In the first minutes of Israel’s assault on Gaza on December 27, 2008, F-16s fired missiles into the police headquarters and three police stations, killing ninety-nine policemen (and nine civilians). Israel viewed Gaza’s police as an ancillary wing of Hamas, the political and military force which governs Gaza, to be mobilized as soldiers in times of war. The wave of attacks thus constituted a preemptive strike at Hamas’s military infrastructure. Israeli strikes would kill a total of 248 members of Gaza’s police force in the course of the Cast Lead operation. But these men were, in fact, policemen; had Israel not invaded Gaza that day, many would have gone off to direct traffic and do the other things police officers do elsewhere. Were they civilians or were they combatants? The report of the U.N. Fact Finding Mission on the Gaza Conflict, known as the Goldstone Report (after Richard Goldstone, the South African jurist who served as chief investigator), concluded that the attack on the police stations violated principles of international humanitarian law, which require those who wage war to minimize harm to civilians. The report cites the attack as only one of many instances where the Israel Defense Forces (IDF) may have committed war crimes.
The Goldstone Report, released last September, constitutes a grave blow to Israel’s reputation worldwide—or, rather, it will unless Israel succeeds in refuting its conclusions. For this reason, Israel has waged a fierce campaign to discredit the document. Speaking before the General Assembly this past November, Gabriela Shalev, Israel’s U.N. ambassador, declared that the Goldstone Report “was conceived in hate and executed in sin.” Senior officials from President Benjamin Netanyahu on down have denounced the report as a hatchet job designed to delegitimize Israel and thus hand Hamas a precious political victory. Israel’s military has prepared an extensive rebuttal of the charges, although it had not yet been delivered to the United Nations at the time of this writing. While most Western countries have kept a careful distance from Goldstone’s conclusion, Susan Rice, the American ambassador to the United Nations, has stated that the report “was hatched with a bias inherent in its mandate.” The United States is almost certain to veto any attempt to have the Security Council refer the report to the International Criminal Court, as the report’s authors propose. Nevertheless, the Goldstone Report has been endorsed by many of the world’s leading human rights organizations and enjoys far more credibility than most of the documents with which U.N. bodies have condemned Israel over the years.
The report can be faulted on so many grounds that it is tempting simply to dismiss it altogether. There is, above all, its provenance—the United Nations, an institution practically obsessed with Israel’s iniquity, though nonchalant in the face of so many other monstrous evils around the world. And nowhere is this imbalance more patent than in the U.N. Human Rights Council, which impaneled the inquiry. Like its predecessor, the Human Rights Commission, the council has proved almost wholly unwilling to issue critical “country resolutions”—unless that country is Israel. To take only the most nakedly obvious example, last summer, when the government of Sri Lanka crushed a terrorist movement in its midst—the so-called Tamil Tigers—leading to the deaths of at least seven thousand civilians and the lengthy internment of tens of thousands more, not only did the council refuse to order an investigation, its members congratulated the government in Colombo on the humane conduct of its counterterrorism operation.
It is no great stretch, then, to say that the Goldstone Report was indeed, as the Israelis say, “conceived in hate.” That it was “executed in sin,” although equally an article of faith among critics, is not quite so clear. The council initially authorized an inquiry only into Israel’s alleged misdeeds—not Hamas’s. Even Mary Robinson, the former U.N. human rights commissioner accused of a deep anti-Israel bias as a result of her leadership of the 2001 Durban Conference Against Racism, refused to lead so blatantly politicized an inquiry. Goldstone himself agreed only after the language was changed to place Hamas’s acts on a par with Israel’s. And while the report accuses Hamas as well as Israel of grave breaches of international humanitarian law, only about sixty pages of the 550-page document concern allegations against either Hamas or the Palestinian Authority. The subject of the inquiry is plainly Israel. And the authors’ skepticism of allegations against Hamas forces widely repeated in the press and among human rights organizations—such as the use of civilians as human shields—compared with their general willingness to accept claims against Israel made by residents of Gaza does not give the reader great confidence in their objectivity.
Nevertheless, the report cannot simply be dismissed as a piece of propaganda, both because Goldstone is himself a highly regarded figure—at least outside Israel—and because Israel has not been able to convincingly refute some of the gravest allegations about Operation Cast Lead. The report documents cases in which soldiers fired on, and killed, Gazans who they had every reason to believe were civilians, including women and children; forced civilians to enter homes they believed to be booby-trapped or to contain Hamas fighters; used white phosphorus, a highly flammable material, in civilian settings; and used lethal but inaccurate means, including mortars and aerial bombardment, in settings where the deaths of noncombatants would be almost inevitable. These assertions have been given some corroboration from the anonymous testimonies of IDF soldiers collected by the organization Breaking The Silence. Soldiers have asserted that IDF officers called in air strikes on houses even when occupants had not been identified as combatants and used civilians as human shields. A rabbi who addressed the troops before battle is said to have reassured them that owing to “the sanctity of the People of Israel . . . there is no accounting for sins in this case.”
Like so many allegations in wartime, these questions may never be unambiguously settled. In this case, it appears that they will be fully adjudicated only in Israel itself. But there are many other cases where what the IDF actually did is not in dispute, and the central question is whether or not the acts in question can be justified according to the laws of war. These include not only the killing of police officers, but the targeting of hospitals and other government buildings, the destruction of infrastructure and commercial property, and the blockade that preceded the war. The fundamental question that lies beneath the dispute over what the IDF did or did not do is: Can Israel fight Hamas—or can any state fight such an adversary—without the means that the Goldstone Report insists that international humanitarian law prohibits?
Here the voice of Israel, and its defenders, has been unanimous. Michael Oren, Israel’s ambassador to the United States, has asserted that the report “bestows virtual immunity on terrorists and ties the hands of any nation to protect itself.” The U.S.-led war on terror, with its vast tally of civilian deaths, Oren wrote, could never pass muster before such an inquiry. Ehud Barak, Israel’s minister of defense, declared that democracies “must not allow themselves to be handcuffed by the abusive application of lofty ideals.” What, after all, was Israel to do against an enemy that intentionally based its fighters and rockets in the midst of civilians, daring the IDF to produce the kind of collateral damage that would provoke international opprobrium? The argument comes down to this: If international humanitarian law really does criminalize Israel’s behavior in Gaza, then abiding by it is a suicide pact for countries, like Israel, confronted with terrorism. And if that’s the case, then states must choose either surrendering to their enemies or enduring global censure—or international humanitarian law must change.
What is it permissible to do in the face of an adversary that not only fights among civilians but quite deliberately uses them as pawns? In a dusty slum of Freetown, the capital of Sierra Leone, I was told that in the apocalyptic battle of January 6, 1999, the rebels of the warlord Foday Sankoh had advanced behind kidnapped local women. Nigerian forces protecting the state had at first fallen back, and then turned, killing the women and then the rebels. It’s hateful to force such a choice upon soldiers charged with defending the state, but they are obliged to make that choice. What else were they to do—stand by and watch a monster seize power?
The laws of war are, in fact, designed to answer precisely such questions. These laws, which derive from such documents as the four Geneva Conventions of 1949 and the fourth Hague Convention on the Laws and Customs of War on Land, offer a guide to the just conduct of war. International humanitarian law broadly stipulates that combatants cannot intentionally target civilians or “civilian objects,”—schools, hospitals, houses of worship, and the like—and, when targeting combatants, must not use weapons or means that will needlessly cause harm to civilians in their midst. This last principle is subject to a test of “proportionality”: the commander must weigh the expected “military advantage” against the expected harm to civilians. Had the Nigerian forces in Freetown faced an inquiry—they did not—they might well have said that the military advantage of preserving the state outweighed the death of the civilians used as human shields.
Israel, like other democracies, accepts these principles, incorporates them into its jurisprudence, and instructs its soldiers to abide by them. (Hamas, a non-state actor, is understood to be governed by the laws of war even though it cannot be a signatory to treaties.) Did the IDF, despite these instructions, violate the laws of war? Israeli soldiers responded to Hamas mortar fire directed at Israel’s border cities with relatively inaccurate artillery of its own. Civilians were bound to be hit, and were. Again, these facts are not disputed—but their interpretation is. The Goldstone Report describes these tactics as a violation of the principle of proportionality. Israel could have—and thus should have—acted otherwise. Iain Levine, program director at Human Rights Watch, asserts that “one can fight wars in a successful way without the kind of civilian casualties that we have seen in Cast Lead and so many other places around the world.” Levine notes, for example, that operational guidelines for U.S. soldiers have evolved as the toll of civilian deaths has risen in Iraq and Afghanistan: soldiers no longer use white phosphorus in civilian areas, and the use of aerial bombardment in Afghanistan has become ever more circumscribed. Of course, this issue highlights a practical question: When does military gain outweigh political loss in a campaign for civilian sympathies? Israel, which holds out little hope of winning Palestinian hearts and minds, will not be restrained by such a utilitarian calculus.
Like so many similar questions, this one looks a lot harder the closer you get to the ground. Certainly you don’t need to fire thousands of shells into civilian areas, as the Sri Lankan army did in the course of its climactic battle with the Tigers, or crush civilians under tank treads, as the Russians did in Chechnya. But IDF soldiers would have had to get much closer to the enemy in order to distinguish combatants from noncombatants with much greater certainty, and to prevent serious collateral damage; doing so would have placed them in far greater danger. To how much peril should a commander expose his own soldiers in order to limit harm to civilians?
Did Israel really try to minimize harm to civilians? This is the nub of the question. The furor over the Goldstone Report has to do, at bottom, with questions of motive or intent. The report concludes that “disproportionate destruction and violence against civilians were part of a deliberate policy,” rather than either the inevitable consequence of Hamas’s own tactics or even an overreaction to those tactics. According to an article in the New York Times, the forthcoming report by the IDF will go to great lengths to discredit this assertion. Indeed, the claim of intentional destruction has enraged even those Israelis who have been critical of Cast Lead. Writing in the New Republic in November, the political philosopher Moshe Halbertal called the allegation “false and slanderous.” Indeed, beneath much of the Israeli response to the report lies the outraged rebuttal: We would not do such things. Hamas intentionally targets civilians; Israel does not. Only those who despise Israel would say otherwise. But is that so? Americans now know that the systematic torture and abuse of prisoners was American policy approved at the very highest levels. Democracies, too, when locked in desperate battle, justify to themselves acts that look appalling in the light of day. Our own history shows how a sense of national virtue and high purpose leads almost insensibly to the feeling of impunity.
Halbertal rightly notes that had the IDF been singling out civilians, the ratio of noncombatant to combatant deaths in Cast Lead would have been far greater than two-to-one or, if you count police officers as civilians, three-to-one. But the Goldstone Report presents a strong case that Israel pursued a policy of disproportionate destruction, if not of wanton killing. In addition to the alleged acts themselves, the report cites numerous statements from senior Israeli officials, including from Tzipi Livni, then the foreign minister, who said, “Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild—and this is a good thing.”
Public reaction to allegations of human rights law violations has itself become a matter of strategic calculation in the struggle between Israel and Hamas, as it has in other insurgencies against Western powers. (Provoking a state contemptuous of human rights into violating such standards has little public-relations value, which is probably why, say, the Chechens never tried such a tactic against Russia.) A report by Israel’s Ministry of Foreign Affairs issued several months before the Goldstone Report observes that Hamas fighters situated themselves among civilians both to deter a military response and, “where the IDF did attack, to wield an excellent propaganda weapon against Israel, featuring civilian casualties as well as damage to homes and public institutions.” Hamas dared Israel to earn the world’s censure. Refusing to play this game, Israel called Hamas’s bluff. It would go wild—and publicly say so. Despairing of ever being in the world’s good books, Israel chose to risk its reputation rather than its security—but then insisted that it had done nothing to violate its commitment to international humanitarian law. The Goldstone Report arguably matched this hypocrisy by failing to acknowledge the full cynicism of Hamas’s actions, and failing also to acknowledge this contemporary form of blackmail.
How to resolve this dilemma? Paul H. Robinson, a law professor at the University of Pennsylvania, argued in the Wall Street Journal that while the Goldstone Report may have accurately applied international humanitarian law to the Cast Lead operation, this demonstrates not that Israel was at fault but rather that the laws of war are “embarrassingly unjust” and “give the advantage to unlawful aggressors.” Robinson, however, suggests no specific improvements. Do we then scrap the concept of international humanitarian law, and with it the idea of neutral standards for the conduct of belligerents toward civilians? This is an appalling idea. Perhaps, alternatively, we need to adapt the rules to the reality of modern conflict. Moshe Halbertal asks: “What happens in semi-states that do not have an institutionalized army, whose armed forces are a militia loyal to the movement or party that seized power?” In such a place, a police force “might be just a way of putting combatants on the payroll of the state.” Israel argues that most members of the police force had Hamas affiliations; the Goldstone Report calls this “an overstatement.” Perhaps membership is the wrong criterion. In an interview, Halbertal suggested a new way of distinguishing between civilians and non-combatants based not on institutional affiliation but on action: “If you stop doing whatever you were doing in order to engage in combat once fighting begins, then you’re a combatant.” Halbertal would include the police but exempt Hamas cooks who kept cooking and even polemicists who kept pamphleteering.
But how do we know that all or most of those police officers would have taken up arms against Israel? They were killed before they had a chance to choose. What’s more, many men who might shun a terrorist attack would nevertheless take up arms to defend their homes and families. Israel may thus have turned the police into combatants and then killed them for it. We may, indeed, need to rethink both the laws of war and, more importantly, the way we apply them to wars very different from the ones that gave rise to those rules. But states facing even the most serious terrorist threats cannot claim exemptions. The laws of war are intentionally indifferent to the moral nature of the conflict; combatants must protect civilians no matter how just they believe their cause, or how despicable their adversary.
In the first months of 2009, when the army of Sri Lanka was backing the Tamil Tigers, along with tens of thousands of civilians, into a tiny and rapidly contracting pocket of land along the northern coast, I was working with an organization, the Global Centre for the Responsibility to Protect, which seeks to call attention to places where mass atrocities are being committed in violation of “the responsibility to protect.” Along with other human rights organizations, we worked desperately to get the U.N. Security Council to put pressure on Colombo to stop its indiscriminate shelling of civilians, which included rocket attacks on the makeshift hospitals caring for those wounded in the attacks. Sri Lanka’s leaders pushed back—they were waging “the war on terror.”
The Tigers, who essentially invented the technique of suicide bombing a quarter century ago, surely fit the definition of terrorists. Like Hamas, they were an insurgent force that posed a very real threat to the state itself, using tactics that led inevitably to the deaths of immense numbers of noncombatants. Over the years, both the Tigers and the Sri Lankan army had been accused of grave and persistent violations of human rights. In the decisive final battle, the Tigers used civilians as human shields, while the army neutralized that tactic by firing on them nevertheless. Human rights groups argued that the army could achieve its objective without killing vast numbers of civilians; and since it was now the rebels, rather than the state, whose existence was threatened, the army was hardly in the situation of the Nigerians in Sierra Leone.
In the end, neither the Obama administration nor other Western powers—much less China or neighbors like India—was willing to demand action. French diplomats, usually quick to invoke the principles of “humanitarian intervention,” gave Colombo the benefit of the doubt—this was the war on terror, after all. So, too, did one of the Global Centre’s own board members. This collective shrug made it easy for the Human Rights Council to wave the issue away, and for the army and government of Sri Lanka to escape accountability.
The campaign against the Tigers and Operation Cast Lead are scarcely identical: the Sri Lankan army took few if any of the precautions used by the IDF to prevent civilian deaths. Israel is a rights-regarding state; Sri Lanka is not. But both countries sought, in effect, the antiterror exemption from international humanitarian law. Both said, we are democracies, and it is an insult to our democratic institutions and habits to impose an outside inquiry rather than to permit us to conduct our own investigation. (This is, of course, a vastly more credible claim in Israel’s case, though it’s worth noting that only one IDF soldier has been found guilty of a crime in connection with Cast Lead—and that for credit card fraud.) Both cried double standards. Israel’s defenders complain that world opinion holds Israel to standards which seem to apply to no one else. Sri Lanka and its advocates asked, if Israel can do it, why can’t we?
To accept these claims is to invite a kind of cascading impunity. Iain Levine of Human Rights Watch says that blocking the adoption of the Goldstone Report not only undermines the effort to hold Sri Lanka accountable, but also gives Sudan a pretext not to turn President Omar Hassan al-Bashir over to the International Criminal Court, which has indicted him on war crimes charges. In fact, it’s not true that Israel alone has been singled out for censure, though it is true that Israel has been subject to criticism out of all proportion to its guilt. Sudan has, after all, been condemned, and sanctioned, by the Security Council. Human rights groups are pressing the United Nations to investigate Sri Lanka’s conduct during the final stages of the war there. And the European Court has concluded in a series of cases that Russia committed grave human rights abuses in Chechnya. We should aspire to have everyone held to such meaningful standards, rather than to have everyone absolved. Only by taking each of these cases seriously will it be possible to overcome the taint of political bias.
In his Nobel Prize acceptance speech, President Obama said, “And even as we confront a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight.” Among democratic states committed to upholding human rights standards, the United States is in the unique position of fighting two wars in which those standards are perpetually at risk. The only state similarly vulnerable to reproach is Israel. But while the United States is protected by its superpower status, so that it may kill large numbers of civilians in pursuit of its military objectives with no fear of international tribunals, Israel is not. Israel will be accused of wrongdoing no matter how conscientiously it observes the rules of war. This is Israel’s political predicament, from which it can be released only by a larger political solution. But that predicament, and that injustice, cannot serve as a pretext for going wild.
James Traub is a contributing writer for the New York Times Magazine and author of The Freedom Agenda.