Thursday, April 7, 2011

The Cleansing of Israel's War Crimes

April 5, 2011


The Cleansing of Israel's War Crimes


Goldstone's Rethink





Israeli leaders have barely hidden their jubilation at an

opinion article in last Friday's Washington Post by the

South African jurist Richard Goldstone reconsidering the

findings of his United Nations-appointed inquiry into

Israel's attack on Gaza in winter 2008.


For the past 18 months the Goldstone Report had forced

Israel on to the defensive by suggesting its army “as

well as Hamas, the ruling faction in Gaza“ had committed

war crimes and crimes against humanity during Israel's

three-week Operation Cast Lead. Some 1,400 Palestinians

were killed, including hundreds of women and children.


Goldstone's report, Israeli officials worried, might

eventually pave the way to war crimes trials against

Israeli soldiers at the International Criminal Court in the Hague.


In what appeared to be a partial retraction of some of his

findings against Israel, Goldstone argued that he would

have written the report differently had Israel cooperated

at the time of his inquiry.


Benjamin Netanyahu, the Israeli prime minister,

immediately called on the United Nations to shelve the

Goldstone Report; Ehud Barak, the defence minister,

demanded an apology; and Avigdor Lieberman, the foreign

minister, said Israel's actions in Gaza had been "vindicated".


Israel would certainly like observers to interpret

Goldstone's latest comments as an exoneration. In reality,

however, he offered far less consolation to Israel than

its supporters claim.


The report's original accusation that Israeli soldiers

committed war crimes still stands, as does criticism of

Israel's use of unconventional weapons such as white

phosphorus, the destruction of property on a massive

scale, and the taking of civilians as human shields.


Instead Goldstone restated his position in two ways that

Israel will seek to exploit to the full.


The first was an observation that since his report's

publication in September 2009 "Israel has dedicated

significant resources to investigate over 400 allegations

of operational misconduct".


In the past Goldstone has made much of the need for Israel

and Hamas to investigate incidents where civilians were

targeted, saying that otherwise his report should be

transferred to the ICC. In his article he favourably

compared Israel's investigations to the failure by Hamas

to carry out any probes.


The significance of Goldstone's reassessment from Israel's

point of view was underlined this week by comments to the

Jerusalem Post newspaper from a senior unnamed legal

official in the Israeli military. He said Goldstone's

professed confidence in Israel's investigatory system

would help to forestall future war cimes probes by the UN.


That will be cause for Palestinian concern at a time when,

in response to renewed hostilities between Israel and

Hamas, some Israeli government ministers have called for a

Cast Lead 2.


Another unnamed commander told the popular Israeli news

website Ynet yesterday that Goldstone's change of tack

might lift the threat of arrest on war crimes charges from

Israeli soldiers travelling abroad.


However, according to both Israeli human rights groups and

a committee of independent legal experts appointed by the

UN to monitor implementation of the report, Goldstone's

applause for Israel's investigations is unwarranted.


Sarit Michaeli, a spokeswoman for B'Tselem, an Israeli

organisation monitoring human rights in the occupied

territories, said Israel had failed to conduct a prompt,

independent or transparent inquiry.


"The materials on which Israel has relied have not been

made available to us, so we are not in a position to judge

the quality of the investigations or the credibility of the findings."


Likewise, the UN committee of experts, led by a New York

judge, Mary McGowan-Davis, has complained that the Israeli

army is probing itself and questioned the effectiveness of

the investigations following "unnecessary delays" in which

evidence may have been "lost or compromised".


Human rights groups have pointed out that, despite the

large number of deaths in Gaza, only three of the 400

investigations cited by Goldstone have so far led to indictments.


One of those cases involved the theft of a credit card.

Another, in which two soldiers used a nine-year-old boy as

a human shield, led to their being punished with

three-month suspended sentences and demotion.


The second, more significant reassessment by Goldstone is

that he was wrong to conclude in his report that Israel

intentionally targeted civilians "as a matter of policy".


Despite Goldstone's misleading wording in the article, he

is referring not to an Israeli order to intentionally

murder civilians but a policy in which indiscriminate

attacks were undertaken with a disregard to likely

casualties among civilians.


Strangely, he appears to base his revised opinion on

Israel's own military investigations, even though no

evidence from them has yet been made public.


Rina Rosenberg, the international advocacy director of the

Adalah legal centre in Israel, which has been monitoring

Israel's investigations on behalf of Palestinian legal

groups, said Goldstone had given Israel a "gift" with this



"Israel has tried to focus the debate entirely on whether

it intended to kill civilians, as though a war crime

depends only on intentionality. Israel knows that

intention 'outside a policy like targeted assassinations'

is very difficult to prove."


She pointed out that there were other important standards

in international law for assessing war crimes, including

negilgence, disregard for the safety of civilians, and

indiscriminate use of force.


Also, observers have wondered what new information has

emerged since Mr Goldstone published his report to justify

a rethink on whether Israeli policy left civilians in the

line of fire.


His original conclusion drew in part on public statements

by Israeli military commanders that in Gaza they had

applied the Dahiya doctrine, an Israeli military strategy

named after a suburb of Beirut that Israel levelled during

its 2006 attack on Lebanon. In his article, Goldstone cast

no fresh doubt on his earlier premise that such a strategy

would by definition endanger civilians.


In addition, Israeli group Breaking the Silence has

collected many testimonies from soldiers before and since

publication of the Goldstone Report indicating that they

received orders to carry out operations with little or no

regard for the safety of civilians. Some described the

army as pursuing a policy of "zero-risk" to soldiers, even

if that meant putting civilians in danger.


Similarly, leaflets produced by the military rabbinate

“apparently with the knowledge of the army top brass“

urged Israeli ground troops in Gaza to protect their own

lives at all costs and show no mercy to Palestinians.


The timing of Mr Goldstone's article has raised additional

concern among Israeli and Palestinian human rights groups

that he may have succumbed to political pressure.


Late last month the UN's Human Rights Council, which set

up the fact-finding mission, recommended that the General

Assembly refer the Goldstone Report to the Security

Council, the decisive stage in moving it to the

International Criminal Court.


It is expected that the US, which has consistently opposed

such a referral, will block the report's progress to the

ICC, further embarrassing Washington after its recent

veto at the UN of a Palestinian resolution against Israeli



Shawan Jabareen, director of the Palestinian legal rights

group al-Haq, said Mr Goldstone's article had provided

Israel and the US with a "new weapon" to discredit the

report even before it reached the Security Council.



Jonathan Cook is a writer and journalist based in

Nazareth, Israel. His latest books are "Israel and the

Clash of Civilisations: Iraq, Iran and the Plan to Remake

the Middle East" (Pluto Press) and "Disappearing

Palestine: Israel's Experiments in Human Despair" (Zed

Books). His website is


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