SLATER: Moshe Halbertal and the Goldstone Report Part 2 January 6, 2010
by Jerome SlaterÂ -Â ZNet -Â 5 January 2010
Just War Theory and the Goldstone Report
The Commission’s analysis was clearly guided by just war moral philosophy as well as by the international laws of war that embody its principles. The three most important principles governing methods of warfare are those of proportionality, discrimination, and noncombatant immunity. Noncombatant immunity is easily understood: deliberate attacks on innocent civilians are categorically prohibited. However, the other two principles are more complex.
The proportionality principle, or constraint, requires that even in a just war, the military measures that are employed must in some sense be proportional to what is at stake. The application of this criterion in many cases is difficult, ambiguous, and a matter of judgment over which reasonable people may disagree, since it requires weighing incommensurate values, such as the relative values of destroying important military targets in wars of self-defense versus the value of human lives, on both sides.
However, the Israeli attack on Gaza is not one of the difficult cases. Even those who have accepted the idea that Israel has a legitimate right to defend itself against Hamas attacks have widely criticized the Israeli methods as disproportional. The sheer scale of the Israeli attacks on Gaza makes that an easy judgment to reach.
From 2005 until the eve of the Israeli attack on Gaza, over 1200 Palestinians were killed by Israeli forces. During this same period Israeli civilian casualties from Palestinian attacks dropped dramatically: from 2001 through 2005, about 680 were killed in terrorist attacks; in 2006 seventeen were killed; and in 2007, just seven. In the course of the attack itself, Israel killed approximately 1400 Palestinians and inflicted vast economic and property damage. The Israelis suffered almost no property damage and lost three civilians and thirteen soldiers (several of them by “friendly fire”).
The principle of discrimination requires that all parties to a war must make every effort to discriminate (or distinguish) between military and civilian targets. According to this principle, even those fighting for a just cause are both morally and legally prohibited from attacking military targets if the foreseeable consequences to nearby civilians are unacceptably high. While in theory an indiscriminate attack on legitimate military targets is not the same as a deliberate attack on civilians, in some cases the differences between them become legally as well as morally inconsequential — such as when an apartment house thought to contain enemy leaders is bombed, killing dozens of innocent people.
In certain circumstances some level of collateral damage may be morally defensible, but only if three conditions are met: the military value of the target must be high, the harm to civilians and their infrastructures must be relatively low, and the attacking military forces must be willing to accept casualties of their own in order to keep that collateral damage as low as possible — for example, when enemy combatants are located within densely populated areas, they may justly be attacked only by direct engagement, not by long-range and inherently indiscriminate weaponry, such as artillery, offshore shelling, or air bombardment.
To make the obvious explicit, the three moral principles governing how force may be used in warfare become relevant only in wars fought for just causes, like self-defense. Absent a just cause, no force can be used, period — including discriminate weapons against legitimate military targets.
The Commission’s Findings
In considering whether Israel had deliberately attacked civilians in Gaza, the Commission examined a number of matters: Israel’s economic blockade or siege, a number of explicit Israeli statements before the attack, the use of indiscriminate weapons during the attack, the deliberate bombing of economic and other civilian infrastructure targets, and eleven “incidents” in which the evidence was compelling that Israeli soldiers directly and intentionally killed civilians.
- The economic blockade. Even prior to the Israeli attack at the end of 2008, the Commission observed,
“the Gaza Strip had been for almost three years under a severe regime of closures and restrictions on the movement of people, goods and services. This included basic life necessities such as food and medical supplies, and products required for the ordinary conduct of daily life such as fuel, electricity, school items, and repair and construction material. Adding hardship to the already difficult situation in the Gaza Strip, the effects of the prolonged blockade did not spare any aspect of the life of Gazans…. Prior to the military operation the Gaza economy had been depleted, the health sector beleaguered, [and] the population had been made dependent on humanitarian assistance for survival and the conduct of daily life.”
This economic siege, the Commission concluded, “amounted to collective punishment intentionally inflicted by Israel on the people of Gaza…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.”
Since the end of the twenty-two day attack, the situation in Gaza has continued and may have in some respects even worsened. In a recent report, entitled “Failing Gaza,” Amnesty International UK, Oxfam, and fourteen European church and medical organizations provide the most complete, impressively detailed, and damning analysis of Israel’s “policy of collective punishment,” which in no way ended after Israel concluded its direct military attacks a year ago. The economic blockade or siege, the report shows, has prevented the reconstruction or rehabilitation of the destroyed homes, businesses, farms and orchards, electrical power systems, water networks, sanitation systems, schools, and public health institutions. The ongoing consequences have been devastating for the economic, educational, physical, and psychological health, welfare, and human rights of the Gazan people.
- Israeli policy statements. The Goldstone Commission discussed “the development of strategic objectives in Israeli military thinking” in the 2002-08 period, and reviewed a number of “official Israeli statements on the objectives of the military operations in Gaza… to the effect that the use of disproportionate force, attacks on civilian population and destruction of civilian property are legitimate means to achieve Israel’s military and political objectives.”
The Commission quoted from several Israeli military writings outlining the supposedly new strategy — actually, as I shall shortly argue, not new at all. It also quoted statements by Israeli cabinet members, including Foreign Minister Tzipi Livni: “We have proven to Hamas that we have changed the equation. Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild — and this is a good thing.” Just how wild was implied in another high-level statement that didn’t even make it into the Goldstone Report: Deputy Defense Minister Matan Vilnai warned that Gazans were “bringing upon themselves a greater Shoah, because we will use all our strength in every way we deem appropriate.”
Some military spokesman and high-level officers openly admitted — even bragged — that they paid no intention to the principles of proportionality and discrimination. For example, several months before the war a leading Israeli general told the Haaretz military correspondent that in the next war the army was planning to violate both the proportionality and distinction rules: “We will wield disproportionate power against every village from which shots are fired on Israel, and cause immense damage and destruction….Efforts to hurt [rocket] launch capabilities are secondary.”
And that is indeed how Israel fought the war. Said one officer: “We are very violent. We are not shying away from any method of preventing casualties among our troops.” (emphasis added)An Israeli general confirmed this, telling Israeli journalists that the military strategy was to utilize tremendous firepower in order to protect the ground forces during the fighting in built-up areas and acknowledging that this was causing a great deal of damage to civilians and their infrastructure.
The Goldstone Commission accepted the general assessment of various Israeli and international human rights groups that at least half of the 1400 Palestinians killed in the course of the attack were civilians, up to 40% of whom were women and children. These civilian casualties, the Commission found, occurred because of Israeli bombing, missile attacks, tank fire, and the employment of white phosphorous and other indiscriminate weapons in populated areas. On several occasions, Israel bombed or shelled civilian apartment buildings, alleging they were harboring “terrorists” or their weapons — as if that would legitimate such attacks. In one such attack, Israeli forces shelled a civilian residence containing 110 people, 30 of whom were killed; the Goldstone Commission subsequently found that 22 members of a single extended family were among them.
True (as Halbertal emphasizes), on some occasions efforts were made to warn civilians to leave targeted areas, but for the most part Israel engaged in air, artillery, and tank attacks on homes, buildings, and entire areas known to contain far more civilians than combatants, and therefore certain to result in massive “collateral damage” to civilians. Put differently, it’s not just that the Israeli forces could have tried harder to avoid this result — as Halbertal concedes — but rather that in most cases it didn’t try at all.
Perhaps it didn’t try because it was indifferent to civilian casualties, but it is also possible that it didn’t try because it believed that civilian suffering added to Israel’s “deterrence,” a euphemism for intimidating Palestinian resistance. In a remarkably blunt statement that didn’t even make it into the Goldstone Commission’s report, the Haaretz military analyst Reuven Pedatzur concluded: “It appears the senior command decided to shock the Palestinians by killing as many people connected to Hamas as possible. The assumption was, apparently, that killing several hundred people would make the Hamas leaders surrender or plead for a cease-fire. This is one of the reasons the air attack was carried out as a surprise. The IDF, which planned to attack buildings and sites populated by hundreds of people, did not warn them in advance to leave, but intended to kill a great many of them, and succeeded.” (emphasis added)
In short, the evidence fully justifies the Commission’s conclusion that it was Israeli policy (the word appears repeatedly throughout the Commission report) to launch indiscriminate, “deliberately disproportionate,” and “systematically reckless” attacks on densely populated areas of Gaza, in order to “punish, humiliate and terrorize a civilian population.”
- Attacks on civilian infrastructure. The Commission found that Israel had intentionally targeted — that is, not “collaterally damaged” — the Gazan economy and the civilian infrastructure and institutions. In a number of attacks since 2006 (that is, not just in the 2008-09 attack), the Commission elaborated, Israel has “deliberately and systematically” engaged in extensive and “wanton” attacks on private homes, schools, government institutions and police stations, hospitals and ambulances, factories and industrial facilities, fuel depots, electrical generation plants, power lines, water wells and storage tanks, sewage disposal plants, and various food production systems, including orchards, greenhouses, and fishing boats — all “for the specific purpose of denying them for their sustenance to the population of Gaza.”
- Deliberate killings. The Commission investigated and provided detailed evidence of at least eleven “incidents,” as it carefully put it, in which Israeli forces intentionally and directly killed a number of civilians.
Taking all of these actions into consideration, the Commission concluded that Israel had committed a variety of war crimes, some of which “could lead a competent court to find that…a crime against humanity has been committed.”
The Halbertal Defense
Halbertal does not wish to defend all of Israel’s behavior, although he pointedly notes that many of the testimonies in the Goldstone Report “are Palestinian testimonies…collected in Gaza, where the watchful eye of Hamas authorities always looms, rendering them vulnerable and partial.” Even so, he concedes that “Israel’s siege of Gaza, and its harsh effect upon general civilian life, is morally problematic and strategically counterproductive”; that during the attack “it might well be that Israel should have done more than it did to minimize collateral deaths”; that “on some occasions” Israel appears to have forced Gazan civilians to serve as “human shields,” a tactic that is illegal under Israel’s own laws as well as the IDF code; that the allegations that Israel destroyed civilian “property” are “disturbing” and need to be investigated; and that perhaps there were “a few individual incidents… of cold-blooded murders” which call for “criminal investigations of particular soldiers.”
None of these concessions prevent Halbertal from concluding that the Goldstone Report is “as a whole…is a terrible document”; what he finds particularly “outrageous,” “false,” and “slanderous” is the Commission’s finding that “Israel intentionally targeted civilians as a policy of war.” His attempt at rebuttal primarily rests on the following arguments:
- The IDF Code Prohibits Attacks on Civilians. A substantial part of the Halbertal article is devoted to quoting and explicating the Israeli military’s formal code: “the IDF code states that soldiers have to do their utmost to avoid the harming of civilians.” In addition, he quotes military leaders as saying that they take extraordinary measures to avoid civilian casualties.
Such an argument, which essentially (there are a few qualifications) heavily relies on formal codes and official statements as decisive evidence of actual Israeli behavior, is all but self-refuting. It not only flies in the face of — nor, for that matter, even addresses — the detailed findings of the Goldstone Commission, but also of the widespread contemporary reports of what was happening in Gaza by leading U.S., European, and Israeli newspapers and journalists, as well as subsequent investigations and reports by international and Israeli human rights organizations. Among the international organization reports or statements are those of the Red Cross, CARE, Oxfam, Physicians for Human Rights, Amnesty International, Human Rights Watch and a number of U. N. agencies; the Israeli human rights organizations include B’tselem, Israeli Physicians for Human Rights, and Breaking the Silence. The latter report includes accounts by some 30 Israeli soldiers who participated in the attack and provide further confirmation and details of Israeli war crimes.
- The Casualty Ratio. Halbertal writes that according to some studies of civilian casualties in Gaza, for every militant that was killed, two or three noncombatants (depending on how noncombatants were defined) were killed: a ratio of 1:3, or perhaps 2:3. “There are 1.5 million people in Gaza and around 10,000 Hamas militants, so the ratio of militants to civilians is 1:150,” Halbertal writes, triumphantly concluding that “If Israel targeted civilians intentionally, how on earth did it reduce such a ratio to 1:3 or 2:3?”
The argument is a non-sequitur, for the Commission did not accuse Israel of intending to kill as many Palestinians as it could (that is, mass murder, or even genocide) — merely of war crimes, an accusation which cannot be refuted by arguing that it could have killed a lot more.
- Attacks on property are not the same as attacks on people. Finally, Halbertal wishes to make a sharp distinction between the “intentional destruction of property and attacks against civilians,” which the Commission, he charges, “lumped together.” To be sure, Halbertal’s defense of Israeli behavior here is not unqualified, for he concedes that some of the Israeli destruction of civilian property, especially in the last days of the attack, may have constituted “immoral deterrence” by the possibly “reckless use of firepower.” He lists his concerns about attacks on “property,” starting with “one of the most disturbing,” the bulldozing of a chicken farm that killed 31,000 chickens. Second, he is concerned about reports of Israeli bombing of civilian homes. Third, in his final “order of severity,” Halbertal criticizes the bombing of “civilian infrastructure,” although he refers only to attacks against a flour mill, water wells, and sewage pipes.
Leaving aside Halbertal’s rather odd order of prioritizing his moral concerns, the consequences of attacks on “property” or civilian infrastructure are often not meaningfully distinguishable from direct attacks on people. While claiming he opposes the Israeli blockade as well as direct attacks on non-military economic targets, Halbertal consistently understates the nature and the consequences of those Israeli policies and behavior, for direct Israeli attacks on the Gazan civilian infrastructure (as discussed above) have hardly been limited to the three instances he cites.
Consequently, there is little basis on which to challenge the Commission’s conclusion that the three weeks of intensive Israeli attacks that began in December 2008 were “designed to punish, humiliate and terrorize a civilian population, radically diminish its economic capacity to work and to provide for itself, and force upon it an ever increasing sense of dependency and vulnerability.”
The consequences are obvious and because of the continuing Israeli blockade are ongoing. Both the Goldstone Commission and a number of recent international studies have reported that unemployment is at least 50%, that 80% are estimated to live below international poverty lines, that 75% suffer from malnutrition, that children have been especially hard-hit, and so on. Put differently, whatever the number of Gazan civilians killed during the war, the cumulative effect of the Israeli blockade and military attacks on crucial economic and societal institutions will surely lead tens if not hundreds of thousands more to suffer and die, even if somewhat more indirectly and slowly than from direct attacks on people.
Israeli Policy and Noncombatant Immunity
That the Israeli military attacks on Gaza have massively violated the just war principles of proportionality and discrimination is beyond serious dispute. Moreover, it could well be argued that the Israeli attacks were so indiscriminate as to erase any meaningful distinction between indiscriminate and deliberate attacks on civilians.
Still, let us for the moment maintain the distinction: so far as I am aware there is no current proof that intentionally killing civilians as a matter of state policy was part of Israel’s strategy in its attack in 2008-09.
That said, the previous history of Israel’s attacks not only on crucial civilian infrastructures but on civilians directly at least justifies the suspicion that it did the same in Gaza. While space considerations preclude such an in-depth review, here is a brief summary of the most important events:
- During the 1930s, in their struggle for independence, Zionist organizations like the Irgun and the Stern Gang, led by future Israeli premiers Menachem Begin and Yitzhak Shamir, sought to terrorize the Palestinians by planting bombs in buses, market places, movie theaters, and other public places as well as by several wholesale massacres in Palestinian villages. As several Israeli “new historians” have observed, such Zionist terrorism preceded and may have provided the model for the subsequent Palestinian terrorism.
- As the work of Israeli, Palestinian, and other historians has conclusively proven, during the 1947-48 period Israeli forces often deliberately attacked civilians in order to drive many if not most Arabs out of the areas claimed by Israel. That is what created the refugee issue that still plagues the conflict: most of the estimated 700,000 Palestinians who fled into neighboring Arab countries did not do so “voluntarily,” (as the Israeli mythology has it), but either because they were driven out or fled in understandable fear that they would be killed if they didn’t.
- The expulsion of the Palestinians in 1947-48 led to the creation of the Palestinian guerrilla movement, which for a number of years operated out of bases in Egypt, Syria, Jordan, and Lebanon. Guerrilla attacks inside Israel were met with an Israeli policy of massive retaliation — not merely an eye for an eye, but ten eyes for an eye. In the early 1950s, Moshe Dayan created a special secret unit of the Israeli army, headed by the young Ariel Sharon, in order to carry out retaliation raids. As an Israeli centrist historian wrote, Sharon was directed to carry out raids “against Jordan Legion soldiers and Palestinian civilians in the Jordanian-held West Bank. The purpose of these raids was to create the greatest confusion and terror in the area in order to persuade the Jordanian authorities and the Palestinian population that it was not in their interest to participate in, or offer support for, raids on the Israeli communities across the border.”
- In 1953 Dayan ordered Sharon’s unit to attack the Jordanian village of Qibyeh, in “reprisal” for the failure of ordinary villagers to prevent Palestinian raids from being launched against Israel. After three Israelis were killed in one such raid, Sharon’s forces attacked civilian homes, killing sixty-nine Palestinian villagers, at least half of them women and children. These and other actions horrified Foreign Minister Moshe Sharett, who charged in a cabinet meeting that Israel had been “exposed…in front of the whole world as a gang of blood-suckers, capable of mass (sic) massacres.”
- During the 1956 Israeli-Egyptian war, it has recently been revealed, on at least two occasions Israeli forces systematically massacred hundreds of Palestinian refugees in the Gaza Strip.
- In 1968 Moshe Dayan warned that Israel might attack Egyptian cities in order to “strike terror into the hearts of the Arabs of the cities….[and] break the Arab will to fight.”And it did so during the 1970-73 Suez Canal War of Attrition between Egypt and Israel, when Israel responded to Egyptian attacks against its armed forces along the Canal with massive artillery shelling and bombing of Egyptian towns and cities along the western banks of the Canal, deliberately intended to make life unlivable for the Egyptian population and so increase pressure against Nasser and later Sadat. David Shipler, at the time the New York Times correspondent in Israel, later wrote that that Israeli bombardments of Egyptian villages “forced the evacuation of 750,000 civilians, destroyed 55,000 homes, and killed and wounded an untold number….It was a pressure tactic on the Egyptian authorities.”
- Leading Israeli officials have sometimes acknowledged that Israel has used such “pressure tactics” — otherwise known as “terrorism” — as an instrument of policy. In 1978, for example, following the first of major Israeli attacks on Lebanese population centers, General Mordechai Gur, then Chief of Staff of the Israeli Defense Forces and later a leading Labor Party politician, responded to criticism of Israeli tactics in Lebanon in this way: “I’ve been in the army thirty years. Do you think I don’t know what we’ve been doing all those years? What did we do the entire length of the Suez Canal? A million and a half refugees!…..Since when has the population of South Lebanon been so sacred? They know very well what the terrorists were doing…..I had four villages in South Lebanon bombarded…[as, he says, was done in Jordan]….the whole Jordan Valley was evacuated during the War of Attrition.”
The Israeli interviewer then comments: “You maintain that the civilian population should be punished?” Gur responds: “And how….I have never doubted it, not for one moment….For thirty years from the War of Independence to this day we have been fighting against a population that lives in villages and towns…” As Ze’ev Schiff, a leading Israeli military journalist commented at the time: “In South Lebanon we struck the civilian population consciously, because they deserved it….The importance of Gur’s remarks is the admission that the Israeli Army has always struck civilian populations, purposely and consciously…even when Israeli settlements had not been struck.” (emphasis added)
- Since 1978 there have been four major (and many more smaller) Israeli air and ground force attacks against Lebanon in 1978, 1982, 1996, and 2006. While PLO or Hezbollah forces based in Lebanon were the main target of the Israeli attack, there is no serious doubt that Israel deliberately visited widespread destruction on ordinary Lebanese civilians. In the course of the 1982 attack, at least 10,000 civilians were killed, not even counting the approximately 1000 Palestinian refugees murdered by Israel’s Lebanese allies at Sabra and Shatilla, a massacre in which the Israeli forces, led by Sharon, were clearly complicit. In one case, as reported by Thomas Friedman (!), then the New York Times correspondent in Lebanon, Israeli planes “blew apart a single six-story apartment bloc in the heart of the city…[killing] scores of civilians.” It was “strongly rumored,” Friedman observed, “that some P.L.O. officials might have been using the apartment bloc as a type of auxiliary office. It was…nowhere near the front.”
- In July 2006, after Hezbollah seized two Israeli soldiers, there were several open threats by Israeli generals of what would be done to Lebanese civilians; for example, “Senior officers in the IDF say that…if the kidnapped soldiers are not returned alive and well, the Lebanese civilian infrastructures will regress 20, or even 50 years.” During the ensuing Israeli attack, an estimated 1200 Lebanese civilians were killed, almost a third of them children, 4000 were wounded, one million displaced, 130,000 houses were destroyed, and the country’s electricity network, thousands of small businesses, hundreds of roads, 300 factories, 80 bridges, and dozens of schools and hospitals were destroyed or damaged.
In sum, throughout its history — even before its attacks on Gaza — Israel has repeatedly and deliberately attacked Palestinian and, indeed, other Arab civilians, either directly or by destroying their homes, businesses, fields and orchards, electric systems, and transportation systems. The purpose of these attacks has been to intimidate the civilian population, or to punish them for their supposed or actual support of Israel’s enemies, and especially to induce them to turn against their own governments or internal militant organizations
The Attacks on Gaza
That brings us to Gaza. As has already been described, even before the recent attacks, Israel was following a policy of collective punishment of the Gazan people. Jessica Montell, the head of B’tselem, Israel’s most important and prestigious human rights organization, wrote that “the suffering of the [Palestinian] population is not merely a byproduct of Israel’s attacks on militants. It is an intentional part of Israeli policy. The clear intention of the practice is to pressure the Palestinian Authority and the armed Palestinian organizations by harming the entire civilian population.”
It is not just Israeli human rights activists, “leftists,” or known critics of overall Israeli policy who have charged that for a number of years Israel has been deliberately attacking civilians and their infrastructure in Gaza, as well as in Lebanon earlier. In July 2006, Yossi Alpher, a former high Israeli intelligence official and centrist member of the Israeli security establishment, wrote that “Some of the humanitarian suffering in Gaza and Lebanon is a deliberate act on Israel’s part….It is intended to generate mass public pressure on the respective governments to force the Islamic militants to release three IDF soliders snatched from Israeli territory and end rocket attacks.” After the invasion, Alpher again denounced “the folly of collectively punishing 1.5 million Gazans for the sins of Hamas…starving masses of Palestinians is a counter-productive strategy.”
Even more remarkably, ten months before the attack, Moshe Arens — a high Likud official and well-known hardline rightist, a former ambassador to the United States in the Menachem Begin government, the foreign minister in the Yitzhak Shamir government, and a three-time defense minister in Likud governments since the 1980s — wrote the following: “The ‘leverage theory’ — which holds that the destruction of enemy infrastructure and attacks on the enemy’s civilian population will produce pressure on decision makers to cease their attacks against Israeli civilians — did not work in Lebanon, and it certainly does not work in Gaza. Quite the contrary, it only increases the support that the terrorists receive from the civilian population….[Such measures are] counterproductive [and]….impermissible by our moral standards.”
In fact, the blistering comments by Alpher and Arens — even before the far worse recent Israeli attack — understate the issue. Israeli attacks on civilians are not merely “counterproductive,” or even morally “impermissible,” they are war crimes — just as the Goldstone Commission as well as many other international and even Israeli human rights organizations have concluded.
The Commission’s Omissions, Errors, and Understatements
Far from unfairly attacking Israel, in several respects the Goldstone Commission evaded or understated highly important legitimate criticisms of its behavior. First (as I have argued), the Commission did not examine the full historical record of the Israeli occupation and repression of the Palestinians, as well as attacks on neighboring Arab states. Whether out of space or political considerations, the Commission thus understated the evidence of Israeli attacks on civilians.
Second, because terrorism is always illegal and morally wrong, the Commission certainly had to consider and condemn Hamas terrorism; even so, it might have discussed the important — and mitigating — moral differences between the state terrorism of militarily strong occupiers and repressors and that of its stateless and militarily insignificant victims. To be sure, the Commission did allude to those differences, though only in passing and in rather torturous language, when it stated that its report “in no way implies equating the position of Israel as the Occupying Power with that of the occupied Palestinian population or entities representing it. The differences with regard to the power and capacity to inflict harm or protect, including by securing justice when violations occur, are obvious and a comparison is neither possible nor necessary.”
That is not sufficient. In the past, in unguarded moments several Israeli military and political leaders — including David Ben-Gurion, Moshe Dayan, Ehud Barak, and others — have implied or even directly said that if they were Palestinians, they would be doing the same thing. Consider also the comment of retired General Shmuel Zakai, a former commander of the Israeli forces in Gaza, who in a recent interview accused the Israeli government of having failed “to take advantage of the calm [during the six-month truce prior to the Israeli attack] to improve, rather than markedly worsen, the economic plight of the Palestinians….You cannot just land blows, leave the Palestinians in Gaza in the economic distress they’re in, and expect that Hamas will just sit around and do nothing.”
The third and most important error of the Commission was its rather strange acceptance of the argument that Israeli attack had a just cause, that of “self-defense,” even though its methods were unjust. Perhaps this was not so much an error as a policy decision, adopted in the hope that it would somewhat diminish the firestorm that would follow the publication of its report. That would certainly be understandable; nonetheless, the Goldstone report obscures the fact that Israel’s obvious alternative to any use of force was to end its occupation and repression of the Palestinians. In that light, Israel has no “right” to claim self-defense, for the true purpose of its siege and military attacks is to crush resistance to the occupation — or, as Henry Siegman has put it, “to protect [Israel's] right to continue the strangulation of Gaza’s population.” Put differently, the Israeli attack on Gaza was a war crime in and of itself — the crime of aggression — even if its methods of warfare had not also been war crimes.
It is the continued Israeli occupation and repression of the Palestinians that accounts for most, if not all, of the attacks on Israel. The slight qualification here is intended to cover the possibility that extremist Palestinian groups might continue to attack Israel, even after it withdrew and allowed the creation of a genuinely independent and viable Palestinian state. In that event, Palestinian attacks could truly have no other purpose than to destroy the existence of Israel. However, such a worst-case scenario would be highly unlikely: the obvious consequences for the new Palestinian state and its people would be overwhelming, thus giving the government and its military forces every incentive to prevent it.
Should such a scenario nonetheless occur, the Israelis would have the genuine right of self-defense — although even then not the moral or legal right to attack civilians — and it would receive overwhelming international support.
In sum, while the Commission did not say enough about Israeli illegality and immorality, what it did say is beyond serious reproach, despite the many attacks on it, including Moshe Habertal’s New Republic article, essentially a piece of propaganda, particularly egregious when it comes from a political philosopher and specialist in Jewish thought and values.
The credibility of the Goldstone report is a function of a number of factors, including the impeccable standing of its Chairman, of its highly specific and detailed discussions, of the previous record of Israeli behavior as well as contemporary high-level Israeli threats and statements of how it intended to attack Gaza, of the consistency of the report with many other reports and investigations (including those by Israeli journalists and human rights organizations) and, above all, of the inability of critics to refute or even seriously address its factual findings.
I have argued that the Palestinian attacks on Israeli civilians are primarily, even if not exclusively, the consequence of over forty years of continued Israeli occupation, repression, assassinations and other killings; of the destruction of governmental, economic, public health, educational, and other societal institutions and infrastructures; and of the deliberate impoverishment and humiliation of the Palestinian people. Consequently, Israel is not engaged in “self defense” when it uses force to crush resistance to its repression — and that holds true even when the form of resistance — terrorist attacks intended to kill civilians — is itself morally wrong.
Moreover, before its military attack Israel tightened its siege of Gaza, broke a series of ceasefires with Hamas, and refused even to explore Hamas’ offers for a long-term de facto if not formal settlement. Worse, its destruction of Palestinian civilians and institutions was not merely disproportionate or indiscriminate, for the weight of the historical and contemporary evidence strongly suggests (even if it doesn’t prove) that its policies and behavior in Gaza constitute an intentional violation of the most important and widely accepted moral principle that seeks to minimize the destructiveness of warfare: that innocent civilians may never be the intended object of military attack. When they are, we call it terrorism.
In both international law and in terms of just war morality Israel is doubly guilty. That its methods (jus in bello) constitute war crimes is obvious. What appears to be less obvious, but shouldn’t be, is that the underlying purpose of the Israeli attack — to crush resistance to its continued occupation or control of the Palestinian people — also violated the principle of just cause (jus ad bellum) and therefore constituted the crime of aggression.
The moral issues aside, Israeli behavior may turn out to be strategically disastrous to its own interests. While constantly proclaiming that every act of armed resistance to Israeli occupation and repression threatens “the existence” of Israel or “new Holocaust,” it is Israeli policies that truly jeopardize its existence, and could even end in what might truly be called a nuclear Holocaust.
1. Avi Issacharoff, “B’Tselem’s End-Of-Year Report: Number of Palestinians Killed By IDF Dropped Sharply in ’07,” Haaretz, December 31, 2007.
2. December, 2009.
3. “MKs Call for Gaza Invasion in Wake of Escalation,” Haaretz, February 29, 2008.
4. For a full discussion, and source citations, see my article “A Perfect Moral Catastrophe: Just War Philosophy and the Israeli Attack on Gaza,” Tikkun, March 2009.
5. Haaretz, January 9, 2009.
6. Reuven Pedatzur, “The Mistakes of Cast Lead,” Haaretz, January 8, 2009.
7. In his interview with Bill Moyers, Goldstone elaborated: “We’ve found that the only logical reasons [for the Israeli bombing of Gazan infrastructure] is collective punishment against the people of Gaza for voting into power Hamas, and a form of reprisal for the rocket attacks and mortar attacks on southern Israel. I think they were telling the people of Gaza that if you support Hamas, this is what we’re going to do to you.”
8. In 2000, Halbertal participated in the drafting of Israeli armed forces ethical code, “The Spirit of the IDF.” However, Avi Sagi, another Israeli academic author of the code, criticizes the Goldstone report but also harshly criticized the IDF’s refusal to allow an independent investigation as something that “cries out to the heavens….a moral eclipse…has struck both the IDF and the civil government…[and] threatens our ability to be a just and moral society.” (Haaretz, December 14, 2009)
9. Jeremiah Haber makes essentially the same comments about the ratio argument, in Part II of his critique of Halbertal. (The Magnes Zionist, November 9, 2009)
10. Such a detailed review will be part of a long journal article I am currently working on.
11. Avner Yaniv, Dilemmas of Security (New York: Oxford University. Press), p. 94.
12. Quoted from Sharett’s Personal Diary, in Livia Rokach, Israel‘s Sacred Terrorism (Belmont, MA: Association of Arab-American University Graduates, 1980), p. 16.
13. As discussed in a new book by Joe Sacco, Footnotes in Gaza (Henry Holt, 2009), reviewed by Patrick Cockburn the New York Times Book Review, December 27, 2009.
14. Quoted by Yaacov Bar-Siman-Tov, The Israeli-Egyptian War of Attrition (New York: Columbia University Press, 1980), p. 122.
15. David K. Shipler, Arab and Jew: Wounded Spirits in a Promised Land (Penguin Press, 1986), p. 45.
16. The interview, in the 10 May 1978 edition of the Israeli newspaper Al Hamishar, is quoted by David Hirst, The Gun and the Olive Branch (New York: Nation Books, 1977) p. 567-68. As Hirst notes, Gur was a pillar of the “moderate” Labor establishment, suggesting that what Sharon did in Lebanon four years later was different only in degree — if that.
17. Haaretz, 15 May 1978.
18. “A Reporter’s Notebook: Weeks of Siege,” New York Times, Aug. 20, 1982.
19. Amos Harel, “Israel Prepares for Widespread Escalation,” Haaretz, July 12, 2006.
20. Ze’ev Schiff, Israel’s leading military journalist for most of its history, objected to Israel’s strategy of punishing the Lebanese population and “encouraging” them to flee from South Lebanon as “a strategic mistake.” (Haaretz, July 20, 2006.)
21. “A Form of Collective Punishment,” bitterlemons, July 17, 2006.
22. bitterlemons, July 17, 2006.
23. bitterlemons, January 26, 2009.
24. Arens, “Too Much To Expect,” Haaretz, March 5, 2008.
25. Quoted by Henry Siegman, Haaretz, November 11, 2009.
Jerome Slater is professor (emeritus) of political science and University Research Scholar, State University of New York at Buffalo.