Israel-Gaza: Reconsidering the Goldstone Report on the War (Reich)

Yaniv Reich writes on Hybrid States:

Israel is “vindicated”, claims [Israeli Foreign Minister Avigdor] Lieberman about Richard Goldstone's latest op-ed in the Washington Post, adding that “we knew the truth and we had no doubt it would eventually come out.”  [Israeli Prime Minister Benjamin] Netanyahu has gone so far as to demand the Goldstone report be retracted from the UN.  Among all the celebrations and self-congratulatory pats on the back, it is worth pausing for a moment to ask: what exactly does Goldstone’s latest essay vindicate?

See also Israel-Gaza: Reconsidering the Goldstone Report on the War (Goldstone)The answer seems much less clear than Israel’s unconditional supporters want to argue.  The most charitable portions of his piece (to Israel) suggest that “if I [Goldstone] had known then what I know now, the Goldstone Report would have been a different document.”  This statement is so patently obvious as to be meaningless, particularly given Israel’s steadfast non-cooperation at the time of the investigation, but let’s assume Goldstone means this in a substantive way.  He did publish this piece under a headline of “reconsidering the Goldstone report” after all.

What else is there in this op-ed that suggests a change from the original Goldstone report?  The op-ed focuses on a very select group of three themes.  The first point relates to the ongoing investigations into allegations of war crimes.  Goldstone refers to the UN committee of independent experts’ report to support this argument, and he quotes that report to the effect that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”  The second key claim in Goldstone’s op-ed is confusing, but suggests that the ongoing investigations have proven that Israel did not attack civilians as a matter of intentional policy.  How these conclusions have been reached before the investigations, which the Goldstone report called for as its primary recommendation, have been concluded is unclear.  The third theme is that Hamas has not done any of the good things Israel has done: Hamas did deliberately target civilians, Hamas didn’t investigate anything, Hamas continues to be guilty of war crimes by firing rockets into civilian areas, and Goldstone admits he was maybe “unrealistic” and “mistaken” to believe Hamas would investigate itself.

I want to first highlight several general observations about what this op-ed does and doesn’t say.  Then I will address these three themes in detail.

WHAT THE GOLDSTONE OP-ED DOESN'T SAY

Limited to one of seven categories of possible war crimes

The Goldstone commission’s findings on deliberate attacks on civilians is one of at least seven broad findings (which comprise hundreds of specific incidents) that raise issues about Israel’s conduct.  These other key findings include: (1) Israel’s illegal siege on Gaza, which constitutes a form of collective punishment and so violates the Fourth Geneva Conventions; (2) The political institutions and buildings of Gaza cannot be lawfully considered part of the “Hamas terrorist infrastructure” and so Israel’s attacks on them are unlawful; (3) Israel taking insufficient measures to protect the Palestinian civilian population; (4) “indiscriminate” attacks (as distinct from “deliberate” attacks) killed many civilians without any credible military rationale for those actions; (5) Israeli use of weapons, such as white phosphorous and flechette missiles, which, although not banned under current international law, were used in ways that do violate the laws of war; and (6) Israel’s deliberate destruction of civilian infrastructure, including industrial plants, food production facilities, sewage treatment plants, and water installations; this destruction has no military justification (for example, Israel’s “wanton destruction” of Mr. Sameh Sawafeary’s chicken coops, killing all 31,000 chickens inside despite there being no military activity in the area) and could constitute a crime against humanity.

Goldstone’s op-ed pointedly excludes discussion of all of these very serious charges of possible war crimes and possible crimes against humanity, so it’s odd that FM Lieberman and his hasbara “excreta” (his word, not mine) think Israel is somehow absolved of all responsibility.  One cannot avoid the impression that Israel’s unconditional supporters still haven’t actually read the report.

Overlooks key impacts of the report

One of the strangest omissions in the op-ed was the recognition that, assuming Israel is conducting investigations in good faith (again, more on that terrible assumption below), it was the Goldstone report that caused Israel to conduct these investigations.  The best evidence this is the case was Israel’s absolute refusal to investigate anything except the credit card theft case, until, that is, it got worried that Israeli leaders might end up in the International Criminal Court.  More evidence to support this argument can be found in Israel’s response to a conflict without a Goldstone kick in the rear: the 2006 Lebanon war.  In that case, Israel constituted the whitewashing Winograd Commission, which didn’t even pretend to investigate the “the government policies and military strategies that failed to discriminate between the Lebanese civilian population and Hizbullah combatants and between civilian property and infrastructure and military targets”, as Amnesty International and other human rights organizations observed.  Thus, without the Goldstone report, there is absolutely no reason to believe Israel would be conducting the investigations for which Goldstone is largely praising Israel now.

Another important impact, which was a direct result of the report’s recommendations, was the policy changes, such as “new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas.”  I have argued elsewhere that these policy changes acknowledge implicitly that Israel had not been minimizing civilian casualties, as it argues so vociferously, or else there wouldn’t be any possible policy changes that could further minimize civilian harm.  Either civilian casualties were being minimized before, in which case the policy changes are meaningless, or are minimized now (hypothetically, of course), in which case Israel wasn’t doing its utmost to protect civilians from harm before.  It certainly can’t be both.  Either way, these policy changes are directly related to the report, a point Goldstone’s op-ed also makes.

VALIDITY OF SPECIFIC CLAIMS MADE IN GOLDSTONE'S OP-ED

The credibility of Israel’s investigations

Goldstone’s op-ed gives the strong impression that, despite the length of Israel’s military investigations being “frustrating”, Israel has “appropriate processes” in place.  It is difficult to understand where this belief comes from, because it certainly does not appear in this form in McGowan Davis report he cites (McGowan Davis chairs the UN committee of independent experts monitoring implementation of the Goldstone report recommendations).  That report paints a far less appealing picture of Israeli’s military investigations, noting, for example, that:

1. “That Israel’s military justice system provides for mechanisms to ensure its independence”, but “the Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s [Military Advocate General's] independence, his dual responsibilities as legal advisor to the Chief of Staff and other military authorities, and his role as supervisor of criminal investigations within the military, raise concerns in the present context given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations.”
2. “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.. . . As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial.”  This case is of course cited directly by Goldstone, yet his arguments are incompatible with the actual McGowan Davis report.
3. “The Committee has discovered no information relating to four incidents referred to in the FFM [Goldstone] report: incident AD/02, incident AD/06, the attack on the Al-Quds hospital, and the attack on the Al-Wafa hospital.  Nor has the Committee uncovered updated information concerning the status of the criminal investigations into the death of Mohammed Hajji and the shooting of Shahd Hajji and Ola Masood Arafat, and the shooting of Ibrahim Juha. Accordingly, the Committee remains unable to determine whether any investigation has been carried out in relation to those incidents.”
4. “It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” “
5. “The Committee expressed strong reservations as to whether Israel’s investigations into allegations of misconduct were sufficiently prompt. In particular, the Committee expressed concern about the fact that unnecessary delays in carrying out such investigations may have resulted in evidence being lost or compromised, or have led to the type of conflicting testimony that characterizes the investigations into the killings of Majda and Raayya Hajaj, and the inconclusive findings reported with respect to the tragic deaths of Souad and Amal Abd Rabbo and the grave wounding of Samar Abd Rabbo and their grandmother Souad.”
6. “The promptness of an investigation is closely linked to the notion of effectiveness. An effective investigation is one in which all the relevant evidence is identified and collected, is analyzed, and leads to conclusions establishing the cause of the alleged violation and identifying those responsible. In that respect, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report – over two years since the end of the Gaza operation – may seriously impair their effectiveness and, therefore, the prospects of achieving accountability and justice.”

These conclusions of the McGowan Davis report give a very different impression of mechanisms for accountability in Israel’s military justice system than one would understand from a casual reading of Goldstone’s latest op-ed.  For additional, excellent analysis of these points, Adam Horowitz’s piece at Mondoweiss is a must-read.

Was it a deliberate policy of targeting Palestinian civilians?

If this op-ed “vindicates” anything, it seems to be about Israel deliberately targeting civilians as a matter of policy.  The Goldstone report investigated 11 specific cases, which were concerning because civilians were killed “under circumstances in which the Israeli forces were in control of the area and had previously entered into contact with or at least observed the persons they subsequently attacked, so that they must have been aware of their civilian status.”  After reviewing the details of these cases, which included not only the attack on the Samouni family (discussed in the op-ed) but also attacks on a mosque at prayer time and the shootings of civilians waving white flags, the report concludes:

“From the facts ascertained in the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of willful killings and willfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.” (Goldstone report, pp. 16)

This finding, of course, is precisely why the report recommends that Israel launch credible investigations into possible wrongdoing, which Goldstone claims Israel is now doing (more on this later).  In that sense, Israel’s investigations confirm many of the key findings of the Goldstone report, a point I’ve raised previously.

The conclusion above, which is easily the strongest charge in the entire Goldstone report, has very little to do with Goldstone’s latest statement that “civilians were not intentionally targeted as a matter of policy." The Goldstone commission and other human rights investigations have never said the IDF maintains a policy of deliberately targeting civilians.  This is a red-herring; nobody seriously believes there is a high-level policy to murder civilians.  With that said, there are nearly always instances in war in which certain operational orders and much stress, often combined with racism or other forms of dehumanization, result in civilians being deliberately murdered; there is evidence of several such instances in the Goldstone report. The actual issue at hand is that “these incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population” (Goldstone report, pp. 16).  This low threshold was an intentional policy, as has been confirmed by dozens of soldiers’ and officers’ statements.  For example, many people have commented before about how the IDF “rewrote the rules of war for Gaza”, in particular by getting rid of “the longstanding principle of military conduct known as ‘means and intentions’—whereby a targeted suspect must have a weapon and show signs of intending to use it before being fired upon—as being applicable before calling in fire from drones and helicopters in Gaza last winter.”  The intentional, deliberate policy was one of “literally zero risk to the soldiers”, an order that is inescapably related to the high civilian casualties among the Palestinians.  For these reasons the main argument in Goldstone’s latest op-ed, which FM Lieberman erroneously believes “vindicates” Israel, is entirely besides the point.

Condemning Hamas

Hamas certainly, and unlawfully, does deliberately target civilians.  This is not only grotesque but illegal, and Hamas military leaders should be referred to the International Criminal Court for this since Hamas’ political leadership has refused to investigate the matter themselves and hold those responsible for war crimes to account.  But, of course, this was already well known by anybody who read the Goldstone report, which wrote:

“The Mission has further determined that these [8000 rocket] attacks [since 2001] constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population.  These acts would constitute war crimes and may amount to crimes against humanity.”

One could have also reached the same level of awareness by reading any of Amnesty International, Human Rights Watch or other human rights organizations‘ press releases and  reports.  In this sense, there is absolutely nothing new about Hamas in Goldstone’s latest op-ed, yet some Israelis and Jewish groups seem surprised (see, e.g., AIPAC’s one of many tweets on the matter).

A SAD, INTEGRITY-DAMAGING TURN

The first time I saw Judge Goldstone speak in person he was striking in his equanimity and unshakeable commitment to international law.  Even in the face of hate-filled attacks by Jews in the audience, who compared his report to the Protocols of the Elders of Zion, he handled himself with a level of firm principle that I imagined to be unmovable.  The second time I saw him speak in public a year later, he seemed tired and worn down by the relentless attacks against him by those who chose to attack the messenger instead of deal with the message.  It was nothing concrete that he said, but there was a withered tone in his voice and a sort of quiet resignation that his best intentions had been so vehemently manipulated—and misunderstood.

Goldstone’s latest op-ed is something else altogether.  It does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way.  In fact, his findings under severe constraints have held up remarkably well with time.  But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong.  Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel.  This is nothing more than a bone to Israel’s apologists, which is deeply misleading for all the reasons discussed here.  I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.

And he should have known better, that is, he should have known that this craven gesture to Israel would not allow his enemies to forgive him and welcome him back to the broader Jewish community.  Already the enemies, sensing weakness, attack for the final kill attempt.  Jeffrey Goldberg, with the tone of the intellectual gatekeeper he fashions for himself, makes it clear this doesn’t change the “blood libel.”  The editor-in-chief of the Jerusalem Post, David Horovitz, tells Goldstone “an apology is not good enough“.  We can expect much, much more of such attacks.

Goldstone has done neither international law and accountability for war crimes—nor himself—any favors with this latest, depressing op-ed.