According to the latest approximations of Amnesty International, 400 Palestinian residents of Gaza have been killed and 2,000 wounded by Israel's air and sea bombardment. Meanwhile, mainstream media outlets report that rockets from Gaza have killed 4 Israelis (15 had been killed in previous rocket attacks beginning after Israel's withdrawal) and wounded at least several persons. To many observers, apparently including the government of Turkey which has been cooperating with Israel on several fronts, the rather dramatic asymmetry of casualties implies the unconscionable slaughter of a stateless huddle of impoverished people lacking any air defense capability or shelters capable of resisting Israeli bombs, lacking indeed regular armed forces of any kind.
The Israeli Government's response, echoed by President Bush and by Democratic Party spokespersons, is to invoke the right of self-defense against armed attack and to insist that it has struck with discrimination, targeting Hamas facilities and militants, and that the deaths of others, including those of women and children, have been incidental, not intended, and thus consistent with international law and broadly accepted moral principles.
While the legal and moral norms invoked by Israel are clear in the abstract, the appropriate moral and legal judgment is not. Norms, being by their nature generalizations, can never mechanically dictate judgment in particular cases. For the ones invoked by one party usually are in competition with other norms relevant to the case. So before we can arrive at a judgment about which ones to apply, we have to take account of the historical context, the policies or values the norms were intended to advance, and the human consequences of applying one norm rather than another.
As I noted in my last blog, Gaza has most of the characteristics of a very large prison, much of it outdoors, with the guards withdrawn by the authorities to the periphery in order to save manpower and money. The prison is remarkable in a number of ways, the most striking way being the fact that its inmates are guilty not of a crime but rather of a status, namely being Palestinian inhabitants of Gaza. Thus their "crime" is in its nature not dissimilar to that of Jews in Nazi Germany.
Almost equally remarkable is the fact that when, at the urging and with the assistance of Western countries led by the United States, the inmates of Gaza voted in elections to choose the persons who would provide some degree of order within the prison -- so people could get on with their lives as best they could, being prisoners -- a majority chose the Hamas candidates, and were in the end collectively punished.
Punishment, in the form of a sharp reduction in rations effected through a blockade and the gross reduction in furloughs for visits to other Palestinian prisons or travels abroad for young people who had received scholarships to study, has come close to putting the inmate population of approximately 1.5 million people into what in a Western prison housing persons convicted of real crimes would be called "solitary confinement." One result has been the growth of malnutrition among children living only a few miles from the well fed citizens of Israel. Such a collective punishment, even if inflicted on a Western prison population consisting exclusively or convicted murders and violent rapists, would, of course, be struck down by the courts of every Western country as a patent violation of national bills of rights and international human rights guarantees.
Yet a third remarkable feature of the Gaza prison is that the prison authorities, i.e. the Government of Israel, reserves the right to murder any inmate who is suspected of plotting to resist or protest imprisonment by helping to organize or execute attacks on persons outside the prison.
These contextual features are, I believe indisputable by fair-minded persons who have bothered to inform themselves. But how do they help guide us to a reasoned judgment about the legality and morality of the Israeli bombardment of the Gaza prison? On the one hand, it is hard not to sympathize with persons who have been locked up under austere circumstances for being Palestinians in conquered territory that is operationally part of Israel in that with respect to the Gaza territory, Israel claims the right to control ingress and egress, whether by air, land or sea, and, indeed, exercises all the other attributes of sovereignty. Do not the 1.5 million inmates have a right to resist imprisonment (and occasional murder) without charge or trial for the crime of being deemed threats to Israeli security? On the other hand, does not Israel have the right, indeed the duty, to defend if not its armed forces (the prison guards), then at least is ordinary citizens, even if the threat comes from people who have been confined in violation of fundamental rules of international law?
The answer to that last question has be to "yes . . . but." The "but" refers to limits on means, not the end of protecting ordinary Israeli citizens. If the only means available were the current bombardment, then we would be faced with an awful conflict of norms and values. In fact, we face no such conflict because bombardment is a means of last resort adopted before less destructive options have been tried. What are they?
Since, to be read, blogs must be reasonably short, however complex the subject, let me just enumerate several and promise elaboration in the future (or, if you cannot wait, see Chapter 5 in my book Confronting Global Terrorism and American Neo-Conservatism). One would be an Israeli government announcement that it will relinquish all authority over Gaza and treat it as a sovereign territory, if the inmates' chosen representatives will agree to accept a UN Trusteeship over the prison, pending establishment of a Palestinian State, and the stationing within the prison grounds of an international force constituted by the UN Security Council to assist the elected inmate representatives in preventing the territory from being used for attacks on Israel. Israel would also commit to not assassinating Hamas officials in Gaza or elsewhere and would agree to release all kin of Gazan inmates it currently detains.
Another would be to accept the Hamas offer of a ten-year truce, which has been on the table for some time, and to allow Gaza normal economic and social connections with the rest of the world on condition that it does not import or manufacture additional weapons capable of striking targets within Israel, a condition it would monitor in partnership with Egypt and the United States and with the assistance of observers on the ground designated by the Security Council.
A third Israeli Government option would be to announce its readiness to withdraw from all of the territories occupied in 1967 and to recognize a Palestinian State and to support large-scale indemnification of Palestinian refugee families by the international community once the Palestinians in Gaza and the prisons scattered among Israeli colonies on the West Bank form a coalition government willing and able to negotiate satisfactory security arrangements and to consider minor territorial exchanges that would allow the two peoples to live in peace. It might add the condition that NATO guarantee the borders of each state.
A final Israeli alternative would be to offer full citizenship to all inmates of Gaza and the other Palestinian prisons who are prepared to renounce armed struggle in favor of peaceful participation in the economic, social and political life of a single sovereign state.
Until these alternatives or some combination or nuanced variations of them have been tried, the means chosen by Israel to defend its citizens is not a last resort and is therefore legally and morally indefensible. As a Jew, it is painful to reach these conclusions; but as a scholar I am required to speak the truth within the limits of my ability to grasp it.