Saturday, November 07, 2009

Halbertal Reflects on Goldstone

A very, very good piece by Moshe Halbertal -- professor of Philosophy at Hebrew University as well as at NYU law school -- giving his thoughts on Cast Lead and the Goldstone commission. Would that everyone approach the issue with such thoughtfulness.

At the highest level, his position is the standard one held by myself and most fair-minded progressives: that the report had severe problems shot through it, and that this fact has precisely zero bearing on Israel's obligation to fully and credibly investigate all allegations of human rights violations (including several very serious ones).

But another point the article raises in pretty stark terms is the degree to which asymmetrical warfare tactics are, in part, organized around taking advantage of the terrain of international law just as much as they are about taking advantage of topographical terrain. Halbertal's account of how Hamas militants, clad (of course) in civilian gear, did not carry arms while moving from position to position (instead relying on arms caches awaiting their arrival is a great example (I have to admit, my first thought on reading that was: "clever!"). The goal is to exploit the blind spots of the current legal regime so as to render ones opponents helpless and give your own operative impunity (in a way that nearly completely subverts the goal of the legal system it is exploiting). This is the logical extension of lawfare -- if law and legal categories are weapons, then we should expect savvy parties to manipulate their conflict so as to maximize their impact.

And this goes back to another problem with the Goldstone commission, and, I honestly suspect, with Judge Goldstone himself. Judge Goldstone, I genuinely believe, is an honest, conscientious man who really saw himself as simply applying facts to law. The problem is that international law is simply too weak at this point for the sort of staid formalism Judge Goldstone exemplifies to be effective. International law is still mostly political -- it doesn't have much existence beyond the specific political desires of actors powerful within UN institutions. This explains, at least in part, why (as Mr. Halbertal noted) Judge Goldstone was able to give so little guidance as to what sort of behavior would have been legally required out of Israel: what sort of civilian : militant death ratio is legally acceptable, what sort of precautions satisfy the obligation to protect civilian lives, and so on and so forth. The doctrine is worse than unsettled -- it is mostly applied in an ad hoc manner based on the political system's preconceptions of bad things and good things (it really doesn't get much more specific than that).

Judge Goldstone, I've often thought, is like a very judicious, public-spirited, personally fair-minded person who volunteers to be the judge at the Scottsboro trial.* The instinct is equal parts admirable, naive, and egomaniacal. Admirable, because of the belief (which I think Judge Goldstone had) that what the situation really needed was for someone who wasn't infected by the endemic prejudice to step in and be a fair arbiter. Naive, because it drastically underestimates the degree to which the prejudice infects the entire system, and thus is perfectly complimentary with formal legal categories -- Jim Crow ate up and spat out formal constitutional doctrine with a near-careless ease (it took rather dramatic changes in how we viewed American law for institutional racism to be rooted out). Egomaniacal, because of the belief that one messianic person could effectively counter an entire system simply by playing by its own rules. Formalism, no matter how judiciously applied, only works when the surrounding system is just. When that quality isn't present, following the rules will do virtually nothing, because they mean virtually nothing.

I really think Judge Goldstone was surprised and dismayed that the UNHRC completely ignored his comments on Palestinian war crimes, just as he, God bless him, continues to assert that his inquiry wasn't "judicial", despite being the only person on the planet who hasn't taken the report as a definitive pronouncement of guilt and innocence. It's because he's coloring inside the lines, and he thinks that if he is absolutely committed to dotting every i and crossing every t, then all the biases and problems and unfairness and double-standards will melt away.

Again, it is partially admirable. But it's far more naive and dangerous, and it just doesn't exhibit a handle on what world he's actually playing in. As they say, the master's tools will never dismantle the master's house. If the system is corrupted from top to bottom, even the noblest paladin won't get anywhere from the inside.

* This article actually weakened that sentiment somewhat, because it presented decisions by Judge Goldstone that seemed like conscious injections of additional bias, rather than a mere unwillingness to transcend the straitjackets of the system imposed upon him.

1 comment:

Jerry Haber said...

For a response to Halbertal's article by an Israeli colleague, see