Analysis from Israel

Monthly Archives: December 2010

Halting donations to the JNF undoubtedly ranks high on the list of unhelpful responses to Israel’s Carmel fire. But it pales beside that of Israel’s own prime minister: using the fact that Turkey was one of 18 nations that helped extinguish the blaze as an excuse to “mend relations” with Ankara by apologizing and paying compensation for May’s raid on a Turkish-sponsored flotilla to Gaza.

The deal may yet fall through, since Turkish Prime Minister Recep Tayyip Erdogan still insists that Israel “apologize” for the raid, in which nine Turks were killed, while Benjamin Netanyahu wants merely to “regret” the deaths. But Israel has already reportedly agreed to pay hundreds of thousands of dollars in compensation to the killed and wounded “activists.”

Netanyahu claims that this will be “humanitarian” compensation, not an admission of fault. That’s tommyrot. When you apologize and pay compensation, you’re admitting fault, whether you say so explicitly or not. That means Israel is tacitly implying either that it was wrong to enforce its naval blockade of Gaza — established to keep Hamas from shipping in boatloads of arms with which to attack it — or that its soldiers were wrong to fire in self-defense when brutally assaulted by the flotilla’s passengers.

Even worse, Israel would thereby absolve the real culprits: the Turkish organization IHH, whose “activists” deliberately laid an ambush, and the Turkish government, which, according to information that emerged after the raid, was involved in the flotilla at the highest levels. None of the numerous other flotillas to Gaza has produced any casualties, because their passengers didn’t attack Israeli soldiers. The Turkish flotilla would have been similarly casualty-free had its “activists” not launched a violent assault.

Indeed, since IHH sent most noncombatants below deck before beginning its assault, the passengers Israel would be compensating were almost certainly active participants in the attack. As Israeli Foreign Minister Avigdor Lieberman correctly said (via his aides), this is “surrendering to terror,” pure and simple.

But it gets even worse — because Israel would also thereby whitewash Turkey’s turn toward Islamic extremism under Erdogan, when it should be leading the effort to get the West to acknowledge this about-face and respond appropriately.

By crawling to Erdogan in this fashion — after six months of correctly insisting that Israel would neither apologize nor pay compensation — Netanyahu implies that Turkey is still a valued ally, both for Israel and, by implication, for other Western countries. Yet in reality, Ankara openly works against Israeli interests in every possible forum (for instance, regarding NATO’s missile defense system); it had halted joint military exercises even before the flotilla; and Jerusalem no longer trusts it not to share Israeli secrets with Iran. Thanks to WikiLeaks, we now know that even America’s ambassador to Turkey concluded that “Erdogan simply hates Israel.” So what could Israel possibly gain by “mending ties” with it?

Thus, on every possible front, Netanyahu’s overture to Turkey sends exactly the wrong message. This is gross diplomatic malfeasance. And Israel’s friends should make that clear to him before it’s too late.

J.E. Dyer’s excellent post yesterday correctly noted that this week’s talks with Iran, like the previous rounds, will merely buy Tehran more time to advance its nuclear program. That the West would commit such folly shows it has yet to learn a crucial lesson of the Vietnam War: though it sees compromise as the ultimate solution to any conflict, its opponents’ aim is often total victory.

Henry Kissinger, national security adviser and then secretary of state during Vietnam, expounded on this difference at a State Department conference this fall. As Haaretz reported:

The Americans sought a compromise; the North Vietnamese a victory, to replace the regime in the south and to unite the two halves of Vietnam under their rule. When they became stronger militarily, they attacked; when they were blocked, they agreed to bargain; when they signed an agreement, they waited for an opportunity to break it and win.

That same disconnect between the parties’ goals exists today over Iran’s nuclear program. The West repeatedly says its goal is compromise. Even as the UN approved new sanctions against Tehran in June, Secretary of State Hillary Clinton said her ultimate aim was to get Iran “back at the negotiating table.” And when the EU discussed additional sanctions in July, its high representative for foreign policy, Catherine Ashton, insisted that “The purpose of all this is to say, ‘We’re serious, we need to talk.’ … Nothing would dissuade me from the fact that talks should happen.”

Iran, however, isn’t seeking compromise; it’s playing to win. And that explains all its diplomatic twists and turns, like scrapping last year’s deal to send some of its low-enriched uranium abroad immediately after signing it.

Diplomats and journalists, convinced that Iran, too, wants compromise, have espoused strained explanations, like disagreements between Iranian President Mahmoud Ahmadinejad and his chief backer, Supreme Leader Ali Khamenei. But once you realize that Iran’s goal is victory, it’s clear that Tehran never intended to give up its uranium. It merely wanted time to develop its nuclear program further before new sanctions were imposed. The scrapped deal bought it a year: first the months of talks; then more time wasted in efforts to lure Iran back to the deal it walked out of; and finally, months spent negotiating the new sanctions, which weren’t discussed previously for fear of scuttling the chances of a deal.

Now Tehran again feels pressured, so, like Hanoi, it’s agreeing to bargain. It’s no accident that after months of preliminary jockeying, Iran finally set a date for the talks immediately after the WikiLeaks cables made worldwide headlines. The cables’ revelation of an Arab consensus for military action against Tehran gives new ammunition to an incoming Congress already inclined to be tougher on Iran and also facilitates a potential Israeli military strike: who now would believe the inevitable Arab denunciations afterward?

So Iran, cognizant of the West’s weakness, has taken out the perfect insurance policy: as long as it’s talking, feeding the West’s hope for compromise, Western leaders will oppose both new sanctions and military action. And Tehran will be able to continue its march toward victory unimpeded.

The EU is working to end ‘lawfare’ in national courts but facilitating it in the International Criminal Court.
Last week, Britain’s new government submitted legislation to amend its universal jurisdiction law, under which pro-Palestinian groups have repeatedly tried to indict Israeli ministers and army officers for “war crimes” in the West Bank and Gaza. Last year, Spain did the same, and in 2003, so did Belgium, thereby eliminating two other popular venues for anti-Israel “lawfare.”

That countries initially sympathetic to the idea have since moved to excise
lawfare from their own courts is obviously encouraging. Yet Europe continues to
encourage lawfare in international venues, seemingly oblivious to the fact that this is equally detrimental to its own interests.

The countries that changed their national laws did so not because they suddenly

became pro-Israel, but because they realized that lawfare was indeed undermining

their own interests.

First, they could hardly play an important role in

the “peace process” if no Israeli official would enter them for fear of being

arrested. That had increasingly become the case, since lawfare practitioners

targeted all Israelis indiscriminately: Last year, they even sought a British warrant against Europe’s

favorite Israeli, former foreign minister Tzipi Livni. And for whatever reason,

involvement in the peace process matters greatly to the European Union: A study done by Finnish

Foreign Minister Alex Stubb this fall found that while EU foreign ministers had

devoted only one meeting over the past four years to China, a rising foreign

policy power, they discussed “the Middle East peace process” 12 separate times

in 2009 and the first part of 2010 alone.

Second, they couldn’t be

important players in any international arena if American officials refused to

enter them. That’s why Belgium, which seemed untroubled by anti-Israel cases,

moved quickly to change its law after lawfare enthusiasts, emboldened by initial

successes against Israel, sought warrants against senior American officials for alleged war crimes in

Iraq.

In contrast, Europe continues to facilitate lawfare in the

International Criminal Court. Most EU countries abstained in both the UN Human

Rights Council and the General Assembly votes on the Goldstone Report, which

urged an ICC indictment against Israel for “war crimes” in Gaza; a few even

voted for it. Last year, Germany even asked the US not to

block UN Security Council action on Goldstone unless Israel froze settlement

construction (Washington declined). Nor has Europe protested the ICC’s consideration of a

Palestinian Authority request to be treated as a state for the purpose of

joining the court and filing war-crimes charges against Israel, though this

amounts to retroactively amending the treaty (which doesn’t allow non-state

parties) without existing signatories’ consent.

Yet all the same

arguments hold against ICC prosecutions. First, an ICC warrant against Israeli

officials would preclude them from visiting Europe, which is treaty-bound to

enforce it. But more importantly, as the Belgium precedent shows, success

against Israel would embolden lawfare practitioners to pursue other countries,

America would obviously be first: As the country most actively engaged in

counterterrorist warfare, it has increasingly adopted Israeli tactics. For

instance, its drone strikes on suspected terrorists, whose legality Washington

recently defended in the UN, are identical to the Israeli

“targeted killings” that human rights organizations have repeatedly denounced as

“extrajudicial executions.” Indeed, a Spanish court seriously considered

indicting top Israeli officials and army officers over one such killing, of

Hamas mastermind Saleh Shehadeh in 2002; the case was dropped only because

Spain amended the universal jurisdiction law under which it was

filed.

Similarly, The New York Times reported

last month that

American forces “have been systematically destroying” hundreds of houses and

farm buildings in Afghanistan’s Kandahar region, because the Taliban had

booby-trapped so many that searching them “was often too dangerous.” Israel did

the same thing in its war in Gaza two years ago, for the same reason: Hamas had

systematically booby-trapped hundreds of homes,

schools and other buildings. And human rights organizations, followed by the

Goldstone Report, deemed it a war crime, accusing Israel of wantonly destroying

property in a deliberate effort to target civilians.

But many European

countries also have troops in Afghanistan, and they would be next in line. Last

year, for instance, a German officer ordered an air strike in Afghanistan that

killed as many as 142 people, mainly civilians, due to faulty intelligence. That

dwarfs the 14 other people (also mainly civilians) killed in the Shehadeh

strike, similarly due to faulty intelligence, or the 13 killed at the Ibrahim

al-Maqadmah Mosque during the Gaza war, for which Goldstone wants Israel indicted in the ICC (Israel says the mosque wasn’t

hit intentionally).

Moreover, like Israel, Germany deemed criminal or

disciplinary action against the officer unwarranted – opening the way for the

ICC, which can only pursue cases that national governments don’t prosecute. Yet

two months after this deadly strike, Berlin urged Washington not to block

Security Council action on Goldstone if Israel didn’t freeze settlement

construction – apparently oblivious to the dangerous precedent a

Goldstone-inspired ICC case against Israel could set for itself.

The

problem is that most European countries still believe ICC prosecutions could be

confined to Israel: that nobody would ever lump them together with the loathed

Jewish state. But ultimately, lawfare enthusiasts won’t distinguish between

“evil” Israel and “good” Europe any more than they distinguish between extremist

settlers and Tzipi Livni. They are simply smart enough to realize that it’s

easier to set a precedent by prosecuting an unpopular country first. Then, once

the precedent is set, they will gleefully use it against everyone.

The writer is a journalist and commentator.

One cable from the WikiLeaks trove raises a disturbing possibility: the Obama administration’s obsession with Israeli settlements could end up undermining America’s own war on terror.

Shortly before Israel announced a 10-month freeze on settlement construction last year, Germany urged Washington to threaten that absent such a moratorium, the U.S. would refuse to block a UN Security Council vote on the Goldstone Report, which accused Israel of war crimes in Gaza. U.S. officials correctly responded that this would be “counterproductive” but agreed to tell Israel “that their policy on settlements was making it difficult for their friends to hold the line in the UNSC” — thus implying that Washington might so threaten in the future. And last month, the U.S. indeed implicitly conditioned future efforts to block Goldstone on another settlement freeze.

Yet America has a vital interest of its own in burying Goldstone: facing many of the same military problems in its war on terror that Israel does, it has increasingly adopted many of the same tactics.

Last month, for example, the New York Times reported that in Afghanistan’s Kandahar region, “American forces are encountering empty homes and farm buildings left so heavily booby-trapped by Taliban insurgents that the Americans have been systematically destroying hundreds of them” in order “to reduce civilian and military casualties.” They even destroyed houses that weren’t booby-trapped because “searching empty houses was often too dangerous.” And as an Afghan official correctly noted, “It’s the insurgents and the enemy of the country that are to blame for this destruction, because they have planted mines in civilian houses and main roads everywhere.”

This is precisely what Israel did in its 2008-09 Gaza war, for the same reason: it found hundreds of booby-trapped houses, schools, even a zoo. But Goldstone, like the so-called human rights organizations, pooh-poohed this claim, accusing Israel of wantonly destroying civilian property in a deliberate effort to target civilians. Far from blaming Hamas for booby-trapping houses, they blamed Israel for destroying the traps.

The same goes for drone strikes on wanted terrorists — not just in Afghanistan but also in Pakistan and Yemen. Israel has used this tactic for years, also for the same reason: sometimes, it’s the only way to neutralize a dangerous terrorist short of a major ground operation with massive casualties on both sides. But aerial strikes can also produce unintended civilian casualties.

The U.S. recently defended this tactic to the UN Human Rights Council, stressing that targeted killings are “lawful, they constitute neither extrajudicial killing nor political assassination.”

But human rights organizations have repeatedly denounced similar Israeli strikes as “extrajudicial executions” even when there have been no civilian casualties. And the outcry has been much worse when there were. Just last year, for instance, a Spanish court considered indicting several senior Israeli officials over a 2002 strike on Hamas mastermind Salah Shehadeh that, due to flawed intelligence, also killed 14 other people. (The case was halted after Spain moved to amend its universal-jurisdiction law.)

In short, America’s own self-interest demands that it thwart legal assaults on Israeli counterterrorism tactics. Otherwise, it’s liable to find itself in the dock next.

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Why Israel Needs a Better Political Class

Note: This piece is a response to an essay by Haviv Rettig Gur, which can be found here

Israel’s current political crisis exemplifies the maxim that hard cases make bad law. This case is desperate. Six months after the coronavirus erupted and nine months after the fiscal year began, Israel still lacks both a functioning contact-tracing system and an approved 2020 budget, mainly because Prime Minister Benjamin Netanyahu is more worried about politics than the domestic problems that Israel now confronts. The government’s failure to perform these basic tasks obviously invites the conclusion that civil servants’ far-reaching powers must not only be preserved, but perhaps even increased.

This would be the wrong conclusion. Bureaucrats, especially when they have great power, are vulnerable to the same ills as elected politicians. But unlike politicians, they are completely unaccountable to the public.

That doesn’t mean Haviv Rettig Gur is wrong to deem them indispensable. They provide institutional memory, flesh out elected officials’ policies, and supply information the politicians may not know and options they may not have considered. Yet the current crisis shows in several ways why they neither can nor should substitute for elected politicians.

First, bureaucrats are no less prone to poor judgment than politicians. As evidence, consider Siegal Sadetzki, part of the Netanyahu-led triumvirate that ran Israel’s initial response to the coronavirus. It’s unsurprising that Gur never mentioned Sadetzki even as he lauded the triumvirate’s third member, former Health Ministry Director General Moshe Bar Siman-Tov; she and her fellow Health Ministry staffers are a major reason why Israel still lacks a functional test-and-trace system.

Sadetzki, an epidemiologist, was the ministry’s director of public-health services and the only member of the triumvirate with professional expertise in epidemics (Bar Siman-Tov is an economist). As such, her input was crucial. Yet she adamantly opposed expanding virus testing, even publicly asserting that “Too much testing will increase complacence.” She opposed letting organizations outside the public-health system do lab work for coronavirus tests, even though the system was overwhelmed. She opposed sewage monitoring to track the spread of the virus. And on, and on.

Moreover, even after acknowledging that test-and-trace was necessary, ministry bureaucrats insisted for months that their ministry do the tracing despite its glaringly inadequate manpower. Only in August was the job finally given to the army, which does have the requisite personnel. And the system still isn’t fully operational.

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