On Annexing the West Bank

The Ill-considered Idea of Annexation
Norman L. Cantor

Some political forces in Israel urge annexation of all or a major part of the West Bank (Judea and Samaria) as was previously done by Israel in 1981 with east Jerusalem and the Golan Heights. For example, Naftali Bennett’s Jewish Home party, which has 11 parliamentary seats (out of 120) and is currently part of the ruling coalition, supports annexation of at least 60 per cent of Judea and Samaria. Likewise, some members of Prime Minister Netanyahu’s Likud party, including the coalition’s parliamentary whip Yariv Levin, support unilateral declaration of Israeli sovereignty over all or most of the West Bank.

Annexationists, as I will call them, assert a moral, legal, and historical Jewish right to settle in all of Judea and Samaria. The moral and historical foundations relate to the Jewish presence in that area going back thousands of years to the Hebrew tribes’ arrival and their evolution into Jewish kingdoms. Jewish presence in Judea and Samaria is also consistent with biblical promises to install Jewish control there. One biblical source (Genesis 15:18-21) would justify Jewish control from the Nile to the Euphrates and would encompass several modern Arab countries. The more modest biblical promise speaks to the land divided among the 12 tribes of Israel which would include Judea and Samaria (as well as green-line Israel, Gaza and part of Lebanon).

The legal foundation for Jewish presence on the West Bank lies principally in the 1922 League of Nations mandate authorizing British control of the Palestine portion of the former Ottoman Empire. The British mandate area included Judea and Samaria and the mandate provided for Jewish settlement toward a Jewish homeland in Palestine as endorsed in Britain’s 1917 Balfour declaration. That declaration had expressed British favor for “a national home” for the Jewish people to be created within Palestine by Jewish immigration, but without prejudice to the civil rights of existing non-Jewish communities in Palestine. Between 1922 and 1948, a small part of the influx of Jews into mandatory Palestine occurred in areas of Judea and Samaria like Gush Etzion; Jews in Hebron date back even further. Thus, at the moment when Israel was established in 1948, there was some legitimate Jewish presence on the West Bank.

The permanent borders of the State of Israel are not etched in stone. The 1948 declaration of statehood did not specify borders and the borders prevailing from 1949 to 1967 were established along the armistice lines following the 1948-49 war of independence fought against invading Arab armies. Those armistice lines left Judea and Samaria within control of the State of Jordan. Between 1949 and 1967, Jordan asserted sovereignty over and controlled the West Bank. During the 6-day war of 1967, which Jordan chose to enter to assist Egypt, Israel conquered the area of Judea and Samaria and the new armistice lines left Israel in control of the West Bank. The new 1967 “border” between Israel and Jordan (the Jordan River) was not intended to be permanent. U.N. Security Council resolution 242 in November 1967 called for Israeli withdrawal from occupied territory, but also called for secure boundaries for Israel; its drafters did not envisage strict return to pre-1967 boundaries. In short, there is legal room for adjustment of Israel’s boundaries from those prevailing between 1948 and 1967 and there’s some legal basis for a presence of Jews in Judea and Samaria. This is still a long way from entitlement to unilaterally annex all or a major part of the West Bank.

One obvious hurdle to annexation is demographic. Annexation of the entire West Bank would ostensibly entail permanent Israeli control of approximately 2.3 million Arab residents. In theory, a territorily expanded Israel could offer full citizenship to these Arab residents, just as Israel in 1948-49 bestowed full citizenship on all permanent residents, including Arabs and Beduins. In practice, annexationists, with rare exceptions, have no interest in according citizenship to another 2.3 million Arabs (beyond the existing 1.6 million Israeli Arabs).

Annexationists offer various solutions to the demographic obstacle. They would prefer to be free of physical entwinement with the West Bank Palestinian Arabs. Yet forced transfer (meaning mass expulsion of Arab residents from Judea and Samaria) is recognized to be beyond the moral and legal pale. The 1937 Peel Commission did favor the transfer of some Arabs as part of a suggested partition of mandatory Palestine, but not expulsion from Palestine.

An alternative annexationist idea is to promote Palestinian dispersion by providing economic incentives for Arab residents to leave Judea and Samaria. Such financial benefits would ostensibly favor the currently disadvantaged West Bank Arabs. Yet the economic incentive plan would fail. Even assuming the availability of financing, such an ethnically grounded dispersion effort would meet massive political opposition within the affected Arab population (as well as international condemnation). The ensuing resistance would doom the incentive idea to failure.

To grasp the depth of Arab resistance to dispersion, keep in mind that the great majority of the Arab residents of the West Bank have every right to be there. Some of these residents trace their roots in Palestine back hundreds of years. Another significant part of the Arab population are descendants of people who migrated to Palestine in the second half of the 19th century and the early 20th century from surrounding areas like Egypt. I.e., their forbearers settled in Palestine under the Ottoman domain just as did some forbearers of current Jewish Israelis. Both the 1917 Balfour declaration and the 1922 League of Nations mandate explicitly reassured the existing non-Jewish communities about their civil rights. Also, hundreds of thousands of Arab residents of the West Bank are descendants of former residents of Israel proper who were displaced by the 1948 war, settled in Judea and Samaria, and legitimately remained there between 1949 and 1967 while subject to de facto Jordanian control of the area. That these refugees were cynically exploited for the last 64 years by the Arab states’ refusal to resettle them elsewhere does not diminish their moral and legal right to remain in their adopted homes in Judea and Samaria if they so choose.

The most common “solution” advanced by annexationists seeking to cope with 2.3 million Arab residents is to treat the West Bank Arabs as resident aliens with some form of limited self-rule. (Some annexationists would link Arab residents’ prospective autonomy to Jordanian citizenship. However, while Jordan willingly exercised control over the area between 1949 and 1967, Jordan currently has no interest in exercising any kind of sovereignty there, or having any kind of citizenship connection with the Arab residents of the West Bank). Moreover, many annexationists reject any form of non-Israeli sovereignty within Judea and Samaria and thus confine the Arab residents’ prospective status to a limited autonomy under Israeli hegemony.

This notion of limited Arab self-rule anticipates peaceful coexistence between the resident Jews (Israeli citizens) and the Arab residents of an annexed West Bank. However, relegation of this Arab population to an unequal, non-citizen status vis a vis their Jewish neighbors is a prescription for unending turmoil and resistance.

To understand universal Arab rejection of inferior political status for Arab residents in Judea and Samaria, consider the Palestinian Arab perspective starting almost 100 years ago. At the establishment of the British mandate in 1922, the population of all of Palestine included approximately 80,000 Jews and 700,000 Arabs. Ever since 1922, Arab leaders in Palestine feared that Jewish immigration would result in subordination or forced transfer of the Arab population. The violent Arab rebellion in 1936 was one index of resistance to feared non-Arab control. By the end of the British mandate in 1947, Palestine’s population numbers were 600,000 Jews and 1,250,000 Arabs. During the 1948-49 Arab-Israeli war, hundreds of thousands of Arabs were displaced from residence in Israel proper; many became part of the West Bank Arab population (grown today to 2.3 million). Since 1967, the Arab population of the West Bank has resisted Israeli presence in a variety of ways, sometimes violent. Israeli annexation of the West Bank, coupled with second class status for Arab residents, would entail continued resentment, resistance, and struggle.

David Ben Gurion understood the instability fated to plague any Israeli effort to control the Arab masses of the West Bank. In 1949, he turned down a plan to conquer the West Bank, recognizing the difficulty of co-opting and controlling its Arab residents. Post-1967 Israeli military control has only sharpened those residents’ feelings of humiliation and resentment over Israeli domination. The former heads of the Shin Bet security apparatus interviewed in the documentary film “The Gatekeepers” were unanimous in deeming an accommodation with Palestinian Arabs “a security imperative” for Israel’s long-term welfare.

Nor is resistance by the Arab residents the only danger facing Israeli annexation of Judea and Samaria. The bulk of the international community would view such annexation and partial subordination of the local population as an unacceptable form of ethnic exploitation as well as a breach of international law. All the major powers, including the United States, would be opposed. That opposition would ultimately engender not only political isolation for Israel but imposition of sanctions as was done to South Africa. Israel would be treated as a pariah state.

One proposed alternative to Arab residents’ rage over inferior status in the West Bank is the so-called 2-state solution. This approach entails creation of a new Palestinian Arab state with sovereignty over most of the West Bank as well as Gaza and part of Jerusalem. The current prospects of implementing this 2-state resolution of the fate of mandatory Palestine are bleak. Some Palestinian representatives, most notably Hamas (already controlling 1.6 million Gazan Arabs), utterly reject accommodation with Israel and seek to violently reclaim all of Palestine. While other Palestinian representatives purport to support the idea of a Palestinian state in 21% of mandatory Palestine (the West Bank and Gaza), their dedication to that goal is suspect. The common Palestinian insistence on a “right of return” for the millions of descendants of the hundreds of thousands of Arabs displaced from Israel in 1948 contradicts an accommodation with a Jewish state. Widespread demonization of Israelis within Palestinian political circles, mass media, and schools also communicates unwillingness to accept contemporary Israel. And even if there are Palestinian representatives genuinely committed to peaceful coexistence with Israel, their ability to rein in the fundamentalist militants like Hamas and Islamic Jihad is highly suspect. The percentage of Palestinians who see Tel Aviv as occupied territory ultimately to be violently liberated is uncertain. The chances of Hamas and its cohorts usurping any new Palestinian state and gaining control of the West Bank (in addition to Gaza) are significant. A hostile force controlling Judea and Samaria – within dozens of kilometers of Israel’s major population concentration — poses an enormous security threat to an Israel already confronting thousands of missiles in surrounding areas like Gaza and Lebanon.

Nor do the obstacles to a new Palestinian state lie solely in Arab rejectionism. The more than 300,000 Jewish Israeli residents of the West Bank jeopardize the viability of any such potential political entity. The current inter-twining of Jewish settlements in Judea and Samaria leaves Arab population pockets looking like a non-contiguous archipelago. Arab mobility is also handicapped by a separation barrier that stifles free movement and burdens economic life. This mass Jewish presence in Judea and Samaria complicates if not eliminates the prospect for a stable 2-state solution. While evacuation of some Jewish areas pursuant to a comprehensive peace agreement might ease the demographic incongruities, settlers’ resistance to evacuation would be even more widespread and traumatic than in the prior evacuations of Jewish settlements in Sinai and Gaza.

The bottom line is that the long-term prospects for successful resolution of the fate of the West Bank appear discouraging. Both Israelis and Palestinian Arabs seem, for the time being, to be unready for any viable 2-state solution. Continuing reinforcement of Jewish settlement makes a successful 2-state resolution ever more improbable. At the same time, annexation of Judea and Samaria, with its inability to accommodate as citizens the 2.3 million Arab residents (to say nothing of the 1.6 million Gazans), is a prescription for unending turmoil.

A Ray of Light in Israeli Arab-Jewish Relations?

This piece appeared in “The Times of Israel” on March 13, 2013: http://blogs.timesofisrael.com/a-ray-of-light-in-israeli-arab-jewish-relations/

Frictions, suspicions, and hostile incidents involving Arab-Jewish relations are all too common in Israel. Betar Jerusalem soccer fans are notorious for their racist opposition to any Arab or Muslim connection to their team as expressed not only by racist chants and demonstrations at Betar games, but by assaults on Arab workers and even an effort to burn down the club’s headquarters to protest hiring of Muslim players. Assaults by young Jews on Arabs (and by Arabs upon Jews) are also common, particularly in Jerusalem. Last week, several Haredi youths cursed and threw rocks at two teachers (one Jewish and one Arab) who had together come to Jerusalem on a condolence call to a colleague. An Arab woman was assaulted at a light-rail station. And Jewish youths in Tel Aviv assaulted an Arab municipal worker, requiring the worker’s hospitalization.

Given such background tensions and hostility, it is a delight to notice any development pointing toward reconciliation of Arabs and Jews within Israeli society. An article in the February 25 supplement to the newspaper Yediot Achronot highlights one such phenomenon – a considerable increase in Arab volunteers performing national service. The number of such Arab volunteers has grown from 100 in 2003 and 240 in 2005 to 2700 as of February 2013. That number is projected to increase to 3500 in 2014.

These national service volunteers work in a wide variety of settings. They serve as aides in health care institutions, schools, and public safety settings such as firefighting, first aid, and police stations. In short, these volunteers help provide critical services to the elderly, to children, and to the general public. Some volunteer placements are in the Arab sector, but most are not.

The impetus to join national service varies. Beyond the satisfaction from assisting people, some volunteers perceive their experience as a means of integration into the broader society – a way to lower social hurdles and shatter prejudicial stereotypes. Others see the service as an appropriate gesture of return for benefits that Israeli society provides to the general population such as national health insurance and a social security system.

The picture of Arab participation in national service is not all sweetness and light. Arab political leadership tends to vigorously oppose such service. Within the local Arab population, some voices deride and condemn the volunteers. An Arab woman who worked as a recruiter of national service volunteers was subjected to demonstrations at her home labeling her a traitor; the harassment from Arab sources eventually impelled her resignation. Yet she takes pride in the 340 people she successfully recruited and continues to support the program. (Yediot, 3/11/13). And the young Arab volunteers quoted in the Yediot article of February 25 contend that Arab sector perceptions of national service are changing. They report support and understanding about their national service choice from both family and peers.

National service is not a panacea for the frictions and tensions among Arabs and Jews in Israel. But the willingness of increasing numbers of Arab youth to seek a route to integration into the broader society and to simultaneously promote the general welfare is at least a positive ray of light.

My Dream about Israeli-Arab Voters

This piece appeared in the Jerusalem Post on Jan. 9, 2013
under the title: My Dream about Israeli Arab Voters

The other night I had a dream in which Arab voters were flocking to the polls and exercising political clout commensurate with their percentage within the Israeli population. In this dream, Arab parties emphasized mainstream issues of housing, education, and employment and regularly engineered a vigorous get-out-the-vote effort. Their capacity to garner 20 per cent of the vote – potentially 20 or more Knesset seats – created a common interest with a center-left bloc of Israeli parties. A center-left bloc expanded by these mainstream Arab parties offered a chance of ousting the Netanyahu controlled coalition and shifting governmental priorities from the territories back to the Galilee and Negev while promoting negotiations toward a 2-state solution of the conflict with the Palestinians. In my fantasy coalition, the Arab parties could extract concessions meeting socio-economic needs of the Arab sector, much like Shas has done for its constituency in recent governing coalitions.

The subconscious origins of my dream are easy to trace. I grew up in the U.S. of the 1950’s and 1960’s, when African-Americans, though only 18% of the population, launched a non-violent movement against oppressive, discriminatory conditions in housing, education, and employment. Blacks in their campaign utilized the courts (starting with Brown v. Board of Education in 1954 invalidating separate public facilities), legislation (for example, the Civil Rights Act of 1964 outlawing invidious employment discrimination), and vigorous voter registration to promote minority interests by electing sympathetic representatives to Congress, state legislatures, and city mayoralties. While such African-American ballot box efforts have not eliminated the overall social disadvantage of African-Americans, enormous advances have been made in creating educational and employment opportunity for black Americans. (Witness the elections of Barack Obama.) In the course of the struggle for African-American rights, dissident voices called for separatist governance or even violent resistance to the white-dominated political system. But black Americans rejected the demagogues like Stokely Carmichael and Eldridge Cleaver in favor of the non-violent, integrationist path of Martin Luther King. That successful history was doubtless the source of my recent dream.

Then I awoke to the reality of the Israeli political scene. The focus of the vocal Arab political sector is not economic or social advancement within Israel. The voices of Arab political figures are stridently raised to condemn all Israeli conduct that harms the interests of the Palestinian residents of Gaza and the West Bank. Though Israel’s entire southern population had for years been bombarded by thousands of rockets, missiles, and mortars from Gaza, Israeli Arab politicians treated Operation Cast Lead (and later Operation Pillar of Defense) as though they were unprovoked assaults. This lack of empathy with defense of their fellow Israeli citizens in the south is jarring; even the notoriously unbalanced Goldstone Report acknowledged that Hamas had precipitated “terror within the [Israeli] civilian population,” causing high rates of trauma, especially among children, and hundreds of injuries. (Indeed, because Hamas’ rockets had been purposefully and indiscriminately aimed at civilian targets, the Goldstone Report denominated them as war crimes.) Nor do reigning Arab politicians promote the common social interest in increased social services by promoting either compulsory or voluntary national service. While increasing numbers of young Israeli Arabs do volunteer for national service, their political leaders have discouraged the phenomenon. The atmosphere created by hostile rejection of Israeli institutions is one in which a Muslim IDF soldier from an Arab village must hide his uniform and weapon when returning home in order to avoid abuse and threats from neighbors. (See Yediot Achronot, 12/30/12).

In the contemporary Israeli scene, Arab voters have not come close to exercising their potential political clout as 20% of the electorate. In 2009, only 53% of Israeli Arabs voted, succeeding in electing 12 Knesset members (as opposed to the potential 20 or more); those elected then largely marginalized themselves by their strident rhetoric. (Of course, some Arab voters support center-left Israeli parties in the thus far vain hope that those parties will become responsive to Arab sector social and economic interests).

This phenomenon of failing parliamentary representation has not gone unnoticed within the Israeli Arab community. In the current electoral race, two fledgling parties are seeking to rally Arab voters to elect Arab representatives with a focus on mainstream issues of improved housing, education and jobs while coexisting within Israeli society. An Israeli Arab party, called Hope for Change, is headed by a Bedouin named Atef Krenawi (who was formerly associated with the Likud Party). Another party, called Da’am, is headed by an Arab woman Asma Agbaria Zahalka and emphasizes social equality and workers’ welfare.

But if I were to wake up on January 23, 2013, and discover that either of these fledgling parties had passed the 2% threshold for Knesset representation, I would think that I had been dreaming again – just fantasizing that Israeli Arabs would embrace parliamentary struggle to advance their sectoral interests along with the general welfare of all citizens of the State of Israel.

Confession of an Obama Voter Living in Israel

(This piece appeared in The Times of Israel on November 9, 2012)

I am one of the few American residents of Israel (estimated at 15% of Americans voting from Israel) who supported Barack Obama’s reelection. Some Israeli friends gape incredulously when I admit my support for Obama. For a common Israeli perspective is that President Obama has undermined Israeli interests by abetting the rise of Muslim fundamentalism in Arab lands, by allowing Iran to develop nuclear weapons, by insulting Israeli Prime Minister Netanyahu, and by promoting surrender of land vital for Israeli security.

For starters in my defense, I point out that I am not a one-issue voter. While Israel is near and dear to my heart, as my residence in Tel Aviv attests, the candidates’ respective positions on American economic and social policy shaped my vote. I heard Governor Romney make grandiose promises to create jobs without specifying any program ideas. I heard Republicans understandably pushing to close budget deficits, but refusing to increase taxes for the wealthy. And I saw the Democrats’ salutary program for expanded health insurance coverage savaged by Republicans’ utterly false claim that consultation on long-term health planning entailed “death squads” preying on vulnerable patients. In short, my conviction that Obama better promoted American domestic well being was determinative of my vote.

Yet even if I were a one-issue voter I would not have voted against Obama. For I am by no means convinced that the President’s conduct has jeopardized Israel’s ultimate well being. His Israeli critics point to Obama’s abandonment of the Mubarak regime and his early Cairo speech reaching out to the Muslim world as facilitating the rise of the Muslim Brotherhood in Egypt and of fundamentalism in the Muslim world. Yet it is dubious to me that Obama could or should have tried to save Mubarak in the face of the massive protests sweeping Egypt in 2011. Nor was it irresponsible for an American president to suggest to the Arab world that America would be responsive to democratic change. None of that contradicts Obama’s willingness to assist Israel’s defense, including pressure on the Moslem Brotherhood to preserve its peace treaty with Israel.

If President Obama were indifferent to Iran’s development of nuclear arms, I would be alarmed enough to vote against him. But in fact Obama has expressed determination to prevent that development and has engineered extensive sanctions shown to have a severe impact on Iran. No, he is not on the brink of attacking Iran’s nuclear installations. But as former Mideast advisor Dennis Ross recently noted with regard to this issue: “No American president will mobilize forces before showing the American people and the world that he has done everything in his power to prevent war.” That admonition would apply equally to Mitt Romney.

Israelis perceive that Obama has insulted Netanyahu both by refusing to meet the latter during recent visits to America and by sotto voce derogatory comments at an international meeting. From my perspective, Prime Minister Netanyahu has earned that disdain. While mouthing endorsement of a 2-state solution, Netanyahu has done precious little to advance that possible course. His administration regularly announces building projects in East Jerusalem and elsewhere that erode any prospect of peaceful resolution of the dispute with the Palestinians. And just weeks before the American election, Netanyahu announced a new political alliance with Yisrael Beitenu, a party dedicated to never yielding an inch of territory captured by Israel in 1967. It is not surprising that Obama has not embraced Netanyahu with any warmth.

President Obama’s promotion of a 2-state solution aggravates mostly those extreme Israelis who claim Jewish entitlement (grounded mainly on biblical injunction) to all the territory between the Jordan River and the Mediterranean Sea. Yet their special hostility toward Obama is misplaced. No American administration has ever been willing to let Israel permanently govern and control the roughly one and ½ million Arab residents of the West Bank who adamantly oppose Israeli sovereignty. Mitt Romney could not have deviated from that consistent American position; nor would the world acquiesce in Israeli annexation of Arab populated territory without accompanying provision of full citizenship. From my perspective, Israel’s preservation as a democratic Jewish state depends on ultimately renouncing control of the Arab residents of most of the West Bank.

Of course, Mr. Obama must maintain a realistic perspective in advancing the 2-state solution to the current conflict. There is a history of Palestinian rejectionism starting with Yasser Arafat’s walking away from then Prime Minister Ehud Barak’s offer of a Palestinian state alongside Israel and Mahmoud Abbas’ refusal of a similar offer from then Prime Minister Ehud Olmert. The Palestinian Authority today in its public forums and educational institutions demonizes Israelis in terms incompatible with peaceful coexistence as neighboring states. Moreover, Abbas individually, and the Palestinian Authority collectively, currently have only a shaky political status. They have zero control of Gaza, where Hamas’ determination to destroy Israel governs policy. And there is significant question whether Fatah’s control of the West Bank would endure a Hamas challenge. I am confident that President Obama (along with his former key advisor Dennis Ross) is aware of these considerable obstacles to a 2-state solution. That awareness of Palestinian hurdles is why he continues to proclaim unwavering support for Israel and to block unbalanced U.N. security council resolutions. In short, when I voted for Obama, I was confident that I was supporting Israel’s long-term survival and well being as well as the welfare of all American citizens.

Too Little, Too Late: A Book Review of ‘Goldstone Reconsidered’

“Too Little Too Late,” a book review of “The Goldstone Report ‘Reconsidered’: A Critical Analysis” (G.M. Steinberg & A. Herzberg eds., 2011)

Norman L. Cantor

            Goldstone Reconsidered is a collection of essays highlighting and analyzing the multiple defects and deficiencies found in the September 2009 Goldstone Report (to the United Nations Human Rights Council) relating to Israel’s “Operation Cast Lead” in Gaza.   The book’s eleven individual authors are mostly well-known academics or public figures (such as Alan Dershowitz, Irwin Cotler, and Moshe Halbertal) and several have very solid credentials in International Law (such as Cotler, Laurie Blank, and Abraham Bell).  A twelfth chapter is a summary report following a gathering of international law experts conducted at Chatham House in London in December 2009.

For people disturbed by the harsh and shrill accusations against Israel contained in the Goldstone Report (hereinafter “G.R.”), Goldstone Reconsidered is a good starting point in understanding the serious flaws in the Goldstone Commission’s composition, methodology, and conclusions.   The book is only a starting point because most of the essays were written in late 2009 and early 2010 in the immediate wake of the September 2009 G.R.  As I will explain below, significant additional information is available that reinforces the critical points made in this book.

All authors in Goldstone Reconsidered are critical of the G.R.’s sweeping conclusion  that Operation Cast Lead was part of a purposeful Israeli effort to harm the civilian population of Gaza.  But these essays offer varied emphases and insights into the G.R.’s hasty attribution of malevolent intention and purposeful misconduct to Israel.  Alan Dershowitz, for example, carefully deconstructs the shaky evidentiary foundation for G.R.’s conclusions about evil intent, emphasizing the total absence of evidence about actual military orders or policy.  (Pp. 105-110).  (Interestingly, Richard Goldstone himself has acknowledged that the G.R.’s sweeping conclusion about Israeli malevolent intent was based on dubious inferences rather than direct proofs. Washington Post, 4/2/11)

Other contributors to Goldstone Reconsidered strongly reinforce Dershowitz’ observations about the G.R.’s predilections for making rash inferences about Israeli military conduct.  Laurie Blank persuasively shows how law of war concepts like distinction (choosing military targets) and proportionality (avoiding excessive civilian collateral damage) are dependent on assessment of the information in the hands of military commanders; yet the G.R. made gross assumptions about intentional harm to civilians even though the Goldstone Commission had virtually no data about what Israeli commanders knew at the time of attacks.  (Pp. 210-13, 222-31, 253).  (Professor Blank notes, in passing, that Israeli non-cooperation made the Goldstone Commission’s work much more difficult, an issue to be picked up later in this book review).  Several contributors contrast the G.R.’s willingness to infer malevolent intention from Israeli military operations with the G.R.’s stubborn refusal to infer wrongful intention from Hamas’ evident efforts to utilize civilian presence and infrastructure to shield combatants.   Abraham Bell is particularly effective in exposing G.R.’s double standard of inferences as applied to Hamas’ placement of rocket launchers in or near civilian installations and its mingling of non-uniformed combatants with civilians.  (Pp. 274-78).   G.R., despite considerable contemporary reports and photos of Hamas’ use of ostensibly civilian structures for storage and firing of weaponry, lamely concluded that it could “not exclude” that Hamas had unnecessarily (and unlawfully) exposed Gaza’s civilian population to danger.

Goldstone Reconsidered usefully notes and explains the complexity of some legal issues concerning Gaza hostilities, and thus shows how presumptuous and superficial the G.R. was in accusing Israel of systematic violations of international norms including the law of war.  The G.R. treats the Israeli blockade of Gaza as unlawful “collective punishment” of Palestinian civilians, yet it is self-evident that Israel has legitimate defensive reasons for screening for import of missiles and weaponry.  (The U.N.’s Palmer Commission report of September 2011 as well as Israel’s Turkel Commission report confirm that there is significant legal support for Israel’s naval blockade as a legitimate security measure).  Moreover, as contributor Abraham Bell notes, economic sanctions are a common tool in international relations even though they cause hardship to affected civilian populations.  (P. 267).   (Whether wisely or not, Israel was using a blockade to press Hamas to release Gilad Shalit – an Israeli soldier then being held hostage in return for release of convicted murderers of innocent civilians.)

Other complex legal issues blurred by the G.R. are usefully highlighted in Goldstone Reconsidered.  For example, the book explains that while law of war principles demand distinction between military and civilian targets, the status of Hamas “civilian” ministries servicing Hamas’ military forces and Hamas’ “civilian” police force reinforcing Hamas combatants are highly problematic.  (Pp.  168-73, 210-14).   As noted, Laurie Blank lays out how the principles of distinction and proportionality demand inquiry into the data available to field commanders, yet the G.R., without any reference to Israeli field intelligence, regularly makes negative conclusions about unlawful malevolent intent or recklessness by Israeli field commanders.  (Pp. 210-13, 222-31).  Trevor Norwitz points out how even the status of Gaza as occupied territory is debatable given Israel’s prior withdrawal and Egypt’s simultaneous control of some entry points to Gaza.  (Pp. 165-67).

While Goldstone Reconsidered does a fine job of highlighting evidentiary deficiencies and gaps in the G.R., the timing of the essays in late 2009 and early 2010 precluded a comprehensive effort to fill the gaps and correct the distorted picture depicted in the G.R.   The authors of Goldstone Reconsidered generally acknowledge that a significant number of incidents considered in the G.R. demanded further investigation and clarification.  But only a few of the authors mention, let alone incorporate, the most comprehensive Israeli response to the G.R. – a July 2010 Israeli Report titled Second Update on Gaza Operation Investigations (hereinafter  “2010 Investigation Update,” found at http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Gaza_Operation_Investigations_Second_Update_July_2010.htm).  That 2010 Investigation Update goes far to dispel, in the minds of fair-minded people, the gross G.R. suggestion that Operation Cast Lead was a purposeful effort to harm and terrorize the civilian population of Gaza.   The G.R. stressed Palestinian civilian casualties near ostensibly civil installations such as a UNRWA school and the Al Maqadmah mosque as pointing to Israeli targeting of civilians.   The 2010 Investigation Update lays out the operational scenario surrounding the casualties near facilities like the school and the mosque, explaining the military targets and objectives in each case.  (Paragraphs 61-66, 69-73).  The G.R. branded attacks on the Gaza police stations as targeting of civilians; the 2010 Investigation Update lays out some of the intelligence data for treating the Gaza police as intertwined with Hamas and therefore a legitimate military target. (Paragraphs 80-84).   While the G.R. branded damage to civilian food supply enterprises such as a flour mill and a chicken farm as an Israeli effort to deny sustenance to the Gazan civilian population, the 2010 Investigation Update articulates the military data and the circumstances leading to the damage – clarifying that the Israeli military operations were in no way intended to interfere with the civilian food supply.  (Paragraphs 124-28, 130-31, 142-44).   See also a March 2010 report, “The Main Findings of the Goldstone Report Versus the Factual Findings,” Intelligence & Information Center, available at http://www.goldstonereport.org.

At the same time, the 2010 Investigation Update notes that some IDF misdeeds and miscalculations harming civilians did occur during Operation Cast Lead.  The Israeli advocate general was involved in 47 criminal investigations leading to the prosecution of 4 soldiers and the discipline of 6 officers.  (Paragraphs 41-42, 60).   In addition, while the Update affirms that IDF standing orders did and still do “strictly prohibit” targeting of civilians and make proportionality a core principle within Israeli military doctrine, the Israeli investigations subsequent to Operation Cast Lead have led to changes in operational procedures to better insulate the civilian population from combat hazards and property damage. (Paragraphs 150-52).

As noted above, Goldstone Reconsidered is an appropriate starting point for refuting the rash charges leveled against Operation Cast Lead in the G.R.  Effective refutation must employ more systematic data gathering along the lines of the 2010 Investigational Update.  Of course, in some measure, all efforts to correct the false impressions flowing from the G.R. are too little too late.   Despite exposure of its weaknesses and deficiencies, the G.R. will remain grist in the mill of the anti-zionist forces seeking to demonize Israel and undermine its legitimacy in a variety of forums.  These forums include the biased U.N. Human Rights Council which commissioned the G.R. as well as some of the NGO’s and individuals pushing the BDS movement via the media, blogosphere, and college campuses.  Another forum for exploitation of G.R. is the Arab street or masses who may ultimately shape the consequences of the so-called “Arab spring” being played out in Egypt, Tunisia, Syria, etc.   One of the contributors to Goldstone Reconsidered, Richard Landes, reminds us of the willingness of the Moslem world to accept any vicious narrative about Israel as true. (P. 55).  Trevor Norwitz, another contributor to Goldstone Reconsidered, rightfully fears that the libelous misconceptions of the G.R. have so taken hold that “truth will have no power against the venom and hate that have already been spread.” (P. 177).  Even the belated efforts of Richard Goldstone himself to dispel the nefarious implications of the G.R. may be unavailing.  When Judge Goldstone disavowed the G.R.’s conclusion that Israel had purposely targeted civilians (Washington Post, April 2, 2011), the disavowal was promptly dismissed as Goldstone’s craven submission to social pressure applied by Jewish friends.  (Roger Cohen, N.Y. Times, April 8, 2011).   The consolation for the contributors to Goldstone Reconsidered is that their efforts to discredit the G.R. may be useful in defending Israelis when and if the Palestinian Authority or others pursue prosecutions for alleged war crimes or other alleged international law violations in judicial forums such as the International Criminal Court or the International Court of Justice.

The Israeli government refused to cooperate with the Goldstone Commission, deeming the Commission’s mandate and membership too biased to allow a fair inquiry.  Israel denied the Commission access to Israeli officials and failed to respond to written questions transmitted.  In Goldstone Reconsidered, several contributors raise – and provide divergent answers to — the interesting question whether Israel should have cooperated in 2009.   Gerald Steinberg is adamant that the refusal of cooperation was warranted.  He finds “no basis” for speculation that Israeli cooperation would have mitigated the G.R.’s war crime allegations.  He argues that, given the Commission’s biased predispositions, any Israeli submissions “would most likely have been twisted and distorted to suit the predetermined conclusions.” (P. 20).  Trevor Norwitz concurs that the G.R. emerged so slanted that it “validates the view that the deck was so stacked against Israel that it was not worth playing the game.” (P. 162).

Contributor Moshe Halbertal, by contrast, concludes “it was a mistake on Israel’s part not to participate in the inquiry.”  (P. 288).  With 20/20 hindsight, I strongly agree.  The Goldstone Reconsidered contributions from Laurie Blank and Chatham House elucidate how determinations about militarily justified targets and proportionality of possible civilian casualties were utterly dependent on the operational circumstances and information known by Israeli officers. (Pp. 235-41, 253; 91-97).  Israeli failure to provide background information to the Goldstone inquiry about what the attacking forces knew and believed gave free rein to the Commission’s predisposition to make negative assumptions and inferences about Israeli conduct causing civilian casualties and destruction.   Likewise, withholding of Israeli intelligence information about Hamas’ wartime exploitation and abuse of the civilian population of Gaza handicapped any inquiry into Hamas’ war misconduct.  Sure, a balanced fact finder would have done far more than the Goldstone Commission to overcome the Israeli silence and to fill the gaps and would have refrained from sweeping legal conclusions on an inadequate evidentiary base.   Sure, the Goldstone Commission was predisposed to making an indictment of Israel as a predatory state insensitive to human rights.   Nonetheless, Israeli presentation of information might well have mitigated the G.R.’s conclusions about malevolent Israeli intent and policy.  Richard Goldstone’s personal integrity has been widely conceded.  Goldstone’s April 2011 personal retraction about Israeli targeting of civilians, based in part on information emerging subsequent to the G.R., tends to confirm his lack of personal animus toward Israel.  (His recent editorial defending Israel against the accusation of being an apartheid state lends further credence to his lack of hostility.)  Moreover, while the G.R. is shockingly unbalanced, it is not devoid of condemnation of Hamas.  The G.R. acknowledged that many thousands of rockets fired from Gaza had been indiscriminately aimed at Israel’s civilians, and the G.R. branded Hamas’ violence against Fatah supporters a serious breach of human rights.  (G.R., paragraphs 80, 103-105).  Perhaps, had Israeli cooperation made more information available in 2009, the G.R. would have been more restrained in its Israeli related conclusions.   We will never know.  Sadly, the G.R. as written has already done incalculable damage, and Goldstone Reconsidered is left to be part of a valiant effort at damage control.

Cadaver Disposal: How to Avoid a Moldering Mess

Cadaver Disposal: Avoiding a Moldering Mess

Norman L. Cantor*

            Disposal of human remains does not generally leave aesthetically pleasing remnants.  Morticians employing arterial embalming and cosmetic interventions can delay putrefaction and decomposition long enough to preserve appearances pending final disposition, usually by burial.  But the fate of a buried corpse is still a repulsive decomposition into a dark, moldy, undifferentiated mass and ultimately a blackened skeleton.

A variety of techniques exist for preserving the physical integrity of human remains, as I learned in researching and writing “After We Die: The Life and Times of the Human Cadaver.”  But each approach has its limitations.

Extreme cold can arrest the decomposition of a cadaver.  Yet there is little interest in maintaining frozen stiffs except for the few people who believe in cryonic suspension – preservation of frozen remains until science is able to restore the functioning and health of the late departed human.  Though cryonics facilities have existed for decades, only a few hundred people have opted to have their remains turned into corpsicles.  The technical obstacles to revivifying corpses are so daunting that the process has been likened to turning hamburger back into a cow.  Even in the futuristic event of success in regenerating frozen human corpses, hard questions would remain about how much memory and character restoration is necessary to reconstitute the same person.  In other words, even an ultimately successful corpsicle may not be restoring the same person as the preexisting persona.

Mummification, meaning preservation by drying out, anointing, and wrapping remains, is an option for Americans as it was for Egyptians thousands of years ago.  Summum Corporation, of Salt Lake City, will make a mummy of your corpse by immersion in a chemical bath followed by wrapping in multiple layers of gauze and sealing in polyurethane and plaster.   Summum’s founder, Corky Ra, asks “Why spend thousands of dollars in health club fees while you’re alive, then let everything go to pot just because you’ve died?”  A better question is what real benefit does a mummy provide?  The end-product indefinitely preserved is likely to be desiccated and shriveled with little likeness to the departed one.  And the mummy still needs a final resting place.  Summum offers a mountain sanctuary in Utah, but a mausoleum vault seems like a more convenient refuge.  The Egyptians at least believed that mummy storage was temporary, as the physical remains would reunite with a returning spirit and depart from the storage facility.  I, for one, don’t share that expectation.

Plastination is another way to avoid a moldering mess.  Plastination involves an immersion process through which a cadaver’s liquids are replaced by polymers and the remains formed into an odorless, flexible, indefinitely enduring specimen.  The cadaver is converted to a faceless, skinless manikin-like figure looking more like a fiberglass replica than a human cadaver.  Disposal of the plastinated figure is still necessary.  Burial and above-ground entombment are options.  For the altruistic person, plastination offers an opportunity for post-mortem public service.  Plastinated figures are useful in educational displays like Body Worlds exhibits and as models in medical education contexts.

In terms of preserving a natural, life-like appearance, no better results exist than those of saints and martyrs whose remains are contained in various European cathedrals.  These religious figures, collectively known as “the incorruptibles,” have miraculously retained a suppleness and lifelike appearance for extraordinary periods, sometimes centuries.  Saint Zita has lain in a basilica in Lucca, Italy, for over 700 years without decaying.  Yet the sainthood route to eternal bodily integrity is so arduous as to be attainable by only an infinitesimal percentage of the population.  The average Joe or Josephine cannot plan on becoming an eternal object of veneration and pilgrimage.

A different way to avoid a moldering mess from cadaveric disintegration is to accelerate the decomposition process.  Cremation reduces a cadaver to 6 or 7 pounds of powder within a few hours.  The result is a compact package of cremains suitable to be stored in some kind of urn (usually in a cemetery or columbarium) or to be scattered at some locale previously dear to the decedent.  Not everyone is a fan of cremation.  Jerry Seinfeld commented: “It’s kind of like covering up a crime – burn the body, scatter the ashes around.  As far as anyone is concerned, the whole thing never happened.”  And some sources claim that cremation increases air pollution by expelling carbon dioxide, particulate matter, and mercury (from tooth fillings).

Having thought hard about cadaver disposal while writing “After We Die,” I’m leaning toward cremation as the way to avoid the moldering mess of decomposition.  I will fulfill my public service inclinations by leaving organs and tissue for transplant.  Modern cremation technology largely solves the air pollution problem.  I’m giving up the goal of maintaining bodily integrity after I die.  I’m no saint and hence ineligible to be an incorruptible.  Mummification or plastination could preserve my corporeal form, but only after an arduous post-mortem process.  And I would still have to worry about housing for the preserved remains.  No storage problem exists if my cremains are scattered in a pleasant locale.  Or perhaps my alma mater will adopt the practice of a few colleges who now sell on-campus columbarium space to alumni.  The ultimate college reunion.

 

*Emeritus Professor of Law at Rutgers Law School, Newark, and author of After We Die: The Life and Times of the Human Cadaver (Georgetown University Press 2010).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hazards of Unripe Democracy in the Middle East

The following piece appeared in the March 11, 2011, English edition of the Israeli newspaper HaAretz.

 The  Hazards of Unripe Democracy

Norman L. Cantor

            Israelis are understandably apprehensive that the uprisings in nearby Arab countries will produce unripe democracy – elected governments lacking democratic checks and balances and subject to malevolent manipulation and usurpation of majority will.  Past experiences in Lebanon, Iraq, Gaza, and Iran, among other places, furnish good cause for such concern.

Yet Israelis should be concerned as well about internal trends inconsistent with basic democratic principles and values.  In a robust democracy, freedoms of thought and expression help provide a bulwark against intemperate oligarchic control.  Free expression makes a full spectrum of views and information available to an electorate to ensure informed electoral choice.  Protected speech includes dissent from current orthodox positions even when that dissent is distasteful to majority views.

A recent decision of the U.S. Supreme Court illustrates how free speech protects even dissenting ideas that are hateful or unpatriotic from a majority perspective.   In Snyder v. Phelps, a Christian religious sect had picketed near the Virginia funeral of an American soldier who had fallen in Iraq with signs blaming American policies tolerant of homosexuals for provoking God’s wrath.  The picket signs proclaimed “God hates the U.S.” and applauded the soldier’s death as appropriate punishment for America’s tolerant policies.  The pickets’ hurtful message was that the soldier had died in shame, not honor, representing a profligate nation.  After the Virginia courts had awarded the dead soldier’s mourning family millions of dollars in damages for “intentional infliction of emotional harm,” the U.S. Supreme Court reversed on March 2, 2011.  By an 8 to 1 margin, the Court ruled that even the upsetting, offensive expressions by the defendant sect were constitutionally protected by freedom of speech.  The sect’s views about American policy might have been wrong, hurtful, and unpatriotic in a time of war, but they could not be suppressed by government unhappy with the speakers’ messages.  The remedy for distorted speech is counter-speech to criticize and correct the distortions and to elucidate the facts.

Within Israel, a disturbing tendency exists to equate dissenting voices – public expressions contrary to prevailing policies – as a form of punishable treason.  M.K. Miri Regev’s proposed bill to narrow parliamentary immunity is one example.  Her bill was triggered by presence and expressions of another M.K. on the Turkish flotilla seeking to reach Gaza.  Yet, consistent with free expression, an Israeli legislator could reasonably believe and say that the existing Gaza blockade was overly harsh and counter-productive so long as the legislator was not seeking to smuggle arms or forcibly resist the Israeli search team.  Nor is it treason even to believe and argue that a military operation intended as part of national defense – such as operation Cast Lead – might be premature or hasty or ill-planned in causing excessive collateral damage.

Another basic democratic principle is preservation of the rule of law.  Citizens are entitled, in a democracy, to protest government policies, but not to physically resist them with impunity.  A part of the settler movement in Judea and Samaria fails to grasp this notion.  An article in the March 6, 2011, English HaAretz brands the government’s destruction of unauthorized outpost Havat Gilad as “undemocratic” because a majority in the last Israeli elections had supposedly “voted against the destruction of the homes of Jews.”  Put aside the puerile notion that representative democracy demands implementation of every majority preference; recent settler outrage is still misplaced.  Settlers are indeed entitled to condemn the government’s destruction of unauthorized outposts like Havat Gilad, but they are also subject to appropriate punishment both for physical resistance and for protest actions blocking public transportation.  Likewise for vandalizing property (“price tag” retaliations).   These disruptive objectors may see themselves as justified by noble creeds, but they are in no better position than a conscientious soldier who refuses to serve beyond the green line and is then jailed for failure to adhere to army orders.

In a robust democracy, citizens can oppose and condemn public policies, but the rule of law ensures that opposition is not converted to illegal conduct disrupting public order.  Part of the recent apprehensiveness following Arab popular uprisings flows from the threat of mass violence usurping majority will.  A New York Times article of March 6 warns that “minorities that are organized and willing to use violence can establish reigns of terror over unorganized or passive majorities.”   Settlers engaging in physical resistance to government decisions pose a similar challenge to Israeli democracy.   In short, while Israelis have good cause to fear “unripe” democracy in nearby countries, they should also be alert to the maintenance of robust democracy within.

Norman L. Cantor is professor of law, emeritus, at Rutgers University Law School. He has taught about freedom of expression at both Rutgers and at Tel Aviv University faculty of law.