Spain’s highest court, the Audiencia Nacional, has issued arrest warrants on charges of war crimes against six Israelis who were high-ranking military officials at the time of the IDF’s bombing of an apartment building in Gaza City in 2002 which killed 15 civilians.
The six include current Infrastructure Minister Binyamin (‘Fouad’) Ben-Eliezer, who was defense minister at the time of the incident; Moshe Yaalon, who was IDF chief of staff; and Dan Halutz, then chief of the air force and later IDF chief of staff. The others are Doron Almog, Giora Eiland, and ‘Mike’ Herzog.
(Does anyone have the text of the arrest warrant? I’d love to see that.)
The 2002 incident was part of a longstanding policy of the Israeli government of undertaking extrajudicial killings (EJKs) of its opponents. EJKs, also known as assassinations or in Israel’s somewhat euphemized parlance “targeted killings”, are precisely what they sound like: completely extra-judicial, that is, outside the rule of law. That is, there is no duly constituted court that considers in an impartial and open manner the evidence against the “accused”, listens to his defense, and judges the case on its merits. Instead, Israel’s military authorities get to be prosecutor, judge, jury, and executioner all wrapped into one, though they have made various attempts to describe their efforts as “humane”, “restrained” and, of course, completely “justified.”
For one such attempt see this piece of sympathetic
hasbara reporting from the WaPo’s Laura Blumenfeld back in August 20096. In it, Bluemnfeld describes the “anguish” experienced by several Israeli commanders– including, crucially, arraigned-in-Spain Moshe Yaalon– as they recalled their calculations regarding whether to undertake any particular EJK
Actually, though Blumenfeld’s reporting was extremely sympathetic to Israel’s high-ranking assassins, it contains many revealing details that could be useful in any court case against Yaalon and his co-defendants. (And also, against present Israeli Defense Minister Ehud Barak, a leader of some of Israel’s earlier EJK ops.)
Reflecting on her conversations with Yaalon about the period 2000-2003, Blumenfeld wrote,
- Almost every day, Yaalon had to decide who would live or die. “Who is a ‘ticking bomb’ ? Can we arrest him? Who is a priority — this guy first, or this guy first?” Yaalon recalled. Once a week, military intelligence and Shin Bet proposed new names. At first, the list was limited to bombers themselves, but several years later it expanded to those who manufacture bombs and those who plan attacks.
“I called it ‘cutting weeds.’ I knew their names by heart,” Yaalon said. How many did he kill? “Oh, hundreds, hundreds. I knew them. I had all the details with their pictures, maps, intelligence, on the table… ”
Then this, which is of direct relevance to the court case:
- Only once, Yaalon said, did he knowingly authorize a hit that would also kill a noncombatant, the wife of Salah Shehada. Shehada helped found Hamas’s military wing, which had asserted responsibility for killing 16 soldiers and 220 Israeli civilians. In 2002, the air force dropped a one-ton bomb on his home. The blast also destroyed a neighboring house, which Yaalon said he had thought was empty. Fifteen civilians were killed, including nine children. It felt, Yaalon said, “like something heavy fell on my head.”
Excuse me– something fell on his head??
Blumenfeld’s piece makes eery reading. But it also provides a vivid example of two important points:
- 1. How unresolved feelings of victimization and helplessness from the past can be used to try to justify the perpetuation of new acts of escalation and violence. In this regard, she makes a point of noting that Yaalon’s mother, and the parent of one of the other high-ranking EJK perps were Holocaust survivors, and how this affected their thinking about the use of violence.
2. How extremely slippery the slope of the justification of violence “for self-defense”, “pre-emption”, “prevention”, and “deterrence” can become. The Israeli decisionmakers were justifying their use of EJKs since 2000 mainly in terms of “deterrence,” that is, sending a powerful message “to discourage others from trying the same thing.” It worked in terms of raw violence, resulting in the deaths of hundreds of those “targeted”– along with additional hundreds of bystanders. But at the crucial level of politics, it didn’t work. Hamas kept on generating new cohorts of leaders, while retaining intact both its core political ideology and its ability to hit Israel with new kinds of weapons, primarily the fence-hopping rockets. Only recently did the Israeli government try another approach to the challenge posed by Hamas: the Egypt-mediated negotiations which resulted in the conclusion of a ceasefire (tahdi’eh) back in June. The ceasefire has not been totally successful, since a handful of very small, non-Hamas groups remain uncommitted to it. But by and large it has worked. The number of rockets falling inside Israel has been drastically reduced. And yesterday, even Ehud Barak– who was previously a strong skeptic of the ceasefire approach– announced that he now thinks it is the best way forward!
In Blumenfeld’s piece, she reports on the recollections of some of Israel’s super-assassins of another operation they conducted, against a reported gathering of Hamas leaders in a Gaza City apartment in September 2003. On that occasion, they used “only” a quarter-ton bomb, which was designed to hit “only” the third story of the targeted building. But the Hamas leaders being targeted– who included both political and military leaders– were sitting on the ground floor, and escaped with little damage. (Note that the idea of killing political leaders is completely outside what is allowed in the laws of war, as is the idea of killing military personnel when they are not on active duty. So such operations were war-crimes from the get-go, regardless of whether “untargeted” bystanders were also harmed, which in many or most cases they certainly were.)
Among those who escaped the airborne assassins that day were Hamas’s paraplegic founder and historic leader Sheikh Ahmad Yassin, whom the Israelis did succeed in killing a year later, and Ismail Haniyyeh, who ran in the Palestinian parliamentary elections of January 2006 and emerged as Prime Minister of the Palestinian government elected that month. Haniyyeh and his colleagues in the Gaza portion of Hamas’s leadership have been essential participants in the Egypt-mediated negotiations for the June ceasefire.
It is almost certain that if Israel had indeed “succeeded” in assassinating Haniyyeh and others in the present Hamas leadership, then it would have been far harder, or perhaps impossible, for the Egyptians and Israelis to find any Palestinian leaders with the political charisma, clout, and legitimacy that have been required to negotiate and implement the ceasefire from the Palestinian side. (It would be kinda nice if Barak could admit that publicly, and also apologize to Haniyyeh for his past attempts to assassinate him?? Dream on, Helena.)
As part of the tahdi’eh, Israel undertook to stop its EJK attempts against the Hamas leaders, which is valuable first step towards the further de-escalation of tensions (and positive peacemaking!) that is so desperately needed.
B’tselem has some good updates about the state of the EJK policy as of the end of 2007 in its 2007 annual report (PDF here.) It includes this:
- On 14 December 2006, the High Court of Justice issued its decision on the petition filed in January 2002 against Israel’s targeted-killing policy. The court did not rule the policy illegal, but it held that the actions involved in the targeted killing had to meet the principle of proportionality. It also ruled that, after the attack, a “thorough and independent inquiry” must be conducted to verify the identity of the persons hit and the circumstances. However, when B’Tselem demanded an inquiry of this kind into seven targeted-killing cases that took place in 2006 and 2007, which killed 36 bystanders, including 16 minors, the State Attorney’s Office rejected the demand.
Seven EJKs that killed 36 bystanders? Where’s all the much-vaunted “proportionality” and “restraint” that Blumenfeld was writing about in her article?
As for the Spanish arrest warrants against Ben-Eliezer and the others, the Israeli government is reportedly “battling hard to overturn [the] Spanish court’s decision.”
My view– with this case in Spain, as with the earlier attempts to indict Ariel Sharon through the Belgian courts– is that though these court cases play an important role in helping to sensitize wwestern opinion to the nature of some of the actions involved, and though they hold out the important hope that “international criminal justice” can be brought to bear impartially, including against offenders who are not members of groups marginalized within the present, “west”-dominated international system, still, the pursuit of these cases is not the path that will lead to finding and implementing a durable end to the Israeli-Palestinian conflict. And it is that path of conflict termination that is the one that must most urgently be pursued.
Back in the early 2000s, when the Belgian court made a (notably halfhearted and short-lived) attempt to go after Ariel Sharon for war crimes committed against Palestinians in 1982, he was still the Prime Minister of Israel. And though seeing him in the dock may have given some satisfaction to some Palestinians, still, what they most needed from him at that time was his serious engagement in serious peace negotiations… and inasmuch as the Belgian court case distracted attention or commitment from that path, it might actually have been harmful.
And similarly with the present Spanish court cases. Of course, the actions on which the defendants stand arraigned were heinous ones: the assassination of political opponents on a wide scale, and with far too little heed to the effects of those actions on bystanders. And the past actions and decisions of many of the Hamas leaders were equally heinous in their disregard for the laws of war, including the absolute injunction to avoid civilian casualties. But the priority– with regard to the misdeeds of both sides– must still remain on the search for a durable political outcome to the conflict.
Is such an outcome in sight? Perhaps not as far distant as many westerners seem to think. I think the new interest that some leaders in the secular portion of the Palestinian nationalist movement are expressing in the longheld goal of a single, binational state in all the area of Mandate Palestine is a heartening development.
Since 1967, the Israelis have had numerous chances to achieve a two-state solution, which could keep essentially intact their goal of having a state in existence that would be strong, secure, intentionally Jewish, and at peace with all of its neighbors. That would involve a return to something at or very close to the lines of June 4, 1967.
But repeatedly over the years they avoided making that choice. Instead, every time, they voted with their concrete mixers, pouring vast volumes of concrete into the project to build Jews-only colonial settlements throughout the West Bank (and Golan) and to connect them with their own, beyond-apartheid grid of Jews-only roads. As a result of that, and of the implantation of 450,000 Jewish settlers into those settlements, it is now almost impossible to imagine how the West Bank could be separated from Israel proper. The small chunks of land there that might be left to a Palestinian Bantustan would be quite incapable of supporting a viable Palestinian state.
Time to return to the older dream of humane Zionists like Martin Buber or Judah Magnes, who held up the goal of a unitary, binational state…