Tuesday, April 12, 2011

The Goldstone Retraction

(Some of the material and language in this post has appeared in my previous writings, on this blog and elsewhere.  Also, my program is continuing to make mistakes, in this case insisting that the publication date is March 31, rather than April 12.)

In September 2009 the Goldstone Commission--the UN investigation of the Israeli attack on Gaza in 2008-09 ("Operation Cast Lead)"--concluded that Israel had engaged in "systematically reckless" and "deliberately disproportionate" attacks on densely populated areas, which "amounted to collective punishment intentionally inflicted on the people of Gaza." Therefore, the Commission concluded, under international law the Israeli actions were "war crimes," some of which could even lead "a competent court" to conclude that the attack was "a crime against humanity."

After the Goldstone Commission reported its findings to the UN, a new fact-finding commission was appointed, headed by former New York State supreme court justice Mary McGowan Davis. After the Davis Committee reported its findings, Richard Goldstone essentially retracted the findings of his own Commission in an April 2 Washington Post oped, revealingly entitled "Reconsidering the Goldstone Report on Israel and War Crimes."

While Goldstone's call for a "reconsideration" did not explicitly repudiate the Commission's findings that Israel committed a number of war crimes in Cast Lead, his oped came perilously close to doing so, as is clear not only from its title but from its opening paragraph: "We know a lot more today about what happened...than we did [before]....If I had known then what I know now, the Goldstone Report would have been a different document....the investigations published by the Israeli military and recognized in the U.N. committee’s report [the Davis Committee].... indicate that civilians were not intentionally targeted as a matter of policy." (emphasis added)

Some have argued that it is wrong to call Goldstone's call for a "reconsideration" a "retraction," especially because four days later he told a reporter he had no plans to seek a nullification of the Goldstone Commission report. Nonetheless, whatever Goldstone's later "clarification," which is clearly a reaction to the firestorm of criticism that followed the oped, it does not change what he wrote nor the damage that it has done; for this reason, I will continue to label the oped as a retraction.

In any case, even if Goldstone wanted to seek a nullification, he would not succeed. Aside from Goldstone himself, there were three other members: Christine Chinken, Professor of International Law at the London School of Economics, Hina Jilani, a prominent Pakistani human rights lawyer, and Desmond Travers, a former Irish army colonel and a member of the Board of Directors of the Institute for International Criminal Investigations. Jilani and Travers have been interviewed and have refused to back away from the original report; according to John Dugard (the former UN Special Rapporteur in the Israeli-occupied Palestinian territories), who has written a scathing article on Goldstone's retraction, Chinkin also supports the original report.

In the over a year and half since its publication, none of the Goldstone Report's major factual findings or the conclusions it drew from them have been refuted--and certainly not by the Davis Committee, which made no such claim. On the contrary, even during the attack major newspapers--including the New York Times, Haaretz, Israel's most important newspaper, and a number of leading European newspapers--made it evident that Israel's massive attack on Gaza was indiscriminate and aimed at a wide range of non-military targets. 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 several UN agencies, the Red Cross, CARE, Oxfam, Israeli Physicians for Human Rights, and Breaking the Silence )an Israeli military veterans organization formed after the attack on Gaza)--all of which not only confirmed but often added new details to the Goldstone Report's factual findings.

In addition, the two most important and prestigious international human rights ngos, Amnesty International and Human Rights Watch, conducted extensive investigations of Cast Lead and issued long and highly detailed reports that were at least as damning as those of the Goldstone Commission:

Amnesty International: "Israeli forces committed war crimes and other serious breaches of international law in Operation Cast Lead....Among other things, they carried out indiscriminate and disproportionate attacks against civilians....Much of Gaza was razed to the ground, leaving vital infrastructure destroyed, the economy in ruins and thousands of Palestinians homeless."

Human Rights Watch: In a 110 page report on Cast Lead, HRW concluded that Israel's "wanton destruction" of civilian infrastructure was unlawful and "can be prosecuted as a war crime."

To my knowledge, Amnesty International has not commented on the Goldstone retraction, but Kenneth Roth, the Executive Director of Human Rights Watch, has done so: in an April 5 letter to the New York Times, Roth wrote that "Mr. Goldstone has not repudiated his panel’s findings that Israel committed numerous serious violations of the laws of war," including "conduct so widespread and systematic that it must have reflected policy"; Roth also pointedly noted, contrary to Goldstone, that "Israel has yet to investigate the policies behind the indiscriminate attacks that caused so much civilian harm."

Even Jessica Montell, the Executive Director of B'tselem, who had been critical of the Goldstone Commission's finding that Israel had intentionally targeted civilians as a matter of policy, wrote that the Goldstone oped "by no means absolves Israel of all the grave allegations regarding its conduct, as official spokespeople rush to conclude. In the operation, according to rigorous research by B’Tselem, Israel killed at least 758 Palestinian civilians who did not take part in the hostilities; 318 of them were minors. More than 5,300 Palestinians were injured, over 350 of them seriously. More than 3,500 houses were destroyed, and electricity, water and sewage infrastructure was severely damaged. In many ways, the Gaza Strip has yet to recover from the unprecedented destruction this operation wrought."

Was the Goldstone Report Unfair to Israel?

The problem with the Goldstone Report was not that it was too hard on Israel, but rather that it was considerably too soft, and ducked some contentious but highly important issues.

First, while the report condemned the Israeli methods of warfare, it accepted that the purpose of Cast Lead was legitimate: Israel, it said, had a right to "defend itself" against Palestinian rocket and mortar attacks aimed at Israeli towns and villages. In his oped, Goldstone reiterated this argument: "I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within."

For several reasons, the argument is wholly unpersuasive. To begin with, it is based on the false premise that the withdrawal of Israeli settlements from Gaza in 2005 ended the Israeli occupation there, and that therefore the subsequent attacks by Hamas and Islamic Jihad could not be considered as resistance to occupation. However, there is a wealth of evidence--much of it from candid statements of high Israel officials--that the real purpose of the withdrawal of the Jewish settlements was to consolidate Israel's continued occupation and ever-expanding settlements in the much more important West Bank and East Jerusalem.

In any event, even in Gaza there was no true Israeli withdrawal, for Israel retained control over Gaza's 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 highly destructive military attacks. As the Goldstone Commission put it--notwithstanding the obvious contradiction with its assertion that Hamas attacks on Israel gave that country the right of "self-defense"--Gaza continued to be "effectively occupied" by Israel and was so regarded by the international community.

Consequently, the highly limited Israeli "withdrawal" from Gaza did not end the right of Palestinian resistance, for it hardly met 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.

What about the Hamas methods of resistance? It is true that the rocket attacks aimed at Israeli civilians constituted terrorism, and were therefore correctly considered by the Goldstone Commission as constituting war crimes. Nonetheless the argument that Israel had the right to use overwhelming force in self-defense is false, for Israel's obvious alternative was to end its occupation and repression of the Palestinian people 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, is itself morally wrong.

In short, Cast Lead--and all Israel's other economic and military methods of warfare against Gaza--was not designed to defend "itself," but rather to crush resistance to its ongoing and in some ways escalating occupation and repression of the Palestinian people as a whole. 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.

Goldstone's Distortions

That aside, Goldstone strongly distorts the essential findings of the Davis Committee. Adam Horowitz and Yaniv Reich have done a fine job of pointing to the differences between what the Davis Commission said and how Goldstone chose to interpret it, but I do want to add to their comments.

If anything the Davis Committee report should be read as reaching the opposite conclusions of the Goldstone retraction, both on the process of the Israeli military investigations and on their outcomes. The Committee begins by observing that while the Israeli Military Advocate General (MAG) had opened 52 criminal investigations, thus far only three had been submitted to prosecution, resulting in two convictions, one of them of a soldier who stole a credit card.

Further, the Committee pointedly noted that the Israeli government's "refusal to allow the Committee access to Israel and Gaza significantly constrained the Committee's ability to engage with key interlocutors." As a result, the Committee was unable to carry out an on-the-ground investigation of a number of significant "incidents," as it put it, including the Israeli killings and attacks on hospitals referred to in the Goldstone Commission report. Denied access to Gaza and even to reports of any Israeli investigations, the Committee concluded that it "remains unable to determine whether any investigation has been carried out in relation to those incidents."

Moreover, the Committee repeatedly expresses great skepticism about the quality and seriousness of whatever Israeli investigations that were conducted. For example, the Committee clearly questioned whether the Israeli military is capable of investigating itself. As its report put it: "notwithstanding the built-in structural guarantees to ensure the MAG's [Military Advocate General) 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."

The specific cases discussed by the Davis Committee in no way support Goldstone's satisfaction with the Israeli military investigations. For example, in the case of one of the most serious Cast Lead "incidents," the deliberate bombing of the home of Wail Samouni that killed 21 Samouni family members and wounded 19 others, the Committee expresses obvious skepticism about Israeli military contentions that the planners of the strike were not aware of the presence of over 100 civilians in the Samouni home. While the Samouni case is supposedly being investigated by the Israeli army, the Committee pointedly noted that it was "considerably concerned" because it "does not have sufficient information to establish the current status of the Israeli investigation."

In addition to the Samouni case, the Goldstone Commission report singled out for condemnation the Israeli bombing of a flour mill, a chicken farm, a cement company, and water and sewage installations. The Davis Committee dryly noted that while the Israeli military investigations supposedly examined these cases, in every one of them it found that there had been "no violation" warranting prosecution.

In another case cited by the Davis report--one of the only two cases that have been investigated by the Israeli military and resulted in a conviction, two soldiers who had forced a nine-year old boy to search bags suspected of being booby traps--a "human shields" violation if there ever was one--received demotions and suspended sentences of three months. And in the only case that resulted in an imprisonment, an Israeli soldier went to jail for seven months--for stealing a credit card.

The Davis Committee commented on the two cases:

"The Committee does not have sufficient information to comment definitively on this judgment [the suspended sentences], although it is hard to square the apparent finding [of the Israeli investigation] that soldiers 'did not seek to degrade or humiliate the boy' with evidence that they intended to put him directly in harm's way at grave risk to his life. The Committee is likewise mindful of other judicial decisions, such as the case of the soldier who was sentenced to a prison term of seven and a half months for stealing a credit card during the operation in Gaza, where a harsher penalty was imposed for acts that did not entail danger to the life of...a civilian, much less to a nine year old child."

The overall conclusions of the Davis report are particularly striking. To begin with, the report raises questions about the transparency of the Israeli investigations, the delay of over two years in initiating them, and the fact that many of the incidents examined by the Goldstone Commission have not been investigated at all. This is how the Committee report put it:

"That situation raises serious concern as to whether the existing mechanisms are capable of insuring that investigations are conducted in a prompt manner. 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 duration of the ongoing investigations into the allegations [in the Goldstone Commission 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."

Finally (as Horowitz and others have pointed out), the Davis Committee sharply took note of the fact--as was openly acknowledged to the Committee by the Israeli MAG--that the Israeli investigations did not examine the overall policies of either the political or military leadership. Consequently, the Committee concluded its report with this observation: "The Committee reiterates the conclusion of its previous report that there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead." (emphasis added)

Civilian Destruction in Cast Lead: Indiscriminate, or Deliberate?

Because there has been considerable confusion over whether Israel deliberately attacked civilians or did so merely "indiscriminately," it is necessary to define and sort out the relevant concepts and terminology.

Just War moral theory, on which the international laws governing warfare are largely based, distinguishes between the principles of discrimination and noncombatant immunity. The principle of discrimination requires combatants to make every effort to distinguish between military and civilian targets and to refrain from attacking the military targets if the foreseeable consequences to civilians are unacceptably high.

While the principle of noncombatant immunity goes even further, prohibiting intentional attacks on civilians under any circumstances, it is crucial to note that the finding of war crimes does not require demonstrating that deliberate attacks on civilians have occurred, only that the attacks were indiscriminate. While some of the language of the Goldstone Commission's conclusions is ambiguous, the main emphasis is on the indiscriminate nature of the Israeli attack, rather than on whether Israel had, as a matter of policy, deliberately attacked civilians.

The concept of "indiscriminate" military attacks was developed long before the advent of "smart" weapons--bombs and missiles that can be guided directly on to their intended targets. The moral and legal prohibitions on indiscriminate attacks were designed to prevent massive and inaccurate attacks even on legitimate military targets if those military targets were in densely populated urban regions: for example, the kind of high attitude bombings that characterized WWII. Understood in that manner, some of the Israeli attacks in Cast Lead were clearly indiscriminate--for example, artillery or mortar attacks on Hamas weapons, command posts, or groups of fighters in civilian neighborhoods.

Why was this done? One answer, of course, is that the attacking forces lose considerably fewer of their own soldiers when they don't directly engage their adversary. There is no doubt that this is part of the explanation for the Israeli methods, as the IDF forces had announced well before Cast Lead that they would employ massive firepower in "the next war" in order to minimize their own casualties: "We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction....efforts to hurt [rocket] launch capabilities are secondary."

Nor did such blunt threats emanate only from Israeli generals--prime minister Ehud Olmert said that "The Government's position was from the outset that if there is shooting at the residents of the south, there will be a harsh Israeli response that will be disproportionate." And that is how Israel fought the war. Said one officer: "We are very violent. We are not shying away from any method of preventing casualties among our troops." (emphasis added)

The key point is this: Even assuming that the only purpose of Israel's behavior was to minimize casualties to its military forces, which it wasn't, it would still constitute a war crime under just war morality and international law, making the perpetrators--that is, the top Israeli political and military leaders--subject to criminal prosecution.

Some defenders of the Israeli actions and critics of the Goldstone Report have sought to evade that conclusion, for example by arguing that Israel made efforts to warn civilians to leave areas about to be targeted. However, most of the time the warnings were meaningless, since the scale and intensity of the Israeli attack often ensured that civilians had no place to flee. Worse, as a UN report observed, Israel closed its borders with Gaza and refused to allow the civilian population of Gaza to leave the war zone during the attack.

In this light, it's not just that the Israeli forces should have tried harder to avoid civilian casualties--even some critics of the Goldstone and other human rights organization reports have conceded that--but rather that in most cases it didn't try at all.

Perhaps Israel didn't try because it was simply indifferent to civilian casualties, but it is also possible--in my opinion, probable--that it didn't try harder because it believed that a certain amount of civilian suffering added to Israel's "deterrence," a euphemism for intimidating Palestinian resistance. That is the subject to which I will now turn.

The Goldstone Retraction and Civilian Destruction.

It is important to bear in mind that the Goldstone retraction referred only to the question of whether Israeli policy in Cast Lead was to deliberately attack civilians, rather than to the issue of whether it deliberately attacked civilian infrastructure, let alone to the question of whether there was any meaningful distinction between attacking civilians and attacking infrastructures.

It is hard to believe that Goldstone was unaware that by limiting the issue to that of deliberate attacks, his retraction would divert attention from the more important point, namely that indiscriminate attacks, in and of themselves, are war crimes. Even so, was he right that the Davis Committee report demonstrated that Israel had not engaged in deliberate attacks on civilians, thereby requiring him to withdraw that part of the Goldstone Commission's findings that strongly suggested that it had?

There is a wealth of evidence that there were a number of "incidents" in which Israeli soldiers deliberately killed civilians, face-to-face. This evidence is not limited to that gathered by the Goldstone Commission, but is included in the voluminous Breaking the Silence testimony of Israeli soldiers who personally witnessed such killings.

Nothing in the Davis Commission report challenges that evidence. In the only specific case that Goldstone points to in his retraction, the Samouni bombing, he claims that the Davis report shows that Israel is seriously investigating the attack, which leads him to be "confident that if the officer [who ordered the attack] is found to be negligent, Israel will respond accordingly." However, as I have already discussed, the Davis Commission not only reached no such conclusion, its language clearly expresses skepticism of the validity of the Israeli "investigation" and the unlikelihood that any one will be punished.

To be sure, the Samouni affair does not demonstrate that it was Israeli government or military policy to directly target civilians, for the war crime was probably only the responsibility of the individual military commander who ordered the attack, even after having been warned by fellow officers that civilians were likely present. The Goldstone Commission cited other cases in which some Israeli soldiers deliberately killed unarmed civilians. Nonetheless, individual atrocities of these kind happen in all wars, just and unjust ones, and by themselves do not prove policy intent.

That said, for at least three reasons the Israeli government is by no means off the hook. First, the long Israeli occupation and repression had created an atmosphere in which the Palestinian people could be dehumanized and dismissed as nothing more than "terrorists," subjecting them to summary execution by some trigger-happy soldiers. Second, individual atrocities and war crimes are supposed to be prosecuted by the armed forces or judicial systems of the states whose soldiers committed them: as the Davis Committee pointed out, in the two and a half years since Cast Lead there have been only two Israeli military convictions of soldiers charged with deliberate killings of innocent civilians, and no one has spent a day in prison for having done so.

Third, and by far most importantly, whether or not there was a policy to attack civilians directly, there cannot be the slightest doubt that there was a policy to systematically destroy much of the Gazan economy and civilian infrastructure, and to do so as a means of making it impossible for Hamas rule to succeed as well as to intimidate ("deter") the Gazan civilian population.

After Hamas's democratic victory in Gaza's 2006 parliamentary elections, Israel instituted a severe blockade of Gaza--widely termed a siege--which the Goldstone Commission described in this manner: "The Gaza Strip had been for almost three years under a severe regime of closures and restrictions on the movement of people, goods, and services ....[including] basic life necessities such as food and medical supplies, and products required for the ordinary conduct of daily life such as fuel, electricity, school items, and repair and construction material."

In addition, Israel radically cut Gazan trade and commerce with the outside world, refused to allow Gaza a functioning airport, seaport, or a commercial crossing on its border with Egypt, and placed severe restrictions on the importation of water for irrigation and drinking purposes. And if this radical economic warfare was not sufficient, even before Cast Lead Israel destroyed most of the Gazan electrical generating system and bombed and shelled Gazan roads, bridges, factories, farms, and olive orchards.

Consequently, as reported by a number of international economic studies, even before Cast Lead the Gazan economy was on the verge of collapse, unemployment ranged from 45-60%, 80% of Gazans were estimated to be below international poverty lines, and malnutrition was rampant. Outright starvation had been averted only by outside assistance and the minimal imports of food supplies allowed by Israel, which by its own admission had carefully calibrated its siege so as to avoid famine. (Wikileaks documents revealed that in late 2008, US Embassy officials told the State Department that "Israeli officials have confirmed that they intend to keep the Gazan economy on the brink of collapse without quite pushing it over the edge.")

And all this, it bears repeating, occurred even before Cast Lead--in the course of which Israeli attacks destroyed government institutions and police stations, electrical generation plants, power lines, industrial facilities, fuel depots, sewage plants, water storage tanks, cement factories, and various agricultural and food production systems, including farms, orchards, greenhouses, fishing boats, chicken coops, and the last functioning flour factory--all, as the Goldstone Commission report put it, "for the specific purpose of denying them for their sustenance to the population of Gaza." And in case that's not sufficient to demonstrate the true nature of Israeli policy, hospitals, schools and (as B'tselem pointed out) even 3500 private homes were attacked, leaving approximately 20,000 persons homeless.

Was it Israeli Policy to Directly Kill Civilians?

In light of the nature and extent of the Israeli attacks, the distinction between infrastructure attacks and those directly on the civilian population is all but meaningless: the consequence of such attacks is that people suffer and die, even though it takes a little longer than when they are directly gunned down or bombed.

Even so, was that the intention of the Israeli government? The answer seems self-evident: in light of the systematic and extensive nature of the "infrastructure" attacks, what else could it be? Moreover, as the Goldstone Commission was able to quote, prior to Cast Lead leading Israeli political and military officials had publicly and repeatedly announced a revised military doctrine that "explicitly admits the intentional targeting of civilian targets." Israeli president Shimon Pere's chilling words were only one of a number: Israel's aim was "to provide a strong blow to the people of Gaza so that they would lose their appetite for shooting at Israel."

In light of the evidence, there was every reason for the Goldstone Commission to conclude that Israel carried out "deliberately disproportionate" attacks which were "designed to punish, humiliate and terrorize a civilian population." Nonetheless, that is the most controversial conclusion of the Goldstone Commission report--and the only one that Goldstone now comes close to repudiating.

The History of Israeli Attacks on Civilians

While not proving that the purpose of the Israeli attacks against Gaza was not only to strike a blow at Hamas but deliberately to sow death and destruction in the civilian population, the long history of Israeli warfare is relevant and instructive in judging its actions and intentions in Cast Lead.

The Goldstone Commission limited its discussion of the historical context of Cast Lead to the 2006 Israeli attack on Lebanon and the economic siege of Gaza. It should have carried out a more thorough review, for the full record leaves no reasonable doubt that Israel has repeatedly violated the rule of noncombatant immunity throughout its entire history, carrying out a number of deliberate, direct, and systematic attacks not only against Palestinian but also Jordanian, Egyptian, and Lebanese civilians. Indeed, these attacks on civilians—designed as revenge or punishment for their supposed or actual support of Israel’s enemies and, especially, to intimidate them into turning against their own governments or internal militant organizations—have been so prevalent since the 1940s that they can be said to constitute the Israeli way of war.

Here are the most important examples (full discussions and citations can be found here)

*During the 1930s, Zionist organizations like the Irgun and the Stern Gang (led, respectively, by future Israeli prime ministers Menachem Begin and Yitzhak Shamir) sought to terrorize the Palestinians by planting bombs in buses, market places, movie theaters, and other public places.

*During the 1947-48 period Israeli forces often deliberately attacked Arab civilians--sometimes committing outright massacres, such as those at Deir Yassin--in order to drive large numbers of them out of areas claimed by Israel.

* In the early 1950s, a special secret unit was created in the Israeli army; led by the young Ariel Sharon, it carried out a number of cross-border raids against Jordanian and Palestinian civilians in the Jordanian-held West Bank. As an Israeli centrist historian wrote, "the purpose of these raids was to create the greatest confusion and terror in the area in order to persuade the Jordanian authorities and the Palestinian population that it was not in their interest to participate in, or offer support for, raids on the Israeli communities across the border." (Avner Yaniv, Dilemmas of Security, Oxford University Press, 1987, p. 94)

In 1953 the unit attacked the Jordanian village of Qibyeh, following a guerrilla raid that killed three Israeli villagers; Sharon’s forces attacked civilian homes, killing sixty-nine Palestinian villagers, at least half of them women and children. These and other actions horrified Moshe Sharett, the Israeli foreign minister, who charged in a cabinet meeting that Israel had been “exposed…in front of the whole world as a gang of bloodsuckers, capable of massacres.”

*In 1968 Moshe Dayan warned that Israel might attack Egyptian cities in order to “strike terror into the hearts of the Arabs of the cities….[and] break the Arab will to fight.” And so it did: during the 1970-73 Suez Canal Israeli-Egyptian warfare, Israel responded to attacks against its armed forces along the Canal with massive artillery shelling and bombing of Egyptian towns and cities along the western banks of the Canal, deliberately intended to make life unlivable for the Egyptian population and so increase pressure against Nasser and later Sadat. David Shipler, at the time the New York Times correspondent in Israel, later wrote that Israeli bombardments of Egyptian villages “forced the evacuation of 750,000 civilians, destroyed 55,000 homes, and killed and wounded an untold number….It was a pressure tactic on the Egyptian authorities.” (Arab and Jew: Wounded Spirits in a Promised Land, Penguin Press, 1986, p. 45.)

In early 2009, following Cast Lead, the Israeli journalist and historian Tom Segev wrote: “There is a clear similarity between the justification that [Golda] Meir gave for destroying the towns of the Suez Canal during the War of Attrition in 1969-1970, and the reasons for attacking Gaza now.”

*Leading Israeli officials have sometimes acknowledged that Israel has used such “pressure tactics” as an instrument of policy. In 1978, for example, following the first of a number of major Israeli attacks on Lebanese population centers, General Mordechai Gur, then Chief of Staff of the Israeli Defense Forces and later a leading Labor Party politician, responded to criticism of Israeli tactics in Lebanon in this way: “I’ve been in the army thirty years. Do you think I don’t know what we’ve been doing all those years? What did we do the entire length of the Suez Canal? A million and a half refugees!…Since when has the population of South Lebanon been so sacred? They know very well what the terrorists were doing…..I had four villages in South Lebanon bombarded…[as, he says, was done in Jordan].”

The Israeli interviewer then comments: “You maintain that the civilian population should be punished?” Gur responds: “And how….I have never doubted it, not for one moment….For thirty years from the War of Independence to this day we have been fighting against a population that lives in villages and towns…” (from the Israeli newspaper Al Hamishar, May 10 1978 )

As Ze’ev Schiff, a leading Israeli military journalist commented: “In South Lebanon we struck the civilian population consciously, because they deserved it….The importance of Gur’s remarks is the admission that the Israeli Army has always struck civilian populations, purposely and consciously…even when Israeli settlements had not been struck.” (Haaretz, May 15, 1978, emphasis added)

*Since 1978 there have been four major (and many smaller) Israeli air and ground force attacks against Lebanon: in 1978, 1982, 1996, and 2006. While Hezbollah or PLO forces based in Lebanon were the main target of the Israeli attacks, a wealth of evidence, including newspaper accounts, Israeli commentaries, and investigations by leading human rights organizations, leaves no doubt that in 1982 Israel deliberately visited widespread destruction on ordinary Lebanese civilians, killing at least 10,000 of them.

In 2006 Israel again attacked Lebanon, following the seizure of two Israeli soldiers by Hezbollah. Prior to the Israeli attack, there were several open threats by Israeli generals about what would be done to Lebanese civilians; for example, “Senior officers in the IDF say that…if the kidnapped soldiers are not returned alive and well, the Lebanese civilian infrastructures will regress 20, or even 50 years.”

During the Israeli attack, over 1100 Lebanese civilians were killed, almost a third of them children, over 4000 were wounded, one million displaced, 130,000 houses were destroyed, and the country’s electricity network, thousands of small businesses, hundreds of roads and bridges, fuel depots, ports and airports, 300 factories, and dozens of schools and hospitals were destroyed or damaged.

Even in the midst of the war, many Israeli critics were outraged at the Israeli methods, openly charging that the Israeli government was deliberately causing mass civilian suffering in order to generate pressures against the Lebanese government and to deter future civilian support or toleration of Islamic militants. For example, after recounting the history of previous Israeli attacks on civilian infrastructures in earlier attacks on Lebanon, Zeev Maoz, a former head of the Jaffee Center for Strategic Studies, Israel's most important and prestigious mainstream security research institution, concluded that "this war is not a just war....Israel is using excessive force without distinguishing between civilian population and enemy." Avi Shlaim, one of Israel’s leading critical historians, went even further, writing that “the massacre of innocent civilians [is]a recurrent feature of Israeli military intervention.”

The emphasis of these and other Israeli critics was primarily a moral one. However, they were joined by several pillars of the Israeli security establishment, who tended to focus on the pragmatic consequences to Israel's national interests. For example, Yossi Alpher, a former deputy chief of Mossad, director of the Jaffee Center for Strategic Studies, and senior advisor to Ehud Barak argued that the humanitarian suffering in both Gaza and Lebanon was “a deliberate act on Israel's part...intended to generate mass public pressure on the respective governments to force the Islamic militants to release the three IDF soldiers snatched from Israeli territory and end rocket attacks." He concluded: "it hasn’t worked.”

Even more remarkably, several years later Moshe Arens—a high Likud official and well-known hardline rightist, a former ambassador to the United States in the Menachem Begin government, the foreign minister in the Yitzhak Shamir government, and a three-time defense minister in Likud governments since the 1980s—wrote: “The ‘leverage’ theory—which holds that the destruction of enemy infrastructure and attacks on the enemy’s civilian population will produce pressure on decision makers to cease their attacks against Israeli civilians….did not work in Lebanon, and it certainly does not work in Gaza....Quite the contrary, it only increases the support that the terrorists receive from the civilian population. Cutting off fuel, cutting off electricity, preventing food from reaching them is both counterproductive and immoral.”(emphasis added)

After the 2006 Israeli attack on Lebanon, Human Rights Watch and Amnesty International released the results of their on-the-ground investigations of the war. HRW concluded: “In critical respects, Israel conducted the war with reckless indifference to the fate of Lebanese civilians and violated the laws of war…[reflecting] Israeli policy and not just the behavior of individual IDF members [as] is evident from statements by Israeli government officials and military leaders that intentionally blurred the distinction between civilian and combatant….Israel conducted numerous attacks that were indiscriminate, disproportionate, and otherwise unjustified…..[ these attacks were] war crimes as defined by international humanitarian law.”

The Amnesty International investigation and report reached the same conclusions: “The evidence strongly suggests that [this] extensive destruction was deliberate and an integral part of the military strategy, rather than ‘collateral damage’….Statements by Israeli military officials seem to confirm that the destruction of the infrastructure was indeed a goal of the military campaign….Many of the violations examined in this report are war crimes…”

Goldstone's Retraction and Its Consequences

Operation Cast Lead was only the culmination of a three-year period in which Israel engaged in economic warfare as well as massive, systematic, and deliberately indiscriminate attacks on Gaza, thus making the distinction between attacks on civilian infrastructure and attacks on people essentially meaningless. Consequently, Israel's policies in Gaza constituted an intentional violation of the most important and widely accepted moral and legal principle that seeks to constrain the inevitable destructiveness of warfare: that innocent civilians may never be the intended object--direct or indirect--of military attack. When they are, we call it terrorism--or even worse, state terrorism.

Indeed, by accepting what might be called the liberal criticism of Cast Lead--that while its methods were dreadful, Israel did have the right to go to war against Gaza in order to defend itself--the Goldstone Commission failed to point out the true depths of the Israeli war crimes: the underlying purpose of Cast Lead was not "self-defense" but the destruction of all resistance to Israel's continued occupation of the West Bank and its external control over Gaza by means of economic and military warfare, warfare that repeatedly provoked Palestinian resistance and retaliation.

For that reason, then, even if its methods had been pristine, Israel had committed the crime of international aggression. Indeed, in those circumstances it is not even necessary, in a sense, to examine Israel's methods: if you don't have a just cause, you are not morally or legally permitted to attack even the other side's soldiers, let alone its people.

Surely at some level Goldstone must have understood this, so why did he duck the issue of just cause, and then essentially retract his Commission's most important charge of unjust method? One can only speculate: stung by the hatred and rejection in Israel as well as the global Jewish community, especially in his native South Africa, Goldstone may simply have essentially capitulated.

At this point, it is hard to know how much damage the Goldstone retraction has done. On the one hand, except for a small and essentially powerless minority in Israel and the United States, no revelation about Israel's behavior ever seems to break through the psychological Iron Wall defenses of the majorities, so ultimately both the original report and the retraction of it may have little impact.

On the other hand, the Goldstone retraction could be disastrous, especially in light of the recent renewal of Hamas rocket attacks and disproportionate Israeli retaliations. Both Gideon Levy and Akiva Eldar, the great Haaretz columnists, have warned that Goldstone has unwittingly given a green light for Operation Cast Lead 2. Similarly, Jessica Montell of B'tselem quotes Gabriela Shalev, a former Israeli ambassador to the UN: "The one point of light is that if we have to defend ourselves against terror organizations again, we will be able to say there is no way to deal with this terror other than the same way we did in Cast Lead." As Montell concludes: "Shalev's words make chillingly clear that this debate is not only about the past but also about the future."

28 comments:

Jerry Haber said...

I can only say that after a long article, much of which I agree with, you have not even begun to make your case against Goldstone's so-called "retraction", a word he does not use. Your evidence for a retraction? A headline which Judge Goldstone probably did not write, and the claim that his op-ed does damage to the original report.

First off, Goldstone has not "retracted" anything, even the preliminary finding that raised the possibility that Israel had committed crimes against inst humanity against the Palestinians. What the op-ed said was that the findings of MAG in the case of al-Samouni family (and others cases not specified) muddy the evidential waters. Had the Goldstone commission been presented the evidence from the MAG's finding -- which has not yet exonerated the commanding officer from war crimes -- the preliminary findings based on this case would have looked different. You may think that that would have been a mistake, but I think that he is saying that he would have held out then for a diffent finding of fact.

By the way, the McGowan Davis report has raised questions about the MAG's investigations but has not rejected them out of hand. Your point about the conflict of the MAG's roles only explains why a public judiciary inquiry is necessary -- a point on which McGowan Davis and Judge Goldstone agree, even now.

In the op-ed Judge Goldstone does not say that he accepts as fact the evidence presented to the MAG. He certainly does not excuse the commanding officer in the al-Samouni case from war crimes; on the contrary he is says that he is confident that IF the c.o. is found guilty he will be appropriate punished. He does not say that the McGowan Davis committee agrees with him on his interpretation of the evidence or on anything else, only that they find the MAG investigations "significant." You may think that he leaves the impression that they agree with his reading of the evidence. I don't.

Anonymous said...

"Even the criticism that if somebody is consistently misread, he must be at least not expressing himself clearly, is not a good one. Because nobody has been more consistently misread and misunderstood than Goldstone"

Non sequitur. Both the right and left saw this op ed in similar ways. They saw it that way because it was clearly written to seem conciliatory towards Israel and critical towards Hamas. (I don't object to the latter, by the way.)

On the intent to kill civilians, there should be consistency on how behavior is judged. If we condemn indiscriminate rocket bombardments by either Hamas or Hezbollah as attacks on civilians, and we should, then indiscriminate firepower used in urban areas should be seen as attacks on civilians, especially when it is also clear that there was an intent to punish civilians. I don't expect Israel to openly claim they were targeting civilians, any more than I expect them to admit that the blockade on Gaza is meant to immiserate them. (The US played the same game with the Iraqi sanctions--deliberately cause civilian suffering and then deny any intent to do so.)

Donald

Anonymous said...

I'm not sure why Haber is complaining about this analysis. It's true, the Goldstone article wasn't exactly a retraction. However, in all respects the Goldstone editorial was a distortion, as you say, of both the Davis committee report and the report from the original UN commission headed by Goldstone. I don't think you're misreading the Goldstone editorial.

Anonymous said...

Like a previous poster, I disagree with your argument that there is little moral difference between directly targeting a piece of civilian infrastructure and deliberately civilians themselves - though they are clearly both very wrong. But regardless, this a great piece.

Gene Schulman said...

All these words by Slater, Haber and Anonymous are enough to make one dizzy. The plain fact is that Goldstone wrote a report that chastises Israel for its crimes, then writes a mere op-ed piece that tries to explain that Israel may have had reason for those crimes. It is not a retraction, but the fact that Israel interprets it as such is what all the stink is about. With or without Goldstone I or Goldstone II, the world knows that Israel has committed crimes against humanity, and will continue to do so. Goldstone is not the problem. The problem is Israel!

Anonymous said...

Thank you for this informative and lucid analysis.

fuster said...

the Palestinian right to resistance does not extend to bombardment of civilians living in Israel and the does not render illegal Israel military action against the organization sponsoring the bombardment.

Juan said...

Jerry Haber claims that new Israeli evidence supplied to Goldstone (why not to the entire committee?) has only "muddied the waters" and in no way can be viewed as a retraction of the original report. I strongly disagree. Goldstone's op-ed says that he regretted that he didn't have "the Israeli evidence that emerged since publication of our report...because such evidence...probably would have influenced our findings about intentionality and war crimes." He also says "If I had known then what I know now, the Goldstone Report would have been a different document." So, Mr. Haber, it's not quite a retraction, but it comes pretty darn close. Intentionality and war crimes? What else is the Report all about?

The op-ed reads in places like classic hasbara. For example, "The purpose of these [Israeli] investigations is to ensure accountability...not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions." (Like having to decide whether chickens are or are not terrorists?)

I am so sorry that it has taken Cast Lead to inform the IDF of the dangers of using white phosphorus in civilian areas. (I thought we found out about WP's effects in Vietnam.) So happy though, that the IDF has cleverly developed "new procedures" for "limiting" such use in future.

The op-ed reads like it was written by a man caught between the truth and his tribal loyalty--tortured, as it were. It also reads like a belated defense of Israel. Nowhere does Goldstone suggest that the reason the IDF didn't cooperate with his initial investigation may have been that they had things to hide (plenty of things, I am confident we shall ultimately learn).

fuster said...

Juan, your comment calling Goldstone's op-ed "hasbara" motivated by "tribal loyalty" is pretty much a waste of space and an emotive description based on nothing but your own emotionality.

Anonymous said...

I appreciate the thought put into this... best analysis I've read to date.

Anonymous said...

" the does not render illegal Israel military action against the organization sponsoring the bombardment."

What renders Israel's actions illegal is not the response to Hamas's bombardment--what renders their actions illegal are the actions themselves, plus the fact that they broke the ceasefire and refused to lift the illegal blockade.

And this distinction between targeting infrastructure and civilians is largely Western hypocrisy. Nobody ever admits to targeting civilians in the West, but when one bombards urban areas... oh nevermind. Obviously it only counts as a possible crime against humanity if it is done by an Arab.

Donald

Jerome Slater said...

I'll be out of town for a couple of weeks; when I return, if it still seems relevant to do so, I will write an overall response to the comments. In particular, I was going to write a detailed response to Jerry Haber's comment, which is similar to a number of other comments he has been posting in various places, rather angrily rejecting the idea that Goldstone retracted anything of significance.

However, it now appears that it would be superfluous for me to do this, as the three co-authors of the Goldstone Commission report have published a very strongly worded statement that reaffirms the original report and while it does not mention Goldstone by name, leaves no doubt that their remarks are a reaction to the Goldstone oped, which they reject in no uncertain terms. You can read the Haaretz story about it, here: http://www.haaretz.com/news/diplomacy-defense/gaza-war-report-co-authors-reject-goldstone-s-retraction-1.355951

delia ruhe said...

Thank you Jerry Slater. This long post should be the basis guiding every subsequent attempt to deal with the Goldstone Report and Goldstone's strange "qualification" of it.

Today we have at last had some real sanity: first, the statement of the 3 other authors of the Report, and this brilliant piece of yours. Thanks again.

fuster said...

Donald, fair points. My comment was aimed at Professor Slater's claim that the Israelis had no right to respond militarily to Hamas' bombardment of Israeli citizens in Israel.

I don't approve of how the Israelis responded, but for Slater to claim the Israelis to be without an option of military response requires some rather questionable assumptions.


I'm also not sure how it is that you discern Israel's response to be illegal. By which set of laws and by whose determination?
Some of the Israel action is near to indefensible, some dubious, but the only choices open were poor ones.

delia ruhe said...

Upon my second, more careful reading of this posting, taking advantage of many of the hyperlinks included in it, it has occurred to me that we really do live in an environment of information overload. One of the many things I appreciate about the piece is its review of past events which pretty much seals the argument against Goldstone’s suggestion that the killing of civilians is not Israeli policy. In spite -- or, perhaps more accurately, because of my having read every important news story, every important document on Cast Lead, and seen virtually all of the Al Jazeera footage of it (indeed, have even taught a course in which Cast Lead was the central feature), I have really not been able properly to retain it all. And as for the important historical context, much of which I have spent the last 12 years assiduously studying, I have not properly sifted through and reflected upon it, and thus have forgotten too much.

What I have forgotten or remembered aside, the thing that has frustrated me most about the coverage and the official reports on Cast Lead is the way they virtually all avoid or dance around what in my view is the most important point, described quite clearly in this posting: “if you don't have a just cause, you are not morally or legally permitted to attack even the other side's soldiers, let alone its people.” Almost the entire history of Israel’s assault on the people and property of Palestine has lacked a just cause. Historians such as Avi Shlaim, Elan Papp√©, and other “new historians” have been hammering on this point since the beginning of their careers. Why their profoundly important work has made virtually no impression upon politicians and policy makers, pundits and foreign policy “experts” is a tragedy almost beyond comprehension. When future historians of Israel and Palestine look back upon our generation of perpetrators and bystanders they will spit on our graves.

I am probably not the only dedicated student of Israeli-Palestine who is a) suffering from information overload, and b) thus requires something like this posting to put together a sufficient number of the pieces in order to come to a sharper understanding of the Goldstone Report and Goldstone’s putative retraction. I think the Slater posting is very important. It is erudite, meticulously sourced, and eminently readable -- and it should be published somewhere prominent. Everyone who remains troubled by Cast Lead (and especially those who aren’t) needs to read this. Otherwise they remain vulnerable to the hasbara on this issue whose chief purpose is to obfuscate and provoke uncertainty among Israel’s critics.

Anonymous said...

Fuster--

If a Palestinian is firing rockets at Israeli civilians, then Israel has the right to launch an extremely careful strike aimed precisely at the person launching the rockets and the rockets too. Beyond that I'm in agreement with Delia. Most of Israel's violence is not self defense--most of it is part of a policy of theft and aggression.

I should add that I'm in agreement with Delia about the value of Slater's piece. It's ridiculous that something of this quality is published on a blog rather than on the op ed page of a major national newspaper.

Donald

Juan said...

This is indeed a superb analysis by Mr. Slater, as many others have noted. I agree with him that Goldstone's op-ed lends support to the conclusion that the original report treated the Israelis too gently.

I am left wondering why Goldstone, a Jewish Zionist, was selected to even be a member of the UNHRC--let alone chair it. Was this because of US/Israeli insistence? In retrospect, it seems self-evident that Mr. Goldstone's objectivity could potenially be compromised by a wish not to harm Israel's international standing.

fuster said...

Donald, I guess that I would go just a tiny bit beyond that formulation and suggest that Israel has the right to strike not only at the person launching the rockets but also at the people working with the people doing the launching.

Blowing up the foot soldiers doing the launching (and the teenagers sent to retrieve the launchers) isn't really going to be of use in protecting Israeli civilians from continued bombardment.

Anonymous said...

Fuster, I think targeted assassinations are illegal. That aside, there would inevitably be civilians standing nearby who'd get killed. So for both legal and collateral damage reasons, I'd limit "self-defense" to the actual rocket launchers.

Also, and this is an obvious point, but have you considered that this sort of thing should go both ways if we advocate it for one side? There are plenty of Israeli officials just as guilty of war crimes as any Hamas leader.

Donald

fuster said...

Donald, I think "targeted assassinations" are something that you're going to have to define before you can criminalize.
Killing one or more people responsible for assisting in the commission of acts of violence amounting to attempted murder of civilians doesn't offhand strike me as an outrage against the laws of war.

And yeah, I don't consider it an outrage that Hamas or other people engaged in making war against Israel would target members of the IDF or factories fashioning munitions for the IDF.

War is not peace and things attendant upon conditions of peace are not precisely applicable when peace is absent.

Anonymous said...

I think targeting specific people for death is considered assassination and is outlawed, but don't know exactly how it is defined. Anyway, at first I thought you were saying that Hamas could do their own targeted assassinations of Israeli officials responsible for war crimes, but no, you're saying that IDF soldiers and munitions factories are legitimate targets. Well, of course they are (leaving aside whether violent resistance is a good idea),but the question was whether Israeli officials who give orders to bombard Palestinian urban areas, for instance, are also legitimate targets? If Hamas terrorist planners are, it seems like it should work both ways.

Donald

fuster said...

Donald, bombing in urban areas is not a crime, Sending bombs where there is no valid military target is a crime.

Anonymous said...

Using indiscriminate firepower in urban areas is what I'm talking about. If you employ some super accurate missile that only kills the guy with a rocket launcher, then sure, that's not a crime (leaving aside the larger issue of the justice of the war). Anyway, you're dodging here--if there were policy decisions made by Israeli officials that amounted to the ordering of war crimes, can the Israeli officials be targeted? It only seems fair, if Hamas people can be targeted for the same thing.

Donald

fuster said...

first, I'm gonna keep doing a bit of what you call dodging. I'm not conceding that Israeli firepower in urban areas is usually or often "indiscriminate".

I don't accept that there are no crimes committed by the Israelis, and I do accept that the Israelis are guilty both of employing deadly force in an unreasonably negligent manner on occasion as well as using deadly force knowing that combatant targets are surrounded by non-combatants, but I deny, in the absence of proof, that there's an actual equivalence of criminality between Hamas and the Israeli government.

I could offer more "dodges' about procedures, but let me instead say that if it were shown that the Israeli government was a terrorist organization acting in the belief that any Palestinian was a legitimate person to be murdered at will or without culpability, then yes I would say that in the absence of any available agency to arrest them, Israeli government officials ordering murder would be targets for assassination.

delia ruhe said...

Well, fuster, how deep are you willing to dig? You could go as deep as Jabotinski, from whence came the Iron Wall policy. But I think a reading of some of Ian Lustick's shorter pieces on that policy would suffice. Or, if you like a more detailed look at the Iron Door, read Avi Shlaim's book of that title. The advantage of Shlaim is that you can learn exactly how that policy applies not just to Palestinians but to all Arabs, and how each Prime Minister and IDF Chief, in turn, has applied that policy.

fuster said...

delia, I'm neither willing to assign responsibility for present-day military actions and political policy to Jabotinski or other dead theorists nor allow that present actions are controlled by people no longer present.
I'm not gonna saddle Hamas with the Grand Mufti, nor criminalize Edward Said as a Sbarro bomber.

You can't, reasonably or even semi-reasonably, ascribe actions of a government or military to theorists because it suits you. Theorists have varying degrees of influence, but they're never controlling in a "real-world" or a moral or legal sense.

Anonymous said...

"n the absence of proof, that there's an actual equivalence of criminality between Hamas and the Israeli government."

That's the great thing about being a Western government. You can target civilians, but so long as you deny any malign intent, it's all fine. Israel is not unique in this regard, of course. I think human rights law and just war theory have two parallel uses--some people use them in an attempt to limit the harm done to innocent people in wartime and others look for loopholes, escape hatches, plausible deniability. Unfortunately the first group runs human rights organizations and the second group runs governments.

Donald

fuster said...

Donald,

"I think human rights law and just war theory have two parallel uses--some people use them in an attempt to limit the harm done to innocent people in wartime..."

we would both like to see them followed and enforced, and probably both understand that their aim is to reduce not only the harm brought about during wartime but also reduce or eliminate entirely the practice of warfare.

I don't see that they're presently anywhere near to being enforced or followed and applying them in an unequal and rather haphazard manner is going to result in distortion.

People running human rights groups have interests and duties different from people running national governments and that's not likely to change.
Universal solutions to world-wide problems and the promotion of the welfare of citizens of one nation above all others aren't going to align perfectly.