I can imagine many people, supporters of Israel, saying to the Israeli human rights community:
- UN mulling separate inquiry into Israeli attacks on its Gaza facilities
- Why as Jews, as Israelis, we must repent for Gaza’s dead
- Should Israel’s leaders fear prosecution for the Gaza war?
- Israel’s tarnished moral calculus
- Jews of the left, center and right: Your personalized sin list
"Israel has implemented two of your major demands. The army announced that there were real time investigations into every incident during the Gaza war in which citizens were harmed.
The State Comptroller has announced an investigation as to how the political and military leadership handled this war, including whether international law was violated. Israel's attorney general and military advocate general are also setting up an independent mechanism for investigating the events in Gaza.
In addition, the advocate general has been looking into over 100 specific incidents, and has already opened five criminal investigations. You must feel vindicated and satisfied."
Indeed, these are important steps forward, but - we must insist on asking about implementation. We need to see the results of those wartime, real time investigations, and what was done with them. Investigations of specific incidents mostly target soldiers on the ground, but don't examine policy and other larger questions. The value of possible broader investigations will be defined by the questions investigators are willing to ask, and their criteria for evaluating the information they receive.
We Israelis indeed had the right to defend ourselves against Hamas rockets and tunnels, and I pray that a transparent Israeli investigation independent of the army will show that we acted entirely correctly and morally.
But I believe that even further information that isn't currently in our hands won't justify the numerous bombings of Gaza homes with tens of civilians in them. If nobody was shooting from the building at the time, the fact that there was a Hamas operative in the house or weapons buried underneath it does not legitimate that action.
If we did kill tens of non-combatants in Rafah in order to try to prevent Hamas from escaping with Lt Hadar Goldin (or his body), this was wrong, in a moral sense, even if the strict word of international law might give more leeway. This was not about saving Goldin's life. If Goldin was still alive, the bombing killed him alongside his abductors and some 130 Gazans, many of whom were non-combatants. If he was already dead, preventing Hamas from obtaining his body did not justify a massive loss of innocent life.
Let me explain by way of a strange Talmudic concept, "kofin al midat sdom" [literally: the need to intervene by force for behavior like that of the people of Sodom]. Our rabbis seem to say that there are limited situations where they would force another to do something they were not in fact legally obligated to do. Most commentators interpret this to mean that if someone refuses to help someone else, even when they will incur no loss, they should be forced to help, lest their refusal send us down the slippery slope towards acting like the Sodomites. This prospect terrified our sages.
In other words: Not everything that is legal is right.
Aharon Barak, the former president of Israel's Supreme Court, also understood this dilemma. He is on record as having said that when it came to demolishing homes lacking a permit, his conscience said one thing, but he was obligated as a judge to do another.
At the time of the first Gaza war I had a disturbing conversation with a recently retired senior figure in the army's international law unit. He explained that the unit would tell its superiors when an Israeli military action clearly violated international law. However, international law isn't always clear. It stipulates that an attack against a legitimate military target must not disproportionately harm non-combatants, but doesn't give a formula for determining what is disproportionate. I was told that increasingly the unit saw its duty as finding legitimation for actions that fell in this the gray area of the law.
Based on this bitter experience, my first question to our State Comptroller is: Will you delve into the complex question of whether an action falling within international law's vast gray area was also just and moral? How will you define what is just and moral, or what guidelines will you give to help us to answer that question for ourselves?
My second question regards the investigation's scope. The fact that Israel was justified in defending herself begs the question whether we could have taken action in order not to have arrived at a lose-lose situation, in which we were being fired at and had to decide how to balance between defending ourselves and not harming non-combatants. Would we have arrived at that point if we hadn't responded to the Palestinian unity government by making the Gaza blockade stricter, forbidding all exports? What about allegations that Israel could have avoided this conflict by acting to keep the recent peace process alive, and ending the occupation?
Tractate Sanhedrin (72a-74a) teaches three tests for military actions:
1. Will they achieve the intended legitimate goals?
2. Was there a less harmful way of achieving the goals?
3. Were innocent people harmed?
Whether we could have avoided arriving at the point where we were being fired on is very relevant to question #2. It no more justifies Hamas' actions than our right to defend ourselves absolves us from respecting red lines when doing so.
Investigations clarify facts, but we as a society must determine what to do with them. International law's gray area is exploited by those delegitimizing our very existence to find us guilty even for defending ourselves. Perhaps the natural reaction is to exploit the gray area by pushing back and broadening its scope of impunity.
We must not allow our values to be hijacked by this kind of thinking. Our power thankfully gives us the privilege and the obligation to ask, "Will you sweep away the innocent with the guilty?" (Genesis 18:23) The debate is certainly about the wellbeing of our soldiers and our citizens. But, it is also about what we have wrought in Gaza. Saying, "We're heartbroken, but it's Hamas' fault is a kanei ratzutz (a bent reed used as a sop to our conscience) if we could have defended ourselves without the carnage and/or if we could have avoided the situation all together.
I also believe that the wellbeing of my children and society is best served by moving beyond endless cycles of violence. Hillel the Elder saw a skull floating in water and declared, "You were drowned because you drowned others. Those who drowned you will themselves be drowned (Pirkei Avot 2:7). The big picture is that violence doesn't serve our interests. Neither does injustice: "The sword comes into the world because of justice delayed and justice denied" (Pirkei Avot 5:11).
We are strongest when we live by our highest Jewish values. Rabbi Akiva explained why he risked his life to teach Torah:
A fox sees a school of little fish pursued by a big fish, and he offers to protect them if they jump out of the water. They reply that if they are in danger in the water, they will be in even more danger out of their habitat.
What will become of us if we abandon our habitat, our Jewish morals? Rabbi Akiva eventually paid with his life for them, but ensured the survival of the Jewish people.
Rabbi Arik Ascherman is the president and senior rabbi of Rabbis for Human Rights. Follow him on Twitter.