Sunday, February 7, 2010

Gaza and Goldstone Revisited

In this blog I have never given my own personal opinion of the conclusions of the Goldstone Report. So here it is, in brief.

First, I see the conclusions of the Goldstone Report, especially the notorious one about Israel's deliberately targeting the Gazans' lives, as reasonable inferences, given the testimonies that the mission heard, what they themselves saw, and the unwillingness of Israel to cooperate with the mission. I should add that the members of the Goldstone mission possess a professional expertise that all their critics so far have lacked. It is one thing for the intelligent layperson to go through a report and raise questions. It is quite another for those criticisms to be raised by people with the proper credentials, who can compare the situation in Gaza with other places, and with knowledge of the law. We have not yet heard criticisms by non-partisan experts in international humanitarian law.

For some critics, the conclusion of deliberate targeting is especially unreasonable because they accept, as a bedrock axiom, that the deliberate, planned punishing of a population is simply not what the Israel Defense Force would do. This axiom is, I believe, debatable. But the debate certainly cannot be settled simply by recourse to circumstantial evidence. We would have to have greater access to the actual planning of the Gaza Operation, for example, then we have. And it will be decades before we have that, if we ever do.

The mainstream Jewish reaction to the Goldstone Report, especially to that conclusion, has been vicious and vitriolic. I can understand why "talkbackers" and blind partisans react in that way, but I am at a loss to understand how intelligent, reasonable, people use phrases like "traitor" "evil, evil man", "crime against the Jewish people", etc. Much more reasonable is the response of such Israeli NGOs such as B'Tselem and Breaking the Silence (Yehuda Shaul), which have reservations about the deliberate, planned targeting of the civilian population, which do not see the evidence entailing this– but nonetheless are highly respectful towards the Goldstone Report, and endorse many of its other conclusions. Yet the partisans continually misrepresent the viewpoints of these NGOs as rejecting the Goldstone Report. B'Tselem, pace Ron Kampeas, does not view the Goldstone Report as "deeply flawed." The NGOs may or may not express some reservations, but they are, on the whole, supportive of the report. Even the Goldstone report talks about "possible crimes against humanity."

The real line to be drawn is not between supporters and detractors of the Goldstone Report, but between those who call for an independent investigation, thereby accepting the main recommendation of the Goldstone Report, and those who do not think that such an investigation is necessary, now that the IDF has responded to the UN. Even Alan Dershowitz, who has come in for some mighty big criticism on this blog and others, has called for an independent investigation (although I am not sure whether he still does.) If Israel decides on such an investigation, and if the government does not pack the panel with IDF-friendly voices, then it will be only thanks to the Goldstone Report and the reports of the Israeli and international NGOS.

My personal view of what happened in Gaza, on the basis of my own experience of living in Israel, and of following the news, and the reports of the NGO, is what I would call almost-Goldstone. I believe that the IDF prepared for a major operation that would not only stop the rocket fire but send a message to the Gazan population that support for Hamas is costly. This means that there was not sufficient attention paid to the principle of distinction; the rules of engagement were often not observed, and these widespread phenomena suggest, but do not indicate conclusively, a deliberate policy by the higher-ups. At best, there was gross and criminal negligence on the part of the higher ups and the commanders in the field. And, of course, there was a misunderstanding of what Israel's responsibility was towards civilians.

For example, Israel thought that by distributing leaflets, or by roof-knocking, it was discharging its obligation to warn the civilians. If, despite the warning, there were still civilians found there, that would be their responsibility. Does this constitute deliberate targeting of civilians? It doesn't have to, because one achieves the same effect no matter what the intention is – which is to teach the civilian population the lesson that they are entirely powerless, that they have no recourse but to run (to where?) And what moral distinction is there?

This gross, willful negligence, which is well-documented in the Breaking the Silence testimonies, does not amount to a planned strategy of targeting civilians. It is more like a culture of neglect, a realization that "Now we are going to show them, and we aren't going to be so particular about the rules. " I don't know at what level in the chain of command this came in. But there is sufficient and credible evidence for this culture. Of course, this does not mean that accidents didn't happen. But that raises the question whether such accidents could have been foreseen, and if so, why were those risks taken?

This is precisely why the IDF cannot investigate itself; why an independent judicial commission with subpoena powers is necessary.

If Israel could do it after Sabra and Shatila, what possible justification does it have for not doing it now?


ben azzai said...

Jerry, could you clarify further what you said regarding the question of 'deliberate targeting of civilians'?

You argue that, rather than supposing a policy of deliberate targeting, one could instead suppose a policy of willful negligence.

Thus, the policy would be "we don't care if civilians die," rather than "we actively want civilians to die."

However, I'm not sure if the line between these two is so sharp. There still seems to be an important degree of deliberateness involved. That is, it is an active, deliberate neglect. When you combine this active neglect with the knowledge that such neglect will certainly lead to many civilian deaths, doesn't it amount to a policy of "we actively want civilians to be killed"? One could argue that this differs from "We actively want to kill civilians," but in both cases there is an active connection between setting the policy and the desired (or not-undesired) outcome of civilian death. (And both cases are to be distinguished from a policy in which civilian death is 'undesirable but necessary for carrying out of the desired goal.')

What say you?

Anonymous said...

"It is more like a culture of neglect, a realization that "Now we are going to show them, and we aren't going to be so particular about the rules. ""

I'd be slightly harsher--I think it's doublethink, the sort of thing Western countries have been doing in the post WWII era when it became unacceptable to admit one targets civilians. (Actually, in the Korean War, by some estimates, including General Curtis LeMay's, we might have killed more civilians with bombs then we did in Japan, but I don't think the full level of what we did to Korean cities was publicized then). So what Westerners do instead is target civilians with plausible deniability. We (the US and Israel) don't destroy entire cities (no plausible deniability then), but we hit civilian infrastructure with the intent of harming the population and not minding at all that some civilians will die then or later, but we claim no ill intent and except when careless truthful remarks are made by politicians or military men, there's no conclusive way to show otherwise. You can always claim "We hit target A because of its military significance" and at worst, say one made a mistake or that it was all the fault of the other side.


fiddler said...

"an independent judicial commission with subpoena powers is necessary. If Israel could do it after Sabra and Shatila, what possible justification does it have for not doing it now?"

Some suggestions:

At Sabra and Shatila Israel took pains not to dirty their own hands - SLA and Phalange were expendable allies - so any anticipated outcome of the Kahan Commission could be dealt with, and ultimately was.
Re Gaza they have no one to hide behind, although they sure are trying to tout the old "human shields" myth.

I guess the other reason might be they simply don't see and hear any evil. Short of "maximising civilian deaths", as Dershowitz put it, and apart from petty theft and vandalism that can be dealt with internally, it's all seen as legitimate defence and reinstitution of "deterrence" after Lebanon '06 - and a matter of pride, if not machismo, not to have that questioned.

Obviously none of this is a justification though.

Jerry Haber said...

ben azzai, I am trying to distinguish between a policy and a culture. It is hard (but not impossible) for me to believe that there was a policy of targeting civilians; it simply doesn't sound professional or in the planners' best interest. A policy assumes a level of planning and articulation that doesn't seem likely.

But there is evidence that the rules of engagement were deliberately relaxed. One can give all sorts of justifications for this, but to me it speaks of what I called willful negligence, or, if you will, deliberate devaluation of Palestinian life.

Here is what I am basing myself on, from the Independent article.

"The Yediot newspaper also spoke to a series of soldiers who had served in Operation Cast Lead in sensitive positions. While the soldiers rejected the main finding of the Goldstone Report - that the Israeli military had deliberately "targeted" the civilian population - most asserted that the rules were flexible enough to allow a policy under which, in the words of one soldier "any movement must entail gunfire. No one's supposed to be there." He added that at a meeting with his brigade commander and others it was made clear that "if you see any signs of movement at all you shoot. This is essentially the rules of engagement."

The other soldier in the war-room explained: "This doesn't mean that you need to disrespect the lives of Palestinians but our first priority is the lives of our soldiers. That's not something you're going to compromise on. In all my years in the military, I never heard that.""

Zero risk to our soldiers translates into a devaluation of the lives of civilians.

Donald, I think that this not the standard "We aimed for the terrorist; we didn't mean to kill all those civilians." I would say this line was used in previous engagements and targeted killings. It is a measure of the change in the Gaza Op that Israel did not even bother to apologize or express regret in many cases.

Jerry Haber said...

I should add that in this post I was referring to a deliberate policy of targeting civilians, not civilian infrastructure. I have no doubt in my mind that Israel targeted civilian infrastructure (although Israel will claim that this infrastructure was targeted because of its aiding Hamas) or that Israel targeted civilians (although Israel will claim that this was collateral damage or that it was not responsible.)

Where I feel there is room for doubt is whether IDF had a policy of targeting civilian lives. And my claim is that this question can be settled only by historians who will have access to the IDF files.

It should be clear to any reader that I am not cutting Israel any moral slack here. The Goldstone Report, as I understand it, makes this claim, and formulates it as a conclusion.

ben azzai said...


I agree with your clarification. A planner would have to be pretty stupid to say "target civilians" when there are more 'professional' ways of achieving the same results (including collective punishment and intimidation of the civilian population) by simply having a deliberate policy of willful negligence and devaluation of Palestinian life.

Among other things, the latter policy would give much more 'cover' to the planners in case the policy ever got out to the public. I.e. it allows someone to be a 'defensible' moral monster, rather than an 'indefensible' one.

Anonymous said...

I should add that the members of the Goldstone mission possess a professional expertise that all their critics so far have lacked.

Mr. Haber,

I've tried to ask you about this theory of argument before, and you haven't answered.

So, if Israel does indeed appoint an independent commission, comprised of members with the "professional expertise" to examine such matters, and if that commission were to come to a conclusion with which you don't agree . . . would you the hold by the commission's findings?

In other words, you seem to have adopted a full-proof position: Israel committed terrible acts in Gaza (that's certainly your right to have this view) and Judge Goldstone's Report demonstrates Israel's guilt . . . But, had Goldstone (undeniably a serious legal scholar) issued a report that had exonerated Israel, then you would have dismissed his findings with an argument something like, "the Report is the work of an otherwise good man who has let himself become blinded by his Zionist bias"

Whether or not Israel committed crimes in Gaza, there seems to be a bit of intellectual dishonesty in your approach.

Southernobserver said...

Dear Jerry,
I strongly disagree with your interpretation.

The engagement started with the deliberate, targeted attack on a group of new policemen. Police are civilians. I believe that the excuse was that 'many' were also members of Hamas. We could argue how this is known, but it would be irrelevant. Israel police have nearly all served and are commonly reserve members of the IDF, and can be assumed to strongly support the state. If it is right to kill Palestinian civilians who may or may not support Hamas, then Hamas is fully justified and should be supported in killing Israel police and other civilians in surprise attacks. If they are not so justified, then the Gaza punishment attack was _started_ with a deliberate, politically directed massacre of civilians.

Jerry Haber said...


By "a policy of deliberate attacks against civilians" neither I nor the Goldstone commission was referring to the bombing of the police graduation. I was referring to incidents such as those described in section 7 of the Goldstone report.

right on, ben azzai

fiddler, there are many reasons why there won't be a commission -- but the biggest one is the lesson of Kahan commission, which held Ariel Sharon personally responsible for what happened, and lead to his resignation. Can you see Ehud Barak allowing something like that?

The Israel of today is not at all the Israel of the 1980's. Much decline since then.

Anonymous, I find it odd that you criticize me for relying on the authority when I approve of it, in a post where I show my reservations with one of my conclusions of the Goldstone report.

In any event, expertise counts for a great deal but doesn't trump everything, of course. If only less, it should provoke some intellectual humility. When one of the most distinguished and expert jurists in the world reaches such damning conclusions, the facile reaction by partisans are suspect. That would include me, of course.

Ron Kampeas said...

Hi Jerry-
You raise some interesting points, both here and in your commentary on my blog post, and worthy of consideration in a lengthier reply, which I woluld love to get to sometime, if the heavens were to help me by clearing other stuff off my schedule. I wanted to point out, though, that I take your point about my characterization of B'Tselem's description of the report as "profoundly flawed" and have crossed out "profoundly" on the post. B'Tselem's statement speaks of two "faults" in the report, so "flawed" alone is accurate. I think at least one of the faults B'Tselem mentions points to a "profound" problem with the report, but that's my conclusion, and not necessarily B'Tselem's.

fiddler said...

Jerry, no, I can't see Ehud Barak allowing a commission to depose him, the Eternal Defender Of The Most Moral Army In The World. I also agree about the moral decline. Sabra and Shatila turned ordinary Israelis to the streets in massive numbers, something unthinkable today.

My argument was more auxiliary in nature: if a commission declares war crimes to have been committed there will be no way to shirk *direct* responsibility this time. In 1982 Sharon managed to hide behind the Phalange, the immediate perpetrators, and got away relatively lightly. This time, for similar effect, the civilian leadership would have to shift all the blame to their own IDF, which would be political suicide by other means.

Southernobserver said...

Dear Professor Haber,
In that case, I would be extremely interested in your personal perspective on the police killings.

with many thanks indeed for your time.