Reconsidering Goldstone’s reconsideration

by Yaniv Reich on April 2, 2011

Israel is “vindicated”, claims FM Lieberman about Richard Goldstone’s latest op-ed in the Washington Post, adding that “we knew the truth and we had no doubt it would eventually come out.”  Netanyahu has gone so far as to demand the Goldstone report be retracted from the UN.  Among all the celebrations and self-congratulatory pats on the back, it is worth pausing for a moment to ask: what exactly does Goldstone’s latest essay vindicate?

The answer seems much less clear than Israel’s unconditional supporters want to argue.  The most charitable portions of his piece (to Israel) suggest that “if I [Goldstone] had known then what I know now, the Goldstone Report would have been a different document.”  This statement is so patently obvious as to be meaningless, particularly given Israel’s steadfast non-cooperation at the time of the investigation, but let’s assume Goldstone means this in a substantive way.  He did publish this piece under a headline of “reconsidering the Goldstone report” after all (in fairness, he likely didn’t write the title himself, but his piece certainly opens this door).

What else is there in this op-ed that suggests a change from the original Goldstone report?  The op-ed focuses on a very select group of three themes.  The first point relates to the ongoing investigations into allegations of war crimes.  Goldstone refers to the UN committee of independent experts’ report to support this argument, and he quotes that report to the effect that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”  The second key claim in Goldstone’s op-ed is confusing, but suggests that the ongoing investigations have proven that Israel did not attack civilians as a matter of intentional policy.  How these conclusions have been reached before the investigations, which the Goldstone report called for as its primary recommendation, have been concluded is unclear.  The third theme is that Hamas has not done any of the good things Israel has done: Hamas did deliberately target civilians, Hamas didn’t investigate anything, Hamas continues to be guilty of war crimes by firing rockets into civilian areas, and Goldstone admits he was maybe “unrealistic” and “mistaken” to believe Hamas would investigate itself.

I want to first highlight several general observations about what this op-ed does and doesn’t say.  Then I will address these three themes in detail.

What the Goldstone Op-Ed Doesn’t Say

Limited to one of seven categories of possible war crimes

The Goldstone commission’s findings on deliberate attacks on civilians is one of at least seven broad findings (which comprise hundreds of specific incidents) that raise issues about Israel’s conduct.  These other key findings include: (1) Israel’s illegal siege on Gaza, which constitutes a form of collective punishment and so violates the Fourth Geneva Conventions; (2) The political institutions and buildings of Gaza cannot be lawfully considered part of the “Hamas terrorist infrastructure” and so Israel’s attacks on them are unlawful; (3) Israel taking insufficient measures to protect the Palestinian civilian population; (4) “indiscriminate” attacks (as distinct from “deliberate” attacks) killed many civilians without any credible military rationale for those actions; (5) Israeli use of weapons, such as white phosphorous and flechette missiles, which, although not banned under current international law, were used in ways that do violate the laws of war; and (6) Israel’s deliberate destruction of civilian infrastructure, including industrial plants, food production facilities, sewage treatment plants, and water installations; this destruction has no military justification (for example, Israel’s “wanton destruction” of Mr. Sameh Sawafeary’s chicken coops, killing all 31,000 chickens inside despite there being no military activity in the area) and could constitute a crime against humanity.

Goldstone’s op-ed pointedly excludes discussion of all of these very serious charges of possible war crimes and possible crimes against humanity, so it’s odd that FM Lieberman and his hasbara “excreta” (his word, not mine) think Israel is somehow absolved of all responsibility.  One cannot avoid the impression that Israel’s unconditional supporters still haven’t actually read the report.

Overlooks key impacts of the report

One of the strangest omissions in the op-ed was the recognition that, assuming Israel is conducting investigations in good faith (again, more on that terrible assumption below), it was the Goldstone report that caused Israel to conduct these investigations.  The best evidence this is the case was Israel’s absolute refusal to investigate anything except the credit card theft case, until, that is, it got worried that Israeli leaders might end up in the International Criminal Court.  More evidence to support this argument can be found in Israel’s response to a conflict without a Goldstone kick in the rear: the 2006 Lebanon war.  In that case, Israel constituted the whitewashing Winograd Commission, which didn’t even pretend to investigate “the government policies and military strategies that failed to discriminate between the Lebanese civilian population and Hizbullah combatants and between civilian property and infrastructure and military targets”, as Amnesty International and other human rights organizations observed.  Thus, without the Goldstone report, there is absolutely no reason to believe Israel would be conducting the investigations for which Goldstone is largely praising Israel now.

Another important impact, which was a direct result of the report’s recommendations, was the policy changes, such as “new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas.”  I have argued elsewhere that these policy changes acknowledge implicitly that Israel had not been minimizing civilian casualties, as it so vociferously claims, or else there wouldn’t be any possible policy changes that could further minimize civilian harm.  Either civilian casualties were being minimized before, in which case the policy changes are meaningless, or are minimized now (hypothetically, of course), in which case Israel wasn’t doing its utmost to protect civilians from harm before.  It certainly can’t be both.  Either way, these policy changes are directly related to the report, a point Goldstone’s op-ed also makes.

Validity of Specific Claims Made in Goldstone’s Op-Ed

The credibility of Israel’s investigations

Goldstone’s op-ed gives the strong impression that, despite the length of Israel’s military investigations being “frustrating”, Israel has “appropriate processes” in place.  It is difficult to understand where this belief comes from, because it certainly does not appear in this form in McGowan Davis report he cites (McGowan Davis chairs the UN committee of independent experts monitoring implementation of the Goldstone report recommendations).  That report paints a far less appealing picture of Israeli’s military investigations, noting, for example, that:

  1. “That Israel’s military justice system provides for mechanisms to ensure its independence”, but “the Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s [Military Advocate General's] independence, his dual responsibilities as legal advisor to the Chief of Staff and other military authorities, and his role as supervisor of criminal investigations within the military, raise concerns in the present context given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations.”
  2. “The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni.. . . As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial.”  This case is of course cited directly by Goldstone, yet his arguments are incompatible with the actual McGowan Davis report.
  3. “The Committee has discovered no information relating to four incidents referred to in the FFM [Goldstone] report: incident AD/02, incident AD/06, the attack on the Al-Quds hospital, and the attack on the Al-Wafa hospital.  Nor has the Committee uncovered updated information concerning the status of the criminal investigations into the death of Mohammed Hajji and the shooting of Shahd Hajji and Ola Masood Arafat, and the shooting of Ibrahim Juha. Accordingly, the Committee remains unable to determine whether any investigation has been carried out in relation to those incidents.”
  4. “It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” “
  5. “The Committee expressed strong reservations as to whether Israel’s investigations into allegations of misconduct were sufficiently prompt. In particular, the Committee expressed concern about the fact that unnecessary delays in carrying out such investigations may have resulted in evidence being lost or compromised, or have led to the type of conflicting testimony that characterizes the investigations into the killings of Majda and Raayya Hajaj, and the inconclusive findings reported with respect to the tragic deaths of Souad and Amal Abd Rabbo and the grave wounding of Samar Abd Rabbo and their grandmother Souad.”
  6. “The promptness of an investigation is closely linked to the notion of effectiveness. An effective investigation is one in which all the relevant evidence is identified and collected, is analyzed, and leads to conclusions establishing the cause of the alleged violation and identifying those responsible. In that respect, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report – over two years since the end of the Gaza operation – may seriously impair their effectiveness and, therefore, the prospects of achieving accountability and justice.”

These conclusions of the McGowan Davis report give a very different impression of mechanisms for accountability in Israel’s military justice system than one would understand from a casual reading of Goldstone’s latest op-ed.  For additional, excellent analysis of these points, Adam Horowitz’s piece at Mondoweiss is a must-read.

Was it a deliberate policy of targeting Palestinian civilians?

If this op-ed “vindicates” anything, it seems to be about Israel deliberately targeting civilians as a matter of policy.  The Goldstone report investigated 11 specific cases, which were concerning because civilians were killed “under circumstances in which the Israeli forces were in control of the area and had previously entered into contact with or at least observed the persons they subsequently attacked, so that they must have been aware of their civilian status.”  After reviewing the details of these cases, which included not only the attack on the Samouni family (discussed in the op-ed) but also attacks on a mosque at prayer time and the shootings of civilians waving white flags, the report concludes:

“From the facts ascertained in the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of willful killings and willfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.” (Goldstone report, pp. 16)

This finding, of course, is precisely why the report recommends that Israel launch credible investigations into possible wrongdoing, which Goldstone claims Israel is now doing (more on this later).  In that sense, Israel’s investigations confirm many of the key findings of the Goldstone report, a point I’ve raised previously.

The conclusion above, which is easily the strongest charge in the entire Goldstone report, has very little to do with Goldstone’s latest statement that “civilians were not intentionally targeted as a matter of policy.”  The Goldstone commission and other human rights investigations have never said the IDF maintains a policy of deliberately targeting civilians.  This is a red-herring; nobody seriously believes there is a high-level policy to murder civilians.  With that said, there are nearly always instances in war in which certain operational orders, often with much stress, often combined with racism or other forms of dehumanization, result in civilians being deliberately murdered; there is evidence of several such instances in the Goldstone report. There is also a larger, systemic issue. Insufficient concern for civilian life combines with operational orders to result in the systematic murder of civilians. To argue these attacks are not deliberate does not mean they are not easily foreseen, or that those ordering the attacks are not directly responsible for the murder of civilians. The actual issue at hand is not whether there was a high-level policy to kill civilians as civilians, but rather that “these incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population” (Goldstone report, pp. 16).  This low threshold was an intentional policy, as has been confirmed by dozens of soldiers’ and officers’ statements.  For example, many people have commented before about how the IDF “rewrote the rules of war for Gaza”, in particular by getting rid of “the longstanding principle of military conduct known as ‘means and intentions’—whereby a targeted suspect must have a weapon and show signs of intending to use it before being fired upon—as being applicable before calling in fire from drones and helicopters in Gaza last winter.”  The intentional, deliberate policy was one of “literally zero risk to the soldiers”, an order that is inescapably related to the high civilian casualties among the Palestinians.  For these reasons the main argument in Goldstone’s latest op-ed, which FM Lieberman erroneously believes “vindicates” Israel, is entirely besides the point.

Condemning Hamas

Hamas certainly, and unlawfully, does deliberately target civilians.  This is not only grotesque but illegal, and Hamas military leaders should be referred to the International Criminal Court for this since Hamas’ political leadership has refused to investigate the matter themselves and hold those responsible for war crimes to account.  But, of course, this was already well known by anybody who read the Goldstone report, which wrote:

“The Mission has further determined that these [8000 rocket] attacks [since 2001] constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population.  These acts would constitute war crimes and may amount to crimes against humanity.”

One could have also reached the same level of awareness by reading any of Amnesty International, Human Rights Watch or other human rights organizations‘ press releases and  reports.  In this sense, there is absolutely nothing new about Hamas in Goldstone’s latest op-ed, yet some Israelis and Jewish groups seem surprised (see, e.g., AIPAC’s one of many tweets on the matter).

A Sad, Integrity-Damaging Turn

The first time I saw Judge Goldstone speak in person he was striking in his equanimity and unshakeable commitment to international law.  Even in the face of hate-filled attacks by Jews in the audience, who compared his report to the Protocols of the Elders of Zion, he handled himself with a level of firm principle that I imagined to be unmovable.  The second time I saw him speak in public a year later, he seemed tired and worn down by the relentless attacks against him by those who chose to attack the messenger instead of deal with the message.  It was nothing concrete that he said, but there was a withered tone in his voice and a sort of quiet resignation that his best intentions had been so vehemently manipulated—and misunderstood.

Goldstone’s latest op-ed is something else altogether.  It does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way.  In fact, his findings under severe constraints have held up remarkably well with time.  But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong.  Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel.  This is nothing more than a bone to Israel’s apologists, which is deeply problematic for all the reasons discussed here.  I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.

And he should have known better, that is, he should have known that this craven gesture to Israel would not cause his enemies to forgive him and welcome him back to the broader Jewish community.  Already these enemies, sensing weakness, attack for the final kill attempt.  Jeffrey Goldberg, with the tone of the intellectual gatekeeper he fashions for himself, makes it clear this doesn’t change the “blood libel.”  The editor-in-chief of the Jerusalem Post, David Horovitz, tells Goldstone “an apology is not good enough“.  We can expect many, many more such attacks.

Goldstone has done neither his causes of international law and accountability for war crimes—nor himself—any favors with this latest, depressing op-ed.

 

 

 

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{ 17 comments… read them below or add one }

1 Clif Brown April 2, 2011 at 6:40 pm

Does being ostracized without end eventually wear anyone down to an attempt to blunt the cause of it? I can’t imagine the heat the man has taken, and from many personally close to him, I’d bet.

2 Rafe April 2, 2011 at 11:01 pm

But let’s be serious, this is a very strong detriment to people who argue “Israel is bad, just look at the Goldstone report,” despite your compelling arguments.

The guy who wrote it at least implied he wasn’t so sure anymore.

3 Liane April 3, 2011 at 6:28 am

Rafe, you sound like a 5-year-old: “people thought the country was bad because the man told them so; now people have to say that it’s not so bad because the man tells them so.” Debates should be conducted based on evidence, not on the words of speakers that don’t contain evidence.

That’s why this Op-ed is so confusing: 1. it does not retract one fact that is in the original Goldstone report; and, 2. the bit about credible Israeli investigations that it tries to add to the discussion contradicts the McGowan-Davis report on which it’s based.

The frustrating part is that even if judge Mary McGowan-Davis wanted to write an Op-Ed explaining how his Op-Ed contradicted her report, it’s likely that no American newspaper would publish it. The Lieberman-Goldberg version of the Op-Ed will stand, in the good ol’ United States accuracy and evidence can go hang.

4 Assaf April 3, 2011 at 11:44 am

Come on, this post is so biased, and so based on emotion, that it ignores so many new facts that have surfaced since the original Goldstone report, and ignores so many statements of reason in Goldstone’s reconsideration of the report. Yaniv Reich is basically disappointed with Goldstone’s latest reconsideration of his own report, as he really liked the abuse of Israel, and for no other reason. The post fails to build logical reasoning, just mashing quotes together with emotional associative text between them, and should have just been tossed aside to avoid embarrassment.

5 Yaniv Reich April 3, 2011 at 11:51 am

Assaf, do you care to provide any evidence at all for your arguments?

6 Matt April 4, 2011 at 1:39 am

“The Goldstone commission and other human rights investigations have never said the IDF maintains a policy of deliberately targeting civilians. This is a red-herring; nobody seriously believes there is a high-level policy to murder civilians.”

That’s you, here.

And here’s you elsewhere, “Last October, the Israeli human rights organization B’Tselem published a report indicating that Israel murdered, on average, one Palestinian every other day between 2006 and 2009, excluding the attack on Gaza…Nevertheless, Israel seems dissatisfied with that killing rate, because the inglorious Israeli occupation forces have increased it in early 2011.” And “Elsewhere, I have argued that Israel’s policy of siege against the people of Gaza brings up all-too-familiar, yet still wretchedly uncomfortable, connotations for anyone familiar with Nazi practices toward those they imprisoned in ghettos and concentration camps.” I’m sure I could find more examples.

It seems you doubt that anyone seriously believes something you seem very seriously to believe. Or are you going to argue that “Nazi practices” weren’t fundamentally characterized by genocide?

“The first time I saw Judge Goldstone speak in person he was striking in his equanimity and unshakeable commitment to international law”

And it appears you don’t actually mean “unshakeable,” since you then proclaim his commitment to have been shaken. But, I wonder, perhaps, if you might see clear to imagine that it wasn’t his commitment to international law that was shaken. Instead, perhaps his understanding of the facts changed. Or, like many a good lawyer, perhaps he’s focused on procedure and offering his sincere views within that frame.

On that note, here’s Goldstone, “I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.” But then, perhaps you doubt you seriously believe that anyone could seriously doubt that belief.

7 Morris Schreibman April 4, 2011 at 3:08 am

Goldstone makes the following statements explicitly in the Washington Post column:

(1) He is satisfied that the IDF did not intentionally target civilians.

(2) He acknowledges that while Israel had investigated many of the allegations published in the report, Hamas has done nothing.

(3) He acknowledges the extreme bias against Israel by members of the UN Human Rights Council.

(4) He acknowledges Israel’s right to defend itself against terrorist groups and further that Hamas deliberately targets civilians.

These are significant points of reassessment from the original report. Anybody who enthusiastically embraced the original report needs to very seriously consider these points of reassessment.

8 Yaniv Reich April 4, 2011 at 10:13 am

Morris,

I appreciate you making an effort to list concrete points of disagreement, which can be discussed.

On your point 1: As I wrote above, the idea that there was a high level order to target civilians was never the issue. This has always been a red herring. The policy issue here is the IDF orders to deliberately target civilian *areas* with insufficient regard for civilian life, and with unclear military rationale. So in this sense Goldstone has conceded exactly nothing on this point.

Your point 2: agreed. This is the main point of the op-ed, in my view.

Your point 3: Goldstone has acknowledged this bias from the very beginning, which is why he asked for the mandate changed. This request appears in the Goldstone report itself and he has repeated it nonstop ever since in a variety of public forums. Again, this is nothing new.

Your point 4: Both of these (separate) points were addressed in numerous pages of the original Goldstone report. They are both recurring themes, making an appearance both in the summary sections, in the main body of the text, and in the concluding chapter that provides recommendations.

If you think these points are “significant points of reassessment”, I would encourage you to go back and read the original Goldstone report more carefully. There is a link to the report under the “Data Sources” page of the “Resources” tab on this website.

9 Marilyn Shepherd April 4, 2011 at 1:22 pm

So the live feeds of brave journalists of people being slaughtered by Israel were only in the imaginations of the billions who saw them in real time hey? The so-called crimes by Hamas were self-defence, nothing more and nothing less and no amount of whining otherwise will make it different.

When people are imprisoned they are allowed to rebel. Look at Egypt, Libya, Tunisia and other countries.

Are we to call the protestors criminals when they fight back and kill people?

Palestinians are the only people on this planet today who have been illegally occupied for over 60 years and who are constantly told not to fight back against the Israeli war machine.

It’s ludicrous.

10 Eyal Frank April 4, 2011 at 6:47 pm

From the Geneva Convention website:

Article 54 commentary: “… the fact remains that the possibility of a blockade exists provided that some conditions are fulfilled. Thus, it must be preceded by a declaration indicating its duration and the area covered; it must be effective and applied impartially to ships of all countries; neutral States must be informed of blockades which have been implemented against a Party to the conflict.” (http://www.icrc.org/ihl.nsf/COM/470-750069?OpenDocument)

Article 14, commentary: It will be recalled that a blockade consists of disrupting the maritime trade of a country or one of its coastal provinces. A siege consists of encircling an enemy location, cutting off those inside from any communication in order to bring about their surrender. A blockade is basically aimed at preventing supplies required for the fighting, i.e., military ‘ matériel, ‘ from reaching the enemy forces and is not directed specifically against civilians. However, the latter are in fact often the first to be affected, particularly children. The same is true of siege, from which civilians are the first to suffer. In some cases they may be evacuated for humanitarian reasons, but up to now there has been no express rule of law forbidding besieging forces to let civilians die of starvation. (http://www.icrc.org/ihl.nsf/COM/475-760020?OpenDocument)

Article 52, clause 2: Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (http://www.icrc.org/ihl.nsf/9ac284404d38ed2bc1256311002afd89/f08a9bc78ae360b3c12563cd0051dcd4!OpenDocument)

Article 47 — General protection of civilian objects
1. Attacks shall be strictly limited to military objectives, namely, to those objectives which are, by their nature, purpose or use, recognized to be of military interest and whose total or partial destruction, in the circumstances ruling at the time, offers a distinct and substantial military advantage.
2. Consequently, objects designed for civilian use, such as houses, dwellings, installations and means of transport, and all objects which are not military objectives, shall not be made the object of attack, except if they are used mainly in support of the military effort.” (http://www.icrc.org/ihl.nsf/COM/470-750067?OpenDocument)

From Article 4: “Nationals of a State which is not bound by the Convention are not protected by it” (http://www.icrc.org/ihl.nsf/WebART/380-600007?OpenDocument). I admit I didn’t check if Hamas signed it or not. Feel free to correct me if I’m wrong on this.

Next time, please write from knowledge and not from ignorance.

11 Ishbel April 5, 2011 at 11:56 am

8) Marilin shepherd; agree totally; well said.

12 Yaniv Reich April 5, 2011 at 5:17 pm

Eyal, you write: “Next time, please write from knowledge and not from ignorance.” I presume you are talking to me, but I fail to see how citing important interpretations of the relevant international law, which Israel has advocated post-Cast Lead should be changed (a suspicious sign by any objective reading), supports anything but the conclusion that Israel is, in repeated practice, in violation of international law.

Anyway, I have already written something that addresses most of your attempted points. See:
http://www.hybridstates.com/2010/06/legal-issues-raised-by-flotilla-assault-israeli-navy-commandos-inadvertently-attack-gilad-shalit/

13 Yaniv Reich April 5, 2011 at 6:34 pm

Matt,
I believe there is a big difference between (1) having generals or commanders issue operational orders to seek out civilians for death; (2) targeting intentionally civilian infrastructure (while also paying insufficient attention to civilian suffering); and (3) failing to distinguish properly between military and civilian targets, which is what is meant by “indiscriminate” attacks on civilians.

Note, first, that all three of these actions constitute war crimes and possible crimes against humanity. With your critical reading skills, I believe you will be able to identify which of my comments reflect which category of criminal conduct.

But the more subtle point I want to make is this. There exists, in my view, a point at which systematic, continuous, indiscriminate attacks on civilians, coupled with purposeful attacks on civilian targets (I mean buildings, infrastructure, and not humans), which also kills civilians as a byproduct, many times with no military rationale, constitutes a level of negligence, at both the highest policy levels and at the operational level, which is both criminal and worthy of our strongest condemnation. This happened to a shocking degree in Cast Lead, in Lebanon 2006, and in many other Israeli military misadventures. In fact, such attacks form the core of the Dahiya Doctrine, which i have highlighted elsewhere on this blog.

I am not sure if this distinction exists in international law, but it certainly raises interesting ethical questions. I intend to cover more of this ground in a near-future blog post.

14 Matt April 8, 2011 at 9:18 pm

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

Yaniv,

It’s very strange you could write, “Nevertheless, Israel seems dissatisfied with that killing rate, because the inglorious Israeli occupation forces have increased it in early 2011,” and not mean that there was an intentional policy of killing civilian. Yes, there are other war crimes besides intentionally going after civilians. I have no doubt that there were cases where negligence and criminal negligence were involved, and such cases should be investigated; however you seem quite specific that a policy was built around the object of killing civilians. That’s not a charge of negligence; negligence is, by definition, not intentional. If that’s not what you would like to be on record as having said, perhaps you should reconsider whether your language is more polemical than you intend?

But, in any case, it’s still strange that you would write, “nobody seriously believes there is a high-level policy to murder civilians.” The executive director of B’Tselem seems to believe that the Golstone report itself accuses Israel of “intention to harm Palestinian civilians,” Meanwhile, the UN General Assembly President at the time accused Israel of “genocide.” Negligence may constitute a war crime but it is not genocide.

It seems you see the overall discourse very, very differently than I do, and I marvel at that. But I think you should pay heed to how others view the discourse, and how your writing may be viewed in that light. If your intent is to persuade (though, frankly, at times that doesn’t seem to be your intention at all), that is. These “enemies” are real people, with (believe it or not) real reasons for feeling as they do. When you attack people like Jeffrey Goldberg, David Horovitz, and Goldstone himself, these aren’t people on the fringes of the debate. You should understand that your manichean attack, then, includes wide swaths of people. You write, “Already these enemies, sensing weakness, attack for the final kill attempt.” I find that really offensive, and I have to ask: Is it really any wonder that people use phrases like “Blood Libel” when others conjure up such images of blood lust?

15 Yaniv Reich April 10, 2011 at 7:34 pm

Matt,

I appreciate you taking the time to respond and make an effort to engage. But I think your entire argument is based on a misinterpretation of what I wrote, and I am having a hard time seeing whether your misinterpretation is willful or not.

My statement that you keep quoting does not say anything about civilians in particular. It happens (and is so very often that case) that civilians are murdered by the Israeli army, but my comment is more general than that (note the list I provide specifically includes both alleged militants and civilians). During that period, Israel took a series of decisions that escalated deadly violence. That is the primary point of that post.

Moreover, if some consistently positive if fluctuating proportion of your military activities result in civilian deaths, and you make a policy decision to escalate violence, then the arguments you are trying to make about negligence fall apart. In particular, the decision to escalate violence carries a type of premeditated, i.e. intentional, character. There is an important ethical if not legal difference between getting behind the wheel drunk once and accidentally hurting/killing someone, and getting behind the wheel drunk on a bi-daily basis for years on end and hurting/killing thousands. As I said before, I plan to cover this material in more depth when I have some more time.

You should reread Montell’s op-ed again. She is making (i.e. B’Tselem made) precisely the opposite point to the one you understood from that passage.

I take your comments about tone and discourse seriously. You can be sure this is an issue that I debate with myself, my family, and many others as well. Sometimes I write and I can be more detached, more diplomatic. Other times I am more angry, and I cannot keep my typing a bit more furiously at the keyboard. But the tone does not change—ever—the content or substance of my arguments. I stand by it all. And if old-school ideologues like Jeffrey Goldblog aren’t persuaded, I could not care less. My arguments, as well as those of people who work with me for human rights and international law in Israel/Palestine, are sufficiently persuasive that we are winning the debate.

Finally, your very last sentence betrays a level of sensitivity and exaggerated feelings of injustice that are, frankly, silly. Might be better to edit such things out before your next response.

16 Matt April 11, 2011 at 3:41 pm

So now I’m silly, perhaps willfully so?

“During that period, Israel took a series of decisions that escalated deadly violence. That is the primary point of that post.”

And you write that the escalations were motivated by dissatisfaction with the rate of killing Palestinians. That is the point of my criticism. Further, you write, “In particular, the decision to escalate violence carries a type of premeditated, i.e. intentional, character,” yet still you quibble with my characterization of your comments as attributing intentionality. I understand the distinction you claim to be making, but I see the point of that distinction quite differently than you do – as an excuse to be more polemical. First you collapse two categories, negligence and intent, then you deny having done so.

“if some consistently positive if fluctuating proportion of your military activities result in civilian deaths, and you make a policy decision to escalate violence, then the arguments you are trying to make about negligence fall apart”

When surgeons operate, there is a consistently positive if fluctuating rate of adverse effects, including death. By your logic, increasing rates of surgery leads to increased deaths from surgery, and surgeons are therefore intentionally murdering people. What you ignore is that there are other considerations and that there is a huge difference between performing an operation while knowing the risk of adverse events and performing an operation because of dissatisfaction with the low rate of adverse events. I don’t like war, but there are reasons that Just War theories begin from the position that it must be possible to fight wars. You just pretend that the justifications for Israeli actions are red herrings. In fact, mens rea is not merely an important legal matter, but also an ethical one.

As for Montell, again, I marvel. Here is B’Tselem, again:

In a recent Washington Post opinion article, Justice Richard Goldstone, head of the UN fact-finding mission into the hostilities in the Gaza Strip (Operation Cast Lead), retracted some of the claims in the original report. He contended that, had he had access to information from the Israeli military, he would have reached different conclusions. He now states that Israel did not intentionally target civilians as a matter of policy, and that there are no grounds for believing Israel committed crimes against humanity. He also praises Israel for taking great effort to investigate complaints, contrary to Hamas’ failure to do so.

B’Tselem stated at the time the Goldstone Report was published that its conclusions were not sufficiently based on the facts presented, precisely on this point of an intentional policy directed at targeting civilians. Goldstone’s recent statement is welcome to the extent that it corrects flaws in the original report.

I think “He now states that Israel did not intentionally target civilians as a matter of policy” very definitely suggests that Goldstone previously did accuse Israel of targeting civilians as a matter of policy. Further, the page also reads, “The Goldstone report blamed Israel for the worst of crimes – the possible commission of crimes against humanity. It made this claim without any factual basis and without hearing Israel’s official version (in large part due to Israel’s miserable decision not to cooperate with the fact-finding mission).” If you still maintain that B’Tselem reads Goldstone as not having accused Israel of intentionally targetting civilians, I will continue to marvel. And have you nothing to say about Miguel d’Escoto Brockmann’s characterization? Or, for that matter, would you consider the context of other cases (Jenin, perhaps) where Jews have been unjustly accused.

“My arguments, as well as those of people who work with me for human rights and international law in Israel/Palestine, are sufficiently persuasive that we are winning the debate.”

And here, this one one of my all-time least favorite rhetorical moves, the verbal equivalent of might-makes-right.

17 Yaniv Reich April 12, 2011 at 10:16 am

Matt,

I have finally returned from traveling and have more than a few minutes at a time to read and respond.

Mashing my words together in pseudo-random strings that make your points sound stronger is not a valid technique. In perfectly clear terms, I suggested your misinterpretation of my points might be willful (an opinion I think is reinforced in your most recent comment, when you write “I understand the distinction you claim to be making, but I see the point of that distinction quite differently than you do – as an excuse to be more polemical.”). I suggested your blood libel insinuation to be silly. These two comments are self-evidently unrelated.

Now that we have gone back and forth a few times, it seems our entire disagreement boils down to the word “dissatisfaction” (about Israel’s killing rate). You think I am splitting verbal hairs to justify the polemical tone of the “killing rate” blog post. And I… well, I agree. First of all, I maintain unconditionally that the hairs I am splitting are valid and important (and I repeat, approaching ad nauseum, that I will address these splits in the near future in a proper post). Second, of course I am being polemical! Writing any type of blog will be polemical, unless you are just posting videos of your cats doing cute tricks. A political blog on complex, heated issues is the very definition of being polemical! And I point out the obvious: polemical does not mean anything about factual correctness or subjective persuasiveness (although a case can certainly be made that the latter is related).

Our real disagreement on this is whether the specific language I use is persuasive to people like you. As I said before, the “right” tone for Hybrid States, indeed for my own thoughts, is something that I debate internally, with loved ones, and with strangers. That you engage with me about one of the angrier posts I have ever written indicates, to me at least, that you can see (elsewhere) that Hybrid States does care, much of the time, with persuading people to see Israel/Palestine in a different way.

But does anger and frustration seep into some posts? Of course! Might that make it harder for some American Jew steeped in Israeli nationalist mythology to agree with my writing? Of course. But anger is a perfectly legitimate, and I would argue necessary response as a sentient being to Israeli troops, say, bursting into an elderly couples’ home in the middle of the night and murdering a 65-year old man in his bed “by mistake” (I put that in quotes because the army admitted unusually this was a mistake, not to suggest they entered in order to murder that particular man). To not feel anger at that is inhuman and can be achieved only through uncompromising attachment to hateful ideologies. Does that anger justify the clear sarcasm of “Israel seems disappointed with the killing rate”? I think so; it appears you do not. Not much more to say about that then. But I agree completely that it might turn off (nearly) unconditional supporters of Israel.

About the B’Tselem/Goldstone issue: I misread your statement. I thought your comment referred to B’Tselem saying previously that there had been a policy of intentionally targeting civilians, not to B’Tselem saying Goldstone did. I take back my comment. With that said, my personal opinion is that B’Tselem greatly exaggerated this point from the Goldstone report, suggesting something that was not in the report; my opinion is that they did this for domestic political reasons in Israel. I took issue with B’Tselem then and I do now; in other words, I stand by argument that “high level policy” to intentionally target civilians is a red herring.

Goldstone’s Fact Finding Mission wrote:

The facts gathered by the Mission indicate that all the attacks occurred under circumstances in which the Israeli forces were in control of the area and had previously entered into contact with or at least observed the persons they subsequently attacked, so that they must have been aware of their civilian status. In the majority of these incidents, the consequences of the Israeli attacks against civilians were aggravated by their subsequent refusal to allow the evacuation of the wounded or to permit access to ambulances.

44. These incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population. The Mission found strong corroboration of this trend emerging from its fact-finding in the testimonies of Israeli soldiers collected in two publications it reviewed.

45. The Mission further examined an incident in which a mosque was targeted with a missile during the early evening prayer, resulting in the death of fifteen, and an attack with flechette munitions on a crowd of family and neighbours at a condolence tent, killing five. The Mission finds that both attacks constitute intentional attacks against the civilian population and civilian objects.

46. From the facts ascertained in all the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility. [emphasis added]

This is the precise text that has led to so much controversy. Now, where in the world does this suggest a “high level policy” to target civilians for death? I see absolutely nothing of the sort.

What the report does do, and what many Israeli officials and soldiers admit openly, is that civilian infrastructure was targeted intentionally. This was a high level policy, which resulted in much civilian death, as could have been predicted, even though civilian death was not only not a goal but I am sure seen as an undesirable if justified outcome by IDF commanders. These distinctions are why I wrote about the three groupings of attacks on civilians above. It seems that far too many people, B’Tselem included, collapse Goldstone’s distinctions on attacks on civilians (as well as mix them up with concepts of “intentional” and “high level policy”, something which is done for political not factual purposes).

Your analogy about surgery is not a good one; mine on drunk driving is far closer to the situation we have at hand, although all arguments by analogy have their weaknesses. Surgeons decide to operate based on their ability and knowledge to remedy the ailing physical condition of the patient. That is, they are trying to help the patient. Drunk drivers don’t try to help their victims; they try to help themselves get home or to the next bar. Israel does not engage in military actions in order to save Palestinians; it does so because it believes, erroneously in my view but that’s besides the point, that it will help Israel. And driven by these purely selfish motives, it all-too-often kills many, many civilians and destroys their homes and fields and businesses.

Please tell me. In your conception of “polemical”, is it appropriate to divide incidents by time and discuss a “killing rate” at all? What about Brockmann are you referring to exactly? On Jenin, are you referring to the exaggerations about a “massacre” of many hundreds of killed civilians, which thankfully turned out to “only” be “22 civilians, many of them willfully or unlawfully, which in some cases constituted war crimes”, according to Human Rights Watch? The IDF (not “Jews”) were unjustly accused at the beginning of the Battle for Jenin, but their behavior is still worthy of the highest condemnation.

Finally, I think there is a case of misplaced causality in your might-makes-right comment. It’s flattering you think the “might” is with modest blogs like Hybrid States and not with the fourth most powerful military on earth. But in this case, I think the real story, and the point of my comment, is that I see a whole lot of ‘right makes might’ in the running debate that human rights advocates are slowly winning.

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