(This is not a new blog, but a reposting of yesterday's, which had some glitches, particularly an inability to post comments on it. I hope this solves the problem.)
The usual rightwing “pro-Israel” circles are gleeful over the reported resignation of Christian Tomuschat, a German jurist who has been heading the UN committee charged with implementing the Goldstone Report. For example, B’nai B’rith International welcomed the resignation, commenting that it would further undermine the credibility of the “odious claim” that Israel deliberately attacked civilians in its attack on Gaza (“Operation Cast Lead”) two years ago. Similarly, Jennifer Rubin of the Washington Post chortles (quoting “a friend”) that “the biased UN probe now has no leader, and is in disarray.”
Given the Obama administration’s collapse on Israeli issues and the general reluctance of Europe to confront both Israel and the United States over the damning findings of the Goldstone Report, it is almost certainly true that no significant UN action is likely to be taken. And it is also true that the Report is significantly flawed, but for precisely the opposite reason claimed by the Israeli apologists: the Report was actually too soft on Israel.
No doubt that will seem a startling argument in light of the Report’s finding that Israel carried out “systematically reckless” and indiscriminate attacks in densely populated areas of Gaza, as well as intentionally targeted the Gazan economy and civilian infrastructure and institutions, leaving “little doubt that disproportionate destruction and violence were part of a deliberate policy [directed against]…the foundations of civilian life.” Taken together, the Report concluded, these Israeli actions, “designed to humiliate and terrorize a civilian population” were “war crimes” under established international law, and “could lead a competent court to find that…a crime against humanity has been committed.”
None of the Report’s major factual findings have been refuted. On the contrary, during and soon after the Israeli attack, its nature and consequences were made abundantly clear by many U.S, European, and Israeli journalists. Since then, the Goldstone Report’s major findings have been confirmed by a number of investigations and reports of international and even Israeli human rights groups-- among them those of several UN agencies, the Red Cross, CARE, Oxfam, Israeli Physicians for Human Rights, accounts by Israeli soldiers, and—especially—the highly detailed reports of Amnesty International and Human Rights Watch.
In that case, what are the true flaws of the Report? First, there can be no full understanding of the nature and purpose of Cast Lead without discussing the relevant historical context. While the Report does discuss the Israeli attack on Lebanese civilians during the course of the 2006 Israeli-Hezbollah conflict, it chose not to examine the full history of the Arab-Israeli conflict, which would have revealed the irrefutable evidence that for fifty years Israel has repeatedly engaged in indiscriminate and sometimes even clearly deliberate attacks, not only against the Palestinians but also against Jordanian, Egyptian, and Lebanese civilians. It has done so in order to “enhance its deterrence”(the preferred Israeli euphemism): that is, to intimidate civilians, or punish them for their supposed or actual support of Israel’s enemies and especially to induce them to turn against their own governments or militant organizations.
Consequently, even if there is no current definitive proof that the Israeli government not only “indiscriminately” but intentionally killed Palestinian civilians in Cast Lead--such as, for example, internal statements by the highest Israeli political or military leaders that civilians should be targeted and killed—the previous history of Israeli warfare at the very least justifies the strong suspicion that it did the same in Gaza.
The second problem with the Goldstone Report is that it was unwilling to challenge what might be called the liberal consensus over Cast Lead, namely that while Israel’s methods were terrible, it did have the right “to defend itself” against Hamas rocket attacks. However, this argument rests on two false premises, the first of which is that Israel withdrew from Gaza in 2005, only to be met by continuing Hamas attacks that gave it the right of self-defense. To begin, there is a wealth of evidence—much of it from candid statements of high Israeli officials--that the real purpose of the 2005 withdrawal of Jewish settlements in Gaza was to consolidate Israel’s continued occupation and ever-expanding settlements in the much more important West Bank and East Jerusalem.
In any case there was no true Israeli “withdrawal,” even from Gaza, for Israel retained control over its borders, coastline, and airspace; refused to allow Gaza a functioning airport or seaport; continued to control Gaza’s electricity, water, and telecommunications networks; and launched a number of military attacks. Consequently, the highly limited Israel “withdrawal” did not end the right of Palestinian resistance, for it hardly met the need for, and the right of, the Palestinian people as a whole for a viable and independent state of their own.
The Palestinians living in Gaza are not a separate nation from those living in the West Bank and East Jerusalem; to believe otherwise is the equivalent of believing that if in the 1770s the British had withdrawn from New Jersey but continued to occupy the remaining colonies, the residents of New Jersey would no longer have the right to take up arms in support of American independence.
The second premise of the liberal argument is that the failure of non-military means of ending Hamas rocket attacks left Israel no other way to stop them. In fact, however, Israel had continuously refused to negotiate with Hamas to see if an acceptable political settlement could be reached, even though Hamas leaders had repeatedly indicated they would be amenable to a “truce” that could last ten years or more and which, in all likelihood, would become a de facto if not formal settlement of the conflict.
Moreover, on several occasions Israel unilaterally violated existing ceasefires with Hamas that had ended the organization's attacks on Israeli towns, in particular the six-month truce agreed to by both sides in June 2008. During those months Israel not only continued but tightened its siege or economic warfare against Gaza, including severe restrictions on Gazan food supplies, medicines, fuel, and repair parts for water and sewage systems.
Even so, Hamas did not retaliate. However, in early November an Israeli attack killed six Hamas men. Following that attack, Hamas fired rockets into southern Israel but announced it would be prepared to renew the truce if Israel agreed to ease its siege. Israel ignored this opening, and a few weeks later it launched its all-out attack on Gaza.
In short, the argument that Israel had a last-resort right to use force in “self-defense” is absurd, for its obvious alternative was to end the occupation and negotiate a settlement with the Palestinian leadership, including Hamas. Put differently, there can be no right of self-defense when illegitimate and violent repression engenders resistance—and that holds true even when the form of resistance, terrorism (a fair description of Hamas attacks on Israeli civilians) is itself morally wrong. In that light, the Israeli attack was a war crime in and of itself—the crime of aggression—even if its methods of warfare had not also been war crimes.
In sum, the uncontestable facts leave no doubt that the Israeli attack on Gaza constituted a grave war crime. Unfortunately, by accepting that Israel had a case for self-defense—even though its methods were unacceptable--and by failing to fully discuss this history of Israeli attacks on Palestinian and other Arab civilians and infrastructure, the Goldstone Report actually understated the full range and import of Israeli criminality and significantly weakened its conclusions over the Israeli attack on Gaza.