Goldstone and Gaza: What’s Still True

On April 1, Richard Goldstone made a much-discussed retraction of part of his commission’s report criticizing Israel’s behavior during the 2009 Gaza war.¹ Goldstone’s statement has produced in Israel a predictable burst of self-congratulation. From the Prime Minister on down, the message from the Israeli government is a defiant “We told you so!” spoken from the always privileged vantage point of an innocent victim wrongly accused. Along with this, we have an updated Israeli version of the Prodigal Son; Goldstone, a South African former judge and liberal Zionist of the old school, has supposedly come (rather shamefacedly) back home.

The government spokesmen clearly, perhaps deliberately, miss the point. Goldstone’s emendation to his report in The Washington Post by no means exonerates Israel’s conduct in Operation Cast Lead, as the Israelis called the intervention in Gaza. Rather, Goldstone’s revised statement rectifies the egregious failure of the Goldstone report to clearly condemn Hamas for its crimes leading up to and during the conflict, and expresses some satisfaction with the Israeli army’s own investigations into at least some of the alleged cases of war crimes.

Perhaps most important, Goldstone unequivocally states that “civilians were not intentionally targeted as a matter of policy.” I am sure that this last statement is correct; anyone who knows the Israeli army knows that, for all its faults and failings, it does not have a policy of deliberately targeting innocent civilians. Suggestions to the contrary are simply wrong.

But serious questions remain about Israel’s Gaza war; Goldstone’s recent statement does nothing to dispel them, nor, I would guess, did he intend to do so. (The other three members of the original Goldstone Commission have meanwhile reaffirmed its original findings.) I want to touch on three such issues: the intensity of fire and the official and unofficial “rules of engagement”; the overall planning and strategy of Operation Cast Lead; and the wider setting within which the operation took place. Sober consideration of these themes reveals, in my view, systemic moral failure on several interlocking levels.

Let’s be clear: before the war, Hamas and its allies bombarded Israel with many hundreds of rockets aimed deliberately at killing civilians. There is no possible excuse for these crimes, which have recurred in recent weeks. For most Israelis, this fact alone was enough to justify whatever the army did in Gaza. The logic, in its mild version, goes like this: “We withdrew from Gaza and got missiles in return, so we had no choice but to blast them as hard as we could.” This is a self-serving distortion—based on the preposterous notion that Israel has today and has had in the past no real influence on what happens in Gaza or in Palestinian society generally, together with the cherished but mistaken belief that Israel had “no choice.” I will return to this theme.

First, a note on the army’s investigations into charges of war crimes. The McGowan Davis report—by two independent experts appointed by the UN High Commissioner for Human Rights—which followed the Goldstone report and which Goldstone quotes with approval in The Washington Post, hardly suggests that Israel has done all it could. The report notes that some four hundred allegations of operational misconduct have been investigated, but that only

nineteen investigations into the serious violations of international humanitarian law and international human rights law reported by the FFM [Fact-Finding Mission] have been completed by the Israeli authorities with findings that no violations were committed. Two inquiries were discontinued for different reasons. Three investigations led to disciplinary action. Six investigations reportedly remain open, including one in which criminal charges have been brought against an Israeli soldier. The status of possible investigations into six additional incidents remains unclear.

Mary McGowan Davis, like Goldstone before her, was boycotted by the Israeli authorities; her information was thus derived from eclectic sources. But these figures can be rendered more precise. According to B’Tselem, the Israeli human rights organization (known for its unimpeachable accuracy), there have indeed been some four hundred “operational debriefings” (tachkirim mivtzaiyim), i.e., inquiries into misconduct at various levels, many of them apparently limited to an internal probe within the relevant army unit itself. There have been five somewhat wider debriefings and fifty-two investigations by the Military Police (no results have been announced).

Altogether, only three cases have so far gone to trial: one soldier was convicted of stealing a Palestinian credit card, two were convicted of using a Palestinian as a human shield, and one was convicted of manslaughter although the victim remains unknown (no body was found). Three officers were punished by having disciplinary notes entered into their files.

These results seem paltry in view of the immense loss of civilian life as a result of the campaign and the mode of operation that caused this damage. B’Tselem has documented that at least 759 innocent civilians were killed in Gaza during Operation Cast Lead, 318 of them minors. Many of the most serious cases—such as the attacks on the al-Samouni home and family on January 4–5, 2009, in which at least twenty-three civilians were killed and nineteen were injured—remain open, and I, for one, do not share Goldstone’s sanguine belief that the army will resolve them. One should also bear in mind that the army would almost certainly never have investigated at all were it not for the pressure of the Goldstone report. As Groucho Marx said, military justice is to justice what military music is to music.

In any case, the deeper and more substantial issues cannot be so easily quantified or contained. So let us turn to the Israeli rules of engagement. There is abundant testimony that Israel unleashed firepower of an unprecedented intensity in Gaza, despite its dense civilian population. Though efforts were made to warn civilians to leave the combat zone and many, perhaps most, civilians left their homes in advance of the army’s entry into northern Gaza, the combat zone was by no means emptied of ordinary people. A great many were killed—primarily because, as a high-ranking Israeli officer told The Independent, “We rewrote the rules of war for Gaza.”

In earlier campaigns, such as the 2002 combat in Jenin and Nablus, the IDF’s standing order had been to shoot to kill if a suspect was armed and gave some indication that he was going to use his weapon; in Gaza the explicit policy was “zero risk.” Soldiers report shooting at anything that moved in the combat zone. Similarly, at much higher levels of command, enormous firepower could be brought to bear on targets, such as apartment blocks, that were identified (sometimes misidentified) as possible “risks.” Meanwhile, efforts to limit so-called “collateral damage”—that ugly euphemism for civilians killed because of their sheer physical proximity to a military target—seem to have become less and less rigorous during the second intifada, reaching a new low in Gaza. Thus, the standard IDF claim that it does everything possible to avoid civilian casualties is belied by the reality on the ground.

Various Israeli voices—including professors Noam Zohar and Avi Sagi, both of Bar-Ilan University—have questioned the ethics of the new “zero risk” doctrine. “That is an outrageous, unacceptable norm,” says Zohar. “There is reason for concern that problematic actions were carried out on the ground [in Gaza], based on the spirit that was projected to the forces in the briefings.” Soldiers interviewed by the Israeli veterans group Breaking the Silence have eloquently described such briefings. They report being told literally to shoot first and put troubling doubts aside for later.²

Such orders would once have been considered contrary to the army’s code of ethics. I remember well the day before I was to take my oath of allegiance, in my very first week in the Israeli army, some thirty years ago; an officer was sent up from Tel Aviv to explain the implications of this oath, which was to follow orders, even at the cost of your life. Someone asked him what we were to do if we were given an order that we felt to be morally wrong or illegal, and to his great credit he replied: “That is a matter between you and your conscience; in such cases you will have to decide for yourself.” It is that kind of sensibility that was lost, or overruled, in Gaza in 2009.

Still more troubling questions arise about the overall planning and strategy of the Gaza war. Operation Cast Lead began with an attack on newly trained Gaza policemen at their induction ceremony; some eighty-nine were killed, along with members of their families who had come to attend the celebration. The majority were not known Hamas fighters but simply police cadets, some of them apparently trained as traffic cops or for other minor, clearly noncombatant jobs (including five who were musicians in the police orchestra). This was a deliberately chosen target that produced horrific carnage by any account. Here is what the Goldstone report has to say about this event:

The circumstances of the attacks and the Government of Israel’s July 2009 report on the military operations clarify, that the policemen were deliberately targeted and killed on the ground that the police as an institution, or a large part of the policemen individually, are in the Government of Israel’s view part of the Palestinian military forces in Gaza….

The Mission finds that, while a great number of the Gaza policemen were recruited among Hamas supporters or members of Palestinian armed groups, the Gaza police were a civilian law-enforcement agency. The Mission also concludes that the policemen killed on 27 December 2008 cannot be said to have been taking a direct part in hostilities and thus did not lose their civilian immunity from direct attack as civilians on this ground.

The Mission accepts that there may be individual members of the Gaza police that were at the same time members of Palestinian armed groups and thus combatants. It concludes, however, that the attacks against the police facilities on the first day of the armed operations failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity), and therefore violated international humanitarian law.

Goldstone has not retracted any of this, nor, in my view, could he do so in good conscience. (The Goldstone report suggested that Israel deliberately destroyed civilian structures in Gaza on a wide scale; Goldstone’s recent statement does not revisit this theme.) Someone made the decision to drop those bombs—and the decision was in no way atypical of the conduct of the Gaza operation in general. Personally, as an Israeli who pays his taxes and accepts all civic obligations, who went to war in 1982 (reluctantly—it was a useless, unnecessary war), whose three sons served in the army, I am profoundly ashamed of what that same army did in my name in Gaza, to say nothing of what this army continues to do, day by day, on the West Bank.

And it is there, on the West Bank, that the deeper meaning of what happened in Gaza becomes apparent. There is a sense in which Gaza is a sideshow within the wider Israeli Palestinian policy; and there is another sense in which what happened in Gaza in 2009 expresses all too well the attitude toward Palestinians that has crystallized in the current Israeli leadership and, I fear, in much of the general public. Gazan rockets posed, indeed still pose, a real danger to the Israeli population in the south of the country, but smashing Gaza repeatedly will never solve the problem.

It’s much too soon to assess the implications of the recent accord between Fatah and Hamas, which is supposed to produce an interim unity government and free elections within a year. Israel may already (once again) have missed its chance to cut a pragmatic deal with the Palestinian moderates—though a unified Palestinian electorate may eventually hold out new possibilities for a comprehensive settlement.

As it is, we see on the ground in the occupied territories the devastating combination of a mad race by both Israeli settlers and government for more and more real estate, and an oppressive, indeed criminal system, enforced by the army and the police, to safeguard this colonial enterprise. To my mind, one of the major merits of the Goldstone report is the unflinching gaze it directs at the occupation and the link it meticulously establishes between it and the Gaza war. Here lie the roots of the systemic failure I have referred to, including the willingness to sacrifice innocents on an ever wider scale.

Based on recent reports, it now looks as though Israel may well repeat its earlier mistake in Gaza and eventually make some sort of niggardly, unilateral withdrawal from, say, Area B in the West Bank—anything except cutting a meaningful deal with the Palestinians, anything except making peace. There is nothing more precious than an enemy, especially one whom you have largely created by your own acts and who plays some necessary role in the inner drama of your soul.

It regularly amazes me that human beings are so eager to divest themselves of their own freedom to act, and no less eager to deny that they had this freedom in the past. Ein brerah, “No choice,” is one of the most common idioms in everyday Hebrew, a default expression of Israeli consciousness. In truth, however, Israel has had, for rather a long time now, an eminently practical choice vis-à-vis the Palestinians (and, indeed, the Arab world generally). The brutal Gaza campaign of 2008–2009 is, in its own way, the natural consequence of choosing the occupation over peace. If events do move in the direction just described—in effect turning over what will be left of the West Bank to Hamas—then we will be seeing many more operations in the Cast Lead mold, or worse, and not only in Gaza.

—April 28, 2011