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Op-Ed: Goldstone report flawed, but Israel should investigate its military

NEW YORK (JTA) — The Goldstone report is severely flawed, perhaps fatally. At the same time, some of the allegations it makes deserve serious consideration by Israel.

The Goldstone mission was conceived in bias. The U.N. Human Rights Council resolution calling it into existence called only for an examination of Israeli actions. The mission’s discussion of Hamas’ actions was done only by subsequent informal agreement. The bias of the U.N. Human Rights Council against Israel has been acknowledged explicitly by successive U.S. administrations, and implicitly even by the U.N. secretary-general. One member of the mission condemned Israel’s actions in Gaza as war crimes before joining the mission.

The precedent for this is "Alice in Wonderland": sentence first, verdict later.

Bias is only one problem with the report. It also is rife with doubtful legal conclusions and a systematic disregard of Israel’s legitimate security concerns. In fact, the report never acknowledges that Israel’s assault was a legitimate exercise of the right of self-defense.

In discussing the impact of the security fence and checkpoints on life in the West Bank — an issue not within the mission’s remit, but on which it decided to opine — the report manages not to mention Israel’s very real security interests in protecting itself against terror attacks. A fortiori, it does not note the success of these measures in stopping such attacks.

It is very much an open question whether international human rights law, which the mission relies on heavily, applies to war. There is very good reason not to allow it to displace the body of international law regulating war. Otherwise, the carefully crafted balance between military effectiveness and protection of civilians characteristic of the international law of war is discarded in favor of a relentless tilt toward protecting civilians.

In the context of the irregular warfare waged by groups such as Hamas — from among civilians — the result of imposing human rights law, with its unyielding protection of human life, is that states cannot both defend themselves and comply with this (mis)reading of international law.

The mission’s legal analysis is further premised on the quite doubtful claim that Israel still occupies Gaza, even though every Israeli soldier has withdrawn, as the United Nations itself has acknowledged. The Goldstone report further doubtfully treats as law various statements and declarations of U.N. bodies — bodies without power to make international law.

Seeing war primarily through the prism of human rights concerns leads the mission to systematically disregard legitimate Israeli security interests. For example, the report condemns as an illegal attack on a civilian object the bombing of a cement factory in Gaza. The authors say they can conceive of no military purpose to the attack. But there is an obvious one: to deny to Hamas and its fellow rocket launchers the cement necessary to build bunkers, launching pads and smuggling tunnels.

The report also condemns Israel’s embargo of Gaza as illegal collective punishment — on the erroneous assertion that Gaza is still occupied territory — because it inflicts economic hardship on Palestinians. Notably, it does not discuss the actual sections of the Geneva Convention dealing with what supplies must be admitted to hostile territory. Israel complies with those. It also ignores recent poll evidence that these restrictions are causing Gazans to transfer support to the more peaceful Palestinian Authority.

Apparently it is the mission’s view that Hamas can call for, and work toward, the destruction of the State of Israel and use its control of Gaza as a platform for incessant rocket attacks on Israel, and in return expect Israel to open its borders to trade, import and export; allow Palestinians to cross Israel to the West Bank (again, notably, no mention of the security problem this would pose); allow fishermen free access to the sea up to a distance of 30 miles, facilitating the smuggling of rockets and other weaponry; and generally allow Gaza to strengthen itself economically while continuing to threaten Israel’s existence. To state this argument is to expose its silliness, except that the mission is completely serious about it and believes any other position is an international crime.

Yet another example of the mission’s disregard of Israel’s security interests is the call for the wholesale release of Palestinian prisoners without any quid pro quo, and without any regard to whether those released would revert to terrorism. (Don’t even ask what this has to do with the conduct of the war in Gaza.)

What particularly galls Israel is the absurd charge that Israel deliberately decided to target Palestinian civilians. Numerous officials, many of whom I know personally to be deeply committed to compliance with international law, have testified that Israel planned to minimize civilian casualties, even as it simultaneously planned to deliver a harsh blow to Hamas and other groups launching rockets on Israel. This is a perfectly legal strategy, even if it did cause substantial collateral damage to civilians.

Unpleasant as it is to say, it is simply the fact that collateral damage, even substantial collateral damage to civilians, is not inherently illegal.

The mission reasoned that since Israel possessed precision weapons, if many civilians were killed it must be the result of a deliberate decision to kill them. The mission’s report states, for example, that Israelis caught in a firefight should not have responded with immediately available, but less accurate, mortars, and should have waited under fire until precision weapons could be used. In a civilian-oriented, human rights based approach, this is a plausible claim. Under the law of war, it is without foundation.

It would be a mistake, however, to dismiss the report in its entirety, despite its fundamental flaws. At various points it offers detailed evidentiary support for the claim that in some cases — only a handful, to be sure — civilians were intentionally harmed, even killed, and that Palestinian detainees were mistreated. As Israel, understandably, refused to cooperate with this tainted commission, we don’t know all the facts. These allegations may be wrong or explicable on other grounds. Like the al-Dura affair, they may be wholly made up. But the reports are, on their face, credible enough to require a careful and independent review by Israeli prosecutors.

This is not only because a credible Israeli investigation forestalls prosecution in hostile international fora like the International Criminal Court or politically driven, hostile national courts invoking universal jurisdiction. It is because Israel’s own insistence on waging effective war in as moral a fashion as is reasonably possible — war cannot be antiseptically waged — demands it. As long as it is possible that these standards have been breached, Israel owes it to itself to investigate and, if appropriate, prosecute.

(Marc Stern is the acting co-executive director of the American Jewish Congress.)

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