Bungled again: Israel and Goldstone
Nov 3rd, 2009 by MESH
From Alan Dowty
As the Goldstone report on the Gaza war wends it way up the UN food chain, casting further opprobrium on Israel at each level, it is legitimate to question Israel’s handling of this challenge. Did the Israeli response lessen or aggravate the damage?
There are serious critiques that could have been levied against Goldstone’s mandate even before a single accusation was heard. UN investigations of wars, including this one, typically focus on jus in bello, on the laws of war on the battlefield, and ignore jus ad bellum, the justification for going to war in the first place. It can be argued with great cogency that it is unreasonable to judge the conduct of a war with little or no reference to its causes; echoes of this can be heard in Israeli complaints about the lack of attention to claims of self-defense.
A second critique is that international law has not kept pace with changes in warfare. Most contemporary armed conflicts involve what Rupert Smith has called “war amongst the people,” rather than classic set-piece battlefield scenarios from which laws on wartime conduct (jus in bello) were drawn. These laws seek, quite rightly, to minimize casualties among civilians, but how should they be applied when the very blurring of the military-civilian distinction is a basic strategic axiom of one party? Are insurgents entitled to more rather than less immunity if they refuse to wear uniforms (as required by conventional law)?
So Goldstone’s approach was already blinkered by the framework in which he, without audible complaint, was thrust. This was then compounded by the lack of an Israeli defense to the specific accusations that were brought. Having no “official” explanation that needed to be taken into account, as a straight-laced jurist he then not only accepted any claims of atrocities at face value but also attributed them to deliberate policy rather than the mistakes, negligence, and misconduct out of which most wartime violations are compounded.
Ruth Lapidoth, who has represented Israel in many international legal frameworks, and other leading Israeli jurists have argued that it was a mistake to leave Israel unrepresented in the presentation of evidence and argument before Goldstone. It may be that the final product would still not have been to Israel’s liking, but presenting one’s case in full force would make it more difficult to ignore the basic limitations of the framework (lack of attention to causes, unconventional warfare) and to assign to deliberate policy what could be attributed, in “the fog of war,” to deviations from the rules of engagement that the IDF (Israel Defense Forces) had in fact set out.
A second effective means of damage control would be to address forthrightly the specific cases in the Goldstone report and to draw the necessary conclusions: a clear statement of the facts if the accusation is not warranted, and appropriate disciplinary action if it is. In fact, in international law, taking this step would remove the threat of prosecution abroad that now appears to hang over the head of top-level Israeli military commanders. The army that can fight a bloody conflict in an urban setting, without any cases of misconduct among its ranks, has yet to be created.
According to recent report, it was Defense Minister Ehud Barak who prevailed on Prime Minister Benjamin Netanyahu to boycott the UN inquiry. If so, it is further testimony to Barak’s inability to learn from experience, and it comes as no surprise that the latest poll predicts that, if elections were held now, his Labor Party, once the dominant force in Israel, would be reduced to an abysmal seven seats.
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In focusing on the changed nature of war in our time, Alan Dowty puts his finger on one of the central dilemmas facing not only Israel but also all states that attempt to defend their citizens.
In many arenas of conflict, especially in the Middle East, military forces deliberately fight from zones of civilian habitation. They routinely use as staging areas places that, traditionally, are off-limits to military responses or other actions: hospitals, schools and mosques. These forces also routinely make sure that civilians are in the area from which they are firing their rockets or other weapons—either by inviting those civilians to be there or forcing them to be there—in order to protect themselves from return fire by armies that are reluctant to hurt civilians. These military forces understand that the media war is often immensely more important than the ground war, and that photos of attacks on hospitals, holy places or schools, attacks on fighters dressed as civilians and especially attacks on actual civilians provoke worldwide condemnation and mobilize widespread sympathy for the enemy cause. No traditional military forces or coalition of forces—not U.S. forces, not NATO forces and not Israeli forces—have managed to find a way to cope with this now-common form of warfare.
Dowty notes the damage caused to Israel by that country’s decision to not cooperate with the Goldstone investigation. He refers to the comments by a number of Israeli jurists who have also felt that Israel should have cooperated with the investigation and should have provided the kind of testimony and evidence that Ambassador Dore Gold presented in his debate with Richard Goldstone at Brandeis University on November 5—evidence that, in the debate, Goldstone said he regretted not having seen.
So should Israel have cooperated with the Goldstone investigation?
I don’t think the answer is so simple. If one looks at it as some Israeli officials looked at it at the time the investigation was launched, it’s not surprising that they decided to boycott it. The UN Human Rights Council, and the United Nations itself, has shown itself to be implacably focused on using every opportunity to batter Israel. It doesn’t fail to condemn that country even as it ignores massive violations of human rights by other countries, including the members of the Council itself. The outcome seemed inevitable, and probably was. Richard Goldstone is, no doubt, a decent and honest person, but he was, in my judgment, either naïve or foolishly over-confident when he seems to have convinced himself that he could carry out an investigation or issue a report that would not become, inevitably, a political cudgel against Israel.
In retrospect, however, the Goldstone report—and the uses to which it has been put and will continue to be put—has done so much damage to Israel that my sense is that Israel should have cooperated with it despite the inevitable outcome. I don’t think the result, in terms of public opprobrium, would have been worse—and, in this case, might have been better.
The larger question, I think, has to do with future repetitions of this kind situation. It will surely happen again. It happened when Israel fought Hezbollah in Lebanon, which fired rockets from schools and other civilian zones, and stored them there—and, should it fight another war with Israel, will do so again. And it happens in other theaters of fighting in the Middle East, including Afghanistan, Iraq and Pakistan, where it’s not Israel that has to decide how to contend with this problem but other powers.
Should such forces—American, NATO, Israeli—cooperate with investigations of such incidents, even if the investigation is almost certain, for political reasons, to find them guilty? No situation repeats itself exactly. The next time it won’t be Richard Goldstone but someone else who will head the investigation. The certainty of an unjust outcome may be even greater. Still, I suspect that it would be best to cooperate—even as it continues to be necessary to fight an enemy part of whose military strategy is to hide behind civilian shields. This is indeed the new face of war, and countries, even as they do everything possible to limit civilian casualties to a minimum, must find ways of defending themselves, their interests and especially their citizens.
In his November 5 debate with Dore Gold, Richard Goldstone seemed at a loss as to what would have constituted a “proportionate” response on the part of Israel. The definition of “proportionality” he had in mind seemed to make no sense in military terms. If a country, confronted with the challenge of this kind of warfare, concludes that it just can’t fight, then that country will be unable to defend itself. In the case of Israel, such a decision would result in its destruction. It, and other countries facing this dilemma, will have to devise, in response to this new face of war, a new way of dealing with it—one that enables it to defend itself even as it minimizes, to the extent possible, civilian casualties.
Walter Reich is a member of MESH.