Justice Richard Goldstone and the three other members of a panel commissioned by the United Nations Human Rights Council want Israel to investigate all the war crimes they attribute to its military operation in Gaza last winter. Otherwise, Goldstone threatens, a global court that tries such cases should judge Israel for war crimes and possible crimes against humanity. Goldstone acknowledges that the Israeli military has been looking at a number of allegations of war crimes by its personnel in Gaza. But he belittles these proceedings as grossly inadequate because the Israeli armed forces are not incriminating themselves in accordance with his standards.
The problem is that Goldstone is judging Israel on the basis of totally different rules than those Israel applies to its warfare against terrorist enemies like Hezbollah and Hamas. Customary international humanitarian law was written for wars between the armies of sovereign states. These days, in both Gaza and Lebanon, Israel is confronting terrorist mini-states, each of whose territory is a sovereign black hole left behind by a failed governing authority. The Goldstone commission applies laws of war that ignore the necessities of fighting a terrorist enemy that attacks civilians from bases in non-sovereign territory, hides behind its own civilian population, then displays its own civilian casualties in order to appeal for international support.
Here are two paragraphs from the Goldstone commission report that, juxtaposed, show this disconnect in its starkest terms:
Para. 1208. A statement of objectives that explicitly admits the intentional targeting of civilian objects as part of the Israeli strategy is attributed to the Deputy Chief of Staff, Maj. Gen. Dan Harel…. “This operation is different…. We are hitting not only terrorists and launchers, but also the whole Hamas government and all its wings…. We are hitting government buildings, production factories, security wings and more. We are demanding governmental responsibility from Hamas….”Para. 1725. The Mission finds that the attacks against the Palestinian Legislative Council building and the main prison in Gaza constituted deliberate attacks on civilian objects in violation of the rule of customary international humanitarian law….
By Goldstone’s standards, virtually all Gazans are civilians, and all structures in Gaza are civilian structures. By Israel’s standards, the Palestinian Legislative Council building, the main prison and many other facilities had been thoroughly corrupted by Hamas’s takeover. Goldstone’s rules of war forbid attacking mosques, schools and hospitals; Israel encountered mosques used as arms depots, schools as forward command posts and the main Gaza hospital as Hamas’s central command post.
My initial reaction upon publication of the Goldstone report was to lament that — as in the case of the decision handed down by the International Court of Justice in the Hague against the Israeli security barrier a few years ago — Israel boycotted the deliberations. Its active participation might have righted a host of misinformation and misunderstandings to which such one-sided investigations fall victim. But upon reflection, I prefer the logic invoked by the Israeli government in refusing to testify before Goldstone and his colleagues. The fact that the Israeli military posted a lawyer in the command headquarters of every combat unit in Gaza to ensure that civilian casualties were kept to an absolute minimum would have made no impression on Goldstone whatsoever. Israeli military lawyers and commanders were enforcing a different set of rules — the ones used by the American military at Fallujah in Iraq, by NATO in Kosovo and by the Sri Lankans in Jaffna; in Israel’s case, the ones imposed on us by Hamas.
There is one instance of a violation of the laws of war cited by Goldstone with which I agree — but not for the reasons he cites. Goldstone blames Israel for imposing “collective punishment” by imposing an economic blockade on Gaza. He ignores the responsibility for this act shared by Egypt, the Palestinian Authority and the Quartet, all of which gave their blessings to this response to Hamas’s brutal takeover of Gaza back in June 2007. Had the closing of the Gaza passages brought about the removal of Hamas rule, it could be condoned. But it has failed abjectly; indeed, it has proven counterproductive by weakening the moderate sectors of the Gaza population and strengthening Hamas-linked smugglers. Here Israel, and its friends and neighbors, have been relying blindly on a failed strategy, one that helped bring about last January’s war.
Contrast this outcome with the results of Israel’s massive use of force against terrorist infrastructure in the broadest sense: The Lebanon front has been more or less silent since the summer 2006 war against Hezbollah, just as the Gaza front was relatively muted by Israel’s use of the military tactics Goldstone condemns. And a quiet front means fewer casualties on both sides.
Richard Goldstone’s rules of war are the only ones on the books. As a man of integrity and a judge, he had no alternative but to seek to enforce them “by the book.” Unless, recognizing the absurdity of the entire Human Rights Council investigation, he had simply turned down the job.
Yossi Alpher is former director of the Jaffee Center for Strategic Studies at Tel Aviv University. He currently co-edits the bitterlemons.org family of Internet publications.