Guest Post by Allan Cheskes
A recent series of article on Israel by Howard Adelman, the widely respected academic and former editor of Refuge, Canada’s periodical on refugees, unfortunately misrepresents the circumstances, motivations, and consequences of an International Criminal Court (ICC) investigation of Israel.
Before proceeding, it’s important to state that Mr. Adelman has a well-deserved reputation as a thorough and balanced scholar. He also is clearly generally supportive of Israel’s rights to both exist and defend herself. And yet, in an attempt to be “impartial”, Mr. Adelman has downplayed the grievances and sufferings by Jewish Israelis including their right to self-defence in his recent series on the ICC investigation of Israeli alleged war crimes.
Over the course of the eight-part series published between March 22, 2021 and April 1, 2021, several instances of bias, inconsistencies and even contradictions arise.
I believe when Mr. Adelman, in his attempts to be impartial, has implicitly created a moral equivalence between the Hamas terrorist regime and the Israeli Defense Forces (IDF). To that extent, I believe Mr. Adelman’s good intentions have been misplaced. He has also created a standard model for ethical behaviour for army conduct during warfare that is unrealistic and not met by a single army in the world facing dire war conditions. Yet he expects the IDF to comply with this idealistic model.
“Israeli Possible Humanitarian War Crimes: 2018-2019 Gaza Border Protests,” deserving of close attention.
First, some background. In 2019, demonstrations were scheduled and organized by Hamas every Friday at Gaza’s northern border with Israel for six weeks leading to mid-May, when Israelis celebrated Independence Day, and when many Palestinian Arabs marked Nakba Day. They were ostensibly also protesting the blockade of Gaza and the US decision to move its embassy to Jerusalem. From the start, however, the protests were really about the divisive issue of the “right of return” for Palestinian refugees and all their descendants, to territory that became Israel after the 1948 war. With the demonstration openly labeled as “The Great March of Return,” Israel was gravely concerned at the prospect of many thousands – amongst them armed terrorists – pouring into its territory.
Nevertheless, Mr. Adelman focuses almost exclusively on the Israeli response, citing numerous unreliable and anecdotal sources to support his opinion that Israeli forces were unnecessarily brutal in their attempt to prevent militant aggressions across the border.
He cites the International Committee of the Red Cross (ICRC) as a “traditionally highly respected source of such data.” Mr. Adelman fails to mention however, that the ICRC is not a respected source of information when it comes to Israel, and treats Israel with a double-standard in contravention of its own official position.
Troubling Sources
Mr. Adelman cites three NGOs, B’Tselem, Amnesty International and Human Rights Watch (HRW), in claims that Israel used deadly force to repel protesters.
Upon reading the article, I took it upon myself to email Mr. Adelman to question his choice of sources. To his credit, Mr. Adelman responded and engaged in conversation, and admitted that Amnesty and HRW are clearly biased against Israel but insisted that B’Tselem is a reliable source.
If Mr. Adelman portends to be impartial in this analysis, why does he choose Amnesty and HRW as sources, knowing full well that they are biased? Or at the very least, why not include a disclaimer that these sources have been biased and unreliable in the past?
As it happens, B’Tselem is very controversial in Israel. In January 2021, B’Tselem took the dramatic step of publishing an op-ed in The Guardian and sending press releases to numerous newspapers around the world, accusing Israel of “apartheid”. The move served to lend support to the vitriolic Boycott, Divestment and Sanctions (BDS) movement against Israel, and caused the group to be banned from delivering presentations in publicly funded schools.
Even the usually stridently anti-Israel The Guardian was taken aback, with an editorial saying “It was a deliberate provocation by B’Tselem… to describe the Palestinians in the Holy Land as living under an apartheid regime.”
Similarly, in July 2020, in the context of the Black Lives Matter protests, B’Tselem CEO Hagai Elad compared Israel’s treatment of the Palestinians to the death of George Floyd, stating that “I think about us and the Palestinians, and see the picture of George Floyd in my mind. We have our knee on their necks while holding an argument with ourselves on how we wish to continue doing so.”
Despite B’Tselem reputation for blatantly smearing Israel, Mr. Adelman accepts without question the organization’s claims. Similarly, statements made by wounded Palestinians who claimed to have been 30-40 metres from the fence when they were shot are not queried. Mr. Adelman writes:
“They insisted that they had not thrown stones or other missives. Journalist video footage show Palestinians being shot and falling down as they were running away from the fence. Israeli officials acknowledged that the soldiers and border guards were following official orders to use live ammunition against people who approached or attempted to cross or damage the fences, but not to shoot to kill. Most of the wounded had been shot in the legs.”
One wonders if these protesters are to be believed that they had been 30-40 metres away from the fence, why were they “running away from the fence” if they were not there in the first place?
Why does Mr. Adelman, in his purported impartial analysis, accept these accounts as reliable and unbiased when there have been many documented cases of false and misleading reports coming from many such sources?
Mr. Adelman’s impartiality is substantially undermined by his not addressing other sources which report or refute the claims made by his biased sources. He has effectively decided to dismiss other sources which do not agree with his own obvious biased views.
Further Questions Left Unanswered
How do these seemingly respectable sources determine whether protesters are civilians or military, peaceful or aggressive? Can readers rely on the casualty statistics offered? Adelman writes with regards to the first six weeks of Palestinian protests along the border that “The UN Commission determined that 183 had been killed and that only 29 had been militants”. Due to the Hamas and Palestinian Islamic Jihad policy of fighters not wearing uniforms, in contravention of international law, it’s virtually impossible to distinguish between militants and civilians. Yet Mr. Adelman doesn’t even contemplate the possibility that the numbers are unreliable to the point of being worthless.
Similarly, Mr. Adelman totally fails to broach the subject of the serious consequences of any successful breach of the fence with Israel by Palestinian terrorists. Is he not aware of the proximity of Israeli civilians including innocent children, just a stone’s throw away from these protests at the border? Does he seriously believe that if the militants breached the border fence, they would disarm themselves and continue their protest in a peaceful fashion over on the Israeli side? At no point is it made clear that the murder of countless Israeli innocents is at stake.
And what of the great devastation of property caused by the incendiary balloons directed over the border to Israeli territory? These balloons and kites, carried by prevailing winds to the target area, dripped burning fuel or exploded, causing thousands of acres to burn, destroying agricultural crops and fields. Children living nearby were warned not to pick up any stray balloons or kites.
This, after the whole population of southern Israel has been traumatized by repeated rockets attacks directed indiscriminately at civilians by Palestinian terrorists. Clearly there is great concern in maintaining security along the border.
Similarly, why does Mr. Adelman neglect to describe Hamas’s role in causing casualties among its own people? Who organized the transportation of thousands to the border? Why were civilians taken to areas close to the fence, against their will? None of this is mentioned in Mr. Adelman’s analysis.
It was clear that Hamas did nothing to prevent protesters from maintaining distance from the border fence and refraining from terrorist actions, but instead encouraged and required them to form human shields around militants. Unfortunately, this is not addressed by Mr. Adelman’s analysis because, as he states, the purpose of his piece is to only examine Israel’s actions and not Hamas’s actions. But analysing Israel’s actions in isolation is absurd. Clearly there is a link between retaliatory measures necessarily taken by Israel in self-defence with actions taken by Hamas’s initiatives.
In a similar vein, Mr. Adelman uses the UN General Assembly as a source to support his claims of brutal and disproportionate retaliatory responses from the IDF. On June 13, 2018, yet another N General Assembly resolution condemned Israel’s response at the Gaza border. In 2020 alone, Israel was condemned seventeen times. By comparison, the rest of the world, including serial human rights abusers Iran, Syria, China and Russia, received a collective total of six condemnation resolutions. And yet Mr. Adelman cites the UN General Assembly as if it is a credible organization.
Mr. Adelman’s conclusion, that “the main problem was the decision-makers who decided to use lethal force when its use was both questionable, undisciplined and inappropriate” totally fails to question what would be considered a workable protocol for defending a national border under chaotic and threatening situations. It’s easy to criticize from the sidelines, but Mr. Adelman joins with the ranks of delegitimizing Israel when he attacks its policies in defending itself from an arms-bearing mob without offering any clear alternative.
In a subsequent post, The ICC, Israel and Settlements, Mr. Adelman cites a graduate student at the University of Toronto, James Levin, who is writing his doctorate on conflict resolution.” No disrespect to Mr. Levin, but Mr. Adelman, why choose a graduate student to support your position when many international legal experts are available? For the sake of impartiality which he continues to profess, why did Mr. Adelman not also include analysis from Irwin Cotler and Alan Baker on this issue?
In this post Mr. Adelman goes off on a tangent to discuss the need to separate in our assessment of justice in war, “the reason for going to war and the manner in which the war is fought.” In other words, one must assess the just cause for going to war and thereafter assess whether conduct in war is just. This is reasonable. Mr. Adelman then outlines the principles for assessing justice in both instances. It is unclear what this has to do with concerns raised about his bias and omission of critical information in his analysis of Israel’s conduct during the Gaza border protests. Despite numerous issues being raised, Mr. Adelman does not redress them. Is Mr. Adelman, who prides himself with impartiality and the absolute search for truth, oblivious to these other facts and concerns raised?
While not relevant to the concerns raised above, Mr. Adelman goes on a tangent to explore the principles to assess a just cause in entering a war and in conducting a war. I would not address this ordinarily, given the lack of relevance to the concerns raised, but even here, Mr. Adelman’s analysis is questionable.
In assigning blame to Israel and Hamas, or in assessing the just cause for the initiation of the war, Mr. Adelman seems to be calling it a draw. ”First, Israel and Hamas have used violence not as a last resort, but as a replacement for dialogue. Second, both sides claim good intentions. Israel asserts the right to self-defence against Hamas’s rocket fire, while Hamas claims the use of violence to end the Israeli blockade and win Palestinian self-determination.” While Mr. Adelman chooses not to pursue Israel’s just cause to engage in war, I object to his drawing moral equivalence so easily to both sides. Hamas’s clear intention is to wipe Israel off the map. Which side is rejecting dialogue? Hamas continues to use terrorist actions without regard for civilians including children’s harm. In fact, they have deliberately directed terrorism against defenseless civilians. The Israeli blockade came only after Hamas violently came to power in Gaza, and they used imported materials to build underground attacking tunnels into Israeli territory and to build and store rockets. Humanitarian aid and other essentials are not restricted into Gaza. How does one draw a moral equivalence between the IDF and the Hamas designated terrorists, as they are categorized by many democratic willed countries?
In exploring the second set of principles, Mr. Adelman assesses the Israeli conduct during war. Mr. Adelman, without addressing the concerns previously raised, once again, repeats the same conclusion that “Israel has done too little to minimize Palestinian civilian casualties, a troubling number of whom were children.” (Why were children even allowed onto buses if they were being directed to danger zones, made unsafe by Palestinian provocations?) Through smoke and mirrors, Mr. Adelman is deflecting the concerns raised by his concerned readers. The previous analysis by Mr. Adelman remains flawed notwithstanding his strange foray into principles for justice in initiating and conducting a war.
Furthermore, in delineating initiation in and conduct during war, Mr. Adelman ignores the obvious link between the two. If Hamas did not provoke the war in the first place with kidnappings and indiscriminate use of lethal rockets against Israeli civilians, there would be no need for retaliation and no collateral damage. What other country in the world would take this onslaught in the chin and respond with more ethical measures taken by the IDF? Again, Adelman relies on principles to create a standard model for conduct in war that no other army in the world would assume. Wars by there very nature are not conducted with niceties. If there is such a single model army, I challenge Mr. Adelman to disclose such. Otherwise, Mr. Adelman is choosing a high standard for Israel which he does not choose for any other army in the world.
With regards to Mr. Adelman’s analysis of the ICC investigation of Israeli alleged criminal activity with their settlements in disputed territories, I will spare my readers further analysis. While I do not like some of the analysis for the same concerns I raised before regarding impartiality, using partial and perhaps unreliable evidence, I choose not to delve here, because in my mind, Mr. Adelman arrives at the “right” conclusions.
In fairness to Mr. Adelman, I will reference his conclusions here:
It is one thing to oppose the settlements as a threat and/or obstacle to peace or as making the possibility of peace between the Israelis and the Palestinians as more difficult – and this is not a given but a claim – it is quite another matter to declare the settlements illegal under international law. Most countries have done so – I believe erroneously. (-As an aside, Mr. Adelman, you should have considered this when choosing your sources of information like the UN General Assembly). The US., among others, has not. “
And: “In the end, this problem is not one of law but of fundamental political conflict that has yet to be settled. It is highly unlikely that the ICC will contribute to such a legal settlement and there is the prospect of the ICC losing considerable ground in the effort to expand the jurisdiction and applicability f international law.”
Conclusion
Mr. Adelman’s own concluding comments, “the ICC seems more concerned with shaming states than where systems are absent altogether” are most welcome.
Mr. Adelman adds that the ICC, in taking on this case against Israel, “(the ICC) must ensure that the outcome will be a greater good with the least harm possible.” However, Mr. Adelman muses, the question is whether “the ICC is yet up to that task.”
That is some understatement. When one considers the long analysis preceding the conclusion and the consequences this investigation could have, such a conclusion deserves more attention. Mr. Adelman believes that the principle to investigate Israel for alleged war crimes is justified at least in part, though he admits that the ICC is likely incapable of delivering a fair investigation without harmful consequences.
In conclusion, while Mr. Alderman is a good person with good intentions, his inherent biases, especially evident with his analysis of the 2018-2019 Gaza border protests, have led to repeated omissions. Mr. Adelman’s findings, therefore, are fundamentally flawed. But many readers will be none the wiser, as he comes across as reasonable and considered.
I believe Mr. Alderman should heed his own advice and direct this to himself as well as to the ICC:
“(We) must ensure that the outcome will be a greater good with the least harm possible.” I would muse, “I am not sure that Mr. Adelman is yet up to that task.”
