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Justice Goldstone, author of the famous report on the 2009 attack on Gaza, published an op-ed today in which he seemed to be retracting some of his claims.
He wrote that “while the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy” This claim was immediately picked up by Israel’s foreign minister Avigdor Lieberman, who sees it as making it “clear that IDF is a moral army.” It is important to respond to these claims for several reasons: because they are false and misleading, and because they serve to buttress many Israelis' self-image of being morally superior to Palestinians, since all Israeli violence towards civilians is supposedly accidental. Portraying such attacks as accidental is also linked to seeing them as inevitable, and therefore justified - which means they can happen again. Mondoweiss’ Adam Horowitz has already responded to this, but here are some more points to keep in mind in regard to the 2009 Israeli war crimes in Gaza. 1. They were very well documented by a variety of sources. Human Rights Watch wrote that "First, the repeated use of air-burst white phosphorus in populated areas until the last days of the operation reveals a pattern or policy of conduct rather than incidental or accidental usage. |
Second, the IDF was well aware of the effects of white phosphorus and the dangers it poses to civilians. Third, the IDF failed to use safer available alternatives for smokescreens."
Breaking the Silence testimonies show that “Fire power was insane. We went in and the booms were just mad. The minute we got to our starting line, we simply began to fire at suspect places. You see a house, a window, shoot at the window. You don’t see a terrorist there? Fire at the window. In urban warfare, anyone is your enemy. No innocents.”
The Palestinian Center for Human Rights, and others, collected many testimonies of attacks on civilians. For example:
The al-Helu family had been told to evacuate their house in Zaytoun, eastern Gaza, but while they were attempting to flee, Israeli soldiers opened fire on them. Farah was shot in the stomach and bled to death two hours later
2. As Adam wrote:
The U.N. committee of independent experts (led by former New York judge Mary McGowan Davis) which was charged with following the Israeli and Palestinian investigations following the Goldstone report [...] point to Israel's unwillingness, and in fact inability, to investigate the policies of the Israeli military as the greatest fault of the Israeli investigation to this point... The experts' report also addresses the structural reason the Israeli investigation has failed to look into military policy. Evidently the Israeli office responsible for investigating the question of crimes committed in Gaza is the same office that would be responsible for providing legal counsel to the Israeli military's Chief of Staff and other military authorities. So basically, office that would accusing the military of committing crimes is the same one that would be defending them from the same charges.
As a result, few officers have been charged in relation to crimes committed. An internal IDF investigation found two officers responsible for dropping phosphorus bombs on civilians, and all they got was a little reprimand in their personal files. On the other hand, an anti-war activist was given three months in jail for riding his bicycle too slowly at a protest.
3. The claim that there was no policy behind this stems from a poor understanding of civilian-military relations in Israel. The details of policy are often not set by the government, but they give army officers leeway to set these policies, and then don't take any significant steps to punish them for causing human rights violations. For example, the 1982 invasion of Lebanon was supposed to end, according to the government's decision, 40 kilometers north of the border. The army initiated a full invasion, and no one was ever reprimanded for this discrepancy. In 2000, some government ministers wanted to limit the use of force against Palestinian protestors at the beginning of the second Intifada, while the army shot an estimated million bullets (as can be seen in the excellent Israeli documentary "a Million Bullets in October," available on Youtube).
In 2006 the Chief of Staff asked the government for permission to attack Lebanese infrastructure and was refused (see Shelah's and Limor's book on that war)- but infrastructure was attacked nonetheless. And so it was in Gaza: as I mentioned an internal IDF investigation found two officers responsible for dropping phosphorus bombs on civilians, and all they got was a little reprimand in their personal files.
The background for such actions was ongoing incitement to attack civilians – Deputy Defense secretary Vilnai’s threat to bring a “Shoah” on Gaza or the hate leaflets distributed to soldiers entering the Strip – and many more examples.
4. It is true that the army is taking criticism of its actions more seriously than after the attack on Lebanon in 2006. This can only be explained as a direct result of international pressure, which hopefully could prevent some loss of civilian life in the future. In other words, instead of praising the army's liberality, Goldstone should be praising the international community of activists for successfully putting pressure on the army to investigate its own actions..
5. Don't, don't, don't, don't believe the hype. Don't believe the hype.
Tom Pessah is a graduate sociology student at UC Berkeley.
http://fwd4.me/yr7
Breaking the Silence testimonies show that “Fire power was insane. We went in and the booms were just mad. The minute we got to our starting line, we simply began to fire at suspect places. You see a house, a window, shoot at the window. You don’t see a terrorist there? Fire at the window. In urban warfare, anyone is your enemy. No innocents.”
The Palestinian Center for Human Rights, and others, collected many testimonies of attacks on civilians. For example:
The al-Helu family had been told to evacuate their house in Zaytoun, eastern Gaza, but while they were attempting to flee, Israeli soldiers opened fire on them. Farah was shot in the stomach and bled to death two hours later
2. As Adam wrote:
The U.N. committee of independent experts (led by former New York judge Mary McGowan Davis) which was charged with following the Israeli and Palestinian investigations following the Goldstone report [...] point to Israel's unwillingness, and in fact inability, to investigate the policies of the Israeli military as the greatest fault of the Israeli investigation to this point... The experts' report also addresses the structural reason the Israeli investigation has failed to look into military policy. Evidently the Israeli office responsible for investigating the question of crimes committed in Gaza is the same office that would be responsible for providing legal counsel to the Israeli military's Chief of Staff and other military authorities. So basically, office that would accusing the military of committing crimes is the same one that would be defending them from the same charges.
As a result, few officers have been charged in relation to crimes committed. An internal IDF investigation found two officers responsible for dropping phosphorus bombs on civilians, and all they got was a little reprimand in their personal files. On the other hand, an anti-war activist was given three months in jail for riding his bicycle too slowly at a protest.
3. The claim that there was no policy behind this stems from a poor understanding of civilian-military relations in Israel. The details of policy are often not set by the government, but they give army officers leeway to set these policies, and then don't take any significant steps to punish them for causing human rights violations. For example, the 1982 invasion of Lebanon was supposed to end, according to the government's decision, 40 kilometers north of the border. The army initiated a full invasion, and no one was ever reprimanded for this discrepancy. In 2000, some government ministers wanted to limit the use of force against Palestinian protestors at the beginning of the second Intifada, while the army shot an estimated million bullets (as can be seen in the excellent Israeli documentary "a Million Bullets in October," available on Youtube).
In 2006 the Chief of Staff asked the government for permission to attack Lebanese infrastructure and was refused (see Shelah's and Limor's book on that war)- but infrastructure was attacked nonetheless. And so it was in Gaza: as I mentioned an internal IDF investigation found two officers responsible for dropping phosphorus bombs on civilians, and all they got was a little reprimand in their personal files.
The background for such actions was ongoing incitement to attack civilians – Deputy Defense secretary Vilnai’s threat to bring a “Shoah” on Gaza or the hate leaflets distributed to soldiers entering the Strip – and many more examples.
4. It is true that the army is taking criticism of its actions more seriously than after the attack on Lebanon in 2006. This can only be explained as a direct result of international pressure, which hopefully could prevent some loss of civilian life in the future. In other words, instead of praising the army's liberality, Goldstone should be praising the international community of activists for successfully putting pressure on the army to investigate its own actions..
5. Don't, don't, don't, don't believe the hype. Don't believe the hype.
Tom Pessah is a graduate sociology student at UC Berkeley.
http://fwd4.me/yr7
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Judge Richard Goldstone has a confusing and potentially damaging op-ed in today’s Washington Post titled “Reconsidering the Goldstone Report on Israel and war crimes.” Confusing, in that it directly contradicts Goldstone’s own work and that of the UN Human Rights Council, and damaging in that it undercuts some of the most important claims of the UN mission that he led to investigate the Israeli attack on Gaza in the winter of 2008-09.
Goldstone’s main point seems to be that the UN report that commonly bears his name would have looked different if Israel had given him access to information during the fact-finding mission, and now that Israel has conducted some of its own investigations it appears vindicated to a certain degree. In his article he refers to the U.N. committee of independent experts (led by former New York judge Mary McGowan Davis) which was charged with following the Israeli and Palestinian investigations following the Goldstone report. |
The committee of independent experts recently issued a report on its findings and Goldstone says “McGowan Davis has found that Israel has [investigated itself] to a significant degree; Hamas has done nothing.” While it is clear that Hamas has not followed the recommendations of the Goldstone Report in establishing a credible investigation, a closer reading of the March 18, 2011 committee of independent experts’ report (PDF) shows that Israel has also neglected to do the same.
Goldstone uses the Israeli investigation into the attack on the al-Samouni family (which killed 24 people) as an example of Israel’s thourough investigatory and legal process in examining his report’s claims. He writes:
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
This endorsement of the Israeli investigation is directly contradicted by the expert’s report he appears to be referencing. Here is the relevant passage from the experts’ report:
The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern: reportedly 24 civilians were killed and 19 were injured in the related incidents on 4 and 5 January 2009. Furthermore, the events may relate both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG’s decision to investigate was opposed by the then Head of the IDF Southern Command. Media reports further inform that a senior officer, who was questioned “under caution” and had his promotion put on hold, told investigators that he was not warned that civilians were at the location.
However, some of those civilians had been ordered there by IDF soldiers from that same officer’s’ unit and air force officers reportedly informed him of the possible presence of civilians. Despite allegedly being made aware of this information, the officer apparently approved air strikes that killed 21 people and injured 19 gathered in the al-Samouni house. Media sources also report that the incident has been described as a legitimate interpretation of drone photographs portrayed on a screen and that the special command investigation, initiated ten months after the incidents, did not conclude that there had been anything out of the ordinary in the strike. As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial. The same officer who assertedly called in the strike reportedly insisted that ambulances not enter the sector under his control, fearing attempts to kidnap soldiers.
Despite Goldstone’s insinuation, it appears that the officer responsible for bombing the Samouni house is not being legally investigated for the incident.
That being said, there have been Israeli investigations into cases of possible war crimes in the fighting in Gaza. But, this is a separate issue from whether these investigations are credible. One such investigation was the case of Majid Rabah, a 11 year old, boy who was used as a human shield by the Israeli military (a case that was not specifically mentioned in the Goldstone Report). IDF soldiers were accused of using Rabah and a younger child as human shields and where found guilty. For their crime the soldiers were simply demoted and given a suspended sentence. Here is the experts’ report take on the Israeli investigation:
According to media reports, two soldiers forced a boy to search bags suspected of being booby trapped and were convicted of offenses including inappropriate behavior and overstepping authority. Both soldiers were demoted and received suspended sentences of three months each.
It should be noted that while some media reports described the conviction as a credit to the IDF, a former IDF deputy chief of staff reportedly said that the soldiers’ criminal records should be cleared and that such events should be probed inside the units and not in interrogation rooms.The boy’s mother apparently indicated her disappointment over the decision to suspend the prison terms and expressed concern at the message that such a lenient sentence would send to IDF soldiers. Reportedly, in the ruling, the actions of the soldiers were condemned by the judges, but they also gave weight to issues such as the contribution of the soldiers to Israel’s security and their personal circumstances, as well as to their fatigue at the time, the unprecedented nature of the case, and that the soldiers did not seek to degrade or humiliate the boy. Evidently the court also indicated that any future such incidents would be dealt with more severely.
The Committee does not have sufficient information to comment definitively on this judgment, although it is hard to square the apparent finding that the 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 or physical integrity of a civilian, much less to a nine year old child.
Is this the kind of Israeli investigation that Goldstone wants to hold up?
Finally, Goldstone makes perhaps his most damning point, “While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.”
This claim is directly contradicted by the experts’ report. In fact, they point to Israel’s unwillingness, and inability, to investigate the policies of the Israeli military as the greatest fault of the Israeli investigation to this point. The report specifically says, “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.” This implies the entire question of policy has been left unaddressed. This is really disappointing from Judge Goldstone, and will most likely be used to attack the one of the Goldstone Report’s most important charges that Israel executed an intentional strategy to attack Gaza’s civilian infrastructure.
The experts’ report also addresses the structural reason the Israeli investigation has failed to look into military policy. Evidently the Israeli office responsible for investigating the question of crimes committed in Gaza is the same office that would be responsible for providing legal counsel to the Israeli military’s Chief of Staff and other military authorities. So basically, office that would accusing the military of committing crimes is the same one that would be defending them from the same charges. The experts’ report explains:
The Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s 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 given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations. It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” Therefore, the Committee remains of the view that an independent public commission – and not the MAG’s office – is the appropriate mechanism for carrying out an independent and impartial analysis, as called for in the FFM report, into allegations that high-level decision-making related to the Gaza conflict violated international law.
The original Goldstone Report itself pointed to these structural contradictions as reasons for why Israel will not be able to conduct a thorough investigation into the issues raised in the report. Why Judge Goldstone is now ignoring this issue is unclear.
In the Post article Goldstone defends his initial report in a manner he has for some time claiming that it wasn’t meant as a thorough legal investigation, it was an initial fact-finding mission. He says:
Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government.
Goldstone is absolutely correct, and the inconsistencies and contradictions of his op-ed only demonstrate the need for a thorough legal proceeding has never been greater. Over two years since the fighting in Gaza has ended it is clear that neither Israel nor Hamas is going to conduct credible investigations into the charges leveled against them by the UN fact finding mission. The experts’ report summarized:
The Committee heard the respective parties’ claims that their systems have established mechanisms to ensure accountability and justice. Yet, after listening to victims, witnesses and human rights organizations, it is clear that the needs of victims are not being adequately addressed.
For this reason, it is obvious that it is now time to follow-up on the recommendation of the Goldstone Report and refer the case to the prosecutor of the International Criminal Court to conduct a proper legal investigation.
http://fwd4.me/ysJ
What the Goldstone op-ed doesn't say
Israel is “vindicated”, claims FM Lieberman about Richard Goldstone’s latest op-ed in the Washington Post, adding that “we knew the truth and we had no doubt it would eventually come out.” Netanyahu has gone so far as to demand the Goldstone report be retracted from the UN. Among all the celebrations and self-congratulatory pats on the back, it is worth pausing for a moment to ask: what exactly does Goldstone’s latest essay vindicate?
The answer seems much less clear than Israel’s unconditional supporters want to argue. The most charitable portions of his piece (to Israel) suggest that “if I [Goldstone] had known then what I know now, the Goldstone Report would have been a different document.” This statement is so patently obvious as to be meaningless, particularly given Israel’s steadfast non-cooperation at the time of the investigation, but let’s assume Goldstone means this in a substantive way. He did publish this piece under a headline of “reconsidering the Goldstone report” after all.
What else is there in this op-ed that suggests a change from the original Goldstone report? The op-ed focuses on a very select group of three themes. The first point relates to the ongoing investigations into allegations of war crimes. Goldstone refers to the UN committee of independent experts’ report to support this argument, and he quotes that report to the effect that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”
The second key claim in Goldstone’s op-ed is confusing, but suggests that the ongoing investigations have proven that Israel did not attack civilians as a matter of intentional policy. How these conclusions have been reached before the investigations, which the Goldstone report called for as its primary recommendation, have been concluded is unclear. The third theme is that Hamas has not done any of the good things Israel has done: Hamas did deliberately target civilians, Hamas didn’t investigate anything, Hamas continues to be guilty of war crimes by firing rockets into civilian areas, and Goldstone admits he was maybe “unrealistic” and “mistaken” to believe Hamas would investigate itself.
I want to first highlight several general observations about what this op-ed does and doesn’t say. Then I will address these three themes in detail.
What the Goldstone Op-Ed Doesn’t Say
Limited to one of seven categories of possible war crimes The Goldstone commission’s findings on deliberate attacks on civilians is one of at least seven broad findings (which comprise hundreds of specific incidents) that raise issues about Israel’s conduct. These other key findings include:
(1) Israel’s illegal siege on Gaza, which constitutes a form of collective punishment and so violates the Fourth Geneva Conventions;
(2) The political institutions and buildings of Gaza cannot be lawfully considered part of the “Hamas terrorist infrastructure” and so Israel’s attacks on them are unlawful;
(3) Israel taking insufficient measures to protect the Palestinian civilian population;
(4) “indiscriminate” attacks (as distinct from “deliberate” attacks) killed many civilians without any credible military rationale for those actions;
(5) Israeli use of weapons, such as white phosphorous and flechette missiles, which, although not banned under current international law, were used in ways that do violate the laws of war; and
(6) Israel’s deliberate destruction of civilian infrastructure, including industrial plants, food production facilities, sewage treatment plants, and water installations; this destruction has no military justification (for example, Israel’s “wanton destruction” of Mr. Sameh Sawafeary’s chicken coops, killing all 31,000 chickens inside despite there being no military activity in the area) and could constitute a crime against humanity.
Goldstone’s op-ed pointedly excludes discussion of all of these very serious charges of possible war crimes and possible crimes against humanity, so it’s odd that FM Lieberman and his hasbara “excreta” (his word, not mine) think Israel is somehow absolved of all responsibility. One cannot avoid the impression that Israel’s unconditional supporters stillhaven’t actually read the report.
Overlooks key impacts of the report One of the strangest omissions in the op-ed was the recognition that, assuming Israel is conducting investigations in good faith (again, more on that terrible assumption below), it was the Goldstone report that caused Israel to conduct these investigations. The best evidence this is the case was Israel’s absolute refusal to investigate anything except the credit card theft case, until, that is, it got worried that Israeli leaders might end up in the International Criminal Court. More evidence to support this argument can be found in Israel’s response to a conflict without a Goldstone kick in the rear: the 2006 Lebanon war. In that case, Israel constituted the whitewashing Winograd Commission, which didn’t even pretend to investigate the “the government policies and military strategies that failed to discriminate between the Lebanese civilian population and Hizbullah combatants and between civilian property and infrastructure and military targets”, as Amnesty International and other human rights organizations observed. Thus, without the Goldstone report, there is absolutely no reason to believe Israel would be conducting the investigations for which Goldstone is largely praising now.
Another important impact, which was a direct result of the report’s recommendations, was the policy changes, such as “new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas.” I have argued elsewhere that these policy changes acknowledge implicitly that Israel had not been minimizing civilian casualties, as it argues so vociferously, or else there wouldn’t be any possible policy changes that could further minimize civilian harm. Either civilian casualties were being minimized before, in which case the policy changes are meaningless, or are minimized now (hypothetically, of course), in which case Israel wasn’t doing its utmost to protect civilians from harm before. It certainly can’t be both. Either way, these policy changes are directly related to the report, a point Goldstone’s op-ed also makes.
Validity of Specific Claims Made in Goldstone’s Op-Ed
The credibility of Israel’s investigations Goldstone’s op-ed gives the strong impression that, despite the length of Israel’s military investigations being “frustrating”, Israel has “appropriate processes” in place. It is difficult to understand where this belief comes from, because it certainly does not appear in this form in McGowan Davis report he cites (McGowan Davis chairs the UN committee of independent experts monitoring implementation of the Goldstone report recommendations). That report paints are far less appealing picture of Israeli’s military investigations, noting, for example, that:
Was it a deliberate policy of targeting Palestinian civilians? If this op-ed “vindicates” anything, it seems to be about Israel deliberately targeting civilians as a matter of policy. The Goldstone report investigated 11 specific cases, which were concerning because civilians were killed “under circumstances in which the Israeli forces were in control of the area and had previously entered into contact with or at least observed the persons they subsequently attacked, so that they must have been aware of their civilian status.” After reviewing the details of these cases, which included not only the attack on the Samouni family (discussed in the op-ed) but also attacks on a mosque at prayer time and the shootings of civilians waving white flags, the report concludes:
“From the facts ascertained in the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of willful killings and willfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.” (Goldstone report, pp. 16)
This finding, of course, is precisely why the report recommends that Israel launch credible investigations into possible wrongdoing, which Goldstone claims Israel is now doing (more on this later). In that sense, Israel’s investigations confirm many of the key findings of the Goldstone report, a point I’ve raised previously.
The conclusion above, which is easily the strongest charge in the entire Goldstone report, has very little to do with Goldstone’s latest statement that “civilians were not intentionally targeted as a matter of policy.” The Goldstone commission and other human rights investigations have never said the IDF maintains a policy of deliberately targeting civilians. This is a red-herring; nobody seriously believes there is a high-level policy to murder civilians. The actual issue is that “these incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population” (Goldstone report, pp. 16).
This low threshold was an intentional policy, as has been confirmed by dozens of soldiers’ and officers’ statements. For example, many people have commented before about how the IDF “rewrote the rules of war for Gaza”, in particular by getting rid of “the longstanding principle of military conduct known as ‘means and intentions’—whereby a targeted suspect must have a weapon and show signs of intending to use it before being fired upon—as being applicable before calling in fire from drones and helicopters in Gaza last winter.” The intentional, deliberate policy was one of “literally zero risk to the soldiers”, an order that is inescapably related to the high civilian casualties among the Palestinians. For these reasons the main argument in Goldstone’s latest op-ed, which FM Lieberman erroneously believes “vindicates” Israel, is entirely besides the point.
Condemning Hamas Hamas certainly, and unlawfully, does deliberately target civilians. This is not only grotesque but illegal, and Hamas military leaders should be referred to the International Criminal Court for this since Hamas’ political leadership has refused to investigate the matter themselves and hold those responsible for war crimes to account. But, of course, this was already well known by anybody who read the Goldstone report, which wrote:
“The Mission has further determined that these [8000 rocket] attacks [since 2001] constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity.”
One could have also reached the same level of awareness by reading any of Amnesty International, Human Rights Watch or other human rights organizations‘ press releases and reports. In this sense, there is absolutely nothing new about Hamas in Goldstone’s latest op-ed, yet some Israelis and Jewish groups seem surprised (see, e.g., AIPAC’s one of many tweets on the matter).
A Sad, Integrity-Damaging Turn
The first time I saw Judge Goldstone speak in person he was striking in his equanimity and unshakeable commitment to international law. Even in the face of hate-filled attacks by Jews in the audience, who compared his report to the Protocols of the Elders of Zion, he handled himself with a level of firm principle that I imagined to be unmovable. The second time I saw him speak in public a year later, he seemed tired and worn down by the relentless attacks against him by those who chose to attack the messenger instead of deal with the message. It was nothing concrete that he said, but there was a withered tone in his voice and a sort of quiet resignation that his best intentions had been so vehemently manipulated—and misunderstood.
Goldstone’s latest op-ed is something else altogether. It does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way. In fact, his findings under severe constraints have held up remarkably well with time. But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong. Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel. This is nothing more than a bone to Israel’s apologists, which is deeply misleading for all the reasons discussed here. I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.
And he should have known better, that is, he should have known that this craven gesture to Israel would not allow his enemies to forgive him and welcome him back to the broader Jewish community. Already the enemies, sensing weakness, attack for the final kill attempt. Jeffrey Goldberg, with the tone of the intellectual gatekeeper he fashions for himself, makes it clear this doesn’t change the “blood libel.” The editor-in-chief of the Jerusalem Post, David Horovitz, tells Goldstone “an apology is not good enough“. We can expect much, much more of such attacks.
Goldstone has done neither international law and accountability for war crimes—nor himself—any favors with this latest, depressing op-ed.
This post originally appeard on Yaniv Reich’s blog Hybrid States.
http://fwd4.me/yuF
Goldstone uses the Israeli investigation into the attack on the al-Samouni family (which killed 24 people) as an example of Israel’s thourough investigatory and legal process in examining his report’s claims. He writes:
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
This endorsement of the Israeli investigation is directly contradicted by the expert’s report he appears to be referencing. Here is the relevant passage from the experts’ report:
The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern: reportedly 24 civilians were killed and 19 were injured in the related incidents on 4 and 5 January 2009. Furthermore, the events may relate both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG’s decision to investigate was opposed by the then Head of the IDF Southern Command. Media reports further inform that a senior officer, who was questioned “under caution” and had his promotion put on hold, told investigators that he was not warned that civilians were at the location.
However, some of those civilians had been ordered there by IDF soldiers from that same officer’s’ unit and air force officers reportedly informed him of the possible presence of civilians. Despite allegedly being made aware of this information, the officer apparently approved air strikes that killed 21 people and injured 19 gathered in the al-Samouni house. Media sources also report that the incident has been described as a legitimate interpretation of drone photographs portrayed on a screen and that the special command investigation, initiated ten months after the incidents, did not conclude that there had been anything out of the ordinary in the strike. As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial. The same officer who assertedly called in the strike reportedly insisted that ambulances not enter the sector under his control, fearing attempts to kidnap soldiers.
Despite Goldstone’s insinuation, it appears that the officer responsible for bombing the Samouni house is not being legally investigated for the incident.
That being said, there have been Israeli investigations into cases of possible war crimes in the fighting in Gaza. But, this is a separate issue from whether these investigations are credible. One such investigation was the case of Majid Rabah, a 11 year old, boy who was used as a human shield by the Israeli military (a case that was not specifically mentioned in the Goldstone Report). IDF soldiers were accused of using Rabah and a younger child as human shields and where found guilty. For their crime the soldiers were simply demoted and given a suspended sentence. Here is the experts’ report take on the Israeli investigation:
According to media reports, two soldiers forced a boy to search bags suspected of being booby trapped and were convicted of offenses including inappropriate behavior and overstepping authority. Both soldiers were demoted and received suspended sentences of three months each.
It should be noted that while some media reports described the conviction as a credit to the IDF, a former IDF deputy chief of staff reportedly said that the soldiers’ criminal records should be cleared and that such events should be probed inside the units and not in interrogation rooms.The boy’s mother apparently indicated her disappointment over the decision to suspend the prison terms and expressed concern at the message that such a lenient sentence would send to IDF soldiers. Reportedly, in the ruling, the actions of the soldiers were condemned by the judges, but they also gave weight to issues such as the contribution of the soldiers to Israel’s security and their personal circumstances, as well as to their fatigue at the time, the unprecedented nature of the case, and that the soldiers did not seek to degrade or humiliate the boy. Evidently the court also indicated that any future such incidents would be dealt with more severely.
The Committee does not have sufficient information to comment definitively on this judgment, although it is hard to square the apparent finding that the 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 or physical integrity of a civilian, much less to a nine year old child.
Is this the kind of Israeli investigation that Goldstone wants to hold up?
Finally, Goldstone makes perhaps his most damning point, “While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.”
This claim is directly contradicted by the experts’ report. In fact, they point to Israel’s unwillingness, and inability, to investigate the policies of the Israeli military as the greatest fault of the Israeli investigation to this point. The report specifically says, “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.” This implies the entire question of policy has been left unaddressed. This is really disappointing from Judge Goldstone, and will most likely be used to attack the one of the Goldstone Report’s most important charges that Israel executed an intentional strategy to attack Gaza’s civilian infrastructure.
The experts’ report also addresses the structural reason the Israeli investigation has failed to look into military policy. Evidently the Israeli office responsible for investigating the question of crimes committed in Gaza is the same office that would be responsible for providing legal counsel to the Israeli military’s Chief of Staff and other military authorities. So basically, office that would accusing the military of committing crimes is the same one that would be defending them from the same charges. The experts’ report explains:
The Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s 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 given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations. It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” Therefore, the Committee remains of the view that an independent public commission – and not the MAG’s office – is the appropriate mechanism for carrying out an independent and impartial analysis, as called for in the FFM report, into allegations that high-level decision-making related to the Gaza conflict violated international law.
The original Goldstone Report itself pointed to these structural contradictions as reasons for why Israel will not be able to conduct a thorough investigation into the issues raised in the report. Why Judge Goldstone is now ignoring this issue is unclear.
In the Post article Goldstone defends his initial report in a manner he has for some time claiming that it wasn’t meant as a thorough legal investigation, it was an initial fact-finding mission. He says:
Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government.
Goldstone is absolutely correct, and the inconsistencies and contradictions of his op-ed only demonstrate the need for a thorough legal proceeding has never been greater. Over two years since the fighting in Gaza has ended it is clear that neither Israel nor Hamas is going to conduct credible investigations into the charges leveled against them by the UN fact finding mission. The experts’ report summarized:
The Committee heard the respective parties’ claims that their systems have established mechanisms to ensure accountability and justice. Yet, after listening to victims, witnesses and human rights organizations, it is clear that the needs of victims are not being adequately addressed.
For this reason, it is obvious that it is now time to follow-up on the recommendation of the Goldstone Report and refer the case to the prosecutor of the International Criminal Court to conduct a proper legal investigation.
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What the Goldstone op-ed doesn't say
Israel is “vindicated”, claims FM Lieberman about Richard Goldstone’s latest op-ed in the Washington Post, adding that “we knew the truth and we had no doubt it would eventually come out.” Netanyahu has gone so far as to demand the Goldstone report be retracted from the UN. Among all the celebrations and self-congratulatory pats on the back, it is worth pausing for a moment to ask: what exactly does Goldstone’s latest essay vindicate?
The answer seems much less clear than Israel’s unconditional supporters want to argue. The most charitable portions of his piece (to Israel) suggest that “if I [Goldstone] had known then what I know now, the Goldstone Report would have been a different document.” This statement is so patently obvious as to be meaningless, particularly given Israel’s steadfast non-cooperation at the time of the investigation, but let’s assume Goldstone means this in a substantive way. He did publish this piece under a headline of “reconsidering the Goldstone report” after all.
What else is there in this op-ed that suggests a change from the original Goldstone report? The op-ed focuses on a very select group of three themes. The first point relates to the ongoing investigations into allegations of war crimes. Goldstone refers to the UN committee of independent experts’ report to support this argument, and he quotes that report to the effect that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”
The second key claim in Goldstone’s op-ed is confusing, but suggests that the ongoing investigations have proven that Israel did not attack civilians as a matter of intentional policy. How these conclusions have been reached before the investigations, which the Goldstone report called for as its primary recommendation, have been concluded is unclear. The third theme is that Hamas has not done any of the good things Israel has done: Hamas did deliberately target civilians, Hamas didn’t investigate anything, Hamas continues to be guilty of war crimes by firing rockets into civilian areas, and Goldstone admits he was maybe “unrealistic” and “mistaken” to believe Hamas would investigate itself.
I want to first highlight several general observations about what this op-ed does and doesn’t say. Then I will address these three themes in detail.
What the Goldstone Op-Ed Doesn’t Say
Limited to one of seven categories of possible war crimes The Goldstone commission’s findings on deliberate attacks on civilians is one of at least seven broad findings (which comprise hundreds of specific incidents) that raise issues about Israel’s conduct. These other key findings include:
(1) Israel’s illegal siege on Gaza, which constitutes a form of collective punishment and so violates the Fourth Geneva Conventions;
(2) The political institutions and buildings of Gaza cannot be lawfully considered part of the “Hamas terrorist infrastructure” and so Israel’s attacks on them are unlawful;
(3) Israel taking insufficient measures to protect the Palestinian civilian population;
(4) “indiscriminate” attacks (as distinct from “deliberate” attacks) killed many civilians without any credible military rationale for those actions;
(5) Israeli use of weapons, such as white phosphorous and flechette missiles, which, although not banned under current international law, were used in ways that do violate the laws of war; and
(6) Israel’s deliberate destruction of civilian infrastructure, including industrial plants, food production facilities, sewage treatment plants, and water installations; this destruction has no military justification (for example, Israel’s “wanton destruction” of Mr. Sameh Sawafeary’s chicken coops, killing all 31,000 chickens inside despite there being no military activity in the area) and could constitute a crime against humanity.
Goldstone’s op-ed pointedly excludes discussion of all of these very serious charges of possible war crimes and possible crimes against humanity, so it’s odd that FM Lieberman and his hasbara “excreta” (his word, not mine) think Israel is somehow absolved of all responsibility. One cannot avoid the impression that Israel’s unconditional supporters stillhaven’t actually read the report.
Overlooks key impacts of the report One of the strangest omissions in the op-ed was the recognition that, assuming Israel is conducting investigations in good faith (again, more on that terrible assumption below), it was the Goldstone report that caused Israel to conduct these investigations. The best evidence this is the case was Israel’s absolute refusal to investigate anything except the credit card theft case, until, that is, it got worried that Israeli leaders might end up in the International Criminal Court. More evidence to support this argument can be found in Israel’s response to a conflict without a Goldstone kick in the rear: the 2006 Lebanon war. In that case, Israel constituted the whitewashing Winograd Commission, which didn’t even pretend to investigate the “the government policies and military strategies that failed to discriminate between the Lebanese civilian population and Hizbullah combatants and between civilian property and infrastructure and military targets”, as Amnesty International and other human rights organizations observed. Thus, without the Goldstone report, there is absolutely no reason to believe Israel would be conducting the investigations for which Goldstone is largely praising now.
Another important impact, which was a direct result of the report’s recommendations, was the policy changes, such as “new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas.” I have argued elsewhere that these policy changes acknowledge implicitly that Israel had not been minimizing civilian casualties, as it argues so vociferously, or else there wouldn’t be any possible policy changes that could further minimize civilian harm. Either civilian casualties were being minimized before, in which case the policy changes are meaningless, or are minimized now (hypothetically, of course), in which case Israel wasn’t doing its utmost to protect civilians from harm before. It certainly can’t be both. Either way, these policy changes are directly related to the report, a point Goldstone’s op-ed also makes.
Validity of Specific Claims Made in Goldstone’s Op-Ed
The credibility of Israel’s investigations Goldstone’s op-ed gives the strong impression that, despite the length of Israel’s military investigations being “frustrating”, Israel has “appropriate processes” in place. It is difficult to understand where this belief comes from, because it certainly does not appear in this form in McGowan Davis report he cites (McGowan Davis chairs the UN committee of independent experts monitoring implementation of the Goldstone report recommendations). That report paints are far less appealing picture of Israeli’s military investigations, noting, for example, that:
- “That Israel’s military justice system provides for mechanisms to ensure its independence”, but “the Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s [Military Advocate General's] 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 given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations.”
- “The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni.. . . As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial.” This case is of course cited directly by Goldstone, yet his arguments are incompatible with the actual McGowan Davis report.
- “The Committee has discovered no information relating to four incidents referred to in the FFM [Goldstone] report: incident AD/02, incident AD/06, the attack on the Al-Quds hospital, and the attack on the Al-Wafa hospital. Nor has the Committee uncovered updated information concerning the status of the criminal investigations into the death of Mohammed Hajji and the shooting of Shahd Hajji and Ola Masood Arafat, and the shooting of Ibrahim Juha. Accordingly, the Committee remains unable to determine whether any investigation has been carried out in relation to those incidents.”
- “It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” “
- “The Committee expressed strong reservations as to whether Israel’s investigations into allegations of misconduct were sufficiently prompt. In particular, the Committee expressed concern about the fact that unnecessary delays in carrying out such investigations may have resulted in evidence being lost or compromised, or have led to the type of conflicting testimony that characterizes the investigations into the killings of Majda and Raayya Hajaj, and the inconclusive findings reported with respect to the tragic deaths of Souad and Amal Abd Rabbo and the grave wounding of Samar Abd Rabbo and their grandmother Souad.”
- “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 the duration of the ongoing investigations into the allegations contained in the FFM 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.”
Was it a deliberate policy of targeting Palestinian civilians? If this op-ed “vindicates” anything, it seems to be about Israel deliberately targeting civilians as a matter of policy. The Goldstone report investigated 11 specific cases, which were concerning because civilians were killed “under circumstances in which the Israeli forces were in control of the area and had previously entered into contact with or at least observed the persons they subsequently attacked, so that they must have been aware of their civilian status.” After reviewing the details of these cases, which included not only the attack on the Samouni family (discussed in the op-ed) but also attacks on a mosque at prayer time and the shootings of civilians waving white flags, the report concludes:
“From the facts ascertained in the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of willful killings and willfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.” (Goldstone report, pp. 16)
This finding, of course, is precisely why the report recommends that Israel launch credible investigations into possible wrongdoing, which Goldstone claims Israel is now doing (more on this later). In that sense, Israel’s investigations confirm many of the key findings of the Goldstone report, a point I’ve raised previously.
The conclusion above, which is easily the strongest charge in the entire Goldstone report, has very little to do with Goldstone’s latest statement that “civilians were not intentionally targeted as a matter of policy.” The Goldstone commission and other human rights investigations have never said the IDF maintains a policy of deliberately targeting civilians. This is a red-herring; nobody seriously believes there is a high-level policy to murder civilians. The actual issue is that “these incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population” (Goldstone report, pp. 16).
This low threshold was an intentional policy, as has been confirmed by dozens of soldiers’ and officers’ statements. For example, many people have commented before about how the IDF “rewrote the rules of war for Gaza”, in particular by getting rid of “the longstanding principle of military conduct known as ‘means and intentions’—whereby a targeted suspect must have a weapon and show signs of intending to use it before being fired upon—as being applicable before calling in fire from drones and helicopters in Gaza last winter.” The intentional, deliberate policy was one of “literally zero risk to the soldiers”, an order that is inescapably related to the high civilian casualties among the Palestinians. For these reasons the main argument in Goldstone’s latest op-ed, which FM Lieberman erroneously believes “vindicates” Israel, is entirely besides the point.
Condemning Hamas Hamas certainly, and unlawfully, does deliberately target civilians. This is not only grotesque but illegal, and Hamas military leaders should be referred to the International Criminal Court for this since Hamas’ political leadership has refused to investigate the matter themselves and hold those responsible for war crimes to account. But, of course, this was already well known by anybody who read the Goldstone report, which wrote:
“The Mission has further determined that these [8000 rocket] attacks [since 2001] constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity.”
One could have also reached the same level of awareness by reading any of Amnesty International, Human Rights Watch or other human rights organizations‘ press releases and reports. In this sense, there is absolutely nothing new about Hamas in Goldstone’s latest op-ed, yet some Israelis and Jewish groups seem surprised (see, e.g., AIPAC’s one of many tweets on the matter).
A Sad, Integrity-Damaging Turn
The first time I saw Judge Goldstone speak in person he was striking in his equanimity and unshakeable commitment to international law. Even in the face of hate-filled attacks by Jews in the audience, who compared his report to the Protocols of the Elders of Zion, he handled himself with a level of firm principle that I imagined to be unmovable. The second time I saw him speak in public a year later, he seemed tired and worn down by the relentless attacks against him by those who chose to attack the messenger instead of deal with the message. It was nothing concrete that he said, but there was a withered tone in his voice and a sort of quiet resignation that his best intentions had been so vehemently manipulated—and misunderstood.
Goldstone’s latest op-ed is something else altogether. It does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way. In fact, his findings under severe constraints have held up remarkably well with time. But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong. Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel. This is nothing more than a bone to Israel’s apologists, which is deeply misleading for all the reasons discussed here. I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.
And he should have known better, that is, he should have known that this craven gesture to Israel would not allow his enemies to forgive him and welcome him back to the broader Jewish community. Already the enemies, sensing weakness, attack for the final kill attempt. Jeffrey Goldberg, with the tone of the intellectual gatekeeper he fashions for himself, makes it clear this doesn’t change the “blood libel.” The editor-in-chief of the Jerusalem Post, David Horovitz, tells Goldstone “an apology is not good enough“. We can expect much, much more of such attacks.
Goldstone has done neither international law and accountability for war crimes—nor himself—any favors with this latest, depressing op-ed.
This post originally appeard on Yaniv Reich’s blog Hybrid States.
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