'etre.

No. It did not have to do anything of these things. It chose them, and what we are seeing is the consequence of choices that could have been made differently.

"Choose" critical here. The very first post I wrote after 10/7 was titled "Ghouls, Failure, Fatalism, and Responsibility." The "fatalism" portion of that post read as follows.

Finally, there is almost no chance that the fallout from this assault has any consequence other than catastrophe for innocent Israelis and Palestinians alike. And yet, we must resist the sort of fatalism about that seeming inevitability that leads to an abdication of responsibility. Too many voices I've seen today have, in one way or another, expressed sentiments to the effect that the events of today and/or those to come are the inevitable consequence of history's weave. How could you expect Hamas wouldn't seize an opportunity to massacre Israeli civilians en masse? How could you expect Israel won't respond with zero regard for Palestinian life?

No. There is agency here. The word of the day I'm already growing to hate is "(un)provoked", as in an emergent discourse which wants to be absolutely sure we all know that whatever hideous crime Hamas just committed or whatever overwhelming military incursion Israel may be about to launch, there is a reason behind it -- it didn't just happen out of air. Which -- no kidding. In the context of a conflict that's resulted in a half dozen international wars in the space of less than century, nothing is ever "unprovoked". But that doesn't absolve anyone of agency. Hamas made a choice to launch this attack -- a brutal, violent, targeted assault on a civilian population whose only tactical objective was the sowing of terror. They are not the passive receptacles of historical forces beyond their ken. And Israel's choices too (both those that preceded today's events and those that will follow) are choices -- they are not the inevitable consequence of some immutable historical arc.

And what I want to say right now is, it's okay to grieve the choices not made. One need not and one should not indulge in the fatalism of those who said that this was all inevitable -- a fatalism that is ultimately identical regardless of whether it speaks in critical or exculpatory language. In fact, I feel incandescent rage towards those who portray any of this as an inevitability -- that the bloodshed and the massacres and the abuses and the torture and the kidnappings had to happen. They did not have to happen, people chose for them to happen, and different choices could have and should have been made. It is okay to grieve the choices not made.

It is okay to grieve the choices not made. But one still has to acknowledge the choices that were made. Israel made choices that caused it to lose the confidence of erstwhile stalwart defenders, that made large swaths of Americans view it as foe rather than friend, that made not just the "usual suspect" critics but very sober observers take seriously the most serious and severe charges against it as a brutalizer, ethnic cleanser, even genocidaire. We can wish that it made different choices. But it didn't, and for all our grief we must still live in the world that was made by the choices that were made.

A Question About Extradition

Hypothetical question:

Suppose a U.S. citizen kills the citizen of another country on the high seas. Suppose further that the American judicial system refuses to impose legal liability on the citizen (e.g., because they conclude his actions weren't a crime, or they find some immunity doctrine bars the prosecution). The victim's country, by contrast, does want to prosecute.

Can the United States extradite the citizen to the other nation as a way of getting around the functional immunity provided by our own courts? (Does the "high seas" part of the hypothetical matter? What if the foreign national was killed or injured on U.S. soil?).

Purely a hypothetical question, of course.

Faithless in Gaza

The other day I was enmeshed in a Facebook thread, as one does, where a colleague was complaining about a post that equally condemned the Capital Jewish Museum shooting by a pro-Palestinian terrorist and the bombing of family homes by the IDF (the sin of "equating", not to be confused with the sin of "one-sided"). The argument was a familiar one: the DC shooter was intentionally seeking to murder civilians (true), while the killing of Palestinian families is an "undesired", tragic byproduct of fighting an urban counterinsurgency.

My response to this argument was not to contest it, exactly. It was to ask my colleague a more basic question: what would falsify his belief? He believes that, for Israel, the deaths of Palestinian civilians are undesired. What evidence would suffice so that he would no longer believe that?

He wouldn't answer.

To be sure, he gave an answer -- but it was just more arguments for why it was still correct to think that these deaths were "undesired". Pressed again to say, okay, but what evidence would make you think otherwise, and I was met with silence.*

That was when it was clear the issue wasn't one of belief, but of dogmatic faith. The bottom line -- "Israel does not desire civilian deaths" -- was written in stone. Everything above that could and would be erased and rewritten to cohere to the bottom line. The "what would falsify" question was impossible to answer, because he knew deep down that if he committed to any non-ludicrous answer, there was a real chance his criteria would be met, and then what would he do?

This does not work. I am familiar with the arguments why the spiraling death toll in Gaza does not mean that Israel "desires" those deaths. I don't find them especially compelling anymore,** but I'm familiar with them. But one argument that has no purchase is the pure tautology: "these civilian deaths are undesired because Israel does not desire civilian deaths". That boils down to rejecting the claim because accepting it would make you feel sad. It does not work.

Nir Hasson had a powerful column the other day about how much of the Israeli media has responded to the IDF killing nine Palestinian children. The media is obsessed with every fuzzy detail or misplaced accent, every AI-generated image or overwrought recharacterization -- but all in order to kick dust around the acknowledged truth that the IDF did kill those children. It is a mirror-image of 10/7-denialism, and, as one expert observes, it is in its perverted way a form of moral self-policing:

"Denying the atrocities that your side has committed is an attempt to maintain your humanity," [Dr. Assaf David, of the Forum for Regional Thinking and the Van Leer Institute] explains. "When you say, 'There are things that my side cannot do,' it is actually a statement saying that I cannot justify these things. It's true that it's a lie and that we do do these things, but denial is trying to set a moral standard."

Denial and justification go hand-in-hand. If it was unjustified then it didn't happen, and if it happened it was justified. Flit back and forth between those positions, and one can keep the faith indefinitely.

But it doesn't work. As one side of the fulcrum grows increasingly untenable, unbearable pressure grows on the other. Here is where one starts to see either absurd exercises in denialism (most 10/7 victims were gunned down by Israel; the images of Gaza destruction are "Pallywood" concoctions) or sickening excursions into justifications (the Bibas children would have grown up to be monsters anyway; Gaza's population are tantamount to Nazi collaborators). Such maneuvers are soul-destroying, but they are inevitable when one's dogmatic faith matters more than truth.

So to my pro-Israel friends, this is my challenge to you. If you still believe that Israel is only acting in the interests of self-defense, that its overall policy and practice is one that provides Palestinian civilians with the protections they are due under international law and as human beings, that the scenes of death and destruction are not "desired" but a regrettable byproduct of the inevitabilities of urban warfare against a terrorist entity like Hamas, I won't argue with you. I'll simply ask you to ask yourself, earnestly and without flinching, what would cause you to think otherwise. Commit to something, now, so that if the evidence does come to pass you don't rationalize it away later.

And if you can't bring yourself to do that simple thing, ask yourself what that really means about the status of your faith.

* The closest he did come to an answer was by citing to civilian:combatant casualty ratios which, he said, were lower in the Gaza campaign compared to other analogous counterinsurgencies (e.g., the anti-ISIS campaign in Mosul, which he said had a ratio of 2.5:1). The Gaza ratio, he said, was closer to 1.5:1 or 1.2:1; so if the Mosul campaign wasn't one of desired civilian death, neither was Gaza. But when I pressed him as to what ratio would flip that intuition (particularly given that the 10/7 ratio was slightly worse than 2:1), he refused to commit to a number -- I suspect because he was not as confident in that 1.2 - 1.5:1 ratio as he made himself out to be and knew that if he, say, matched the 10/7 2:1 figure, he might end up being put to the proof (for my part, I've seen the 1.2 and 1.5:1 ratios cited but I've also seen much worse estimates pegging the ratio at closer to 4:1). The cynic, I suggested, might suspect that the only number he'd commit to is .5 higher than whatever ends up being the real number.

** My view is that the prevailing outlook in both the IDF and the Israeli political establishment is, at best, utter indifference to Palestinian civilian life. To the extent Palestinians civilian safety poses any impediment to a military or political objective -- which always centered around "keeping Bibi in power", and which now includes "conquering" Gaza to boot -- that interest is given virtually zero weight. As the value of children's lives approaches zero, the number of children one can justify killing to get at one Hamas operative (or keep Bibi out of prison one more day) approaches infinity.

Among the bits of evidence that buttresses that view are the spiraling death tally itself (and the individual instances of horrifying death and destruction that are virtually impossible to justify), the regular statements by top-level Israeli officials evincing criminal intentions towards the Palestinian people, the credible reports that the IDF has greatly relaxed its operational controls previously meant to assure adherence to rules of distinction and proportionality in favor of establishing effective "free-fire" zones, and the prevalence of deeply racist attitudes towards Arabs and Palestinians that polling suggests are present in Israel's military-aged populations. 

There may be individual units or actors holding themselves to higher standards; there also are no doubt those holding themselves to a lower one where the death and destruction is itself a desired and terminal end. And none of this is incompatible with the belief that Hamas also is utterly indifferent to the wellbeing of the Palestinian population under its de facto rule, that it operates in civilian areas in a manner designed to further imperil the non-combatant population, and is effectively holding Gaza's population hostage in service of a crude desire to retain power. But in any case, it is wrong to say the deaths Israel inflicts on innocent Palestinians are "undesired", as that implies some level of care and concern for which there is little evidence of.

Justice Jackson on "Giving Up" in the Face of Tyranny

When I teach the Steel Seizure Case, the Supreme Court's seminal decision on domestic executive power during wartime, I tell my students that while Justice Black may have written the lead opinion, it's Justice Jackson's concurrence that they really need to study. I also tell them that while being a Supreme Court Justice is more than enough to earn one's Wikipedia page, Justice Jackson has another entry in the annals of history: lead prosecutor during the Nuremberg War Crimes trials following World War II. It was evident, I say, that Justice Jackson had this experience in mind when considering the question of permitting runaway executive power justified on the basis of a wartime "emergency."

With that background in place, I draw my students' attention to how Justice Jackson concludes his opinion; in particular, his recognition of the potential futility of the judicial branch trying to stand alone against a truly unbounded executive claiming emergency powers, and why that potential failure should not license judges to simply accept the ascendance of a tyrant:

I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems.... We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is "leave to live by no man's leave, underneath the law"—to be governed by those impersonal forces which we call law.... The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

The other day, J. Michael Luttig -- former Fourth Circuit Judge and conservative darling turned sharp Trump critic -- published an essay in the New York Times insisting that Trump's war on the judiciary "won't end well for Trump." To this, Josh Blackman unsurprisingly argued the opposite, suggesting it is the courts that will lose this battle and that they should bend the knee to Trump and spare themselves the inevitable humiliation.

For my part, I don't know who will win this showdown (if a showdown there is to be). History does not inspire unalloyed confidence in either direction. 

But I do know that the courts must not surrender in advance.

Justice Jackson was right: it may be that the institutions that undergird our democratic experiment are destined to pass away. But the courts must be the last, not the first, to give them up.

Blame To Share

Just the other day, I was rejoicing at the news that one of the hostages -- Qaid Farhan Al-Qaid -- had been redeemed from Hamas captivity.

Today, I mourned the news that at least six more hostages, including Israeli-American Hersh Goldberg-Polin, were found dead -- reportedly executed by Hamas moments before their rescue.

First and foremost, responsibility for these deaths falls on the heads of those who kidnapped and murdered them. Hamas has agency, and this is how it has chosen to exercise it.

But past that, there is plenty of blame to share.

Blame falls in part on Bibi Netanyahu and his blood-soaked government, who have displayed reckless disregard for the lives of Israeli hostages in order to prolong their ruinous bombardment of Gaza and potentially stave off their political reckoning for a little while longer.

Blame falls in part on those who've cheer-led a never-ending Israeli assault on Gaza, taking the mantra of "Bring Them Home" -- in Israel, a plea to concentrate on securing the well-being of the hostages -- and converting it into a chant for a war of indefinite duration with no plan of exit.

Blame falls in part on those who pronounced themselves "exhilarated" by the "great victory" of October 7 and have made clear their desire to see it happen again, and again, and again, at every chance and opportunity, regardless of the costs it exacts on Israeli and Palestinian innocents alike.

There's blame enough to go around, and one would be tempted to say that those who share the blame deserve one another.

But more often than not, it is not they who reap the consequences of their reckless bloodlust. It is innocents, countless innocents, Israeli and Palestinian alike, of whom Goldberg-Polin is only the most recent.

May his, and their, memory be a blessing.

See No IDF Evil

I'm in the throes of grading and I'm traveling for most of the period from now through New Year's. But I did want to quickly (for me; it's all relative) speak a bit about the way the American Jewish community is adopting a "see no evil" approach to IDF activities in the Gaza Strip (and beyond).

There are plenty of reports of IDF soldiers targeting non-belligerents. The Latin Patriarchate of Jerusalem just accused IDF snipers of killing two women sheltering in a convent "in cold blood". Reuters claims IDF tank fire deliberately targeted its journalists in circumstances where there were no nearby belligerents. MSF likewise claims Israeli forces deliberately targeted its medical personnel (I remember this one because MSF initially did not accuse any particular party of responsibility, which gives credence to the notion that it was not reflexively lobbing out an allegation but rather actually engaged in some measure of investigation). One could go on.

One thing that often isn't part of these conversations is the catastrophically high levels of overt racism that exist towards Arabs in the young (which is to say, military-age) Israeli population. If roughly a third of population from which Israel is drawing its soldiers endorses things like "stripping Arab Israelis of their citizenship" and otherwise endorsing hate against Arabs, it would be stunning if we didn't see significant instances of at the very least indifference towards protecting Arab civilian life, if not outright infliction of war crimes. That'd be true in all circumstances, but particularly in the context of this conflict and the brutal Hamas massacre that precipitated it. Meanwhile, David Ignatius reports what many have seen, which is that soldiers drawn from the more radical parts of the settlement project basically view their IDF service and their status a price tag raiders as more-or-less interchangeable. Given all that, the denialism that IDF forces likely are in a non-trivial number of cases either deliberately attacking protected persons, or at the very least not paying due heed to Palestinian life is absolutely incredible.

One place one "pro-Israel" American Jews could retreat to would be to concede abuses may be occurring, but say that they (a) are not policy and (b) should be investigated and punished as appropriate. The first part is likely true (or true-ish; whether the rules of engagement are properly respecting the legal boundaries about proportionality and distinction is an open question). The second part causes problems. Even before the current conflict, it was increasingly apparent that potential war crimes that occur in the midst of combat operations will never be significantly investigated or punished by the Israeli government. Just convicting and then commuting the sentence of Elor Azaria almost ripped the country apart; the current government is full of zealots one whose general approach to vigilante Jewish violence targeting Arabs is to propose giving the perpetrators medals. Nobody actually expects significant or serious Israeli investigations into alleged war crimes committed by its soldiers.

But accepting that IDF soldiers likely are, in non-trivial numbers of cases, engaging in criminal conduct towards Palestinians during combat operations would put into stark relief the paucity of actual investigation and punishment, at which point it'd be virtually impossible to defend the Israeli government's conduct. Far easier to take advantage of the fog of war to cover one's eyes to the primary instances of abuse. That such denialism relies on almost impossibly optimistic presuppositions about the IDF's professionalism and its putative status -- more of a slogan than an empirically-testable proposition -- as "the most moral army in the world" is besides the point.

The Trouble with Displaced Anger

In the wake of October 7, one development in public discourse that I do think genuinely shocked a large portion of the Jewish and Israeli community was just how intense the anger that quickly coalesced targeting Israel for its response to Hamas' massacre was. Jews and pro-Israel advocates are used to rallies and marches which assail the nation any time it engages in military action of any capacity in the Palestinian territories. But this felt different -- expelled ambassadors, "genocide" and "Nazi" allegations being thrown out with abandon, public doubling-down on the presentation of Israel as naught but a European settler imposition whose decisions could only be attributed to neo-colonialist bloodlust -- all occurring within days of Israel being the victim of one of the more sickening displays of mass-scale terrorist brutality that's been witnessed in recent years. 

From the vantage of folks in sympathy with Israel, this was stunning: Israel endures what is probably the single worst terrorist atrocity in its history -- possibly the single bloodiest incident of anti-Jewish violence since the Holocaust -- and the result was a global community that within the space of days was breaking new records in levels of fury at Israel. What could explain this?

I have a hypothesis that can explain part of it. But before I share it, I want to return to a blog post I wrote in 2019 titled "The Trouble with Jewish Anger". Obviously, anger has always been a part of Jewish (and non-Jewish) political life, but in 2019 it seemed to be consuming our community in a way that felt genuinely different in kind rather than degree. What was motivating this anger? 

In my post, I gave a long bulleted list of causes, most of which were various ways that non-Jews were mistreating Jews in fashions that obviously could and would legitimately prompt Jewish resentment. Included among these, of course, was ways in which left-wing discourses about Israel often were used to degrade, denigrate, and dismiss Jews both in Israel and in the diaspora. But at the end of my list, I added one final bullet point which I knew would be controversial but which I felt needed to be said:

And, I think, we're angry that the Israeli government has been racing off to the right, busily making some -- some -- arguments that once were outlandish now plausible, and putting us in increasingly difficult positions. We're angry that we've been basically powerless to stop this decay of liberal democracy in Israel, we're angry that a community and a place that we care deeply about seems not to care about us in return and is mutating into something unrecognizable to us, and we're displacing that anger a bit.

This, of course, was a very fraught thing to say. Nobody likes being challenged in their anger, and they like it still less when the argument is that their anger at others is actually displaced internal frustration.  People could and did rail against this passage as outrageous -- as if the litany of perfectly good reasons for Jews to be angry weren't enough to explain why Jews are angry, as if legitimate Jewish anger over real antisemitism in any way could be said to be cut with displaced frustration over illiberalism and misconduct emanating from the Jewish state.

It was a controversial and fraught thing to say. Nonetheless, I stood by it then and stand by it now. There absolutely were many valid things for Jews to be angry about in terms of how others were treating Jews. But some -- some -- of the anger was displacement of our own frustrations, of being forced to reckon with certain things we'd been able to previously dismiss as implausible transforming into plausibilities. It's legitimately infuriating to be taunted as a Jew that the state you've held close to your heart since childhood is a fascist enterprise, and that legitimate fury is not quenched but exacerbated when the Israeli government undertakes actions that are legitimately labeled as fascist. It's "worst person you know makes legitimate point" on steroids. And one way of resolving that dissonance is to double-down on the anger; restoring a fractured unity where the torment we feel is solely caused by the tormenters we already knew; exploiting the fact that the tormenters we already knew are in fact giving us plenty to be legitimately angry about.

With all that in mind, we can return to the anger that's greeted Israel's campaign in Gaza following October 7. Once again, there is much one can legitimately be angry about. First and foremost, the surging death toll amongst the Palestinian civilian population is heart-wrenching. And even though the Israeli military may not be "targeting" civilians per se, it does not seem to be exhibiting much more than an attitude of cavalier indifference to the lives the Palestinian civilian population. Palestinian life is barely if at all part of the military calculus; if Israel isn't going out of its way to kill as many Palestinians as possible (the death toll, horrible as it is, would look completely different if that were the case), it certainly doesn't appear to be going much out of its way to avoid killing wherever it poses even a mild obstacle to a plausible military objective. 

Beyond that, the unprecedented presence of the far-right in the Israeli government (partially but not wholly sidelined via the new "military cabinet"), some of whom can barely contain their thirst to see Palestinians expelled and/or murdered in both Gaza and the West Bank, makes certain possibilities that might previously have unthinkable into terrifyingly live possibilities. Indeed, the very brutality of the October 7 attacks makes the prospect of genuine retaliation in kind terrifyingly real -- everyone can at some level recognize how an atrocity of that magnitude generates a risk of an unstoppable cascade of recrimination. Mixing in the full scope of the October 7 attack together with an Israeli government which already was predisposed to dehumanizing Palestinians, and one has a cocktail that feels ripe for a wave of atrocities that make even the current displays feel tame in comparison.

None of that should be discounted. They are real and valid bases for anger (and fear, and a host of other emotions). But much as I said about Jewish anger in 2019, I will also assert that part -- part -- of the story is a bit of displacement. The attacks on October 7 made some arguments that, at least to pro-Palestinian activists, had seemed outlandish now plausible. Positions or narratives that previously could be easily dismissed as propaganda or apologias were shown in the most gruesome fashion imaginable to have more than a grain of truth behind them. And for persons whose personal identities were deeply bound up in denying the plausibility of such positions and narratives, the cold shock of October 7 represents a bona fide crisis.

Even while October 7 was still happening, I observed a tranche of commentators whose main reaction was "annoyance" that events were forcing them to empathize with Israelis. These weren't, to be clear, people who were celebrating or even justifying Hamas' massacres. They recognized the atrocities for what they were. But nonetheless, they clearly found it ... unpleasant ... to do so. These were people who treated Hamas like roguish committee of resistance fighters whose rhetoric sometimes maybe was a bit too florid for normie ears but were ultimately fighting for Palestinian liberation, who viewed PIJ rockets as glorified sparklers, who had long rolled their eyes at the notion that Israel and its powerful army could ever have true security interests vis-a-vis the Gaza Strip, who were confident that any contention of significant antisemitism amongst Palestine solidarity activists was the desperate defamation of Hasbarist shills trying to silence any and all forms of pro-Palestinian political advocacy.

Now, those who had comfortably held the above beliefs were being smacked in the face with the reality that some -- some -- of the things Israelis and Zionists had been saying that they had previously dismissed with a wave were, in fact, legitimate. The claims about Hamas' depravity were not just warmongering propaganda -- Hamas really was that brutal in terms of its approach to Israeli (and Palestinian!) life. The claims that Israel had legitimate security needs vis-a-vis Gaza were not just an excuse for endless repression -- there really were bad men on the other side of the fence who were actively plotting to murder Israeli men, women, and children. The claims about how "pro-Palestinian" protesters promoted and engaged in antisemitism were not just efforts to smear the left -- there really were non-trivial elements of that community who were making no bones about their glee at the prospect of dead and fleeing Jews, and who professed their fondest wish that they will soon see more. The worst people they knew were, it turns out, making legitimate points. And they were furious about it. They were furious that, in this moment, the most prominent flagbearers of "resistance," of "anti-Zionism", of "fighting for a free Palestine", or what have you, were in fact behaving exactly as their most hated enemies asserted they would.

How does one handle that fury, fury that is in the broadest sense inwardly directed? Again, one easy way of dealing with it is to sublimate it into all the other outward things one can (to reiterate once more) legitimately be angry at. The early statements holding Israel responsible for Hamas' massacres were a crude form of this -- they displace the anger that Hamas behaved the way that it did and transport it over to the more congenial subject of Israel. The seemingly endless upward spiral of rhetorical oneupsmanship in how to characterize Israel's Gaza campaign -- "genocide", "textbook genocide", "Nazism"; each term striving to outdo its predecessor in its expression of incandescent rage -- is another. Expanding the bubble of fury ever-outward is a way of making one particular (and particularly uncomfortable) iteration of anger pale in significance. 

It turns out that, rather than acting to generate greater understanding or sympathy, paradoxically, rage and frustration at Hamas for its awful actions becomes a catalyst that intensifies the anger at Israel (anger that, again, is in large part rooted in Israel's own terrible conduct). Indeed, just as (at some level) Israel's increasingly indefensible forays into repressive fascism make it more essential to the mental wellbeing of the Zionists that they hate the anti-Zionists, so too does Hamas' striking punctuation of murderous terror make it more essential to the mental wellbeing of the anti-Zionists that they hate the Zionists. The (displaced) anger is the means of metabolizing an otherwise staggering threat to one's own identity and self-image. And how lucky for each that the prevalence of real Israeli injustices towards Palestinians; and real pro-Palestinian antisemitism towards Jews; provides such an available landing spot for that anger to be displaced to.

One more illustration which really is what crystallized this entire thought-line. A community leader in San Diego, Lallia Allali, was removed from a teaching position at the University of San Diego after sharing the below image, a Star of David acting as a buzzsaw decapitating Palestinian babies.

The visual motif of beheaded babies is, I think, no accident. Beheaded babies quickly became one of the symbolic tropes of the October 7 atrocities. Initially, it was one of the earliest claims used by pro-Israel commentators to establish the pure sadism and brutality of Hamas' actions -- that it wasn't "just another flare-up". Shortly thereafter, as initial reports proved unable to be immediately confirmed, it was for a while held up by anti-Israel commentators as a symbol of Israeli propaganda -- a deliberate lie used to unjustly discredit Palestinian resistance via lurid and supposedly implausible tales of utter depravity, and a cautionary tale about trusting those dastardly Israelis and giving succor to the fictitious slanders they're spinning to justify their own bloodlust. And then, of course, it turned out that the claims were true -- Hamas was in fact that unimaginably cruel and sadistic in its actions, in ways that even the most hard-bitten supporter of "the resistance" found difficult to stomach. The fury of being accused of siding with those who beheaded babies is not quenched but exacerbated when it turns out that "the resistance" really was going out and beheading babies.

In this context, Allali's cartoon -- the use of that motif, but turned around -- reads as an effort to sublimate the public disgust over what Hamas did and displace it onto Israeli actors. It's a way of taking the anger at what Hamas did and using it to further fuel anger at what Israel did. I don't know Allali, and some no doubt will claim I'm giving her too much credit (note that this account does assume she did feel, at some level, revulsion at what Hamas did). But taken on the whole, I think something like what I'm talking about is partially at work here.

I don't expect this post to generate any public acknowledgments of "yeah, that's me". In 2023 as in 2019, nobody likes being told to tamp down on their anger; still less when they really do have very valid and legitimate things to be angry about. And yet maybe, in private, some people might have a ping of recognition in what I'm saying here. I think that happened in 2019, and maybe it can happen in 2023 as well. And if you do feel that uncomfortable pang of recognition, please know there's no treason to it: It doesn't mean there isn't much to legitimately be angry at; it doesn't mean here conceding that the pro-Israel commentariat was right all along (in 2019, my thesis was likewise not "actually, what you're mad about is that the Corbynistas are right"). It just means that, just as many Jews (and non-Jews) have had to and still need to reckon honestly and directly with how Israel's own conduct disturbs some close-clung beliefs about Israel, Palestine, Zionism, and anti-Zionism many non-Jews (and Jews) may need to grapple honestly and directly with how the conduct of Hamas and its backers disturb some other close-clung beliefs about Israel, Palestine, Zionism, and anti-Zionism. It's not an easy ask; it's far easier to displace it away. But I do think we're stronger for if we stop avoiding it.

What Will You Say "No" To?

We are still processing the fallout of the past week's brutal assault by Hamas on southern Israel, a vicious attack whose only tactical objection was the infliction of terror and death on a civilian population. At the moment, it appears that Israel has reestablished control over most if not all of its territory, but the situation remains fluid and the military and government response remains shockingly disorganized. We also don't know yet exactly how Israel plans to respond to Hamas' attack, but few seem to harbor hopes for anything that could be remotely characterized as positive.

Right now, it seems, we sit in the relative calm before -- or more accurately, between -- the storm. And so right now, those of us who rightfully are aghast at Hamas' wanton murder of Israeli civilians, and who've pledged to stand with Israel as a result, must force ourselves to think through a very difficult thought:

What will we say "no" to?

What form of Israeli retaliation or response to Hamas' sadistic campaign of slaughter we will commit to saying we won't support? This is not a roundabout way of saying Israel is not entitled to respond at all; a military response here is warranted and justified. But warranted and justified military responses still carry limits, and it's important to be clear about what those limits are even in the wake of an unimaginable atrocity.

Indeed, I say to those standing with Israel that we need to think about this right now because we just witnessed in real-time a catastrophic failure to grapple seriously with this question on the part of those who've pledge to stand with Palestinians and Palestine. Suddenly forced to decide whether, in the wake of occupation and besiegement, a Palestinian response of "a systemic campaign of house-to-house kidnappings, rapes, and executions" is a valid one, we saw far, far too many individuals unable to say "no" (or at least, say it with any level of decisiveness). This failure stems directly from the tempting broth that assures us that, if the provocation is severe enough and the injury severe enough, no amount of "response" could ever be disproportionate. And so we see that, if you refuse to let yourself think that anything could be "too far", there's no end to the depths of hell you may find yourself apologizing for.

For example, today the Israeli defense minister announced that one response Israel was committing to vis-a-vis Hamas was a "complete siege" upon the Gaza Strip, including a blockade on the delivery of food. Starvation of civilian populations is expressly forbidden as a violation of the laws of war. We can  consequently expect to hear, very shortly, calls from a variety of sources -- perhaps even the U.S. government -- that contravene Israel's announced policy of "complete siege", and insist that Israel cannot be permitted to block the entry of food, water, and medical supplies into the Gaza Strip. And we already know exactly one form of response that will be leveled at such calls: 

"How dare you tell Israel how it can respond to the unspeakable atrocity Hamas just committed? Hamas should have thought about food security in Gaza before it decided to slaughter Israeli civilians en masse! It's up to Hamas to free the hostages and submit to justice for their crimes; until they do that, any civilian deaths brought upon by Israel's blockade are on their heads, not ours."

There will, in short, be immeasurable pressure brought to bear to silence anyone who says "this is too much"; the waving of the bloody shirt of countless dead, dismembered, and abducted Israeli children and daring anyone to stare that bloodshed in the face and say "this is too much" in response.

Which is why it is so important to commit in advance to what we'll say in the thick of that inevitable discourse. If the Biden administration does step out and try to say "this choice -- not every choice, but this choice -- is too far", what will we say in the face of the inevitable backlash? How will navigate the hue and cry of those who are furious -- furious -- that anyone could have the temerity of telling Israel it is going too far? But the truth is that if your answer is to say "I'm sorry, but in this moment, at this time, in this situation, I cannot bring myself to tell Israel what it can and cannot do" -- then you've committed yourself to the same catastrophic failure we saw just days ago of those who could not, in the midst of sickening massacres, bring themselves to tell Palestinians what they could and could not do. It is the same failure of those who could not bring themselves to oppose Japanese internment after Pearl Harbor; the same as those who could not stand up for the rights of Muslims to build Mosques in New York after 9/11. No matter what flag you fly or how you think of yourself, you are cut from identical cloth.

The picture above is of Jacob Argamani. His daughter, Noa, was among those abducted by Hamas militants. Her kidnapping was broadcast, and even the description of it is sickening beyond words. These are the words Jacob spoke the other day, as her daughter's whereabouts remain unknown:

Let us make peace with our neighbors, in any way possible. I want there to be peace; I want my daughter to come back. Enough with the wars. They too have casualties, they too have captives, and they have mothers who weep. We are two peoples to one Father. Let’s make real peace.

If he can say it, then we can say it. But we have to commit to it now.

The PA Has All the Leverage When It Comes To Investigating Shireen Abu Aqleh's Death

Earlier this week, Shireen Abu Aqleh, a highly respected Palestinian journalist, was killed during an Israeli raid in the West Bank. Eyewitnesses contend that Israeli soldiers shot her, and the bulk of the evidence points in that direction, though Israel maintains it has not yet been conclusively established who fired the bullet. Israel has asked the PA to conduct a joint inquiry into Abu Aqleh's death, but the PA has thus far refused -- preferring to conduct its own investigation and communicate the results to the US and Qatar (Abu Aqleh worked for the Qatar-based al-Jazeera, and she was a U.S. citizen).

As I said, as of right now the evidence strongly points towards the conclusion that an Israeli soldier killed Abu Aqleh. That corresponds with eyewitness testimony (including testimony that, at the time of the shooting, there were no Palestinian militants operating in the area). The bullet fired is one that is used by both IDF and Palestinian forces, so that washes. And an early video which purported to show Palestinian gunmen as the perpetrators has basically been debunked (the video was taken in an area that was nowhere near where Ms. Abu Aqleh was shot and from where it would have been effectively impossible for her to have been hit by any fired round).

Given all this, the fallback position of Israel's online defenders has been to cry foul over the PA refusing to cooperate with Israel in jointly investigating the event. "Why don't they want the truth?" "What are they trying to hide?"

But the fact remains that the PA has very little incentive to cooperate with Israel here, and "truth" has little (though not nothing) to do with why.

There is basically one, and only one, thing a joint investigation with Israel might be able to offer to the PA that it cannot get on its own. It's not access to the "true story" -- most people believe, and most of the available evidence suggests, that Israel is responsible for killing Ms. Abu Aqleh, and the marginal benefit of "confirming" that belief (whatever that means) is likely to be minimal even if we thought that a joint investigation would make such confirmation more likely.

Rather, what Israel might be able to provide that the PA almost certainly cannot get on its own is information on the actual individual who fired the bullet. If the goal is to see a particular John Doe face potential criminal consequences for killing Ms. Abu Aqleh, then a joint investigation is probably necessary.

That's the incentive for cooperation: not just the "truth", in the abstract, but the specific possibility that the investigation will reveal the personal identity of the shooter, who then will face material and appropriate consequences. What are the risks?

It is true that, from a bloodless, political vantage, the status quo of the narrative on this story is already one aligned with the PA's interests. Most people believe, and most of the available evidence suggests, that Israel is responsible for killing Ms. Abu Aqleh. An investigation could confirm that belief, or refute it, or muddy it up ("we cannot know for certain ..."). From the PA's vantage point, the latter two outcomes are very bad. And that's assuming the Israelis investigate in good faith, a stipulation that even some Israeli government officials concede is not one that Israel is entitled to receive.

The risk, in short, is not just that "the evidence" won't back up the prevailing narrative, it's also either that a bad faith Israeli investigation claims exculpation, or (whether in good or bad faith) the investigation only acts to kick sufficient dust around the issue so as to blunt calls for accountability. The PA presumably deems these risks to be quite weighty; and that fear cannot be dismissed as unfounded. And unfortunately, sans the unlikely event of absolute incontrovertible evidence emerging (which seems unlikely), any outcome other than "all parties agree an Israeli soldier was the shooter" -- whether it's (1) Israel lying about whether one of its soldiers killed Ms. Abu Aqleh, (2) it being genuinely not knowable whether an Israeli soldier killed Ms. Abu Aquleh, and (3) an Israeli soldier actually not having killed Ms. Abu Aquleh -- are largely going to be observationally equivalent.

So the choice of whether the PA should cooperate with Israel can be summarized as a weighing of the following probabilities:

P(Israel identifies a specific soldier who shot Ms. Abu Aqleh and subjects that soldier to adequate criminal possibility)

vs.

P(Joint investigation genuinely reveals Israel wasn't responsible) or

P(Israel in bad faith uses investigation to disclaim responsibility) or

P(Investigation, whether in good or bad faith, cannot decisively establish who bears responsibility)

Simply put, it strikes me as very hard to argue that the first probability is high enough to outweigh the latter three. Again, the PA has no reason to believe Israel will investigate itself fairly. Nor does it have much cause to believe that, even if Israel did identify a discrete perpetrator, that it would subject him to meaningful criminal sanctions. The most prominent recent case of an Israeli soldier being convicted of homicide against a Palestinian actor was Elor Azaria, who served a mere nine months for manslaughter after shooting a disarmed and incapacitated Palestinian assailant -- even that short sentence occurring in the face of massive public pressure supporting Azaria (something like two-thirds of Jewish Israelis backed pardoning him outright). I suspect the PA weighs the likelihood of the first probability -- that the investigation will fairly seek out the perpetrator and that the IDF will identify him if it is an IDF soldier and that the Israeli justice system will adequately punish him for any criminal misconduct -- as essentially nil.

In an ideal world, a joint investigation would still be the best outcome: if all sides act in good faith, a joint investigation is most likely to get at "truth" and most likely to identify any perpetrators who ought to face criminal liability. In the world we have, we cannot assume good faith and so we cannot assume a joint investigation in any way makes the "truth" more likely to come out. In practice, the PA has no doubt written off the realistic possibility that it will get the name of any Israeli soldier who shot Ms. Abu Aqleh, much less that he will face significant criminal consequences. Given that, the PA has zero incentive to give Israel the opportunity to blur the extant public narrative of this case; while Israel has every interest in hoping something ("truthful" or otherwise) will alter the prevailing discourse. 

In this environment, the PA has all the leverage, and it's up to Israel to offer something that the PA wants to make a joint investigation worth the latter's while. The most obvious thing Israel might be able to offer is the prospect that, if a perpetrator is found, he will face meaningful justice. It is hard for me to imagine how Israel could make that commitment in a manner that the PA would find credible -- unless, of course, Israel is able on its own initiative to find and arrest the shooter. If it can't do that (whether because it doesn't actually want to, or because it isn't actually able, or because no such shooter exists), I don't know what it could do that would make the PA inclined to be cooperative.

What Does a Ukraine Peace Deal Look Like?

Russia's war against Ukraine has begun in full force. So far, the Ukrainian government and people have done a remarkable job in slowing Russian aggression. But Russia is much bigger than Ukraine, and every day this war goes on is another day of wholly unnecessary death and bloodshed.

There are reports that Ukraine has asked Israel to mediate peace talks with Russia (Israel being one of a very small number of countries that remains on at least halfway decent terms with both nations). Obviously, if Israel can do anything to bring this horrific war to end I hope it does so. We also, unfortunately, know that what with Israel being, you know, Israel, any hiccups in the negotiation process, or any sense that a resulting agreement is unfair or unjust (and someone will always find it unfair or unjust) will yield a quite ... predictable sort of discourse as a consequence.

Which leads me to ask: what, even roughly speaking, does a peace deal between Russia and Ukraine even look like?

This is an area I want to emphasize I am no expert in, and so I invite people who are experts to correct or supplement me. But here are some of the assumptions I'm working off of (which, again, I'm very open to correction).

1. First and foremost: this was a complete and unprovoked pure war of aggression by Russia against Ukraine. In a just world, they should get absolutely nothing -- not Donetsk, not Crimea, not Luhansk, nothing but a barrelful of summons to an international war crimes tribunal.  Any end to the conflict which appears to reward Russia for launching this invasion will be hideously unjust. Unfortunately, the ends of wars needn't be any more just than their beginnings.
2. While Ukraine has done an impressive job stymying Russia's advance so far, in terms of pure military material Russia retains a considerable advantage. It is highly unlikely that Ukraine can actually push Russia back on the battlefield or force Russia into a position where it has to "surrender", even though it can inflict heavy losses on Russian forces.
3. Ukraine is in a bit of a paradox: it obviously wants the war to end as soon as possible, but it's only chance to prevail is in slowing it down -- putting Russia in a morass, making the price unacceptable for the Russian people on the home front.
4. The war has not gone as quickly or as smoothly as Putin predicted, and that's a big problem for him. Europe is far more unified than he expected, his military is underperforming, and his normal allies are saying "nuh-uh, this is your mess". He needs something to come out of this that he can point to as a win, and undoing western sanctions that only came into play because of his own recklessness won't cut it. Launching an obviously optional war of aggression and limping back in pure defeat potentially puts his entire regime in jeopardy. In this context, it realistically puts Putin's head in jeopardy.

Basically, the core of the problem is that a viable deal almost certainly needs to give Putin something face-saving, but there's nothing obvious to give him that would not rightfully be a non-starter from the vantage of Ukraine and which wouldn't set a horrible precedent in terms of incentivizing offensive wars of aggression. Now to be clear: I, personally, have no interest in saving Putin's face or any other part of his body. He can swing for all I care. But while Ukraine can perhaps stop Russia from achieving total victory, it can't force Russia into a position of abject defeat, and so cannot compel a deal that -- however just -- Putin will never accept and can never accept without probably being ousted from power outright.

So that's my question: under these constraints, what does a peace deal look like? What proposal can be put together that maintains Ukraine's territorial integrity, deters Russia from undertaking similar actions in the future, but actually can get Russia's signature? If such a deal cannot be contemplated, it is hard to see how this war can be prevented from dragging on for the foreseeable future.

Old in Town Roundup

I've arrived in Chicago! I wouldn't characterize myself as "new in town", since I've already lived in Chicago (indeed, in this very building) before. But I am feeling very, very old as I try to unpack various boxes.

Anyway, here's a roundup:

* * *

The Antisemitism Cow finally speaks (beyond just "MOO", that is)!

A pretty big storm is developing at Ole Miss, where a tenure-track professor was summarily fired from his position after criticizing "powerful, racist donors."

Also in academic freedom, albeit garnering less attention: students at the University of Dallas trying to form a racial justice club offering "a welcoming, inclusive community" are encountering stiff resistance from the student government (and some faculty). Opponents claim -- I swear I'm not kidding -- that the club can't be accepted because it would mean conceding that the university might not already be inclusive and welcoming of all students.

Trump issues a new wave of pardons, with special focus on corrupt GOP politicos and American paramilitary operatives implicated in the murder of civilians. Utterly disgraceful.

An interesting and thoughtful interview with incoming Congressman Jamaal Bowman, with special focus on his relationship with the Jewish community (Bowman ousted longtime Rep. Eliot Engel, who is Jewish, in this year's Democratic primary).

Colorado Republican Rep. Ken Buck, who is also chair of the state party, announces he will refuse to take the COVID vaccine. The GOP has been flirting with anti-vaxx politics for awhile now, but it couldn't have picked a worse time to topple over the edge.

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.

You Don't Need Hyperbole When The Truth Works Fine

International Law Professor Yuval Shany has an outstanding post working through the legal use-of-force issues surrounding the Gaza protests at the Israel/Palestine border. The reason that it's outstanding is that it takes seriously the fact that some of the protesters may be violent and may be trying to breach the border -- it isn't just people randomly waving flags. Many pro-Israel commentators have made this observation and acted as if that were that -- a dismissal made easier when pro-Palestinian voices have acted as if there was no component of armed violence in the equation at all.

Yet my instinct was that, even if there were actual attempts to cross the border or even some use of violent force (e.g., stone throwing), this wouldn't necessarily suffice to justify the use of lethal force by IDF. Shany's post explains why in detail, fully attentive to the actual security concerns faced by Israel, and that makes it far more powerful as a critique of the IDF's conduct -- conduct that seems very likely to have violated international law -- than the median post which treats those concerns as non-existent.

Of course, it may seem silly to go into a fine-grained, nuanced explanation of why IDF use-of-force practices on the Gaza border have been unlawful when Avigdor Liberman is explicitly saying that every single human being in Gaza is a valid target for lethal force.

"It has to be understood that there are no innocent [naive] people in Gaza," Liberman added. "Everyone is affiliated with Hamas, they are all paid by Hamas, and all the activists trying to challenge us and breach the border are operatives of its military wing."

The strike-out is there because Liberman claims he's been mistranslated in the use of the word tamim. But I don't think it materially alters the point he was making, which more-or-less explicitly labels the entire Gaza population as members of a hostile military force who are therefore valid targets for lethal force.

More and more, it seems that the IDF prefers calling itself "the most moral army in the world" to actually acting like "the most moral army in the world." The way you become and then stay a "moral" army is via discipline, and discipline means actually investigating and punishing potential violations of the rules of armed conflict. But Liberman refuses to even countenance an investigation -- well, unless it's of human rights groups asking that soldiers not shoot unarmed civilians across the border. A culture of impunity will yield a culture of violation -- there is nothing in the Israeli or Jewish soul that renders us immune from the general rules of human behavior.

Satyagraha at the Gaza Border

At least 16 Palestinians were killed by Israeli forces during mass demonstrations on the Gaza border.

Israeli government officials blamed Hamas for "provoking" a conflict and said its response was justified due to the risk of a mass attempt to breach the border.

That response is a problem. Let me explain why.

Non-combatants attempting to cross a border may be a crime, but it isn't a crime that can justify the use of lethal force. Lethal force can only be justified in cases where the target poses an imminent threat to life. Yet even under the Israeli narrative, threats of that scale were only sporadic (two of the dead Palestinians are alleged to have opened fire at IDF soldiers -- that probably warrants a lethal response -- but that leaves up to 14 who didn't). In a simplicitor case of attempted unlawful border crossing, the only lawful remedy is arrest and trial -- not bullets.

The main apologia we're seeing on that score is the claim that some (not all) of the shot Palestinians were members of terrorist groups. Even if that turns out to be the case (and that hasn't been independently corroborated yet), it'd be less of an absolution of the IDF than apologists might believe. Put aside the general thorniness of whether someone who's a member of a terrorist organization can be treated as a "combatant" even when partaking in civilian (in this case, protest) activities. I'm skeptical, but we can even stipulate that they could be. The bigger issue is that the lawfulness of the use of deadly force has to be justified based on what was actually known, or reasonably should have been known, by the shooter at the time -- and there's no evidence that the IDF soldiers were aware of the identities (let alone affiliations) of the Palestinians they were firing at in the moment. For example: If I fired into a crowd in a city street, and it just so happened that the person struck by my bullets was a member of a terrorist group, my action would still be unlawful because I had no way of knowing that fact when I opened fire. Likewise, the affiliations of those killed by IDF bullets could not in themselves legalize the decision to open fire -- that can only be justified based on specific threats to life that were reasonably perceived at the time (of which simply approaching the border is not one).

The other argument I can imagine being made is that -- in the context of a mass march on the border -- "arrest and trial" isn't a feasible response. It'd be impossible to arrest them all; the only viable means of deterrence may well be the use of lethal force. But this is a rather dangerous and hypocritical position -- the same in form as the argument that suicide bombings are justifiable because the power imbalance between Israel and Palestine means the latter can't win a traditional military conflict. The laws of war and humanitarian international law in that case say that if you can't win a conflict without suicide bombings, then you don't win the conflict (as much as it might seem unjust). They likewise say that if you can't stop non-violent attempts to cross a border without resorting to lethal force, then you don't stop the attempts (as much as that might seem unjust). In either case, the rule of law quite properly does not contain an "unless you'd lose" exception.

And this really gets to the rub of the problem. Were these protests a perfect exemplar of non-violence? Almost certainly not. But it seems equally clear that the Israeli government (and many of its defenders) wouldn't accept the legitimacy of protests of this nature even if they were. They view it as a form of cheating, precisely because it likely would succeed but-for the use of violent force that can't actually be justified. But that's an untenable position. A protest or resistance strategy doesn't become illicit on the grounds that it does work, nor because it forces Israelis to do things they'd otherwise not want to do or puts them in a position they'd otherwise not like to be in. That's not, and cannot be, the standard for what conduct by Palestinians is acceptable (it obviously isn't the standard for what Israeli actions are justifiable vis-a-vis Palestinian actors). Palestinians are allowed to come up with ways to put pressure on Israelis, and massed civil disobedience falls into that category.

Indeed, this is in many ways the power of resistance strategies of this sort -- they are difficult to counter without resorting to violence that both appears to be and juridically is excessive and unjustified under the circumstances. This is why civil rights leaders placed young activists in the path of Bull Connor's firehoses, this is the efficacy of Gandhi's satyagraha. What violence there was on the Palestinian side was a sterling example of "worse than a crime, it was a blunder," because it allows dust to fly up around this basic point. But while I don't want to as far as to say this violence was a "distraction", I do think it must not occupy the entirety or even the majority of our attention, because the Israeli response -- almost by its own admission -- wasn't keyed into the sort of violence that could warrant resort to lethal force, and because the Israeli government has no answer to what it would do if the protests really did meet the platonic ideal of satyagraha.

If It's a War You Want....

Swedish Foreign Minister Margot Wallstrom provoked outrage in Israel when she alleged that the nation was engaging in "extrajudicial executions" when police forces killed terrorists engaged in stabbing attacks in civilian areas. Israel has responded by declaring that Wallstrom is no longer welcome in the country.

The bases for critiquing Wallstrom are legion, including the usual charges of hypocrisy (police officers in Europe -- including Sweden and France -- have killed armed assailants before, without any fretting by Wallstrom about the deaths constituting "executions"). Harvard Law Professor Noah Feldman also observes that Wallstrom seems to badly misunderstand the relevant international law principles she purports to be defending. Most notably, Feldman observes that even if police use of lethal force in stopping an armed attacker presents an international law question in the first place (far from clear), the international law language she appeals to is that governing armed conflict, not criminal conduct. Questions of "proportionality" and "distinction" refer to the legality of military strikes which will result in civilian casualties in pursuit of a bona fide military objective. Civilian and military targets must be distinguished, and civilian casualties must be proportionate to the military objective pursued. These considerations are simply inapposite where the police are seeking to stop an identified criminal in a civilian context.

There's another point worth making here that Feldman does not raise. Obviously, some defenders of Palestinian attacks on Israel would argue that these are military, not criminal actions. It's possible that this is the view that Wallstrom is seeking to channel: the stabbing attacks conducted by Palestinians against Israelis are part of an ongoing military conflict between Israel and Palestine, and so therefore Israel's response should be thought of in terms of the laws of war.

Obviously, the goal of this framing is to elevate the stabbing attacks beyond that of unsavory criminality. The stabbers are not mere criminals, but soldiers, entitled to all the respect that position entails. Now there are all sorts of reasons why characterizing stabbing attacks as military operations is problematic, and another lengthy list of reasons why if they are "military" they're also war crimes. But putting that aside, Wallstrom and other advocates of "militarizing" Palestinian stabbing attacks overlook one essential characteristic of the laws of war relevant to this conversation:

Soldiers can be killed.

This is a bedrock feature of the law of armed conflict: it is obviously not illegal (in of itself) to kill a soldier on the battlefield. They can be killed immediately, without warning, and without opportunity to surrender. And one can kill as many soldiers as one wants. There is no "proportionality" requirement with respect to combatants. Nor is there a requirement that they be given judicial process. A combatant who does legitimately surrender is entitled to have that surrender accepted, and upon capture is entitled to various protections as a POW. But there is no obligation to try and take enemy soldiers alive. If they're there and they're active, they can be killed -- even if they aren't an immediate threat to kill someone.

In this way, one might say, it's sometimes better to be a criminal than a soldier. Criminals are entitled to judicial process; that's the process through which they are punished. Killing a criminal on the street is only justified if there is an objective, imminent threat to someone's safety (the officers or surrounding civilians). None of that is necessary to kill a soldier. This oddity exists because, odd as this might sound, killing a soldier is not taken to be punitive. We don't kill soldiers on the battlefield as punishment for them breaking a law (being a soldier does not, in itself, break a law). We kills soldiers on the battlefield because that's what war is. And so by the same token, a captured soldier cannot be punished simply by virtue of their status as a soldier. Detention in a POW camp is also non-punitive; it is lawful as a means of incapacitating an enemy force. To punish an enemy soldier -- e.g., to hang him -- you need to charge him with a crime (such as a war crime). But judicial process is not something that exists on the battlefield itself.

For my part, I think it is evident that the Palestinian knife attackers are not soldiers, but ordinary criminals. And so that does mean that they are subject to ordinary rules of policing, which means they cannot be killed unless they pose an imminent safety threat. But if their defenders want to cloak them in the garb of the soldier, they need to accept the consequences of the label. Soldiers can be killed in war. That's what war is. And if it's a war Palestine wants, Israel is not under any obligation to lose it.

"!!!!" ... And Let Me Also Say: "!!!!"

Holy schmoly, Todd Kincannon (former executive director of the South Carolina GOP) wants to execute anyone who's ever been in contact with Ebola. This is part of a stream of horror that begins with "People with Ebola in the US need to be humanely put down immediately," continues through "The people of Africa are to blame for why it's so shitty. They could stop eating each other and learn calculus at any time," and concludes by stating "We should put Wendy Davis' vagina in charge of the Ebola outbreak. It will kill all of them without mercy and go to Nordstrom's afterwards."

And you know it's bad when "We need to be napalming villages from the air right now" doesn't even make my top three. My goodness.

So What if Just War is Impossible?

From time to time one hears the following apologia for various Palestinian war crimes (this is one example, but it's decently representative):

Based on the fact that the West Bank and Gaza are occupied territories that are economically and politically controlled by Israel – and where there is no freedom for its residents – I believe they have the absolute right to fight for that freedom. I personally do not think Hamas’s rockets are a productive strategy of resistance, but it still has the right to respond in such a manner – as does any liberation movement against colonialism.
[...]
The argument that Hamas is using human shields has no weight. There is no evidence that this is actually occurring en masse. Gaza is tiny – about the size of the Cape Flats. It is one of the most densely populated places on the planet. There is no place where Hamas could stockpile arms away from a population centre.

This argument, in essence, is that Palestinians have a "right to fight" against Israel, and since the only way that they can functionally exercise that right is by indiscriminate rocket fire and by intermingling their fighters within the Palestinian civilian population, those activities are acceptable.

This is, of course, nonsense. The laws of war do not contain an exception for when following them means one's preferred side won't win. The laws of war are, by design, indifferent as to which side "should" win, operating off the reasonable presumption that each side in any armed conflict will think itself just and therefore view itself as exempt from the strictures of the laws of war. This is why we largely no longer adopt the Augustinian approach to just war theory. The point being, if you can't win a war while obeying the laws of war, then don't fight it. There is no right to win an armed conflict.

But here's the thing -- this cuts both ways. One also often hears defenses of Israeli strikes which have crippling civilian casualties on the grounds that, well, Hamas uses human shields and stockpiles its weaponry in civilian areas. Quite true! But that is not carte blanche authority for Israel to do whatever it will. There are valid questions over who should be considered responsible for civilian casualties when Party A strikes Party B's military targets embedded in a civilian population -- if for no other reason than to deprive B the incentive to do just that. Nonetheless, it cannot be the case that infinite civilian casualties are justified simply because of B's (admitted) legal violation. Considerations of proportionality need to come into play. And if that limits Israel's ability to effectively prosecute a war on Hamas -- well, the laws of war don't guarantee you get to win a war.

Welcome Home, Gilad Shalit

After five years in captivity, Cpl. Gilad Shalit has returned home. Shalit's capture revealed some very dark things about a certain segment of pro-Palestinian activists (not to mention about Hamas, which held in violation of international law and basically incommunicando for the past five years), and his redemption from captivity is a joyous day. Even though there are reasons to be concerned about the utility of the deal that released him (and reasons to view it optimistically, as I'll explain below). But today is a day for happiness.

Still, it is important to try and tease out the implications of the prisoner exchange. The main argument against it, here made by Ilya Somin, is that by releasing Hamas prisoners Israel incentivizes future like kidnappings, thus causing a net loss. This, of course, is the standard reasoning behind a firm "don't negotiate with terrorists" position. And it's not exactly a stretch of a supposition -- various Palestinians, from Hamas officials to some of the released prisoners (this one a woman who tried to detonate a bomb after being admitted to Israel for medical treatment) -- have made just this claim (compare to Shalit, who upon release said of Palestinian prisoners: "I would be happy if they are released, on condition that they stop fighting against Israel.").

One could say this is Hamas exploiting an Israeli weakness. And in a sense, this is true -- but that is always the case when a terrorist organization is fighting a democracy. It is the same principle behind locating forces in residential areas and wearing civilian clothes -- it takes advantage of Israel's aversion to killing civilians and attempts to discriminate between combatants and non-combatants. Moral constraints often come at the expense of pure utilitarian concerns, and a clever (and amoral) enemy can exploit that. Still, one hopes that the adherence to norms of human dignity and solidarity can provide benefits of their own. The Israeli Supreme Court's mantra always stuck with me:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties.

The fact of the matter is that -- some blustery rhetoric to the contrary notwithstanding -- Israel does negotiate with terrorists. It knows that, and Hamas knows that. And that means that any time Hamas has an Israeli captive, they have leverage over Israel. Yesterday, they had such a captive. Today, they don't. And even if they try and get another one, there is a window of time that just opened where Israel is in a stronger negotiating position than it was before, and I'm hopeful that will lead to good things.