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Goldstone and Gaza: What’s Still True

MAY 26, 2011

David Shulman

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 Ashraf Amra/AP Images

the always privileged vantage point of an innocent UN investigator Richard Goldstone visiting the
destroyed house where members of the al-
victim wrongly accused. Along with this, we have an Samouni family were killed during Israel’s
Operation Cast Lead, Gaza City, June 3, 2009
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

1. 1
"Reconsidering the Goldstone Report on Israel and War Crimes," The Washington Post
, April 1, 2011. ↩

2. 2
See the interview with a particularly articulate, understated soldier:
www.youtube.com/user/shovrim#p/u/40/EDZmRgx4cpQ. ↩

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