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Blaming Israel First

Business as usual at the U.N.

Jan 18, 2010, Vol. 15, No. 17 • By PETER BERKOWITZ
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Consequently, the Israeli government’s decision not to cooperate with Goldstone, while still controversial in Israel, was understandable. The mission’s mammoth report, written in unseemly haste, confirmed Israel’s doubts.

A careful reading thoroughly discredits the Goldstone Report. So demonstrated Hebrew University philosophy professor and New York University law professor Moshe Halbertal, a distinguished man of the Israeli left who helped draft the IDF’s ethics code, in a devastating New Republic critique. Here, three examples of the report’s biased and unscrupulous analysis must suffice.

- First, it presents as settled that, despite completely withdrawing from Gaza in 2005, Israel remains under international law an occupying power with attendant obligations because it controls Gaza’s borders. In reality, the legal question is very much in dispute. Israel’s famously progressive and activist Supreme Court has ruled that the country no longer occupies Gaza. And as Col. (Ret.) Daniel Reisner, former head of the IDF’s International Law Department, pointed out to me, even the International Committee of the Red Cross considers the question to be difficult and unresolved.

- Second, the report blames Israel for causing humanitarian suffering by imposing a blockade on Gaza. In the process it dismisses the heroic efforts the IDF made in the midst of last winter’s military operation that increased food, medicine, and fuel entering Gaza. Nor does it examine Hamas’s theft of these humanitarian supplies or exploitation of Israel’s daily humanitarian pauses to launch rockets at civilians in Israel and attack the IDF in Gaza. And the report fails to note that Egypt controls Gaza’s western border, imposing restrictions more severe than Israel’s—this although the mission itself entered Gaza through the Egyptian-administered Rafah crossing.

- Third, the report accuses Israel of violating the laws of war by killing more than 200 civilian Palestinian police officers. In so accusing, the report relied heavily on Palestinian testimony and ignored or dismissed openly available information showing that Hamas also assigned the police a military role and ordered them, in the event of a ground operation, to fight the IDF.

More generally, the Goldstone Report suffers from fatal methodological flaws. While subjecting Israeli accounts of wartime operations to hyper-exacting scrutiny and relentless skepticism, it routinely accepts Palestinian testimony of alleged Israel crimes at face value, rarely if ever wondering whether Gazans regarded representations to the mission as acts of resistance. This is of a piece with the report’s systematic failure to give due attention, as the laws of armed conflict direct, to military necessity, which in this case means the precautions feasible for reasonable IDF commanders to make in the harsh conditions of urban warfare against an enemy relentlessly striving to blur the distinction between civilians and combatants.

Finally, while the Goldstone Report goes to extravagant and irrelevant lengths to put Israel’s Gaza operation in context by discussing the larger sweep of the Israeli-Palestinian conflict, it barely mentions Hamas and glosses over the terrorism to which it is devoted. To understand Israel’s operation, however, it is crucial to grasp Hamas’s frequently reiterated determination to wage jihad to destroy Israel. It is also vital to appreciate that Hamas blatantly violates the laws of armed conflict by deliberately transforming Gaza City and other densely populated areas into military bases. From these locations, using its own people as human shields, Hamas launches its rockets and mortars at Israel’s civilian population—ensuring that Israeli operations aimed at ending those attacks will make Israel a killer of Palestinian civilians.

No doubt, like all armies, the IDF made errors in Operation Cast Lead. And in the infernal smoke and fire of asymmetric urban warfare its soldiers and officers may have committed crimes. In the short term, Israel’s Military Advocate General’s Corps continues to investigate allegations and to pursue substantial ones. A military task force established to examine the Goldstone Report’s allegations headed by Brigadier General Yuval Halamish expects to publish its findings at the end of January. 

The long-term stakes, according to General Halamish, are high: “The fundamental problem applies not just to Israel but to all democratic nations—if they accept the Goldstone Report’s approach and conclusions, they will not be able to fight terror.”

Peter Berkowitz is the Tad and Dianne Taube senior fellow at the Hoover Institution, Stanford University.

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