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Hebrew University
Responses to HUJ David Shulman's "Goldstone and Gaza: What’s Still True"

 

Editorial note:

David Shulman is a professor of Religions at the Hebrew University who has consistently taken extreme positions regarding the Israeli- Palestinian conflict. This time he got involved in the highly complex international law regarding asymmetrical conflicts where terrorist groups locate their positions in civilian areas. Though Richard Goldstone repudiated his own report, Professor Shulman still insists that Israel targeted civilians and carries a large "moral" blame for the war. Not coincidentally, Aryeh Neier, the former head of Human Rights Watch and the current director of the Open Society Foundation, agrees with Shulman.  HRW was severely criticized for anti-Israel bias; the Open Society Foundation is funded by George Soros, an American Jewish billionaire who is one of the most strident critics of Israel. 

Shulman ignores the leading role that the Al-Quds Brigade, the international operations unit of the Iranian Revolutionary Guards played in the Gaza conflict. Following Operation Cast Lead Brigadier General Qassam Suleimani, the Al-Quds Brigade chief had ordered new training for Ezzadin al Qassam (the military wing of Hamas). The asymmetrical conflict doctrine of Revolutionary Guards calls fighters to make good use of civilian infrastructure and/or solicit civilian volunteers to serve as "human shields". 

Shulman's article "Goldstone and Gaza: What’s Still True" included below as well.

 

http://www.nybooks.com/articles/archives/2011/aug/18/israeli-army-human-rights-exchange/

 

The Israeli Army & Human Rights: An Exchange

AUGUST 18, 2011

Stuart Robinowitz and Aryeh Neier, reply by David Shulman

IN RESPONSE TO: 

Goldstone and Gaza: An Exchange from the July 14, 2011 issue                                           

To the Editors:

David Shulman, while agreeing with Richard Goldstone that Israel did not target Gaza civilians, inconsistently claims that the IDF relaxed its rules of engagement to encourage conduct endangering noncombatants [“Goldstone and Gaza: An Exchange,” NYR, July 14]. That illogical theory—based on hearsay and anecdotes—is refuted by hard statistical evidence. The ratio of civilian-to-combatant casualties in Gaza was about 1:1, far lower than in Iraq, Afghanistan, and Pakistan and, indeed, the lowest ratio in any asymmetric war in recent history.1 The UN finds the typical ratio in such conflicts to be 3:1. The International Red Cross, over a longer time span, estimates 10:1. The historically low ratio in Gaza, ignored by Mr. Shulman, reflects Israel’s unprecedented precautions to minimize collateral damage to civilians.

 

Mr. Shulman also raises “moral” questions about the Gaza conflict but appears to wear blinders. Hamas, acting as Iran’s proxy, started the conflict by unprovoked rocket attacks against thousands of innocent Israeli citizens, attacks that Mr. Shulman himself condemns as war crimes. Hamas then chose to place its troops and rockets in densely populated residential areas, thereby putting Gaza’s citizens in harm’s way. It used the civilian population as a giant human shield. Those facts contradict Mr. Shulman’s notion that the scales of morality tip in favor of Iran and Hamas.

Goldstone was right in retracting war crime charges against Israel. Mr. Shulman should do the same.

Stuart Robinowitz

New York City

David Shulman replies:

It is one thing to say that the Israeli army does not deliberately target civilians as a matter of policy, quite another to exonerate that army from its direct responsibility for the deaths of at least 759 civilians in Gaza during the Cast Lead Operation (according to the reliable figures of B’Tselem). Invidious comparisons to Afghanistan, Iraq, and Pakistan are of no help here. Hamas has its own burden of guilt to bear—who would deny it?—but Israel must also be held responsible for its actions. This is not the first time (nor, I fear, will it be the last) that Israel fought in “asymmetrical” conditions, with an enemy surrounded by innocent civilians. There was, however, a time, not so long ago, when even the Israeli army itself would not have stooped to the kind of arguments Mr. Robinowitz insists on making.

Note the casual tone of Mr. Robinowitz’s footnote: “There were approximately 1,300 casualties in Gaza…. Hamas states that six hundred to seven hundred were combatants (Haaretz, November 9, 2010). The others were civilians.” Those “others” were not faceless cannon fodder. Each of them was a living, innocent human being who found himself or herself in an impossible situation. Some were killed by the widespread use of white phosphorus in Israeli bombardments, a war crime by any account. Others died because of the overwhelming firepower brought to bear on areas still populated by civilians. Some, no one knows how many, were killed because the rules of engagement were changed to allow for a zero-risk policy: soldiers were told to shoot at anything that moved in the occupied areas of northern Gaza.

Incidentally, the evidence to this effect is by no means “based on hearsay and anecdotes,” as Mr. Robinowitz says. The veterans’ organization Breaking the Silence has collected ample, irrefutable testimonies by many direct participants; they are available to anyone who takes the trouble to read or listen to them online.2 The Israeli government’s change in the rules of engagement was also reported by responsible Israeli military correspondents writing in the Israeli press after the campaign. This change is not a trivial matter but a decision heavy with moral implication.

The same can be said of acts such as the slaughter of the eighty-eight (or more) policemen and police cadets at their passing-out ceremony in the opening minutes of the campaign. There is clear evidence that many innocents were killed in that attack, including families of the policemen and an indeterminate number of noncombatants among the cadets, including members of the Police Musical Band.

The principle is clear enough: soldiers are prohibited from killing innocents, and armies are forbidden to carry out policies that will certainly entail widespread civilian casualties. It is obvious that there are conditions of modern warfare in which moral quandaries come into play, and in which considerations of loss and gain will arise. Such considerations cannot rationalize or explain away evident crimes of war.

It is true that the Israeli army made an effort to clear the combat zone of civilians by distributing leaflets and making phone calls. It is also undeniable that many civilians remained in that zone throughout the campaign, as civilians—including the aged, the sick, and the bewildered—often do. Along with those who were killed, hundreds (at least) were wounded. As an Israeli, I am not comforted in the least by the relatively low civilian-to-combatant casualty ratio that Mr. Robinowitz, in the manner of other apologists, finds so impressive. Indeed, I find such self-righteous arguments horrific. I grieve for each of those civilian deaths, and I protest the active decisions taken by officers, officials, and individual soldiers in the critical moment of choice that made many of these deaths inevitable. I also lament the more general, sadly widespread moral obtuseness—especially in matters relating to Palestinians—that has overtaken Israeli society and its central institutions at this time.

To the Editors:

David Shulman responds well to Stuart Robinowitz’s defense of Israel’s conduct in the conflict in Gaza [“Goldstone and Gaza: An Exchange,” NYR, July 14]. Even so, it seems appropriate to add a few words with respect to Mr. Robinowitz’s misstatement of the laws of war. Noting that Judge Richard Goldstone has repudiated the conclusory finding in the Goldstone Report that civilians were intentionally targeted by Israel as a matter of policy, Robinowitz states, “Since war crimes require intent to injure civilians, it follows that all the charges against Israel collapse.” Not so.

 First, as should be obvious, even if there was not an Israeli policy of intentionally killing civilians, if there was such a practice by some Israeli troops, those killings were war crimes. When American soldiers killed civilians intentionally at My Lai in Vietnam, they committed war crimes even though the United States did not have a policy of intentionally killing civilians.Leading independent military experts (Anthony Cordesman of the Center for Strategic and International Studies and Colonel Richard Kemp, the former UKcommander in Afghanistan) attest to such safeguards. Colonel Kemp testified before the UN Human Rights Commission that Israel “took more precautions to safeguard civilians than any other army in the history of warfare.” Those military experts and the historically low civilian-to-combatant ratio undermine Mr. Shulman’s claim about lax rules of engagement.

Second, Protocol I additional to the Geneva Conventions of 1949, whose main provisions have acquired the status of customary international law that is binding in all circumstances, provides not only that an intentional attack on civilians is a war crime. It also states, in a separate paragraph, that “launching an indiscriminate attack…in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” is a war crime. The main body of the Goldstone Report (which Judge Goldstone has not repudiated) and the reports of Human Rights Watch and the Israeli organization B’Tselem make clear that if the heavy loss of civilian lives and the extensive damage to the civilian infrastructure in Gaza were not intentional, they were due to indiscriminate attacks. Similarly, these reports show that Hamas committed war crimes because its rockets were launched indiscriminately.

Third, the Protocol states that if either intentional or indiscriminate attacks were committed by troops, their superiors are culpable if they knew about such crimes and “if they did not take all feasible measures within their power to prevent or repress” them. Returning to the example of My Lai, that means that American leaders were culpable if they did not take adequate measures to try to prevent the massacre or to punish those who committed it. The same is true of Israeli leaders in the case of Gaza. They are culpable for the intentional or indiscriminate attacks on civilians if they did not do what they could to prevent such attacks or to punish those responsible.

In repudiating his earlier finding of an intentional policy of killing civilians, Judge Goldstone relied principally on the fact that Israel had opened a large number of investigations into the killing of civilians in Gaza. This is an approach that hews close to the spirit of the laws of war. Unfortunately, he failed to look further to discover that hardly anything has come of those investigations.

If the laws of war were as toothless as Mr. Robinowitz portrays them, they would be of little value in protecting civilians. Fortunately, that is not the case.

Aryeh Neier
New York City

1.        There were approximately 1,300 casualties in Gaza, according to The New York Times , December 16, 2010. Hamas states that six hundred to seven hundred were combatants ( Haaretz , November 9, 2010). The others were civilians. 

2.       See www.breakingthesilence.org.il; see also my article "Israel & Palestine: Breaking the Silence," The New York Review, February 24, 2011. 

 

http://www.nybooks.com/articles/archives/2011/may/26/goldstone-and-gaza-whats-still-true/?pagination=false

Goldstone and Gaza: What’s Still True

MAY 26, 2011

David Shulman

On April 1, Richard Goldstone made a much-discussed retraction of part of his commission’s report criticizing Israel’s behavior during the 2009 Gaza war.1Goldstone’s statement has produced in Israel a predictable burst of self-congratulation. From the Prime Minister on down, the message from the Israeli government is a defiant “We told you so!” spoken from the always privileged vantage point of an innocent victim wrongly accused. Along with this, we have an updated Israeli version of the Prodigal Son; Goldstone, a South African former judge and liberal Zionist of the old school, has supposedly come (rather shamefacedly) back home.

The government spokesmen clearly, perhaps deliberately, miss the point. Goldstone’s emendation to his report in The Washington Post by no means exonerates Israel’s conduct in Operation Cast Lead, as the Israelis called the intervention in Gaza. Rather, Goldstone’s revised statement rectifies the egregious failure of the Goldstone report to clearly condemn Hamas for its crimes leading up to and during the conflict, and expresses some satisfaction with the Israeli army’s own investigations into at least some of the alleged cases of war crimes.

Perhaps most important, Goldstone unequivocally states that “civilians were not intentionally targeted as a matter of policy.” I am sure that this last statement is correct; anyone who knows the Israeli army knows that, for all its faults and failings, it does not have a policy of deliberately targeting innocent civilians. Suggestions to the contrary are simply wrong.

  But serious questions remain about Israel’s Gaza war; Goldstone’s recent statement does nothing to dispel them, nor, I would guess, did he intend to do so. (The other three members of the original Goldstone Commission have meanwhile reaffirmed its original findings.) I want to touch on three such issues: the intensity of fire and the official and unofficial “rules of engagement”; the overall planning and strategy of Operation Cast Lead; and the wider setting within which the operation took place. Sober consideration of these themes reveals, in my view, systemic moral failure on several interlocking levels.

Let’s be clear: before the war, Hamas and its allies bombarded Israel with many hundreds of rockets aimed deliberately at killing civilians. There is no possible excuse for these crimes, which have recurred in recent weeks. For most Israelis, this fact alone was enough to justify whatever the army did in Gaza. The logic, in its mild version, goes like this: “We withdrew from Gaza and got missiles in return, so we had no choice but to blast them as hard as we could.” This is a self-serving distortion—based on the preposterous notion that Israel has today and has had in the past no real influence on what happens in Gaza or in Palestinian society generally, together with the cherished but mistaken belief that Israel had “no choice.” I will return to this theme.

First, a note on the army’s investigations into charges of war crimes. The McGowan Davis report—by two independent experts appointed by the UNHigh Commissioner for Human Rights—which followed the Goldstone report and which Goldstone quotes with approval in The Washington Post, hardly suggests that Israel has done all it could. The report notes that some four hundred allegations of operational misconduct have been investigated, but that only nineteen investigations into the serious violations of international humanitarian law and international human rights law reported by the FFM[Fact-Finding Mission] have been completed by the Israeli authorities with findings that no violations were committed. Two inquiries were discontinued for different reasons. Three investigations led to disciplinary action. Six investigations reportedly remain open, including one in which criminal charges have been brought against an Israeli soldier. The status of possible investigations into six additional incidents remains unclear.

Mary McGowan Davis, like Goldstone before her, was boycotted by the Israeli authorities; her information was thus derived from eclectic sources. But these figures can be rendered more precise. According to B’Tselem, the Israeli human rights organization (known for its unimpeachable accuracy), there have indeed been some four hundred “operational debriefings” (tachkirim mivtzaiyim), i.e., inquiries into misconduct at various levels, many of them apparently limited to an internal probe within the relevant army unit itself. There have been five somewhat wider debriefings and fifty-two investigations by the Military Police (no results have been announced).

Altogether, only three cases have so far gone to trial: one soldier was convicted of stealing a Palestinian credit card, two were convicted of using a Palestinian as a human shield, and one was convicted of manslaughter although the victim remains unknown (no body was found). Three officers were punished by having disciplinary notes entered into their files.

These results seem paltry in view of the immense loss of civilian life as a result of the campaign and the mode of operation that caused this damage. B’Tselem has documented that at least 759 innocent civilians were killed in Gaza during Operation Cast Lead, 318 of them minors. Many of the most serious cases—such as the attacks on the al-Samouni home and family on January 4–5, 2009, in which at least twenty-three civilians were killed and nineteen were injured—remain open, and I, for one, do not share Goldstone’s sanguine belief that the army will resolve them. One should also bear in mind that the army would almost certainly never have investigated at all were it not for the pressure of the Goldstone report. As Groucho Marx said, military justice is to justice what military music is to music.

In any case, the deeper and more substantial issues cannot be so easily quantified or contained. So let us turn to the Israeli rules of engagement. There is abundant testimony that Israel unleashed firepower of an unprecedented intensity in Gaza, despite its dense civilian population. Though efforts were made to warn civilians to leave the combat zone and many, perhaps most, civilians left their homes in advance of the army’s entry into northern Gaza, the combat zone was by no means emptied of ordinary people. A great many were killed—primarily because, as a high-ranking Israeli officer told The Independent, “We rewrote the rules of war for Gaza.”

In earlier campaigns, such as the 2002 combat in Jenin and Nablus, the IDF’s standing order had been to shoot to kill if a suspect was armed and gave some indication that he was going to use his weapon; in Gaza the explicit policy was “zero risk.” Soldiers report shooting at anything that moved in the combat zone. Similarly, at much higher levels of command, enormous firepower could be brought to bear on targets, such as apartment blocks, that were identified (sometimes misidentified) as possible “risks.” Meanwhile, efforts to limit so-called “collateral damage”—that ugly euphemism for civilians killed because of their sheer physical proximity to a military target—seem to have become less and less rigorous during the second intifada, reaching a new low in Gaza. Thus, the standard IDF claim that it does everything possible to avoid civilian casualties is belied by the reality on the ground.

Various Israeli voices—including professors Noam Zohar and Avi Sagi, both of Bar-Ilan University—have questioned the ethics of the new “zero risk” doctrine. “That is an outrageous, unacceptable norm,” says Zohar. “There is reason for concern that problematic actions were carried out on the ground [in Gaza], based on the spirit that was projected to the forces in the briefings.” Soldiers interviewed by the Israeli veterans group Breaking the Silence have eloquently described such briefings. They report being told literally to shoot first and put troubling doubts aside for later.2

Such orders would once have been considered contrary to the army’s code of ethics. I remember well the day before I was to take my oath of allegiance, in my very first week in the Israeli army, some thirty years ago; an officer was sent up from Tel Aviv to explain the implications of this oath, which was to follow orders, even at the cost of your life. Someone asked him what we were to do if we were given an order that we felt to be morally wrong or illegal, and to his great credit he replied: “That is a matter between you and your conscience; in such cases you will have to decide for yourself.” It is that kind of sensibility that was lost, or overruled, in Gaza in 2009.

Still more troubling questions arise about the overall planning and strategy of the Gaza war. Operation Cast Lead began with an attack on newly trained Gaza policemen at their induction ceremony; some eighty-nine were killed, along with members of their families who had come to attend the celebration. The majority were not known Hamas fighters but simply police cadets, some of them apparently trained as traffic cops or for other minor, clearly noncombatant jobs (including five who were musicians in the police orchestra). This was a deliberately chosen target that produced horrific carnage by any account. Here is what the Goldstone report has to say about this event:

The circumstances of the attacks and the Government of Israel’s July 2009 report on the military operations clarify, that the policemen were deliberately targeted and killed on the ground that the police as an institution, or a large part of the policemen individually, are in the Government of Israel’s view part of the Palestinian military forces in Gaza….

The Mission finds that, while a great number of the Gaza policemen were recruited among Hamas supporters or members of Palestinian armed groups, the Gaza police were a civilian law-enforcement agency. The Mission also concludes that the policemen killed on 27 December 2008 cannot be said to have been taking a direct part in hostilities and thus did not lose their civilian immunity from direct attack as civilians on this ground.

The Mission accepts that there may be individual members of the Gaza police that were at the same time members of Palestinian armed groups and thus combatants. It concludes, however, that the attacks against the police facilities on the first day of the armed operations failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity), and therefore violated international humanitarian law.

Goldstone has not retracted any of this, nor, in my view, could he do so in good conscience. (The Goldstone report suggested that Israel deliberately destroyed civilian structures in Gaza on a wide scale; Goldstone’s recent statement does not revisit this theme.) Someone made the decision to drop those bombs—and the decision was in no way atypical of the conduct of the Gaza operation in general. Personally, as an Israeli who pays his taxes and accepts all civic obligations, who went to war in 1982 (reluctantly—it was a useless, unnecessary war), whose three sons served in the army, I am profoundly ashamed of what that same army did in my name in Gaza, to say nothing of what this army continues to do, day by day, on the West Bank.

And it is there, on the West Bank, that the deeper meaning of what happened in Gaza becomes apparent. There is a sense in which Gaza is a sideshow within the wider Israeli Palestinian policy; and there is another sense in which what happened in Gaza in 2009 expresses all too well the attitude toward Palestinians that has crystallized in the current Israeli leadership and, I fear, in much of the general public. Gazan rockets posed, indeed still pose, a real danger to the Israeli population in the south of the country, but smashing Gaza repeatedly will never solve the problem.

It’s much too soon to assess the implications of the recent accord between Fatah and Hamas, which is supposed to produce an interim unity government and free elections within a year. Israel may already (once again) have missed its chance to cut a pragmatic deal with the Palestinian moderates—though a unified Palestinian electorate may eventually hold out new possibilities for a comprehensive settlement.

As it is, we see on the ground in the occupied territories the devastating combination of a mad race by both Israeli settlers and government for more and more real estate, and an oppressive, indeed criminal system, enforced by the army and the police, to safeguard this colonial enterprise. To my mind, one of the major merits of the Goldstone report is the unflinching gaze it directs at the occupation and the link it meticulously establishes between it and the Gaza war. Here lie the roots of the systemic failure I have referred to, including the willingness to sacrifice innocents on an ever wider scale.

Based on recent reports, it now looks as though Israel may well repeat its earlier mistake in Gaza and eventually make some sort of niggardly, unilateral withdrawal from, say, Area B in the West Bank—anything except cutting a meaningful deal with the Palestinians, anything except making peace. There is nothing more precious than an enemy, especially one whom you have largely created by your own acts and who plays some necessary role in the inner drama of your soul.

It regularly amazes me that human beings are so eager to divest themselves of their own freedom to act, and no less eager to deny that they had this freedom in the past. Ein brerah, “No choice,” is one of the most common idioms in everyday Hebrew, a default expression of Israeli consciousness. In truth, however, Israel has had, for rather a long time now, an eminently practical choice vis-à-vis the Palestinians (and, indeed, the Arab world generally). The brutal Gaza campaign of 2008–2009 is, in its own way, the natural consequence of choosing the occupation over peace. If events do move in the direction just described—in effect turning over what will be left of the West Bank to Hamas—then we will be seeing many more operations in the Cast Lead mold, or worse, and not only in Gaza.

 April 28, 2011

1.         "Reconsidering the Goldstone Report on Israel and War Crimes," The Washington Post , April 1, 2011 

2.        See the interview with a particularly articulate, understated soldier: www.youtube.com/user/shovrim#p/u/40/EDZmRgx4cpQ 

 

 

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