I can imagine many people saying to those of us in the human rights community:
“Israel has implemented two of your major demands. The army announced that there were real time investigations into every incident during the Gaza war in which citizens were harmed. The State Comptroller Yoseph Shapiro has announced that he will conduct an investigation as to how the political and military leadership handled this war, including whether international law was violated. The New York Times has reported that Israel’s attorney general and military advocate general are also setting up an independent mechanism for investigating the events in Gaza. You now feel vindicated and satisfied – right?”
Well, yes and no. These are important steps forward, but we still have questions about implementation.
The value of possible future investigations will be defined by the questions the investigators are willing to ask, and the criteria for evaluating the information received.
Regarding real time investigations, we need to know the conclusions, and what the army did with them. The point of such investigations should have been to modify the military strategy and rules of engagement in real time, if it were found that they were leading to the harming of non-combatants in a way that was disproportionate to the value of legitimate military targets that we were attempting to strike. While information not in our hands could change the picture, many reliably documented incidents lead the human rights community to strongly suspect they could and should have been prevented. There may be things we were not aware of, but we were not able to detect any adjustments made in these policies in the course of the fighting. Effective investigations should have quickly put an end to such tactics.
We had the right to defend ourselves against Hamas rockets and tunnels, and I pray that an independent and transparent Israeli investigation will show that we acted entirely correctly and morally. However, I do not believe that information not in our hands can justify the many bombings of homes with tens of civilians in them. If nobody was shooting from the home at the time, the fact that there was a Hamas operative in the house or weapons buried underneath the house does not make the actions right. IF, as it appears, we did kill tens of non-combatants in Rafah in order to try to prevent Hamas from capturing Hadar Goldin (or his body), this was wrong.
I think that these things were wrong, even though a lawyer might be able to argue that they weren’t illegal according to international law.
Allow me to explain myself by way of a strange rabbinic concept, “kofin al midat sdom.” This concept appears five times in the Talmud, and there is a debate on exactly what it means. However, the basic idea is that our rabbis seem to say that there are certain very limited situations in which the rabbis support forcing another to do something that he/she is actually not legally obligated to do. Although this is a matter of debate, most commentators believe that the common denominator between the various examples given is that if someone refuses to help another, even when he/she will incur no loss by doing so, they should be forced to help, lest their refusal send us down the slippery slope towards acting like the Sodomites. This prospect so terrified our sages that they were willing, in a sense, to undermine in one fell swoop their life’s work creating a system of law governing our actions.
Not everything that is legal is just or right. Former President of Israel’s Supreme Court Aharon Barak also understood this. He has said that when it came to demolishing homes for lack of permit his conscience said one thing, but he was obligated as a judge to do something else.
We need law particularly in instances when people hold conflicting values and concepts of morality. This is because we require a relatively agreed upon system that prevents paralysis. But the fact that something is legal that doesn’t mean that absolves us of our obligation as a society to engage in moral debate.
At the time of the first Gaza war (Operation Cast Lead) I had disturbing conversations with somebody who had held senior positions in the army’s international law unit. He indicated that the unit would tell their superiors when something was so clearly a violation of international law that it could be in no way justified. Now, international law stipulates that an attack against a legitimate military target must not disproportionately harm non-combatants. However, that same law lacks clear guidelines for determining what is disproportional.
I was told that increasingly the unit saw its duty as to allow for actions falling in this huge gray area. Perhaps this is a reaction to those who believe that Israel was born in sin, and therefore our very existence is illegitimate. Because many saw (and see) international law as one more weapon to use against us, we also ended up seeing international law as simply one more battleground.
If this is still the way that the unit operates, actions that many of us would consider to be immoral, will be declared legal. If this is the goal of the real time investigations, it is no surprise that we did not notice any adjustments or changes in the rules of engagement during the course of this latest war. (Again, I can’t rule out that there were changes that we didn’t notice.)
My first question to our State Comptroller is whether he will be satisfied when there is some way of arguing that an action or a policy did not violate international law, or whether he will delve into the much more complex question of whether an action was just and moral? How will he define what is just and moral, or what guidelines will he give to help us to answer that question for ourselves?
My second question is regarding the investigation’s scope. The fact that Israel was justified in defending herself begs the question whether we could have taken actions in order to not arrive at the lose-lose situation in which we were being fired at and had to decide how to defend ourselves. Would we have arrived at that point if we had ended the blockade, allowing Gaza to export flowers and strawberries and import all food stuffs, and only prevented imports that could be used against us? What about allegations that Israel could have avoided this by acting to keep the recent peace process alive, and end the occupation?
Tractate Sanhedrin (72a-74a) teaches three tests for military actions:
- Will they achieve the intended legitimate goals?
- Was there a less harmful way of achieving the goals?
- Were innocent people harmed?
Whether we could have avoided arriving at the point we were being fired on is very relevant to question #2. It no more justifies Hamas’ actions than our right to defend ourselves absolves us from respecting red lines when doing so. However, these questions are part of the moral equation we must be debating, particularly because our overwhelmingly superior power means that we have the ability to unilaterally take actions that drastically alter the situation for better or worse in a way that the Palestinians don’t. Our greater power and ability bring with them greater responsibility.
Finally, I turn to my fellow Israelis. Investigations clarify facts, but we as a society must determine what to do with them. International law’s gray area is exploited by those delegitimizing our very existence to find us guilty even for defending ourselves. The natural reaction is to exploit the gray area to push back. An “Israel- for right or for wrong approach” is required because Israel is fighting for her very existence in a hostile neighborhood and a hostile world, as exemplified by those who simply want to exploit international law as one more gun to be pressed against Israel’s head.
We must not allow our values to be hijacked by this kind of thinking. Our power thankfully gives us the privilege and the obligation to ask, “Will you sweep away the innocent with the guilty?” (Genesis 18:23). The debate is certainly about the well being of our soldiers and our citizens. But, it is also about what we have wrought in Gaza. Saying, “We’re heartbroken, but it’s Hamas’ fault” is a kanei ratzutz (a bent reed used as a sop to our conscience) if we could have defended ourselves without the carnage and/or if we could have avoided getting to the situation where we had to defend ourselves.
I also believe that the wellbeing of my children and society is best served by moving beyond endless cycles of violence. Hillel the Elder once saw a skull floating in the water and declared, “You were drowned because you drowned others. Those who drowned you will themselves be drowned. (Pirkei Avot) The big picture is that violence does’t serve our interests. Neither does injustice: “The sword comes into the world because of justice delayed and justice denied.” (Pirkei Avot).
We are strongest when we live by our highest Jewish values. Rabbi Akiva explained why he risked his life to teach Torah:
A fox sees little fish pursued by a big fish and offers to protect them if they jump out of the water. They reply that if they are in danger in the water, they will be in even more danger out of their habitat.
What will become of us if we abandon our “habitat,” our Jewish morals? Rabbi Akiva eventually paid with his life, but ensured the survival of the Jewish people.
I pray that not one additional human being will suffer for doing what is just and right. I pray that we will have the strength and foresightedness to live by our highest Jewish values, and that whatever independent and transparent Israeli inquiries take place will bring us closer to these goals.