Method and Madness: The Hidden Story of Israel's Assaults on Gaza (5 page)

Because of Goldstone’s pedigree and bona fides, Israel could not credibly play its usual cards—“anti-Semite,” “self-hating Jew,” “Holocaust denier”—against him. In effect, his persona neutralized the ideological weapons Israel had honed over many years to ward off criticism. Soon the detractors started speculating that the Goldstone Report was a product of the author’s overweening ambition—Goldstone was supposedly angling for a Nobel Peace Prize or to head the United Nations—but once more his impeccable reputation easily withstood the imputations.
⁸⁶
It was then alleged that Goldstone had been “suckered into lending his good name to a half-baked report.”
⁸⁷
But the chief prosecutor in multiple international war crimes tribunals was plainly no one’s dupe. If Goldstone was not an anti-Semite, a self-hating Jew, or a Holocaust denier; if he had never evinced animus towards Israel but in fact had demonstrated an abiding affection for it; if he was manifestly a man of integrity who put truth and justice above self-aggrandizement and partisanship; if he was neither an incompetent nor a fool; then the only plausible explanation for the devastating content of the document he coauthored was that it faithfully recorded the facts as they unfolded during the 22-day invasion. “The only thing they can be afraid of,” Goldstone later observed, “is the truth. And I think this is why they’re attacking the messenger and not the message.”
⁸⁸

Compelled to face the facts and their consequences, disarmed and exposed, Israel went into panic mode. Influential Israeli columnists expressed alarm that the Goldstone Report might impede Israel’s ability to launch military attacks in the future,
⁸⁹
and Prime Minister Netanyahu ranked “the Iranian [nuclear] threat, the missile threat and a threat I call the Goldstone threat” the major strategic challenges confronting Israel.
⁹⁰
In the meantime, Israeli officials fretted that prosecutors might hound Israelis traveling abroad.
⁹¹
And indeed, shortly after the Goldstone Report was released, the International Criminal Court announced that it was contemplating an investigation of an Israeli officer implicated in the Gaza massacre.
⁹²
Then, in December 2009, Tzipi Livni cancelled a trip to London after a British court issued an arrest warrant for her role in the commission of war crimes while serving as foreign minister and member of the war cabinet during Cast Lead. In June 2010, two Belgian lawyers representing a group of Palestinians charged 14 Israeli politicians (including Livni and Barak) with committing crimes against humanity and war crimes during the invasion.
⁹³

The symbolism, indeed pathos, of Goldstone’s condemnation of Israel was hard to miss. A lover of Zion was now calling for Zion to be hauled before the International Criminal Court for an array of war crimes and possible crimes against humanity. It can fairly be said that the Goldstone Report marked the end of one era and the emergence of another: the end of an apologetic Jewish liberalism that denies or extenuates Israel’s crimes and the emergence of a Jewish liberalism that returns to its classical calling that, if only as an ideal imperfectly realized, nonetheless holds all malefactors, Jew or non-Jew, accountable when they have strayed from the path of justice.

In order to discredit or, at least, undercut the Goldstone Report, Israel had reached into the utter depths of its state and society, harnessing and concentrating their full forces, and mobilized the Jewish state’s faithful apparatchiks abroad. Nonetheless, months after it was published an Israeli columnist rued, “the Goldstone Report still holds the top spot in the bestseller list of Israel’s headaches.”
⁹⁴

ON
1
APRIL
2011,
ISRAEL’S BIGGEST HEADACHE
finally went away. Dropping a bombshell on the op-ed page of the
Washington Post
,
¹
Richard Goldstone effectively disowned the devastating UN report of Israeli crimes carrying his name.
²

Israel was jubilant. “Everything that we said proved to be true,” Prime Minister Benjamin Netanyahu crowed. “We always said that the IDF [Israel Defense Forces] is a moral army that acted according to international law,” Defense Minister Ehud Barak declared. “We had no doubt that the truth would come out eventually,” Foreign Minister Avigdor Lieberman proclaimed.
³
The Obama administration used the occasion of Goldstone’s recantation to affirm that Israel had not “engaged in any war crimes” during Operation Cast Lead, while the US Senate unanimously called on the United Nations to “rescind” the Goldstone Report.
⁴

Some commentators have endeavored to prove by parsing his words that Goldstone did not actually recant. While this might technically be true, such a rhetorical strategy will not wash. Goldstone is a distinguished jurist. He knows how to use precise language. If he did not want to sever his connection with the Report, he could simply have said, “I am not recanting my original report by which I still stand.” He must have known exactly how his words would be spun, and it is this fallout—not his parsed words—that we must now confront.

Goldstone has done terrible damage to the cause of truth and justice and the rule of law. He has poisoned Jewish-Palestinian relations, undermined the courageous work of Israeli dissenters and—most unforgivably—increased the risk of another merciless IDF assault. There has been much speculation on why Goldstone recanted. Was he blackmailed? Did he finally succumb to the relentless hate campaign directed against him? Did he decide to put his tribe ahead of truth? What can be said with certainty is that
Goldstone did not reverse himself on account of newly unearthed information
.

Goldstone justifies his recantation on the grounds that “we know a lot more today about what happened” during Cast Lead than when the Mission compiled the Report. On the basis of this alleged new information, he suggests that Israel did not commit war crimes in Gaza and that Israel is fully capable on its own of investigating violations of international law that did occur. It is correct that much new information on what happened has become available since publication of the Goldstone Report. But the vast preponderance of this new material sustains and even extends the Report’s findings.

Many Israeli combatants stepped forward after release of the Goldstone Report and testified to the invasion’s brutality. For example, an officer who served at a brigade headquarters recalled that IDF policy amounted to ensuring “literally zero risk to the soldiers,” while a combatant remembered a meeting with his brigade commander and others where it was conveyed that “if you see any signs of movement at all you shoot. This is essentially the rules of engagement.”
⁵
Goldstone could have cited this new information to buttress his Report; instead, he chose to ignore it. In 2010, Human Rights Watch published a report based on satellite imagery documenting numerous cases “in which Israeli forces caused extensive destruction of homes, factories, farms and greenhouses in areas under IDF control without any evident military purpose. These cases occurred when there was no fighting in these areas; in many cases, the destruction was carried out during the final days of the campaign when an Israeli withdrawal was imminent.”
⁶
Goldstone could have cited this new information to buttress his Report; instead, he again chose to ignore it.

How is it possible to take seriously Goldstone’s claim that the facts compelled him to recant when he scrupulously ignores the copious new evidence confirming his Report?

Since publication of the Goldstone Report, Israel has released many purported refutations of it. The most voluminous of these was a 350-page report compiled by the Israeli Intelligence and Terrorism Information Center in 2010. The Israeli document was based on unverifiable “reports from IDF forces” and “Israeli intelligence information,” indecipherable photographic evidence and information gathered from “terrorist operatives” who had almost certainly been tortured. It falsely alleged that the Goldstone Report made “almost no mention of the brutal means of repression used by Hamas against its opponents”; that the Goldstone Report devoted “just three paragraphs” to Hamas’s “rocket and mortar fire” during the Israeli invasion; that the Goldstone Report “absolved” Hamas “of all responsibility for war crimes”; that the Goldstone Report gave “superficial” treatment to “the terrorist organizations’ use of civilians as human shields”; and that the Goldstone Report depended on “the unreliable casualty statistics provided by Hamas.”
⁷
One is hard-pressed to reconcile the mendacity of Israel’s most ambitious attempt to refute the Goldstone Report with Goldstone’s claim that new Israeli information fatally undermines the Report.

The heart of Goldstone’s recantation is that, on the basis of new information, he has concluded that “civilians were not intentionally targeted as a matter of policy.” It is not entirely clear what is being asserted here. If Goldstone is saying that he no longer believes Israel had a
systematic policy
of targeting Gaza’s civilian population
for murder
, his recantation is gratuitous: the Goldstone Report never made such a claim. If the Report had leveled such an accusation, it would have been tantamount to charging Israel with genocide. But the Report never even came close to entertaining, let alone leveling, such a charge. What the Goldstone Report did say was that Cast Lead was a “deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population.” In fact, the Goldstone Report assembles compelling evidence that, as a matter of policy, Israel resorted to indiscriminate, disproportionate force against the civilian population of Gaza. Goldstone does not allege in his
Washington Post
op-ed that new information calls this evidence into doubt.

Israeli leaders themselves did not shy away from acknowledging the indiscriminate, disproportionate nature of the attack they launched. As the invasion wound down, Foreign Minister Tzipi Livni declared that it had “restored Israel’s deterrence . . . Hamas now understands that when you fire on [Israel’s] citizens it responds by going wild—and this is a good thing.” The day after the cease-fire, Livni bragged on Israeli television, “Israel demonstrated real hooliganism during the course of the recent operation, which I demanded.”
⁸
A former Israeli defense official told the Crisis Group that “with an armada of fighter planes attacking Gaza, Israel decided to play the role of a mad dog for the sake of future deterrence,” while a former senior Israeli security official boasted to the Crisis Group that Israel had regained its deterrence because it “has shown Hamas, Iran and the region that it can be as lunatic as any of them.”
⁹
“The Goldstone Report, which claimed that Israel goes crazy when it is being attacked, caused us some damage,” a leading Israeli commentator on Arab affairs observed, “yet it was a blessing in our region. If Israel goes crazy and destroys everything in its way when it is being attacked, one should be careful. No need to mess with crazy people.”
¹⁰

It is a tenet of law that “the doer of an act must be taken to have
intended
its natural and foreseeable consequences.”
¹¹
Thus, an indiscriminate, disproportionate attack that inevitably and predictably results in civilian deaths is indistinguishable from a deliberate and intentional attack on civilians. “There is no genuine difference between a premeditated attack against civilians (or civilian objects) and a reckless disregard of the principle of distinction” between civilians (or civilian objects) and combatants (or military objects), according to Yoram Dinstein, Israel’s leading authority on international law—“they are equally forbidden.”
¹²
If Goldstone now believes that because Israel did not intentionally target civilians, it is not guilty of war crimes, he ought to brush up on the law: an indiscriminate, disproportionate attack on civilian areas is no less criminal than deliberately targeting them. If he now believes that it is not criminal behavior for an invading army to go “wild,” demonstrate “real hooliganism,” carry on like a “mad dog,” act “lunatic” and “crazy,” and “destroy everything in its way,” then he should not be practicing law.

To sustain his implicit contention that Israel did not commit
any
war crimes because it
never
targeted civilians, Goldstone revisits the notorious case of the al-Samouni family. It merits juxtaposing his 1 April 2011 account in the
Washington Post
of what a new Israeli investigation allegedly shows with the account he himself gave at a Stanford University forum two months earlier,
¹³
the account of Amnesty International in March 2011,
¹⁴
and the account of a March 2011 UN report that he himself praises.
¹⁵
Goldstone’s critical omissions are highlighted below:

G
OLDSTONE
, 1 A
PRIL
2011:

[T]he most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni [
sic
] family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image.

G
OLDSTONE AT STANFORD, TWO MONTHS EARLIER
:

[T]he single most serious incident reported in the [Goldstone] Report—[was] the bombing of the home of the al-Samouni family. . . .  On January 4, 2009, members of the Givati Brigade of
the IDF decided to take over the house of Saleh al-Samouni as part of the IDF ground operation; they ordered its occupants to relocate to the home of Wa’el al-Samouni. It was located about 35 yards away and within sight of the Israeli soldiers. . . .  In the result there were over 100 members of the family gathered in the single story home of Wa’el al-Samouni. Early on the cold wintry morning of 5 January, several male members of the al-Samouni family went outside to gather firewood. They were in clear sight of the Israeli troops.
As the men returned with the firewood, projectiles fired from helicopter gunships killed or injured them. Immediately after that further projectiles hit the house. Twenty-one members of the family were killed, some of them young children and women. Nineteen were injured. Of those injured, another eight subsequently died from their injuries. . . . [This evidence] led the Fact-Finding Mission to conclude that, as a probability, the attack on the al-Samouni family constituted a deliberate attack on civilians. The crucial consideration was that
the men, women and children were known by the Israeli troops to be civilians and were ordered by them to relocate to a house that was in the vicinity of their command post. Members of the al-Samouni family had regarded the presence of the IDF as a guarantee of their safety
. . . .  [A]t the end of October 2010 (almost 22 months after the incident), to the credit of the Israeli Military Police, they announced that they were investigating whether the air strike against the al-Samouni home was authorized by a senior Givati brigade commander who had been warned of the danger to civilians. At about the same time there were reports that the attack followed upon the receipt of photographs by the Israeli military from a drone showing what was incorrectly interpreted to be a group of men carrying rocket launchers towards a house. The order was given to bomb the men and the building. According to these reports, the photograph received from the drone was not of high quality and in fact showed the men carrying firewood to the al-Samouni home. The results of this military police investigation are as yet unknown.

A
MNESTY
I
NTERNATIONAL
, M
ARCH
2011:

One prominent case that was examined by the [Goldstone Mission] and various human rights groups and is the subject of an ongoing Israeli criminal investigation is the killing of some 21 members of the al-Sammouni family, who were sheltering in the home of Wa’el al-Sammouni when it was struck by missiles or shells on 5 January 2009. The Israeli military announced that an MPCID [Military Police Criminal Investigations Division] investigation had been opened into this incident on 6 July 2010. On 21 October 2010, Colonel Ilan Malka, who was commander of the Givati Brigade . . . and was allegedly involved in approving the air strike which killed 21 members of the al-Sammouni family, was questioned under caution by military police. According to media reports, he claimed that he was unaware of the presence of civilians in the building when he approved the strike.
The decision to approve the air strike was reportedly based on drone photographs of men from the al-Sammouni family breaking apart boards for firewood; the photographs were interpreted in the war room as Palestinians armed with rocket-propelled grenades. But at the time the photographs were received, the family had already been confined to the building and surrounded and observed by soldiers from the Givati Brigade in at least six different nearby outposts for more than 24 hours; at least some soldiers in these outposts would have known that the family were civilians since they themselves had ordered the family to gather in Wa’el al-Sammouni’s home. Some of these officers reportedly testified to the military investigators that they had warned Colonel Malka that there could be civilians in the area.
[endnotes omitted]