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Goldstone: An Exegesis

Editor’s Note: In the March/April issue of World Affairs, James Traub tackled head-on the substance of the Goldstone Report—the conclusions of the U.N. Fact Finding Mission on the Gaza Conflict, chaired by Richard Goldstone. Specifically, Traub asked, “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?” Joshua Muravchik answers the question in the essay that follows. Traub then replies.

 

Joshua Muravchik

Last September, the U.N. Fact Finding Mission on the Gaza Conflict, chaired by retired South African jurist Richard Goldstone, issued findings that raised global condemnation of Israel to new heights. That condemnation was echoed even in the pages of this journal, once edited by that most passionate of Zionists, Jeane Kirkpatrick. The echo took the form of an article by James Traub that appeared in the March/April issue (“Fearful Asymmetry: Reading the Goldstone Report”). Traub acknowledges some of the unfairness of the mission’s procedure, but suggests that, nonetheless, Goldstone basically got it right. Israel, he says, borrowing a phrase that he quotes three times from former Foreign Minister Tzipi Livni, was deliberately “going wild” in order to teach the Gazans a lesson.

The gravamen of the mission’s report was that “violence against civilians” on the part of Israel was “a deliberate policy.” The authors noted empirical evidence of destruction in Gaza and then, quoting the stated wish of various Israeli authorities to destroy or disable Hamas, deduced:

Since Israel claims there is no real division between civilian and military activities and it considers Hamas to be a terrorist organization, it would appear that anyone who supports Hamas in any way may be considered as promoting its terrorist activity. Hamas was the clear winner of the latest elections in Gaza. It is not far-fetched . . . to consider that Israel regards very large sections of the Gazan civilian population as part of the “supporting infrastructure.”

In other words, what Israel was up to in Gaza approached genocide, and accordingly the mission proposed criminal investigations of Israel for “war crimes” and, even more ominously, “crimes against humanity.” This report was endorsed by the U.N. Human Rights Council and the General Assembly, and by Swedish Foreign Minister Carl Bildt speaking in the name of the presidency of the European Union. Despite receiving a few slaps on its wrist, Hamas was exultant. “All paragraphs in the Goldstone Report convict Israel and totally exonerate Hamas from any misconduct,” crowed Moussa Abu Marzouk, deputy chairman of Hamas’s ruling Political Bureau. Only the adamant opposition of the United States kept the matter off the agenda of the Security Council, and its proponents may yet succeed in generating a case before the International Criminal Court.

 

To determine what to make of all this, let us recall briefly the chain of events. In 2005, Israel withdrew entirely its settlements and military from Gaza. Critics faulted the Israeli government for acting unilaterally rather than in coordination with the Palestinian Authority, but there was some degree of cooperation. The Israelis offered to leave behind their dwellings but eventually leveled them instead, in deference to the preference of the Palestinians, who said that Israel’s single-family units were ill suited to the dense Palestinian population. Israel did leave behind intact greenhouses and some other economic assets that it supposed would constitute capital for the building up of the Gazan economy. Israel also gave ground on the issue of controlling Gaza’s border with Egypt, agreeing to relinquish this security task to a mixed team of Palestinians and Europeans.

Skeptics speculated that Prime Minister Ariel Sharon ordered the withdrawal from Gaza in order to tighten Israel’s hold on the West Bank (although Israel simultaneously uprooted four settlements from the northern part of that territory). But even if this was Sharon’s ulterior motive, the plan might easily have backfired. Free for the first time from any foreign rule, the Palestinians of Gaza, with copious foreign aid money, might have begun to build the rudiments of a state that advanced the welfare of its citizens and lived in peace with its neighbors. Had such a process unfolded, it would have generated immense pressure on and within Israel to withdraw as well from nearly all of the West Bank so that it might be joined with the nascent state in Gaza, finally putting an end to the conflict between Israel and the Palestinians.

In the event, the Gazans made no constructive move toward statehood. The financially productive greenhouses were vandalized, their parts stolen. Large numbers of young men, rather than performing productive labor, devoted their energies to building weapons, especially rockets to fire over the border into Israel. From the time of Israel’s pullout, not a day passed without rocket fire; altogether, eight thousand projectiles were launched. Being crude, these missiles mostly missed their targets: homes, businesses, schools, kindergartens, and synagogues. Nonetheless they caused some deaths, scores of injuries, and a fair amount of damage to property. Outsiders thought little of these attacks due to their inaccuracy, but for the hundreds of thousands of Israelis living within the radius of the rockets, who sent their children to school each day knowing they were targets, the fact that the lethal projectiles would most likely miss was of limited comfort.

Israel undertook periodic airstrikes and brief incursions to try to suppress the fire, but these proved ineffective. Eventually, Israel swallowed its reluctance and agreed to a tahdiya, or calm, negotiated by Egypt with Hamas, which now ruled the Gaza Strip. Hamas had won Palestinian national elections in 2006 and formed a government, sharing power with President Mahmoud Abbas of the rival party, Fatah. But a year later, Hamas staged a coup against this coalition government, consolidating all power in Gaza in its own hands. During the takeover, it killed and maimed many Fatah members, sometimes using the grisly method of tying their hands and throwing them from rooftops.

Israel, which had spent years negotiating with Fatah, refused to talk to Hamas, as did the United States, the European Union, and the rest of the so-called “Quartet” of intermediaries, essentially because of Hamas’s refusal to accept Israel’s existence. According to Hamas’s charter, “the land of Palestine is an Islamic Waqf consecrated for future Muslim generations until Judgment Day. It, or any part of it, should not be squandered: it, or any part of it, should not be given up.” It goes on, “Israel will exist and will continue to exist until Islam will obliterate it.” The charter is not only implacable against Israel but also anti-Semitic and genocidal, invoking the Protocols of the Elders of Zion and a famous hadith that reads: “Judgment Day will not come until the Muslims fight the Jews, and the Muslims will kill them, and the Jews will hide behind stones and trees, and the stones and the trees will say: Oh Muslims, oh servants of Allah, there is a Jew behind me, come and kill him.”

Nonetheless, Israel chose to deal indirectly with Hamas in order to stop, or radically reduce, the rocket fire, and it signaled its willingness to extend the deal as it was set to expire in December 2008. But Hamas announced its refusal, punctuating its point with a barrage of twenty rockets on the expiration date. Unwilling to endure the renewal of rocket fire, especially as the attackers achieved greater range, hitting the major population centers of Ashdod, Ashkelon, and Beer Sheva, Israel determined to strike a stronger military blow than it had done in the past in the hope of forcefully suppressing the fire.

A week later, it launched Operation Cast Lead, a three-week-long air and ground attack on parts of the Gaza Strip that succeeded in persuading Hamas to end its rocket attacks into Israel.

 

Within a week of the commencement of fighting, the Organisation of the Islamic Conference (OIC) appealed to the U.N. Human Rights Council with an urgent request for a fact-finding mission to Gaza. The fifty-seven-member OIC constitutes nearly half the membership of the Non-Aligned Movement (NAM), which dominates all U.N. bodies other than the Security Council—and thanks to this OIC/NAM influence, the Human Rights Council has been a travesty. A predecessor body, the Commission on Human Rights, so doggedly avoided criticizing dictators and so relentlessly focused its condemnation on Israel that Secretary General Kofi Annan complained in 2005 that it “casts a shadow on the reputation of the United Nations system as a whole.” He engineered the abolition of that commission and its replacement with the current council, but Annan and his American allies were outmaneuvered (or outvoted) in the design of the new body, to the effect that it ended up with an even larger OIC/NAM majority and thus has reprised the faults of the old commission to an even greater degree. In its first three years, the council adopted twenty-six resolutions condemning Israel and a total of six pertaining to all of the world’s other one hundred and ninety-two countries.

Now, on a motion introduced by Pakistan (on behalf of the OIC), Egypt, and Cuba, the council passed another resolution, instructing its president

to dispatch an urgent, independent international fact-finding mission . . . to investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly the occupied Gaza Strip, due to the current aggression.

Mary Robinson, the former U.N. High Commissioner for Human Rights who had overseen the 2001 Durban conference on racism from which the United States walked out when the meeting became an anti-Israel hate-fest, was asked to chair this panel but declined. Evidently this new exercise was too slanted even for her tastes. In turning down the position, she explained that it was “guided not by human rights but by politics.”

It was not hard to see what she meant. The selfsame resolution creating the fact-finding mission began with many paragraphs strongly suggesting that the facts were already in. With only Canada dissenting against thirty-three affirmative votes, the council declared that it:

  • Strongly condemns the ongoing Israeli military operation carried out in the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, which has resulted in massive violations of the human rights of the Palestinian people and systematic destruction of Palestinian infrastructure;
  • Calls upon the occupying Power, Israel, to end its occupation of all Palestinian lands occupied since 1967 and to respect its commitment within the peace process towards the establishment of the independent sovereign Palestinian State, with East Jerusalem as its capital, living in peace and security with all its neighbours;
  • Demands that the occupying Power, Israel, stop the targeting of civilians and medical facilities and staff and the systematic destruction of the cultural heritage of the Palestinian people, in addition to the destruction of public and private properties, as laid down in the Fourth Geneva Convention;
  • Calls upon the international community to support the current initiative aiming at putting an immediate end to the current military aggression in Gaza;
  • Calls for urgent international action to put an immediate end to the grave violations committed by the occupying Power, Israel, in the Occupied Palestinian Territory, particularly in the occupied Gaza Strip;
  • Requests the United Nations High Commissioner for Human Rights to report on the violations of human rights of the Palestinian people by the occupying Power, Israel;
  • Requests all relevant special procedures mandate-holders, in particular the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, the Special Representative of the Secretary-General for Children and Armed Conflict, the Special Rapporteur on violence against women, its causes and consequences, the Special Representative of the Secretary-General on the human rights of internally displaced persons, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, the Special Rapporteur on the right to food, the Special Rapporteur on extrajudicial, arbitrary or summary executions, the Special Rapporteur on the right to education and the independent expert on the question of human rights and extreme poverty, to urgently seek and gather information on violations of the human rights of the Palestinian people and submit their reports to the Council at its next session.

Like Mary Robinson, several other prominent figures declined this absurd mandate, but the council found a taker in Richard Goldstone, a man with a considerable international reputation. During the retrograde years when South Africa was ruled by Prime Minister P. W. Botha, Goldstone accepted appointment as a judge, saying that he thought he could do the most good working within the system, even though few liberal-minded South African lawyers would have agreed. Goldstone was conspicuous during this era for refraining from challenging apartheid. Indeed, he upheld repressive laws; once, for example, he denied the appeal of a thirteen-year-old black youth sentenced to jail for participating in a politically inspired school boycott. Only when the system began to crumble and power was being passed from Botha’s successor, F. W. de Klerk, to Nelson Mandela, did Goldstone make himself a name as a foe of apartheid.

At that time, in 1991, he was appointed to chair the Commission of Inquiry Regarding Public Violence and Intimidation, charged with sorting through the abuses of government security arms as well as the militias of various political movements contending for power, as a step toward binding the country’s wounds. The African National Congress (ANC), like the others, had its share of blood on its hands, but with the ANC now coming to power, Goldstone’s inquiries steered clear of it. He seemed to be taking care not to offend the new power structure just as he had catered to the old. Goldstone, in sum, was a man of ambition, and after his career in South Africa reached its climax with a further high judgeship, he turned his work to the international arena, leading inquiries into abuses in Yugoslavia and Rwanda. The investigation of Israel’s actions in Gaza offered him a larger stage.

Nonetheless, Goldstone was embarrassed by the one-sidedness of the resolution framing his mandate, so he arranged for the president of the council to make an oral statement to the effect that the fact-finding mission was authorized also to look into misdeeds by Israel’s adversaries. This statement, however, was never incorporated into a resolution and had no legal force. Clearly it was intended more as a fig leaf for Goldstone than an honest effort at balance or fairness, and this was reflected in Goldstone’s eventual report, about ninety percent of which was given over to criticisms of Israel, and these in far harsher and more categorical terms than those used to describe the peccadilloes of what the report called “Palestinian armed groups.”

 

The panel comprised three members in addition to Goldstone. Just as its mandate specified Israel’s culpability before it began finding facts, so the mission’s members had rather clearly made up their minds in advance. One, Christine Chinkin, a professor of international law, had already signed an open letter published in the Times of London, saying Israel’s action amounted to “aggression not self-defense” and was “contrary to international humanitarian and human rights law.” Although a petition was made to Chinkin to recuse herself for having already taken a stand on the issues to be weighed by the mission, she refused.

A second member of the group was a retired Irish colonel, Desmond Travers, who by comparison makes Chinkin look like a paragon of dispassion. “Gaza has now come into the history books in the same way as Guernica, Dresden, Stalingrad,” he said in a recent interview with the Middle East Monitor. “Gaza is a gulag, the only gulag in the Western hemisphere [sic].” Travers’s animus toward Israel has led him, in the same interview, to attribute Ireland’s pro-Palestinian position to the alleged fact that “so many Irish soldiers had been killed by Israelis . . . with a significant number who were taken out deliberately and shot (in South Lebanon).” Travers also claimed that Gazan civilians seeking cover from Israeli attacks “moved where they could, when they could, but in doubling or tripling the occupancy of the house of a relative, the thermal signature would be picked up by unmanned aviation vehicles or UAVs (which) sent a message that this place is packed with people so they dropped missiles on them.”

Like the claim about Israelis killing Irish soldiers, this is sheer invention. This obviously begs the question: if Israel was indeed using the highest of high technology to slaughter as many civilians as possible, how did it manage to kill so few? Indeed, Travers’s anti-Israelism at least skirts the line of anti-Semitism. Later on, when asked why some prominent Britons had criticized the Goldstone Report, Travers answered: “Britain’s foreign policy interests in the Middle East seem to be influenced strongly by Jewish lobbyists.”

The final member of the mission was the Pakistani human rights lawyer Hina Jilani. Together with Goldstone and Travers, she had earlier co-signed a public letter to Secretary General Ban Ki-moon calling for a U.N. inquiry into “allegations of serious violations of the laws of war [in] the latest Gaza conflict.” Unlike the letter signed by Chinkin, this one was nominally balanced in that it called for an inquiry into the behavior of both sides. But what was less balanced was the very fact of such an appeal at the time that Israel struck back at Hamas by invading Gaza. None of the signatories, to my knowledge, had ever called for an inquiry into Hamas’s rocket attacks on Israel during the several years these went on.

In sum, Goldstone’s mission began with a mandate that categorically prejudged the issues, and a panel made up of four individuals who had done likewise. The outcome of its deliberations was thus predetermined from the outset. For this reason, Israel declined to cooperate. Some Israelis have second-guessed that decision; and assuredly the refusal hardened the already unfriendly attitude of the panel toward Israel, but it is hard to see how this justified the panel’s method of repeatedly crediting Palestinian allegations as true, essentially on the grounds that Israel had not come forward to answer them.

 

This was only the beginning of the problems with the Goldstone methodology. Because of Israel’s non-cooperation, the report was based primarily on the panel’s two visits to Gaza, each lasting a few days, during which the U.N. officials held public hearings. Like visitors to the USSR in the palmy days of Intourist, the panel was accompanied by Hamas representatives everywhere it went in Gaza. And where did it find its witnesses? Undoubtedly they were furnished by Hamas. Many were later identified as Hamas operatives. While the panel interviewed many witnesses in private (but of course through translators most likely furnished by the authorities), its hearings were held in public. Indeed, they were televised live. Never mind that this created an atmosphere unconducive to fact-finding, it also guaranteed that the accounts from witnesses would be constrained by fear of reprisal. The witnesses, either members of Hamas or under its control or intimidation, told the panel exactly what it wished to hear.

The mission did acknowledge in a single line that it “was faced with a certain reluctance by the persons it interviewed in Gaza to discuss the activities of the armed groups,” but gave this no weight in its findings. Astoundingly, in their public hearings, neither Goldstone nor his three colleagues asked any witness whether Palestinian fighters were in the area of the incidents about which they were testifying.

This, however, was the nub of the whole matter. About fourteen hundred Gazans died in Operation Cast Lead. By Israeli counts, one-third of these were civilians. According to the Palestinian version, a majority were. Whatever the numbers, the central question remains: What were the Israelis firing at? In every war, there are unintended casualties. In this case, for example, of the ten Israeli soldiers who fell in battle in Gaza, four were determined to have been killed by “friendly fire.” There is no doubt that Israel hit residences, businesses, mosques, and the like during this battle against irregular forces, dressed as civilians in crowded urban areas. How could they not have? But the electrifying charge that Goldstone has brought is that Israel was pursuing a “deliberate policy” of killing civilians, thus the suggestion of “war crimes” and “crimes against humanity.” When Palestinian victims fell to Israeli arms, Goldstone inferred deliberate intent without even asking whether a Palestinian gunman was nearby.

Even without turning to the details of the specific incidents on which Goldstone focuses, the circumstantial evidence against his accusation is overwhelming. The doctrine of “discrimination” between combatants and civilians is part of the training of every Israeli soldier. There are scores of documented cases of Israeli missions aimed at terrorists whose whereabouts had been pinpointed that were canceled or aborted because too many civilians were nearby. During this particular conflict, it was widely reported, and Israeli intelligence believed it to be so, that the leadership of Hamas was holed up in the basement of Gaza’s main Shifa Hospital, which Israel refrained from hitting. According to the dovish Israeli commentator Yossi Alpher, “the Israeli military posted a lawyer in the command headquarters of every combat unit in Gaza to ensure that civilian casualties were kept to an absolute minimum.” The most significant rebuttal to charges that Israel deliberately killed civilians is that even by Hamas’s count only one thousand “civilians” perished. Israel, armed with modern and lethal weapons, sent thousands of soldiers and hundreds of tanks into Gaza and flew nearly three thousand sorties over its skies; had it been aiming at civilians, the toll could easily have been a hundred times greater.

British Colonel Richard Kemp, the former commander of British forces in Afghanistan, who also saw duty in Iraq and the former Yugoslavia, testified that

during Operation Cast Lead, the Israel army did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare. Israel did so while facing an enemy that deliberately positioned its military capability behind the human shield of the civilian population.

This statement was, however, not delivered to Goldstone’s panel because the panel was simply not interested. Goldstone defended this decision by saying, “There was no reliance on Col. Kemp mainly because the Report did not deal with the issues he raised regarding the problems of conducting military operations in civilian areas.” But of course that was the whole of what it dealt with.

Since the release of his report, Goldstone has defended himself sharply but declined a debate challenge from Alan Dershowitz and asserted his refusal to answer a set of questions put to him in a letter from a pro-Israel group, CAMERA. He also equivocated strangely in an interview with the weekly Jewish magazine Forward. “Ours wasn’t an investigation, it was a fact-finding mission,” he said. “We had to do the best we could with the material we had. If this was a court of law, there would have been nothing proven.” Then he added: “I wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved.”

It is not likely that many who read about Goldstone’s report learned of these caveats or could have known what to make of them, if they had. Rather, despite much editorial criticism in the United States and even the British media, which tends to be much more critical of Israel, the report received massive global publicity and is likely to constrain Israel from fighting back against attackers in the future. And, as I noted earlier, it has even been given credence in this journal, so let me close with some comments on Mr. Traub’s presentation.

 

He seems to rely for his facts on the Goldstone Report itself, with its dubious sources. Thus he makes much of Israeli attacks on Gaza police stations that killed more than three hundred. Traub asserts: “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.” The implication: these were civilians deliberately killed. Yes, they might have gone off to direct traffic. Or to kneecap members of Fatah. Under Hamas, policemen may do the same things police do elsewhere, but they also do things that police elsewhere do not do. A detailed study by Jonathan D. Halevi of the Jerusalem Center for Public Affairs, identifying three hundred and forty-three killed policemen by name and background, concludes that three hundred and thirteen were combatants or terrorists. If Traub contests this, he offers not a clue of the reasons for his assessment. (The same may be said for Goldstone, of course.)

Traub says that one issue “not in dispute” is that Israeli forces were guilty of “targeting hospitals.” In fact, this is not only very much in dispute, it is almost surely a lie. Whether the various reports are true that the Hamas leadership hunkered down in Shifa Hospital during the fighting, it is clear that Israel believed this to be the case, and so if Israel had been prepared to “target hospitals,” Shifa would have been the first. Traub ignores this. Instead, he apparently alludes to Goldstone’s accusation regarding fire that hit the Al Quds Hospital. In its original response to this allegation, Israel cited an account in Newsweekthat corroborated its own version of events. It read:

One of the most notorious incidents during the war was the Jan. 15 shelling of the Palestinian Red Crescent Society buildings in the downtown Tal-al Hawa part of Gaza City, followed by a shell hitting their Al Quds Hospital next door; the subsequent fire forced all 500 patients to be evacuated. Asked if there were any militants firing from the hospital or the Red Crescent buildings, hospital director general Dr. Khalid Judah chose his words carefully. “I am not able to say if anyone was using the PRCS buildings [the two Palestine Red Crescent Society buildings adjacent to the hospital], but I know for a fact that no one was using the hospital.” In the Tal-al Hawa neighborhood nearby, however, Talal Safadi, an official in the leftist Palestinian People’s Party, said that resistance fighters were firing from positions all around the hospital. He shrugged that off, having a bigger beef with Hamas. “They failed to win the battle.” Or as his fellow PPP official, Walid al Awad, put it: “It was a mistake to give Israel the excuse to come in.”

Goldstone’s mission dismissed the information in this article on the following grounds:

The comments attributed to Mr. Safadi that “resistance fighters were firing from positions all around the hospital” can mean either that people were inside the hospital firing or were in positions outside but near to the hospital. The journalist did not clarify precisely what was meant.

This was outright dishonest because on the very piece of paper on which Israel presented the Newsweek account it also presented one from the Italian paper Corriere della Sera that clarified Safadi’s meanings. It read:

Magah al Rachmah, aged 25, residing a few dozen meters from the four large buildings of the now seriously damaged health complex, says about this fact: “The men of Hamas took refuge mainly in the building that houses the administrative offices of al Quds. They used the ambulances and forced ambulance drivers and nurses to take off their uniforms with the paramedic symbols, so they could blend in better and elude Israeli snipers.”

Goldstone and his fellow fact finders simply ignored this report. And such dishonesty was their method in each of the other specific incidents they discussed.

When not relying on Goldstone, Traub relies on Human Rights Watch (HRW), which is notorious for its anti-Israel bias. Its Middle East staff is recruited from Arab advocacy groups, including one key member from a group devoted to cheerleading Middle Eastern terrorists. [1] The Saudi press reported recently that the group’s leaders had solicited financial donations from rich Saudis to sustain its attacks on Israel, and its chief investigator in Gaza was suspended upon revelations that he was an aficionado of Nazi memorabilia. All of this led HRW’s founder, Robert Bernstein, to issue this cri de coeur on the Op-Ed page of the New York Times: “Human Rights Watch has lost critical perspective. . . . Israel, the repeated victim of aggression, faces the brunt of Human Rights Watch’s criticism.” [2]

But the capstone of Traub’s argument, as I’ve already said, is the quote from Foreign Minister Livni that Israel was purposefully “going wild” in Gaza. This translation, however, comes from Goldstone, who in turn got it from a two-paragraph dispatch appended to a story in the Independent by a journalist unfriendly to Israel. Livni said that people who fired rockets at Israel would have to know that Israel would retaliate, and then she used an adverb that could mean “wildly”—or, better, “fiercely.” In any event, the point was retaliation, meaning against the people who were shooting at Israel, and the adverb suggested the intensity of the response, rather than indiscriminateness, which is the twist that Goldstone and Traub put on it.

In reality, Israel left the people of Gaza to rule themselves with the available benefit of foreign economic aid exceeding that being offered to any other population in the world. But these people spent the next four years committing daily aggression and war crimes, i.e., rocket attacks aimed at civilians. When Israel finally responded to defend itself in an urban war against a foe that has no respect for legal or moral principles, it was pilloried by a world where Muslims outnumber Jews by one hundred to one, where fifty-seven members of the Islamic Conference stand against one Jewish state. It is not surprising that the United Nations, where these numbers rule, joined in the lynch mob atmosphere. It is surprising that World Affairs did, too.

Notes

1. I refer to Joe Stork, deputy director of HRW’s Middle East section and the moving force behind the Middle East Research and Information Project (MERIP); among other things, MERIP offered words supportive of the 1972 Munich massacre of Israeli athletes.

2. The accusation for which Traub relies on Human Rights Watch is that Israel’s actions were “disproportionate.” The concept of “proportionality,” originating in Just War doctrine, is often misunderstood. It is not eye for eye, tooth for tooth. Rather it means, as Traub notes, that the amount of force used must be consonant with the military objective (assuming, of course, that the objective is just). Determining the amount of force necessary is never an easy task, as we Americans have learned the hard way by sending far too many troops (at immense needless expense) to fight the Gulf War and too few to win the Iraq War. Israel, having been the victim of relentless aggression from Gaza (the firing of a rocket across a border is an act of aggression by every legal, logical, and moral standard), had attempted to defend itself by means of smaller incursions and air attacks on the perpetrators. It had also tried to maintain a negotiated ceasefire (the tahdiya). All of this having failed, it decided on a larger military response that, in fact, succeeded. By what measure is this disproportionate?

 

’s reply

I had to go back and re-read my article to make sure that I had not, in fact, written the article that Joshua Muravchik attacks in his “response.” I did not write a defense, or even a qualified defense, of the findings of the Goldstone Report. As a journalist, I’m not in the business of making definitive assertions of fact about an incredibly tangled set of facts without having had any opportunity to verify or falsify them myself. Muravchik, on the other hand, doesn’t pause at this heuristic obstacle; he’s content to assure us that the facts must be as Israel and its military (the IDF) have vouched, since those on the other side are motivated by personal ambition or by blind hatred of Israel. That’s one way of settling a thorny problem.

The piece I wrote, for those who read the response but not the thing responded to, focused on a dilemma to which there is, to my mind at least, no easy answer: “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?” I asked not whether Israel perpetrated the acts that Goldstone alleged it had, but rather whether those things it plainly did, such as target the Gaza police force, constituted the only reasonable response for a state under such a threat. If that’s so, I wrote, “then states must choose either surrendering to their enemies or enduring global censure—or international humanitarian law must change.”

Muravchik makes much of the “chain of events” leading to Israel’s December 2008 attack on Gaza. I was silent on this question, since dwelling on the justice of Israel’s decision to attack would have defeated my purpose. The laws of war are, and have always been, indifferent to the justice of the cause in question. The worst atrocities have, after all, been committed by those most persuaded of the righteousness of their cause, and thus of the monstrousness of their adversary. I pointed out that it was precisely this conviction that seems to have given senior officials in the Bush administration, as well as troops in the field, implicit permission to violate those laws in Iraq and Afghanistan. I would only say, of Muravchik’s account, that one could write a very different narrative emphasizing not just Hamas’s dedication to destroying Israel but the persistent failure of Israel’s leaders to strengthen the hand of Palestinian leaders who, unlike Hamas, sought a peaceful resolution.

On the Human Rights Council, and the Goldstone Report’s provenance, Muravchik and I are in agreement, as readers of my piece will know. Israel may well have been right, I wrote, in claiming that the report was “conceived in hate.” But was its actual execution so distorted by bias that it should be dismissed out of hand? Muravchik is convinced that Richard Goldstone is a cynical human rights grandstander to whom the opportunity to lead the inquiry offered “a larger stage.” Maybe; but the accusation has the ring of the next-best, after the author was forced to discard “Israel-hater,” given that Goldstone is a Jew who has played an active role in Israel. Would he apply this latter epithet to, say, Radhika Coomaraswamy, the U.N. special representative for children and armed conflict, who has accused Israeli troops of using an eleven-year-old boy as a human shield? Would this allegation apply, ipso facto, to anyone who made such claims? Does the fact that Human Rights Watch has come down on the side of Goldstone constitute a proof of bias? The fact that the many people who do hate Israel would believe any accusation, with or without evidence, scarcely discredits every investigator who concludes that Israel committed serious violations in Gaza.

I did not seek to pass judgment on many of the Goldstone Report’s claims about the IDF’s treatment of civilians, save to note that some of the Israeli soldiers who gave testimony to the group Breaking The Silence “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.” I wrote that I did not believe that Goldstone had presented convincing evidence that the IDF targeted civilians for death—for the same reasons Muravchik cites. The report does, however, present more convincing evidence that Israel pursued “a policy of disproportionate destruction.” It may be that every chicken farm, bakery, and water treatment plant destroyed by Israeli shelling sheltered Hamas fighters or weapons, as Israel has since argued. But the magnitude of the destruction does not feel proportionate, unless one views Gaza’s entire civil infrastructure as a potential mechanism of terror.

Muravchik rightly notes that IDF troops are trained in the doctrine of discrimination between combatants and civilians, which is central to the laws of war. This, as well as the entire ethos of Israel, assures that soldiers will never respond even to lethal threats with the wanton brutality that the Sri Lankan army showed toward the Tamil Tigers, or the Russians toward the Chechens. Nevertheless, the question remains whether IDF soldiers violated that training—how many of them and how gravely. Tzipi Livni’s “going wild” remark itself proves nothing, but may help explain the motive for violating that doctrine—just as the rabbi who, according to testimony from Breaking The Silence, assured soldiers going into battle that “there is no accounting for sins in this case” may have helped soothe consciences.

And this brings us back to the dilemma I identified. Hamas knows that it cannot defeat Israel militarily, but it can score a political victory even while being defeated on the battlefield. It can win by discrediting and isolating Israel—or rather by causing Israel to act in such a way as to isolate itself. Hamas thus forces Israel to kill civilians in order to get at fighters. The Tamil Tigers did this, too; but as a non-aligned country in good standing, Sri Lanka need not worry about global public opinion. Israel has to worry both about its own principles and about its standing. Hamas thus forces upon it an excruciating choice. Muravchik believes that they always, or almost always, made the right choice. I’m not so sure. The IDF has disciplined two senior officials for firing white phosphorous shells at the U.N. Relief and Works Agency “in a manner that jeopardized the lives of others.” Was this an aberration, or part of a larger pattern?

What, then, to do? I believe that the interpretation, and perhaps the letter, of international humanitarian law must be re-thought, in order, among other things, to deal with guerrilla forces that mingle with civilians precisely in order to force conventional armies to violate those laws. But the larger question for Israel is political. Of course it should be able to defend itself without automatically incurring widespread censure. And yet the political cost of Israel’s military victories gets higher and higher. The Obama administration, as we have seen in recent weeks, has become convinced that this cost accrues to the United States as well as to Israel. And that is not a sustainable position for Israel. For all its military might and courage, Israel cannot fight its way to security. It will have to find a different path.

Joshua Muravchik is a fellow at the Foreign Policy Institute at Johns Hopkins University’s School of Advanced International Studies. His most recent book is The Next Founders: Voices of Democracy in the Middle East.

James Traub is a contributing writer for the New York Times Magazine and author of The Freedom Agenda: Why America Must Spread Democracy (Just Not the Way George Bush Did).

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