Goldstone Op-Ed Shows Need For Deeper Look At Gaza And International Law

Quite frankly, the Goldstone Report on the Israeli devastation of the Gaza Strip and Hamas rocket firing during what was called Operation Cast Lead has been a fiasco of politicization from day one.

Back in November of 2009, I wrote a piece looking at some of the basic flaws with the Report, but also why it was so very important. Now, Richard Goldstone himself has written an op-ed in the Washington Post that seems to be a retreat from the Report he was the lead author of and that only serves to stir up the hornets’ nest even further.

The politicization has come from both sides, left and right. This is reflected in the responses to the report. Israeli Prime Minister Benjamin Netanyahu says that in light of Goldstone’s op-ed the entire report should be scrapped. On the other side, Adam Horowitz, who recently co-edited a book on the Goldstone Report, says the UN report

Justice Richard Goldstone

which prompted Goldstone’s op-ed only proves that the issue needs to be brought before the International Criminal Court.

For me, the whole episode, from start to finish, simply shows the naiveté of the concept that somehow human rights and international law can be applied objectively and not subjected to political influences.

I had problems with all of this from the beginning. Israel’s constant framing of so many criticisms as anti-Semitism or at least anti-Israel bias has turned into a cry of wolf that only its passionate devotees treat with credibility these days. But when it comes to the UN Human Rights Council, the accusation not only has merit, but is absolutely spot-on.

The UNHRC has only one country, Israel, under permanent review, and as of 2010, almost half its resolutions had to do with Israel. Its rapporteur on the issue is charged only with reviewing Israeli human rights violations, not Palestinian ones. The mere fact that an international human rights body includes among its members such states as China, Saudi Arabia, Russia, Thailand, and until just a few weeks ago, Libya (and the inclusion of the US, responsible for so many human rights violations in Iraq, Afghanistan, Pakistan, Guantanamo Bay, which executes developmentally disabled people, and so many other stains on its human rights record that are ongoing hardly helps) already calls its legitimacy into question. Its record on Israel should have necessitated that another body be overseeing the volatile investigation into Operation Cast Lead.

The fact that Goldstone himself had to refuse the assignment unless the mandate for it was expanded to include all actors, not only Israel, not only reinforces the issue of anti-Israel bias at the UNHRC, but also the fact that these are not legal/criminal investigations, but political ones.

Then the report came out, and an endless barrage of comments ensued. Most of those comments came from so-called “pro-Israel” pundits, mostly those who are not defending Israel, but rather its occupation and other policies which are leading to Israel’s demise. And most of those comments dealt not at all with the substance of the Goldstone Report, but rather with the bias of the UNHRC, and trumped-up charges of hatred of Israel and even of Jews against the group that assembled that report. The most scathing attacks — in keeping with a strategy of targeting alleged “traitors to the tribe” that we’ve seen manifested again recently in Israel’s Orwellian investigation of J Street and the ADL’s unwarranted attacks on Jewish Voice for Peace — were reserved for Goldstone himself. The South African jurist and self-proclaimed Zionist was mercilessly pelted with all sorts of scurrilous claims.

And now we have Goldstone’s latest contribution to the circus.

There’s an irony to all of this. The Goldstone Report was not a document of verdict of any kind. It raised questions and recommended investigation. Yet the left interpreted it as an indictment of Israel and Israel and its supporters reacted just the same. Now Goldstone’s words are being defined as much more of a retreat than they are.

Goldstone has maintained from the beginning, quite accurately, that the chief recommendation of his report was for the parties involved to investigate these allegations themselves. He also bemoaned from the beginning that Israel refused to cooperate with the investigation and that if they had, the results may well have been different. In his op-ed, he reiterates these very valid points.

Indeed, much of his piece simply reflects things he has been saying all along, from before the investigation started, while he was engaged in it and after the report came out.

That said, he does say some things that seem, at best, puzzling. Chief among these is his flat statement that the UN committee following up on his report “…indicate[s] that civilians were not intentionally targeted as a matter of policy.” In fact, the committee’s report says nothing of the kind. As Horowitz points out: “This endorsement of the Israeli investigation is directly contradicted by the expert’s report he appears to be referencing.”

Horowitz goes on to quote from the committee’s report:

“The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern: reportedly 24 civilians were killed and 19 were injured in the related incidents on 4 and 5 January 2009. Furthermore, the events may relate both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG’s decision to investigate was opposed by the then Head of the IDF Southern Command. Media reports further inform that a senior officer, who was questioned “under caution” and had his promotion put on hold, told investigators that he was not warned that civilians were at the location. However, some of those civilians had been ordered there by IDF soldiers from that same officer’s’ unit and air force officers reportedly informed him of the possible presence of civilians. Despite allegedly being made aware of this information, the officer apparently approved air strikes that killed 21 people and injured 19 gathered in the al-Samouni house. Media sources also report that the incident has been described as a legitimate interpretation of drone photographs portrayed on a screen and that the special command investigation, initiated ten months after the incidents, did not conclude that there had been anything out of the ordinary in the strike. As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial. The same officer who assertedly called in the strike reportedly insisted that ambulances not enter the sector under his control, fearing attempts to kidnap soldiers.”

Horowitz is right in saying that is hardly an indication that there was no policy of targeting civilians.

There were reasons many thought there was such a policy. One was a comment made by an Israeli official, Dov Weisglass in 2006 regarding the siege on Gaza generally, not Cast Lead: “The idea is to put the Palestinians on a diet, but not to make them die of hunger… The hunger pangs are supposed to encourage the Palestinians to force Hamas to change its attitude towards Israel or force Hamas out of government.” This certainly gives reason to investigate whether there was a strategy of collective punishment as a means to induce the population to rise up against their rulers.

Was this attitude still evident at the end of 2008? Consider the words of Matan Vilnai, the Deputy Secretary of Defense in the Olmert government in February 2008: “The more Qassam [rocket] fire intensifies and the rockets reach a longer range, they will bring upon themselves a bigger shoah[note: “Shoah” is the Hebrew word referring to the Holocaust] because we will use all our might to defend ourselves… We’re getting close to using our full strength. Until now, we’ve used a small percentage of the army’s power because of the nature of the territory.”

Other statements by Israeli military and political leaders during Cast Lead indicate that Israel unilaterally decided to expand the definition of legitimate targets, basing their decision on the fact that the civilian infrastructure in Gaza was controlled by a recognized terrorist organization. From B’Tselem’s “Guidelines for Investigation Into Operation Cast Lead”:

On 30 December 2008, following an attack on buildings in the Gaza city government  complex, the IDF Spokesperson stated that the air force had attacked three buildings in the complex, “in which the government’s activity is concentrated, and which support financing, planning, and carrying out terrorist acts.” The announcement continued: “Attacking this strategic governmental objective was executed following the prolonged firing of the Hamas terror organization at Israeli territory, and in the framework of IDF activity to strike at the governmental infrastructure and the military wing.” Two days later, on 1 January, following the attack on the building of the Legislative Council and the Ministry of Justice, the IDF Spokesperson’s Office issued a similar announcement: “Attacks on strategic governmental objectives, which are part of Hamas’ government apparatus, is a direct response to the prolonged firing of the Hamas terror organization at communities in southern Israel.”

As opposed to other announcements made by the IDF Spokesperson regarding various bombing and shelling throughout the operation, the above announcements did not claim that the buildings served any military purposes, such as munitions storage or cover for armed Palestinians. This disparity indicates that the reason for striking these targets was not related to the purposes for which they were being used.

Statements by Israeli officials, according to which Israel deems everything connected to Hamas a legitimate target, strengthen this conclusion. In an article published in the Washington Post, Major Avital Leibovich, of the IDF Spokesperson’s Office, said that the military had indeed expanded the list of its targets, in comparison with previous operations, contending that Hamas uses civilian activity to cover up its military actions. Consequently, she argued, “everything related to Hamas is a legitimate target.”

The deputy chief of staff, Maj. Gen. Dan Harel, at a meeting with heads of local authorities in southern Israel said as follows: “We are striking not only terrorists and launchers, but the entire Hamas administration, and all its arms… We are striking government buildings, manufacturing plants, security branches, and so forth. We demand governmental responsibility from Hamas and we do not distinguish between the various branches. Following the operation, no Hamas building will be left standing.”

Moreover, B’Tselem investigated each and every death in Operation Cast Lead and found that of 1,396 Palestinian fatalities, 763 were not taking part in hostilities when they were killed (an additional 32 could not be classified as to whether they were taking part in hostilities or not). Of the 601 who did not fall into that group, 248 were police who were killed in police stations, and whom Israel claims were part of the Hamas armed force. Whether those police really did qualify as legitimate targets is an open question, one which absolutely cries out for an impartial determination, as it could set a dangerous precedent for others.

That leaves an awful lot to investigate regarding Israel’s policy, as well as its specific actions in Cast Lead. Is it an indictment of crime, much less proof? Absolutely not. Perhaps Israel can demonstrate that they took adequate care to ensure they were targeting combatants and minimizing civilian casualties—that is all that is required under international humanitarian law.

But it is certainly clear that a serious investigation is needed. The UN Committee of independent experts charged with following up on Goldstone explicitly complains that Israel has not adequately investigated the questions of policy raised by Cast Lead, and that the investigations that have taken place have often been opaque, casting doubt on the veracity of the results, which have seen only three cases prosecuted so far. And that, it seems to me, from an international law perspective, is the most important question.

Goldstone, in his op-ed, seems to be making a very big deal out of the fact that Israel has gone much farther than Hamas in complying with the Report’s call for investigation. True, for sure, but is that really an adequate standard? Is any Israeli really proud to say “Hey, we’ve done a lot better than Hamas?”

The Goldstone Report was taken as a declaration of Israel’s guilt of war crimes by many on the left, including some who are more sympathetic to Israel but were outraged by devastation Israel let loose on the people of Gaza. It was never that.

But neither was it some attempt to “get” Israel, as it was portrayed by supporters of Israeli militarism and occupation. The Report raised serious questions, and it did not stand alone. Human Rights Watch, B’Tselem, Gisha and many other human rights organizations also raised serious issues.

The strategy of the increasingly loony and fanatical “anti-de-legitimization” crew has been to attack the messenger, rather than the substance. Yet these questions are legitimate, and should be asked even if Israel acted in perfect compliance with the law and with every caution to protect civilian lives. And they have yet to be adequately addressed.

The UN report to which Goldstone referred in his op-ed says that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza.” It has indeed done this, much of it only after the storm Goldstone unleashed.

But those investigations have occurred, and absent any clear standard which they fall short of (and, like the situation with proportionality, which I discussed in another piece recently, there are no clearly established guidelines for what is a viable and credible investigation), I cannot agree with Adam Horowitz when he says that the matter should now move to the International Criminal Court.

But neither can the results of the Goldstone Report and the conclusions of the follow-up committee be dismissed.

In the end, these are not simple criminal investigations. The entire process is not a legal one which is held to some sort of standard of objectivity. It has been subject to political pressures from ALL DIRECTIONS from the very beginning, and every time a new twist in this saga hits the news, everyone tries to spin it to their advantage.

Until we have clearer guidelines under the law for such investigations and mechanisms to ensure that all parties are treated fairly, we have to move forward with a clear consciousness that these proceedings are much more political than legalistic.

And the best political response to all this noise around Goldstone is to push for a unified international program that will protect all civilians, Israeli and Palestinian, without discrimination. That, by the way, would probably also serve to smooth a path for broader political progress on the conflict in general.

6 thoughts on “Goldstone Op-Ed Shows Need For Deeper Look At Gaza And International Law

  1. “Shoah” is NOT the Hebrew word for “Holocaust.” That is “Hashoah,” i.e, “The Holocaust.” Shoah means “great catastrophe.”

  2. David,
    As I wrote: “Shoah” is the Hebrew word REFERRING to the Holocaust. There are several words in Hebrew for catastrophe, but shoah is the only one used for the great Nazi genocide and carries that overtone when it is used. אסון, בלהה and even קטסטרופיה (“ason” “bilhah” or “catastrphia”) are all options that can be used for that same meaning. The use of shoah is not incidental in most cases, certainly not here.

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