A Careful, Critical Reading of The Goldstone Report
On September 15th 2009 the United Nations Fact Finding Mission on the Gaza Conflict published the Advanced Edited Version of its report[i], a 575-page document summarizing its findings about the armed fighting between the IDF and Hamas between the end of December 2008 and January 20th 2009. A final, edited version was later provided, but most people have related to the initial 575-page release.
Justice Richard Goldstone, Head of The Mission, has defended it repeatedly in interviews and articles while urging people to read the report before commenting; he also insists that so far, no-one has made any substantive rebuttals. This is odd, increasingly so as each passing week has seen ever more critiques. The lawyers at Israel's Foreign Ministry posted a 24-page rebuttal[ii] within a week. Several think tanks and NGOs published critical examinations. Law professors, journalists and bloggers have pored over the report and found it sorely lacking in credibility. (An effort has been made to collect all these responses at http://www.goldstonereport.org/). The cumulative effect is powerful. Two individual efforts stand out, to my mind: that of Trevor Norwits[iii], a New York attorney whose criticism is couched in legal terms, and the reading by Professor Moshe Halbertal, a philosopher at Hebrew University long identified with Israel's peace camp. His criticism[iv] reads like a cry of disappointment that the Mission so horribly squandered an opportunity to say something meaningful about asymmetric warfare.
Justice Goldstone told Trevor Norwitz he read his critique, so this inability to recognize that serious readers can be unmoved is peculiar. Perhaps he's being insincere. Perhaps something more fundamental is going on: the Report is serving as a cognitive litmus test, a philosophical fork in the road where people part and lose the ability to understand each other. There are three levels of this mutual inability to communicate:
Incompatible and incomprehensible narratives of Mideast history
You would have thought the authors of a 575-page document about a century-old conflict might have found time for one paragraph of background. Like this, perhaps:
The century-long conflict between Jews and Arabs at the eastern edge of the Mediterranean is a tragic clash of two equally just national aspirations. On one side the Jews, for whom the Land of Israel was the national homeland for more than a thousand years, and has for millennia been the focal point of yearnings and hopes of national revival. On the other side the Palestinians, who in the absence of the Jews made the same land their actual homeland. Both now insist on living their national lives in the same tiny region, and both have demonstrated they are willing to kill and be killed rather than give up. Someday they'll find a way to reconcile their contradictory claims, but so far this has proved elusive, and tragically, the violence continues.
There, that wasn't so hard, was it? Having such a paragraph creates context without losing impartiality, which the Mission needed. Without a neutral context, the Mission ran the danger of being partisan, either by omission or commission. Omission, because if there's no context, what are Israelis and Palestinians fighting about? Perhaps one side are malicious and bloodthirsty, and the others merely defending their rights and lives? Yet if so: which side? And commission, because if the Mission never said what the conflict is about, it could then insert, overtly and covertly, all matter of hints, indications or outright statements about how one side is morally repugnant, and the other, not.
Having dropped the attempt to be neutral, the authors exuberantly engage in partisan propaganda. Here are four examples.
179. In 1994 the Palestinian Authority was established following the Oslo I Accord and in 1995 “the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip”, also known as “Oslo II,” detailed practical steps to be implemented by the parties in view of the negotiations on the final status of the territory. The assassination of Israeli Prime Minister Yitzhak Rabin by an Israeli extremist in 1995 dealt a lethal blow to the peace process. Successive Israeli Governments and the Palestinian political leadership failed to reach an agreement on the final status at the United States-sponsored Camp David summit in 2000 and during direct talks in Taba (Egypt) in 2001.
Some people believe Rabin's assassination dealt a lethal blow to the Oslo process. Most Israelis remember how the steep rise of Palestinian terror after the signing of the Oslo agreement in 1993 put Rabin evermore on the defensive and fanned the flames of an increasingly acrimonious public discussion; no-one old enough to remember will ever forget the wave of suicide murders on buses and in malls in Spring 1996, as Shimon Peres was battling Benjamin Netanyahu in a closely contested election; nor are Israelis ever likely to forget the events of July 2000 to February 2001, when the negotiations collapsed. The point is not that what mainstream Israel remembers is necessarily correct, or the only possible narrative. The point is that the Goldstone Report, long before it addresses the matter it was sent to investigate, spurns the mainstream Israeli narrative, and adopts the Palestinian one.
The source for all the allegations are eleven individuals, named in their order of appearance: Leah Shakdiel, Atwa Abu Fraih, Haggai Matar, Ameer Makhoul, Hassan Tabaja, Sahar Abado, Hakim Bishara, Ronen Shamir, Merav Moshe, Saleh Bakri, Ran Yaron, and also four organizations, Adalah, Meezan Center, Yesh Gvul and Breaking the Silence. There is an overlap between individuals and organizations, since these people are not average Israelis. Most of them are affiliated with one or more of the dozens of far-Left organizations which like to present themselves as guardians of human rights, presumably in contrast to the rest of their society.
Israel has dozens of these organizations, and there may be a few thousand people affiliated with them, from a society of seven and a half million. Many of us are proud we have them, and even read some of their output – reports, letters to the prime minister, petitions to courts and so on. Yet we don't delude ourselves their narrative is anything other than a subjective, ideologically-driven version of reality. Much of what they say isn't true.
The authors of the Goldstone Report either made a conscious decision to embrace a tiny and far-flung splinter group as their primary witness about Israeli society, or they were astonishingly naïve and unprofessional.
These representative examples – they are representative, not cherry-picked – show that the authors approached their investigation with a one-sided and tendentious understanding of the conflict, eager to embrace bogus depictions of facts which could have been easily checked, and with an image of Israeli society unrecognizable to most Israelis. This is crucial, as the single most important finding in the Report is that Israel purposefully targeted the population of Gaza. Even before reading the descriptions of events, it is reasonable to wonder "what Israel" it is the investigators were investigating; it certainly isn't the one its citizens recognize.
Unacceptable methodology for understanding the battlefield
The parts of International law which address war focus on jus ad Bellum, the legal justifications for going to war; international humanitarian law (IHL) focuses on jus in Bello, or how to wage war in an acceptable manner. The Goldstone Report engaged in the first discussion only obliquely; most of its effort dealt with IHL. Readers will like or dislike the Report according to their opinion about Israel, while revealing much about their own intellectual preferences.
Regarding the reasons for the war, the little the report says is instructive. It notes that Israel occupied the Gaza strip in 1967; that it left in 2005 but never really left; that it launched a blockade in 2006, and invaded in December 2009. There's also a detailed enumeration of hostile incidents: rockets and mortars from Gaza paired with Israeli military actions. There is never mention of the incidents when Palestinians shelled the border crossings and interfered with the inflow of goods – that would have required convoluted explanations, so it isn't mentioned.
Nowhere is there explanation of how Israel came to be in Gaza, the extent to which it left in 1994, nor the full departure in 2005. It all just seems "to have happened", for inscrutable reasons the Israelis had. The same is true for the Palestinian side, of course. Not a single word is offered to explain how they understand their world, what they aspire to and how they hope to get there. If there is an interplay between the Israeli actions and the Palestinian ones; if the warring sides notice each other, perhaps even carefully gauge their actions so as to convey profound messages to the other, and respond to the messages sent them; if action reaction and responses to the reactions are all formulated with a fine awareness of what they might signal to the enemy – for enemies they are – not a glimmer of this appears in the Report. The motivations of the warring sides are crucial to what is happening, but the Report's authors can't be bothered. Not by the possibility that Hamas really aspires to destroy the State of Israel – a factoid never once mentioned – and not the possibility that Israel left the Gazans unoccupied and in charge of their own destiny, in 2005.
Nothing.
The authors would probably explain they came to see facts, not history, and they were interested in the laws of war – IHL – not the politics of why there was a war. This assumes the two can be separated. What if they can't? What if the Hamas way of war and the Palestinian way of propaganda determine their tactics? Has Hamas developed a Palestinian version of the Russian "scorched earth" policy, in which Palestinian losses are a major weapon against Israel? A serious fact finding mission would have had to face these questions and explain its findings; the Goldstone Report never does.
On the contrary. The investigators' refusal to decipher the reality and seek the logic of the events is so complete it destroys their intellectual credibility – unless finding Israel guilty is the imperative, and the facts are merely props. Again, four examples:
Warfare evolves, influenced by technology, terrain, and by experience of the enemy's methods and past behavior. Since Autumn 2000 Israel has faced enemies, in Palestine and Southern Lebanon, who have engaged in all of the following behaviors: Shooting rockets and mortars from highly mobile equipment embedded within in the local population; engaging IDF troops in firefights from homes while the owners are still in them; luring Israeli tanks into driving above buried explosives strong enough to destroy them; booby-trapping civilian buildings; constructing fortifications and military tunnels in private homes; storing weapons in homes; attempting (and rarely even succeeding) to kidnap IDF troops; using men women and children in civilian garb as suicide attackers; transporting munitions and potential attackers in ambulances; hiding in mosques or shooting from them.
These are all illegal behaviors according to IHL, yet the IDF cannot break those laws just because its enemies routinely do. The fact of having enemies who regularly fight with illegal tactics demands that the IDF must devise new methods to defend the citizens of Israel, even while respecting the laws of war. When Prof. Halbertal wrote of his disappointment that the Report failed to relate to his questions about waging asymmetric war, this was his complaint. The report contains hundreds of paragraphs of detailed descriptions of the alleged behavior of IDF troops, without ever hinting at their logic. Forcing Palestinians civilians to disrobe is not meant to be demeaning; it's self defense against potential killers. Forbidding civilians to approach soldiers is necessary when attacks by civilian teenagers are standard practice among Palestinians. Breaking into homes through walls is a response to booby-trapped doors, as is the bulldozing of buildings on a field of battle where the defenders have mined buildings to collapse on troops.
The Goldstone Report explains nothing of this. Its authors probably never wanted to know. Though it is revealing that many of the explanations are set out clearly in the Breaking the Silence testimonies[v], cherry-picked with alacrity by the Report's authors.
There is only one watertight way to know what the attackers intended: to peer into their minds. Since this can't be done, the second best is to collect as much relevant and diverse information as possible. One way is to ask, though answers must be treated gingerly because memory can be fallible and self serving. A second way is to read what the attackers wrote and listen to recordings of what they said, before during and after the war. A third is to find third-party testimony. A fourth is to cross verify all the sources. Freshman college students learn to do this, as do police cadets, cub journalists, and viewers of popular TV crime shows. All will recognize at a glance that it is logically impossible to know what the intentions of an army at battle were merely by peering at rubble and interviewing victims, be they honest and sincere, or intimidated by local thugs.
The authors of the report complain endlessly that the Israeli authorities didn't cooperate. Whatever one's opinion about this, it left the investigators with no way of knowing what the Israeli intentions had been, and the only intellectually honest response would have been to admit it. Their insistence in dozens of cases to compensate for what they couldn't know by inventing damning assumptions from whole cloth, is breathtaking. This intellectual dishonesty alone proves the Israeli authorities were right when they refused to cooperate: if Goldstone and his colleagues are capable of inventing things they have no way of knowing, how much more could they be relied on to twist whatever evidence Israel might have supplied into the mold they wished it to have.
Even more baffling than the willingness of the investigators to invent Israeli motives, which at least is not denied, is their refusal to seek evidence of the actions and intentions of the defenders. They made a few feeble enquiries of what they call the Gaza Authorities about the fighters, were rebuffed with the odd response that these authorities had no knowledge of what the fighters of their own side might have been doing, and that was all. Yet in dozens of cases described in their report, the question demands to be answered: if the IDF was firing in this direction, what do the Hamas commanders have to tell about their forces? Had they booby trapped the building? Were they firing from here? Had they laid mines in this field? Were they congregating in this mosque, and for what purpose? Was this farm intended as a line of defense, or that zoo as a trap for advancing IDF troops? In many cases the investigators asked local civilians, but they never asked the fighters or their leaders.
Bizarre as it may sound – and it is truly bizarre – the investigators came to what had been the scene of a war, and tried to piece the events together without talking to either of the warring sides. They asked the Israelis, and the Israelis refused to talk. They didn't ask Hamas, so Hamas never even had to refuse. Yet they had the arrogance to tell what had happened.
Having not talked to either warring side, the investigators built their case upon testimony of Gaza civilians. They repeatedly insist these witnesses were reliable, without explaining how they determined this, or if they ever met a single unreliable witness or even merely an 'iffy' one. On November 5th, there was a first public encounter between Justice Goldstone and a semi-official Israeli speaker, retired ambassador Dore Gold, at Brandeis University[vi]. Gold presented a number of documents which portrayed Hamas differently than it was described in the Report. Justice Goldstone complained that the Israelis should have submitted this documentation at the time, as it might have bolstered their case. Yet it wasn't secret Israeli documentation Gold was presenting. It was Hamas material such as TV broadcasts, which he had gleaned from the Internet.
After not asking either of the warring sides, it appears the investigators didn't even mine Google for what could have been relevant documents.
The methodology chosen by the Fact Finding Mission can be compared to a hypothetical fact finding mission wandering between Vietnamese villages in 1976, trying to understand the events of the war by asking villagers under the watchful eyes of communist handlers. The result would have been intellectually worthless, but most people wouldn't have read the report anyway, convinced they knew the truth anyway. This is exactly what's happening to the Goldstone Report. Its findings are useless and most people aren't reading them anyway, but they're being embraced or rejected according to political camp.
Some sections of the Report, it must be said, are troubling to read. There are descriptions of cold blooded murders, of wanton cruelty, and of senseless large-scale destruction of property. Reckless and unprofessional as the Report is, its sloppiness doesn't make its allegations go away. Any reader informed by a healthy moral code will be disturbed. The overarching allegations of an Israeli plan to harm the general populace are ludicrous, but what of the specific cases? Following the operation I have talked to a number of soldiers who fought in different units at different sections. None of them remotely echo anything similar to the findings of the Report. Still, even according to the Israeli telling, hundreds of civilians were killed. Can we be certain all efforts were made to hold this number as low as reasonable for a complicated field of battle?
Ultimately,the only way fully to know is by having an independent Israeli investigation, headed by a Supreme Court justice. Such a commission would include a retired general and at least one other highly qualified expert. It would have the authority to dig as far as it wishes into what the IDF planned, knew and did. It couldn't directly research the intentions, preparations and actions of the enemy, but it would have access to the second best thing: the full gamut of classified military intelligence – itself vastly superior to what the Goldstone team had. This intelligence may even be better informed than the Hamas leadership cowering under the Shifa hospital was.
Israel has been having such investigations for decades: in 1973/4 (Yom Kippur War), 1982/3 (Lebanon), 1985 (after the murder of two terrorists on Bus 300), 1994 (after the murder of Muslim worshippers in Hebron), 2002/3 (after 13 Israeli Arabs were killed in riots in 2000), and 2006/7 (2nd Lebanon War). In each case something of value was learned, mistakes were corrected, and while new ones were then made the old ones were not repeated. Looking back on 35 years of such investigations it's clear they've never weakened Israel, and always strengthened it. Given this record the institution ought be enshrined in law, so that any military event of a certain size or duration will automatically trigger in independent investigation. Not because the UN or some tiny grouping of self-anointed human right groups demands it, but rather because it's the law of the land. Israel will still be at war for many years, probably decades and perhaps generations. Independent investigations of its operations should simply be an automatic part of the way it wages wars. True, no other country investigates its military actions this way, certainly not routinely, but perhaps they ought to, asymmetrical warfare being what it is.
An independent commission of inquiry would have the tools, the will, and the wisdom to come close to the truth about the Gaza operation, a claim demonstrably not true on any count regarding the Goldstone Report. For those of us who care about truth and morality, both, this would suffice.
Would it satisfy the international wolves baying at Israel's heels? No. The Goldstone Report, after all, is an expression of a profound disagreement about how human affairs should be organized. A disagreement about democracy, freedom and human rights, no less. Much is at stake.
Contradictory concepts of democracy, freedom, and human rights
In the first section I demonstrated that the investigators came to their task with unclean hands. The second section told how their modus operandi was tailored to give a predetermined result. Now for a look at the conceptual underpinnings of the exercise.
Some people are eager to look at a scene of war, count the dead and the physical damage, and damn the Generals who wrought it and the Politicians who ordered it irrespective of all context. These are the pacifists, for whom no war can be justified. Others observe the scene and fit it into an ideological mold. If they like the people who wrought it, they will tolerate no evil to be said of it, no matter what. If they dislike the war-makers, they will damn it, often using the same vocabulary as the pacifists, no matter what the facts were. The Arab world can find nothing wrong with the Sudanese wars of the past 50years. Many left-leaning civilians in Western countries can find no way to defend the wars their countries wage, no matter what the context.
Yet there is an important distinction between the types of criticizers. No-one thinks the Arabs defending Sudan, the Pakistanis castigating Israel or even the Chinese protecting Iran from potential sanctions are paragons of human rights. Their actions are traditional power ploys, raw ethnic preferences and cynicism. They are as if the 20th-century advances in international law and multilateral institutions never happened. It could be 1909, or 1809, or 2009 – it's all the same. Engaging these forces is done in the time-honored traditions of power politics.
Not so with the pacifists and the knee-jerk critics of democracies at war, be it Israel now or other democratic countries next. What makes the Goldstone Report so deeply troubling is not how it twists the story of Israel, but how it undermines democracy, freedom and human rights.
Thomas Jefferson summarized the democratic principle thus: I know no safe depository of the ultimate powers of society but the people themselves. On the glaring subject of slavery he was a raging hypocrite, but the sentiment is no less valuable for that. Faced with disagreements large and small, the best way forward is for the people to decide. Not the people who think correctly, not the experts, or the well educated, rich, or the downtrodden. The people. Through their elected representatives surely, but the people are the sovereign, not the representatives. Within the confines of a fundamental constitution, yes, but it was drawn up through a democratic process and can be changed by the sovereign.
How are decisions made, laws enacted, and society forged? By discussion. No matter how important or complicated the issue, the ultimate arbiter is the voter, armed with common sense and a feeling for the individual and collective good.
The genius of Jefferson and his colleagues, along with small numbers of reformers in a few European countries, is that they managed to set up societies built on this fundamental understanding. The resulting democratic system has proven the best protector of freedom and human rights in history. Best is a far cry from perfect, yet it remains best.
This is now being undermined by an unlikely group of well-intenioned people, who would enshrine the principles of peace and human rights in an international public sphere. The Goldstone Report is a warning of that if they aren't restrained, democratic societies will lose the ability to make their own decisions. Instead, they will be accountable to unelected experts using pseudo-legal arguments based on laws the voters cannot revise, who themselves are unaccountable to anyone. Sooner or later, this dictatorship of self anointed international lawyers and unelected diplomats will go the way of all democratic systems and deny the people their rights. The sheer intellectual shabbiness of the Goldstone Report demonstrates that this nightmare may already be upon us.
Again, four examples:
It was between 1967 and 1994, of that there is no doubt. Was it still the occupying power after ceding direct control in 1994 and enabling the creation of the autonomous Palestinian Authority (PA)? Perhaps. A sensible case could be made either way. In 2005, Israel wrenched itself fully out of Gaza. It continued to relate to the place, of course, since Gaza is still next door, yet even the Goldstone Report admits that between September 2005 and February 2006, when the Palestinians democratically elected Hamas, there was no blockade of Gaza.
The Israeli electorate of some five million people does not regard itself as occupying Gaza. It did not interfere with the elections. It has no control over the occasionally warring Palestinian factions and the violence they inflict on each other. It does not exercise any of the measures commonly expected of a government: taxation, preservation of law and order, supply of services. It has no forces in the Gaza Strip even to defend Israeli civilians from Palestinian violence.
The authors of the Report disagree, all four of them. They cite various arcane legal paragraphs from documents the Israeli electorate was never asked about to deduce that in spite of common sense, and irrespective of what the Israelis think or intend, they are still the occupying power in Gaza.
In a profound irony quite lost on the authors, they do not notice that if Israel were the occupying power, it should long ago have used the state monopoly of force to rid Gaza of all unlawful arms, and locked up all the bearers and their leaders.
There can be no question more fundamental in a democracy than the waging of war: when, how, for what goals and at what price. Justice Goldstone himself, as an individual, seems to recognize this, as he has repeatedly claimed the report doesn't deal with Israel's right to defend itself. His colleague Prof. Christine Chinkin disagrees; in an infamous public letter she co-signed even as the Gaza operation was underway she stated that Israel was not defending itself[vii], but was waging a war of aggression. The report itself agrees with Justice Goldstone in that it never explicitly says Israel was waging a war of aggression. Yet the entire tone of the report, from its carefully chosen historical narrative through its damning of Israeli intentions and actions, to its condemnation of internal Israeli matters, each and every bit of this is an infringement of Israeli's sovereignty and an affront to its citizens.
Justice Goldstone made an important comment during his public discussion with Dore Gold at Brandeis University. He explained the concept of proportionality. I quote from memory:
Say there's a military target here in the middle of Boston, a building full of weapons perhaps. The other side can choose to destroy it with a one-ton bomb that will kill 100 civilians, or with a two-ton bomb that will kill 500. The law of proportionality says that killing 100 civilians in order to destroy that military target is acceptable; using the larger bomb and killing 500 is not proportional and not acceptable.
It was an extraordinary statement coming from the author of the Goldstone Report, since not a single case in the Report told of 100 Gaza civilians killed. Instead what the Report did, in every case it examined, was to decide on the basis of conjecture that there couldn't have been any legitimate military targets so the action must have been illegal.
Since March 2009 there has been significantly less fire from Gaza at Israel than at any time in the previous years, and no-one is getting killed on either side. Given that Israel will be deploying its Iron Dome anti-rocket systems sometime in 2010, many months of calm are not only wonderful on their own account, they are a constant narrowing of a window of opportunity after which it will be harder for Hamas to hit Israeli civilians. On that level, the proportionality of the Gaza Operation has been vindicated. As to the specific incidents, the Goldstone Report had no credible information, while the sovereign Israeli authorities do. Here also the Report is an affront to Israel's sovereignty.
The international legal framework which enables infringing upon the sovereignty of nations is new; it was invented after World War Two. It was created by bureaucrats and diplomats, not elected legislators, to enable the international community to end genocides and crimes against humanity (itself a postwar concept). Not only is it new, it is conceptually problematic. There is no democratic accountability to an electorate. There is no democratically accountable wielder of a monopoly of power. There is no democratically accountable judiciary. There is, however, a long list of horrific mass crimes and genocide which have taken place since WWII, even as the international organizations and laws proved totally powerless to intervene. The case could be made that the post-WWII tools have so far proven their irrelevance.
Precisely because these tools are so new untried and fundamentally problematic, they must be handled with the greatest of care. Goldstone's team must have been acutely aware they were sailing into uncharted waters. Never has an international body scrutinized a military campaign. The only similar case, the Kosovo bombing campaign of 1999, was explicitly not investigated, in spite of calls to do so. Never in the annals of warfare has any campaign been as meticulously examined, in such detail, as this one. The UN-appointed fact finders were not only investigating events in Gaza, they were creating legal precedent that must be applied elsewhere if the impartiality of the international system has any coherence and sense (which it may well not have). The Goldstone team set out on a historic path, and could have been expected to comport themselves accordingly.
No reasonable observer can claim Israel was engaged in genocide in Gaza in January 2009. Seen on a scale of acts of war, the Gaza operation was not even the most violent or bloody event in the first half of 2009: violence in Sri Lanka, Congo, Afghanistan and Pakistan are all considerably worse. The decision to create a fact finding mission for the Israeli action alone is unreasonable and casts a shadow over the very institutions and legal systems wielded. The methodology applied by the fact finders – partisan history, shabby fact-finding, tendentious legal reasoning, preening arrogance towards a sovereign country – should totally discredit not only the fact finders themselves, but the entire international edifice which enabled them to happen.
If you assume democratic decision making and accountability are the prerequisite for freedom and human rights, the story of the Goldstone Report is a cautionary tale. If this can be done to Israel, sooner or later it will be done to others. Citizens in democratic societies would do well closely to observe the story, and ask themselves if they truly wish this to be the face of their future; if they sincerely accept that unelected and unaccountable self anointed experts will replace the democratic deliberations of We the People.
Jerusalem,
November 2009
[ii] http://www.mfa.gov.il/MFA/Terrorism-+Obstacle+to+Peace/Hamas+war+against+Israel/Initial-response-goldstone-report-24-Sep-2009.htm