Read Before You Rebuke

The Hour

By Leonard Fein

Published September 30, 2009, issue of October 09, 2009.
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Not more than a day after the Goldstone report — technically, the “Report of the United Nations Fact Finding Mission on the Gaza Conflict” — was published, on September 15, the chorus of criticism began. Israel’s immediate and vehement denunciation of the report was quickly taken up by most American Jewish organizations. The most common accusation was that the report paid inadequate attention to the provocations that led Israel to launch its war in Gaza. Unfortunately, it quickly became clear that few of the critics had actually read the 575 pages of the report. Instead, they either relied on the Israeli critique or on the official U.N. Human Rights Council press release summarizing the report’s conclusions, a 1,400-word document describing a 219,000 word report. In the fervent view of the rush-to-judgment critics, the report is profoundly biased, fatally flawed.

The Goldstone report is, indeed, incendiary. But whether it is so because it is false or because it is true remains an open question. Having read all 575 pages, as well as the 164 pages of Israel’s own investigation — “The Operation in Gaza, 27 December 2008-18 January 2009: Factual and Legal Aspects,” a report that is closely, even meticulously argued and was published a month before Goldstone’s findings were released — I believe the responsible conclusion is that some of the differences between the two reports are matters of judgment, on which reasonable people may well disagree, while many (but not all) others hinge on the issue of intentionality. Israel systematically denies that any civilians were intentionally targeted; Goldstone insists that there is no other persuasive explanation for the same specific events. And much of the back and forth is a function of the relevance of the findings as a matter of law.

Judgment: Israel’s aerial bombardment of Gaza began on December 27. Within minutes, 24 police stations were hit, among them a compound where 48 policemen were killed. (In all, about one-sixth of all the casualties during the three weeks of the conflict were police personnel.) According to Israel, policemen in Gaza were intimately connected to the Hamas military wing, hence not exempt from attack. According to the Goldstone mission, however, the links between the police and the Hamas military wing were episodic, rendering the police a prohibited target.

Or: According to Goldstone, Israel remains, even after its withdrawal from its settlements in Gaza, an occupying power, this because of its near-total control of Gaza’s borders. Goldstone brings legal precedent to the argument, even though the word “occupation” normally suggests physical presence. Israel rejects the Goldstone interpretation.

As to the question of intentionality, the Goldstone accusation is horrific: Given Israel’s military proficiency, Goldstone says, it is simply inconceivable that the large number of civilian casualties was unintended. “From the facts gathered, the Mission found that the following grave breaches of the Fourth Geneva Convention were committed by Israeli forces in Gaza: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly.” And then: “Taking into account the ability to plan, the means to execute plans with the most developed technology available, and statements by the Israeli military that almost no errors occurred, the Mission finds that the incidents and patterns of events considered in the report are the result of deliberate planning and policy decisions.” Goldstone buttresses its accusation of intentionality with quotations from senior Israeli military and political personnel who are on record as rejecting “hunt and peck” tactics focused on finding and destroying rocket launchers, preferring instead a doctrine known as “Dahiya,” which, the report alleges, involves “the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations.”

All this is based on detailed examination of specific incidents during the course of the conflict — that is to say, on findings, followed in each case by legal analysis of those findings. Some of the findings are specifically discussed and denied in Israel’s own report, while others are more generally dismissed. Israel acknowledges that many specific instances are still being investigated, and that there were, inevitably, some errors in its execution of its assault. But it is emphatic in its insistence that the specific rules of engagement were in complete accord with all the requirements of international law and that the deviations from those rules were rare and unintentional. The Israeli report cannot be casually dismissed — any more than can the Goldstone report.

It is necessary to point out that both reports devote many pages to the background of the conflict — that is, to the rocket attacks on Israel in the years and months leading up to the Israeli assault. One understands the impulse to “explain” the context, but it should be kept in mind that the context is entirely irrelevant to the laws of war (formally, “International Humanitarian Law”). Those laws do not ask whether a war is justified; they ask only how a war is conducted. The antecedent provocation, however grave, does not justify violations of the laws of war. Accordingly, the plaintive question of some of Israel’s defenders — “What was Israel supposed to do in the face of the incessant rockets?” — is, however heartfelt, legally irrelevant.

Israel refused to cooperate with the U.N. investigation, holding that its mandate prejudged its outcome, a reasonable assertion given the virulently anti-Israel track record of the U.N. Human Rights Council. Whether because of its contempt for the process or because it fears the results, Israel is not likely now to accept the Goldstone recommendation (which is supported by the United States) that an independent Israeli commission of inquiry conduct a thorough investigation. What, then, to do? For rest assured, the Goldstone report will not soon go away. It will, studied or left unread, become a point of reference and departure not only for all who wish Israel ill but also for the international human rights community. Israel’s own report, sober as it is, will have no more status than, say, the American “investigations” of the events at Abu Ghraib or of CIA renditions, all, as in Israel, conducted by government agencies.

A modest suggestion, for the time being: The American Jewish community does not lack for legal scholars and experienced analysts. Let a panel of genuinely independent — and fearless — people come together and assess the two existing reports, comparing them far more thoroughly than I am here able to do. Let them then put tough questions to both Israel and the U.N. commission. And let us see what comes of that.

And please: This is not a bandwagon to be fueled by uninformed indignation. Let those who have not read the reports withhold judgment. These are matters of life and death.

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