Last week Judge Goldstone posted an op-ed in the Washington Post entitled Reconsidering the Goldstone Report on Israel and war crimes in which he indicates that had he known then what he knows now, the Goldstone Report would have been a different document.
Because I was fairly vocal on this issue (I blogged about an October 2009 rabbinic conference call with Judge Goldstone, and wrote an essay called The Goldstone Report: A Jewish View for the audience of Al-Jazeera) many of you emailed me once Judge Goldstone's op-ed came out, asking for my response to his new essay.
In his recent op-ed, Judge Goldstone notes that the Goldstone Report found evidence of potential war crimes, and possibly crimes against humanity, by both Israel and Hamas. He notes that Hamas' crimes were obviously intentional -- "its rockets were purposefully and indiscriminately aimed at civilian targets" -- and continues:
The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee's report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.
God knows I took no joy in the Goldstone Report's suggestion that Israel might have targeted civilians as a matter of policy, and I yearn to take comfort from Judge Goldstone's assertion that this was not a policy decision. The op-ed gave me reason to read more widely around these issues, and I came away with the sense that everything is more complicated than it initially appears.
In his op-ed, Judge Goldstone notes that since Operation Cast Lead took place, Israel has investigated allegations of operational misconduct while Hamas has not. Goldstone writes:
Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case.
There's a phrase common in the American Jewish community, often used to describe the Palestinians (though sometimes used to describe Israel, too) -- "they never miss an opportunity to miss an opportunity." (This comes from Abba Eban.) Surely this situation merits that sad statement. Had Hamas followed Judge Goldstone's recommendation and investigated the rocket attacks launched from Gaza at civilians in Israel, a significant step toward peace and mutual understanding might have been taken. What a missed opportunity that continues to be.
That Hamas has not investigated on the basis of the Goldstone Report's recommendations may signal that its leadership is more interested in aggression than in justice, and that is a grievous failing on their part. I echo a recent bulletin from Human Rights Watch: "Hamas authorities in Gaza should take all possible steps to prevent Palestinian armed groups from launching rockets against Israeli population centers and hold accountable those who commit violations of the laws of war." Furthermore, I agree with Yaniv Reich (in What the Goldstone op-ed doesn't say) that "Hamas military leaders should be referred to the International Criminal Court for this since Hamas' political leadership has refused to investigate the matter themselves and hold those responsible for war crimes to account."
I continue to agree with the Goldstone Report's original contention that the actions of both the Israeli government, and Hamas which acts as a de facto governing body within Gaza, should be investigated. (One could argue that both should be investigated by an external body even if they do conduct their own investigations, since it's hard to investigate oneself fairly, but the general point -- that investigations need to happen on both sides -- stands.)
Israel has investigated allegations of misconduct on the part of many soldiers (see IDF turns to Human Rights Watch for help, IDF investigates 400 complaints over Cast Lead conduct,) and I applaud that -- even when it seems to me that some of the official response to misconduct has been grossly inadequate (see Israeli officers get 'slap on wrist' for white phosphorus use in Gaza) and some just makes me sad (Israeli soldier charged with manslaughter during Gaza offensive - after firing at two Palestinian women carrying white flags.)
But investigating individual acts is different from investigating the system in which those acts took place, and it seems to me that this is what is needed on both sides. The firing of rockets from Gaza into Israel should be investigated, and so should the political and social culture of Hamas which perpetuates the sense that rocket fire is a productive response to the situation (it is not.) Israel has investigated the actions of its soldiers during Operation Cast Lead; now I want to see Israel examine the bigger picture in which those actions took place. I'm interested not only in particular acts (the firing of this bomb, the demolition of that house) but also in their root causes.
Adam Horowitz' Goldstone op-ed praises Israeli investigation of Gaza war crimes, but UN committee paints a different picture offers the following quote from the March 18, 2011 report (which is accessible as a pdf file thanks to the Human Rights Council):
The Committee reiterates the conclusion of its previous report that there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.
The new UN report tells us that while Israel has laudably investigated complaints against its soldiers, Israel has not opened investigations into the setting of Israeli policy. Horowitz offers an explanation for that: the office which would investigate those crimes is the same office which is responsible for providing legal counsel to the Israeli military. In other words, the Israeli government has not investigated the question of whether military policy was unethical because the potential investigators are those tasked with defending the policies which need investigation.
In his essay Goldstone's Backtrack: Some Points to Remember, Tom Pessah makes a slightly different case. He argues that:
The claim that there was no policy behind this stems from a poor understanding of civilian-military relations in Israel. The details of policy are often not set by the government, but they give army officers leeway to set these policies, and then don't take any significant steps to punish them for causing human rights violations.
The folks at Breaking the Silence / שוברים שתיקה have collected testimony from Israeli soldiers about their experiences serving in the West Bank and Gaza. At their website, if you go to "Testimonies" and then "Database," you can download a pdf file of quotations from their archive of video testimony. Here are two quotations from soldiers who shared their memories of Operation Cast Lead:
[I]f you're not sure, kill. Fire power was insane. We went in and the booms were just mad. The minute we got to our starting line, we simply began to fire at suspect places. Also, it was still dark when we went in, we got there just before dawn. You see a house, a window, shoot at the window. You don't see a terrorist there? Fire at the window. It was real urban warfare. This is the difference between urban warfare and a limited confrontation. In urban warfare, anyone is your enemy. No innocents...
[T]here was a clear feeling, and this was repeated whenever others spoke to us, that no humanitarian consideration played any role in the army at present. The goal was to carry out an operation with the least possible casualties for the army, without its even asking itself what the price would be for the other side. This was the thrust of things that we heard from more than one officer.
The testimonies from soldiers at Breaking the Silence make clear what a terrifying experience Cast Lead was for them: the constant fear, the tension, the ingrained response of catching a flicker of movement out of the corner of one's eye and immediately assuming that it's a suicide bomber. I get the sense, from reading these testimonies, that these soldiers felt during this operation that their experience of their army had changed. Perhaps Pessah is correct that officers took leeway to be more brutal than before, and the army didn't take significant steps to punish them after the fact.
All of this gives me the sense that in his new op-ed, Goldstone is oversimplifying a situation which is profoundly complex.
The primary thrust of Judge Goldstone's recent op-ed is that had he known then what he knows now, he would have written a different report. Because Israel refused to cooperate with his investigation, the Goldstone Report featured no Israeli testimony (a decision with which many Israelis took issue, among them Yehezkel Dror who articulates his stance in Why Israel should have cooperated with Goldstone on Gaza.) That decision continues to baffle me, and it makes Judge Goldstone's point in this op-ed somewhat anticlimactic for me. If Israel had cooperated with Judge Goldstone and his fact-finding commission in the first place, of course he -- and the world -- might have understood many things differently.
There's also a bigger picture here, and that bigger picture is saddening on all sides. As Noam Sheizaf notes in his essay Goldstone "apology" won't make us stop talking of occupation, regardless of whether or not targeting civilians was official Israeli policy, no one denies that Israeli forces attacked civilian targets, looted Palestinian homes, and killed well over a thousand Palestinians -- most of whom, according to B'tselem, were not taking part in hostilities when they were killed.
For me the real sorrow lies in the continuing perpetuation of the cycle of death and suffering. Rocket attacks from Gaza are once again increasing (see Israel facing upsurge in rocket attacks from Gaza), and I mourn with my Israeli friends and loved ones the trauma which those attacks cause -- and I am saddened that I'm already bracing myself against the redoubled trauma which I fear will arise when the cycle of attacks and counterattacks inevitably escalates.
More than anything I read in Haaretz, my own experiences as a soldier and an officer led me to reflect on the crimes of Israel's 44 year-old occupation of the West Bank. I have seen beating of civilians, settlers' violence and mistreatment of Palestinians with my own eyes (I am happy to report I haven't been part of killing – but that’s pure luck, I guess). Some of those things I continue to see in the occupied territories these days, only now I don’t go there in uniform.
Right after the Goldstone op-ed was posted on the Washington post's site, +972 Magazine received a tweet calling us to "retract" on charges of Israeli war crimes. To that I answer: the entire occupation is a crime. The blockade on Gaza is a crime. The settlements are a crime. The killing of civilians is a crime – even if it wasn't part of a policy, it was part of the occupation. And I don't need Judge Goldstone to tell me that.
I think it's arguable that Sheizaf overstates his case in the service of his powerful rhetoric. Reasonable people can argue his points about criminality. But I understand him to be saying that the real problem here isn't the charge of Israeli war crimes: it's the whole situation in which Israel has acted as an occupying force. And in that, I think he has a point.
Sheizaf is also speaking out of a personal experience of Israeli army service which I do not share. But I agree with his basic point that years of conflict, Israeli occupation, and Palestinian terrorism together perpetuate a system where injustice is rampant and abuse of power is commonplace. That's the reality we need to work to change, and that work is more important than dissecting even the most controversial of op-eds.
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