Monday, November 9, 2009

When the Liberal Israeli Meets the Judge – Moshe Halbertal On the Goldstone Report: Part Two

In "The Goldstone Illusion", Prof. Moshe Halbertal reserves his greatest ire for those sections of the Goldstone report that deal with the historical context of the Gaza operation, and a review of Israel's activities on the West Bank:

The commission that wrote the report could have performed a great service if it had concentrated on gathering the testimonies from Gaza and assessing them critically, while acknowledging (as it failed to do) that they are partial and incomplete. This would have forced Israel to investigate various matters, provide answers, and take appropriate measures. (I do not imagine Hamas engaging in such an investigation of its own crimes. This is yet another asymmetry.) But instead the commission opted to add to its findings three unnecessary elements: the context of the history that led to the war; its assessment of Israel's strategic goals; and long sections on Israel's occupation of the West Bank. Why should a committee with a mandate to inquire into the operation in Gaza deal with the Israeli-Palestinian conflict at large?

….The commission should not have dealt with the context leading to the war; it should have concentrated on its mandate, which concerned only the Gaza operation. By setting its findings about the Gaza war in a greatly distorted description of the larger historical context, it makes it difficult for Israelis--even of the left, where I include myself--to take its findings seriously.

Before responding to Prof. Halbertal's objection, let us put to rest two of his assumptions. The first is that had the Goldstone mission simply published testimonies from Gaza, Israel would have been "forced" to investigate. This is an absurd claim, and Prof. Halbertal knows it. When the Israeli NGO "Breaking the Silence" published IDF soldier testimonies from Gaza last summer, the government turned on the young veterans and refused to deal or even to respond to the testimonies. It reacted similarly when similar reports were published by Human Rights Watch and Amnesty International. So why would the government treat the Goldstone report differently, especially after Israel had already refused to cooperate with the Mission?

As for the criticism that the Mission overstepped its mandate by discussing things that occurred outside of Gaza, here is the report's justification, which he does not mention:

As explained above in chapter I, the Mission believes that the reference in its mandate to violations "in the context" of the military operations in Gaza required it to go beyond the violations that occurred in and around Gaza. it also believes that violations within its mandate in terms of time, objectives and targets, include those that are linked to the December 2008 –January 2009 military operations, and include restrictions on human rights and fundamental freedoms related to the strategies and actions of Israel in the context of its military operations.

Developments in Gaza and the West Bank are closely interrelated, in the Mission's view, an analysis of both is necessary to reach an informed understanding of and to report on issues within the Mission's mandate. On the one hand, the events in Gaza have consequences in the West Bank, on the other, pre-existing problems in the West Bank have been exacerbated by the Gaza military operations. In its examination of the West Bank with respect to actions taken by Israel, the Mission focused on four key aspects in their linkage to the Israeli military operations in Gaza: (a) the sharp increase in the use of force by Israeli security forces, including the military, in the West Bank; (b) the tightening and entrenchment of the system of movement and access restrictions; (c) the issue of Palestinian detainees and especially the increase in child detainees during and after the military operations; and (d) the Gaza corollary of the detention of Hamas members of the Palestinian Legislative Council.702 While the treatment by the Gaza authorities of those opposing its policies is discussed in chapter XIX, similar issues with regard to the conduct of the Palestinian Authority in the West Bank also called for investigation. Linkages with the Israeli operation in Gaza are elaborated in the respective chapters.

While it is understandable that Prof. Halbertal wishes to limit the Mission's investigation to events in "Hamastan," where it's all about a "war on terror", it is obvious that Israeli actions in Gaza were both related to, and full of repercussions for, its actions in areas outside of Gaza -- since Gaza is one of two parts of the territory allocated to the Palestinians, and there are strong connections between the two. In fact, there were arguably two "fronts" in the Gaza war, as can be seen from the relevant sections of the report. While the "Eastern Front" was relatively quiet, it certainly was affected.

One point I will grant Prof. Halbertal: the section on historical context generally favors the Palestinian and not the Israel narrative. The suicide bombings of the Oslo period are mentioned, as are the Kassam rockets, but only laconically. The Separation Wall is not connected with security but with land expansion. But why is it illegitimate to view much of Israel's strategy and motivation in the Gaza operation in the context of its forty-two year Occupation? And suppose that the historical context had included all the things that Israel doesn't like about Hamas, e.g., its anti-Semitic charter, its history of suicide bombings (briefly mentioned), its refusal to recognize Israel's right to exist? Of what significance would that be to be to Israel's conduct of the war and considerations of jus in bello? Surely, Prof. Halbertal doesn't wish to suggest that Israel's operation in Gaza was motivated by a desire for revenge or to get even with Hamas for the bombings. In any event, the report's criticism focused not on the treatment of combatants but of civilians.

Prof. Halbertal is outraged at the report's accusation that the IDF deliberately targeted civilians: "…the claim that Israel intentionally targeted civilians as a policy of war is false and slanderous." Unfortunately, he neither produces any evidence on behalf of his own claim nor does he mention, much less attempt to refute, the evidence marshaled by the Mission in the report. Instead, he refers to the ratio of civilian deaths to militants deaths and concludes that this was reasonable, indeed better than other Western armies. This is a fallacy, since he infers, wrongly, that if the IDF had deliberately targeted civilians, then there would have been many more civilians dead than there were (or the ration of civilians to militants would have been greater.) But nowhere in the Goldstone report is Israel accused of mass murder, or of deliberately killing as many civilians as it could. Rather, it argues, on the basis of representative declarations by Israeli officials, the accuracy of Israeli artillery and air force, the vast destruction to property, and testimonies, that military necessity did not always play a decisive role in decisions to bomb. And this is correct. The goal of the Gaza operation was to reestablish deterrence perceived lost as a result of the Second Lebanese War and to punish (or at least scare the hell out of) the Gazans. Ba'al ha-bayit hishtage'a, 'The boss has gone bonkers'. Now whether a policy of relaxing the rules of engagement, of quick fingers on the trigger, etc., constitutes deliberate targeting of civilians is debatable. But it is not debatable that the numbers of civilians killed were not due to merely to carelessness, negligence, or regrettable accidents in urban warfare.

In fact, Halbertal's failure to grapple with the report's evidence raises the question whether he actually read it, or at least read it carefully. He makes several accusations which are simply false. For example, he writes that "Israel chose not to cooperate with the commission, and so the Israeli version of events is not here." But even the most superficial reading reveals that the Israeli version of events is on every page, culled from official reports, news reports, and even websites like the Jerusalem Center of Public Affairs. What Halbertal and most Israelis find galling about the report is not that the Israeli version of events does not appear, but rather than it is consistently rejected as less credible than the Palestinian testimonies. There are reasons for this, too, as the report mentions in exhaustive detail, but Halbertal ignores this as well.

Here's another case where Halbertal does an injustice to the report, the bombing of the Police Academy.

Consider a painful issue that comes up in the Goldstone Report--the matter of the Gaza police force. In the first minutes of the war, Israel targeted Hamas police, killing dozens. There is no question that, in an ordinary war, a police force that is dedicated to keeping the civilian peace is not a military target. The report therefore blames Israel for an intentional targeting of noncombatants. But such a charge is only valid concerning a war against a state with a clear and defined military institution, one that therefore practices a clear division of labor between the police and the army. 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 situations, the police force might be just a way of putting combatants on the payroll of the state, while basically assigning them clear military roles. Israeli intelligence claims that it has clear proof that this was the case in Gaza. This is certainly something that Israel will have to clarify. But it is clear to me that Goldstone's accusation that targeting of the police forces automatically constitutes an attack on noncombatants represents a gross misunderstanding of the nature of such a conflict.

Now contrast this reading, which attributes to Goldstone the "accusation" that "targeting of the police forces automatically constitutes an attack on noncombatants" with what the report actually says.

The Mission examined the attacks against six police facilities, four of them during the first minutes of the military operations on 27 December 2008, resulting in the death of 99 policemen and nine members of the public. The overall around 240 policemen killed by Israeli forces constitute more than one sixth of the Palestinian casualties. The circumstances of the attacks and the Government of Israel 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.

To examine whether the attacks against the police were compatible with the principle of distinction between civilian and military objects and persons, the Mission analyzed the institutional development of the Gaza police since Hamas took complete control of Gaza in July 2007 and merged the Gaza police with the "Executive Force" it had created after its election victory. 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.

Does the presentation above justify Halbertal's conclusion that according to Goldstone, "the targeting of the police forces automatically constitutes an attack on noncombatants." On the contrary, we have here at least an attempt to examine a) whether these particular policemen had the status of combatants or not b) if they were combatants, were they justly attacked, and c) if they were justly attacked, did the direct military advantage anticipated justify the collateral damage? We also have a reference to the Government of Israel's position. One may wish to argue with the Goldstone analysis, but Halbertal studiously avoids it.

And then comes the volte face in section four. Having thoroughly discredited the testimonies, and having made accusations about the fairness of its authors, Prof. Halbertal concludes his essay by claiming that the report's "sections devoted to the Gaza war do make claims and cite testimonies that no honest Israeli can ignore. They demand a thorough investigation.,,,"

Pardon me? What is it about these testimonies that Halbertal feels compelled to investigate? And why here and not elsewhere? Thus, he claims that it is worthy to investigate the bombing of a chicken farm, which, if the testimonies are correct, "was done to leave a brutal scar as proof of the Israeli presence, as immoral and illegal instruments of deterrence." Why is Halbertal willing to believe that the IDF deliberately wreaked destruction for the sake of "immoral and illegal" deterrence, but he is not willing to believe that the IDF had a policy of "shoot first and ask questions later" – also for the sake of deterrence?

Are we expected to accept his distinction between killing chickens and killing human beings as a matter of faith?


Michael said...

Outright lies about the Goldstone Report seems to be the only way its 'critics' can find to deal with it.
As pointed out here,
Canada's speaker at the UN General Assembly
even claimed that the Goldstone Report "had not called on an investigation by both sides. It had assumed that Israel was wholly culpable."

Tamar Orvell said...

You write: ... And suppose that the historical context had included all the things that Israel doesn't like about Hamas, e.g., its anti-Semitic charter, its history of suicide bombings (briefly mentioned), its refusal to recognize Israel's right to exist? Of what significance would that be to be to Israel's conduct of the war and considerations of jus in bello? ...

Here, you nail for me the pushing back by two dear friends (among countless officials and governments). And I ask you, how to address this pushing back? To my friends, an Israeli and an Austrian, I simply called "tayku" after a few rounds of discussions that seemed pointless. And they sighed in agreement.

japan rail pass said...

Jerry, that was a brilliantly written piece. may I cite a few lines and reference this blog on another forum I frequent?:) Thanks!

Navi Mutazilli said...


A fairer reading of Halbertal might focus on his best point. That would be his simple claim that the Report used insufficient evidence to conclude, decisively and unambiguously, that Israel intentionally targeted civilians.

As someone who’s read every word of the Goldstone Report, some parts multiple times, I found his critique dead-on. Here’s why.
In a nutshell, to prove Israeli intent (as opposed to mere culpability or moral responsibility) in the civilian deaths of Operation Cast Lead, you’d need to establish that Israeli pilots and bombers really didn’t believe their targets were being used by Hamas for military purposes. Or at least, that they were ordered to fire on them regardless of their possible military use.

But the Goldstone crew didn’t have any proof to that effect. We know this because the Report tellingly concedes several points:

(a) Hamas fighters hid among civilians and launched rockets from their property.
(b) The extent of this practice during the operation is not known.
(c) Witnesses were reluctant to talk about whether and when this happened.

In other words, Goldstone’s Mission couldn’t conclusively determine which of the targets it examined may have been used by Hamas, months before the UN Mission got there. And that’s to say nothing of whether particular Israelis – whom he neither interviewed nor observed, and about whom he collected no direct evidence – didn’t even *think* those targets were military when attacking them.

Maybe such proof of intent was impossible under the circumstances, and therefore unfair to expect. Goldstone could have admitted as much, and still come down pretty hard on Israel for causing so much collateral damage. Instead, the Report took a bolder line: impute the most monstrous intention – definitively -- based on the destruction itself, and the testimony of certain Israelis who didn’t call, or fire, any of the shots in this operation.

If you doubt the Mission’s accusatory greed, as I’m describing it, consider this inference: the Report notes that only some explosions were officially described by Israel as errors or misfires. Therefore, the Report reasons, *every* single civilian death that resulted from *every* other attack was entirely intentional. It says “we can only conclude” this. I'm not making this up!

Goldstone, in other words, behaved – regrettably -- like the Israeli bombers he describes: hit hard, hit fast, hit far and wide, and let them go prove they didn’t deserve it. It’s a shame, too, because a more cautious and fair report would have had enough credibility to Israelis about about the destruction they wrongfully visited upon Gaza, deliberately or otherwise.

Jerry Haber said...


You write:

"A fairer reading of Halbertal might focus on his best point. That would be his simple claim that the Report used insufficient evidence to conclude, decisively and unambiguously, that Israel intentionally targeted civilians."

Where does he make this "simple claim" I haven't seen it anywhere in his article certainly not in section III, where he talks about the report's conclusion.

So let's assume that it's your point, not his, ok?

What you have to do, then, is to review the specific cases that Goldstone reports, and the specific reason for the judgments he makes -- and the specifc language he uses for the judgments. Your general argument is not sufficent.

By the way, your point about the pilots is incorrect. It is not at all necessary to inquire into the pilots' intention, but in the intention of those who send them. One makes inferences about those intentions based on various factors.

You portray the report's conclusion of intent as reached merely by a process of elimination: no evidence of military necessity, disproportionate, not an accident, ergo, intent. This is false on a grand scale. You omit (delberately?) the other corroborating evidence that is brought in the report, and that is summed up in this paragraph:

"1680. The Gaza military operations were, according to the Israeli Government, thoroughly and extensively planned. While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole. In this respect, the operations were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support.

The Mission considers this position to be firmly based in fact, bearing in mind what it saw and heard on the ground, what it read in the accounts of soldiers who served in the campaign, and what it heard and read from current and former military officers and political leaders whom the Mission considers to be representative of the thinking that informed the policy and strategy of the military operations.

Because it is easy for the report's detractors to focus on the reliability of Palestinian territory (cowering in fear of the Hamas terrorists,presumably), they utterly ignore the other testimony allude to above.

Jerry Haber said...

You also seem to confuse findings of the Mission's members with "decisive and unambiguous concusions", words they do not use. They provide their evidence why they prefer their version to that of the IDF spokesperson. You and Halbertal do not say why they were wrong to do so, especially given the IDF's poor record of reliability in this regard.

As I wrote in the post, whether lax rules of engagement quick fingers on triggers, or inexcusable negligence constitutes deliberate targeting is debatable. But given the statements of military and political spokepeople about the need to establish deterrence and to teach the Gazans a lesson, given the fact that to this day Israel collectively targets and punishes the Gazan citizens through a crippling siege, is it any wonder that the inference of intent is made? Must you wait for a clear and unambiguous written military directive to be declassified until you are satisfied? What sort of evidence would you accept of intent, and don't say "tens of thousands of Gazans dead."

And finally, you obviously did not read my response to Halbertal's assertion that had the Goldstone report published testimonies, people in Israel would have called for an investigation. People in Israel don't f-cking care what happened in Gaza, and don't want to know about what happened in Gaza. The Goldstone report didn't tell them anything they hadn't heard from a multitude of human rights reports beforehand, not to mention what was reported in the press in real time.

What really makes me want to laugh are those Israelis who criticize the report and - only now -- call for an investigation, like Halbertal, Maybe I am doing Moish an injustice -- perhaps he called for an investigation earlier. But what wait until now?

Joachim Martillo said...

The Goldstone Report was rather lenient to the State of Israel in that it did not apply Nuremberg Tribunal Law (NTL) in any way.

I live in Boston and have been asking local international legal experts what the basis is for excluding NTL from consideration.

I have yet to receive a satisfactory answer.

Anyway here are my two blog posts on the subject:

(1) Whither After Goldstone?

(2) Zionism in Goldstone Report

Navi Mutazilli said...


You’re right. I focused mainly on what the report didn’t prove, rather than on all the considerations it did use, and the points it did establish – which, I admit, deserve attention.

For example, the Report did show (devastatingly, in some cases): that Israel wrought untold civilian death and suffering on Gaza; that certain prior Israeli military campaigns were viewed by some participants as aimed at punishing or over-deterring a “host” population (eg. Lebanon); Israel’s nonmilitary – eg trade -- policies in Gaza and elsewhere had the effect, and possibly the aim, of punishing its people for supporting Hamas; various Israeli government officials have expressed, to the press, anger and animus towards Gaza and blustering talk about “going crazy” or teaching them a lesson; and finally, that particular Israeli soldiers on various occasions did fire on innocent civilians.

All this is terrible, inexcusable. And I agree, it’s consistent with the possibility that Israel, as a matter of policy, sought to kill and harm civilians, beyond attacking Hamas.

But – and here’s the rub – it’s all equally consistent with what I believe really happened, or very likely could have happened: that Israel didn’t have a standing policy to target or
“punish” civilians. Instead, the IDF targeted what it believed were bases of Hamas activity or weapons or sources of its rocket launching. Now that doesn’t totally let Israel off the hook for civilian death. And the amount of it is horrifying. Nor can I discount that the hostility or anger that some Israelis felt towards Gazans worked against their ability to avoid collateral damage. I’m not sure, and not comfortable about this, either. But all the facts – and everything else Goldstone gathered, such as Israel’s efforts to get civilians to leave targeted homes – are consistent with Israel believing it was attacking Hamas, and viewing civilian casualties as an unwanted cost, rather than a bonus or intended result.

What’s mising at least some evidence of a decision, or a directive, or even a wink or a hint (“give them what they deserve”) --something! -- from someone who ordered, led or designed this operation, prescribing that civilians be targeted regardless of Hamas’s activities or presence among them. Did anyone report being directed to bomb and hit beyond any ostensible military target? Second-hand? Third-hand, at least? Or else we need evidence of destruction for which such a directive is the only plausible explanation. Or at least, something more than what Goldstone gathered, which is still equally consistent with either hypothesis.

At any rate, there is nothing in the Report that, as it claims, “leave[s] little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy.” In this and other paragraphs (1883-4), the Report does not merely raise a suspicion that Israel’s policy was to target civilians, placing the burden on Israel to prove otherwise. Rather, it concludes this outright. And it had no right to do so. And yes, the claim is slanderous. Also, I’m pretty sure, false.

Jerry Haber said...


1) Which of the incidents cited by Goldstone seem to you to provide the strongest case for concluding that there was deliberate harm and destruction done to civilians.

2) What about deliberate destruction of civilian installations in order to punish? Which incidents here seem to be the strongest.

3) You will agree, I assume, that Israel's siege is deliberate, and that it impacts the health and well-being of the Gazans. What is the distance between that and deliberately targeting, for example, the chicken farms?

4) Why does it seem unlikely to you -- if it does -- that Israel would not have a quick finger on the trigger with respect to Gazan civilians, given the testimonies of the Breaking the Silence grouop.

If at the end of the day, the difference between you and Goldstone, is that you feel that the report should have said, "The actions of Israel are most probably explained as willful and deliberate" rather than "Undoubtedly the actions of Israel were deliberate", then there is not that much difference. Remember, Goldstone himself called for independent investigations by Israel. He clearly thought that such an investigation would supercede his fact-finding mission

Navi Mutazilli said...

OK Jerry.

The difference is I'm very sensitive about imputing malice, to Israel as a whole, when the truth was something less (even if still bad, even if a little less). I don't know about trigger-happiness, how close that is to intent, but it's far below what Goldstone imputed with such certainty. If the Report had only said, eg., "the evidence suggests Israel fired with wanton disregard for the likely consequences to civilians in Gaza," I'd be satisfied.

Anything more feels like a leap to me. That includes, by the way, the inference from the blockade to intentionally bombing civilians. I would not conclude from the US trade embargo on Cuba, even if -- as was originally intended - every allied country folowed suit, that the US military was more likely to target Cuban civilians. These are different kinds of practices, in different contexts... We'd need to talk about Egypt's role...Apples and oranges. I'm no fan of the Israeli "seige," as you call it, but it's a huge distance from bombing civilians on purpose.

I am a fan of Shovrim Shtikah, though, so I won't prejudge what they said, except to point out that, from what I know, they don't endorse the sweeping conclusions Goldstone reached from their testimony. Doesn't that count against the Report's condemnations, or at least some of them?