Advertisement
September 23, 2009
The Goldstone report is severely flawed, perhaps fatally. At the same time, some of the allegations it makes deserve serious consideration by Israel.
The just-released report of the UN Human Rights Council on last December’s war in Gaza — named for lead investigator Richard Goldstone — was conceived in bias. The UN Human Rights Council resolution calling it into existence called only for an examination of Israeli actions. The mission’s discussion of Hamas’ actions was done only by subsequent informal agreement. The bias of the Human Rights Council against Israel has been acknowledged explicitly by successive U.S. administrations, and implicitly even by the UN secretary-general. One member of the mission condemned Israel’s actions in Gaza as war crimes before joining the mission.
The guiding principle was straight out of Alice in Wonderland: “Sentence first, verdict afterwards.”
The report is also rife with doubtful legal conclusions and a systematic disregard of Israel’s legitimate security concerns. It never acknowledges that Israel’s assault was a legitimate exercise of the right of self-defense.
In discussing the impact of the security fence and checkpoints on life in the West Bank — an issue not within the mission’s purview — the report manages not to mention Israel’s very real security interests in protecting itself against terror attacks. A fortiori, it does not note the success of these measures.
Yet another example of the mission’s disregard of Israel’s security interests is the call for the wholesale release of Palestinian prisoners without any quid pro quo, and without any regard to whether those released would revert to terrorism. (Don’t even ask what this has to do with the conduct of the war in Gaza.)
The mission relies heavily on international human rights law, as opposed to international law regulating war. It is an open question whether the former applies to war. And yet the effect is a relentless tilt toward protecting civilians, as opposed to weighing the balance between military effectiveness and protecting civilians. When it comes to the irregular warfare waged by groups such as Hamas — which operates among civilians — states cannot both defend themselves and comply with this (mis)reading of international law.
Seeing war primarily through the prism of human rights disregards legitimate Israeli security interests. For example, the report condemns as illegal an attack on a cement factory in Gaza. The authors say they can conceive of no military purpose to the attack. But there is an obvious one: to deny to Hamas and its fellow rocket launchers the cement necessary to build bunkers, launching pads, and smuggling tunnels.
The mission’s legal analysis is further premised on the quite doubtful claim that Israel still occupies Gaza, even though every Israeli soldier has withdrawn. Based on this erroneous claim, the report condemns Israel’s embargo of Gaza as illegal collective punishment. Notably, it does not discuss the actual sections of the Geneva Convention dealing with what supplies must be admitted to hostile territory. Israel complies with those. It also ignores recent polling that suggests these restrictions are causing Gazans to transfer support to the more peaceful Palestinian Authority.
Apparently it is the mission’s view that Hamas can call for, and work toward, the destruction of the State of Israel and use its control of Gaza as a platform for incessant rocket attacks on Israel, and in return expect Israel to open its borders to trade; allow Palestinians to cross Israel to the West Bank without mentioning the security problem this would pose; allow fishermen free access to the sea up to a distance of 30 miles, facilitating the smuggling of rockets and other weaponry; and generally allow Gaza to strengthen itself economically while its leaders threaten Israel’s existence. To state this argument is to expose its silliness, except that the mission is completely serious.
What particularly galls Israel is the absurd charge that its military deliberately targeted Palestinian civilians. Numerous officials, many of whom I know personally to be deeply committed to compliance with international law, have testified that Israel sought to minimize civilian casualties, even as it simultaneously planned to deliver a harsh blow to Hamas and other groups launching rockets from amidst civilian populations. Israel’s was a perfectly legal strategy, even if it did cause substantial collateral damage to civilians. Unpleasant as it is to say, such collateral damage is not inherently illegal.
The mission reasoned that since Israel possessed precision weapons, the deaths of civilians must be the result of a deliberate decision to kill them. Thus, Israeli soldiers under attack should have refrained from responding until precision weapons could be used. In a human rights-based approach, this is a plausible claim. Under the law of war, it is without foundation.
It would be a mistake, however, to dismiss the report in its entirety, despite its fundamental flaws. At various points it offers detailed evidence that in some cases — only a handful, to be sure — civilians were intentionally harmed, even killed, and that Palestinian detainees were mistreated. As Israel, understandably, refused to cooperate with this tainted commission, we don’t know all the facts. These allegations may be wrong or explicable on other grounds. Like the al-Dura affair, they may be wholly made up. But the reports are, on their face, credible enough to require a careful and independent review by Israeli prosecutors.
This is not only because a credible Israeli investigation forestalls prosecution in hostile international forums like the International Criminal Court. It is because Israel’s own insistence on waging effective war in as moral a fashion as is reasonably possible — war cannot be antiseptically waged — demands it. As long as it is possible that these standards have been breached, Israel owes it to itself to investigate and, if appropriate, prosecute.
This essay was distributed by JTA.
Marc Stern, an attorney, is the acting co-executive director of the American Jewish Congress.
Reader Discussion
Comment on this article
--TOP--
Follow NJJN