J.J. Goldberg October 25, 2009

Israel is softening its early hard line against creating an independent commission of inquiry into the army’s conduct during the Gaza war. Typically, though, the debate is being conducted via name-calling and exchanges of invective and ultimatums.

The floodgates were opened when Prime Minister Benjamin Netanyahu told Lally Weymouth of the Washington Post in a Friday interview that he was “looking into” setting up an independent inquiry, though he insisted immediately that it was “not because of Goldstone but because of our own internal needs.” The publication of the interview on Saturday touched off an uproar of protest in Israel, and Netanyahu immediately changed his story. On Saturday night he released a statement through his office saying he saw “no need” for an independent inquiry. His aides are now hinting that if there is an inquiry it will be because of international pressure, not internal needs — precisely the reverse of what he told Weymouth.

The battle lines inside Israel are a bit surprising and a bit frightening. The strongest opponent is Defense Minister Ehud Barak, the chairman of what used to be the Israel Labor Party. His most important ally is Eli Yishai, chairman of the haredi Shas Party. Calling for an inquiry are, among others, Intelligence Minister Dan Meridor, one of the Likud’s top legal/constitutional minds and leader of the party’s humane wing (yes, there is one), and Minority Affairs Minister Avishai Braverman, who left the presidency of Ben-Gurion University to join what’s left of the progressive wing of what’s left of the Labor Party.

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Barak and the military chief of staff, Lt. Gen. Gabi Ashkenazi, are putting out a novel line of argument against the independent commission. They’re saying that bringing military personnel before a civilian inquiry is outright illegitimate, that it’s dangerous to morale and a threat to soldiers’ lives. That is, the civilian political system has no right to oversee the military. The army makes its own rules and it alone enforces them. It is above civilian law. That logic has the additional benefit of ending the painful debate over whether Israel is to be a democracy or a Jewish state. Do away with that pesky democracy stuff right now and be done with it.

One of the points that gets lost in the debate is a pragmatic one. If and when the Security Council takes up the Goldstone Report, it has the right to refer it to the International Criminal Court for prosecution. But, under the treaty that created the court, (in Article 17, for you legal eagles) the court must rule “that a case is inadmissible” if it “is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” That is, if you conduct your own inquiry, the court can’t step in. If you don’t feel like, the international court will gladly do it for you. And no, having your army investigate itself does not qualify as an inquiry, except in the fertile minds of Gabi Ashkenazi, Eli Yishai and the leader of Israel’s social democratic labor movement, zichron tzadikim levracha.

Goldstone has been telling Israel for months that it should set up a commission, not as a confession of guilt, but as an opportunity to make the international court go away and decide its own guilt or innocence without international interference. Based on what Netanyahu has been saying this weekend, it seems he’s finally begun to figure that out.

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