From Alan Dowty
As the Goldstone report on the Gaza war wends it way up the UN food chain, casting further opprobrium on Israel at each level, it is legitimate to question Israel’s handling of this challenge. Did the Israeli response lessen or aggravate the damage?
There are serious critiques that could have been levied against Goldstone’s mandate even before a single accusation was heard. UN investigations of wars, including this one, typically focus on jus in bello, on the laws of war on the battlefield, and ignore jus ad bellum, the justification for going to war in the first place. It can be argued with great cogency that it is unreasonable to judge the conduct of a war with little or no reference to its causes; echoes of this can be heard in Israeli complaints about the lack of attention to claims of self-defense.
A second critique is that international law has not kept pace with changes in warfare. Most contemporary armed conflicts involve what Rupert Smith has called “war amongst the people,” rather than classic set-piece battlefield scenarios from which laws on wartime conduct (jus in bello) were drawn. These laws seek, quite rightly, to minimize casualties among civilians, but how should they be applied when the very blurring of the military-civilian distinction is a basic strategic axiom of one party? Are insurgents entitled to more rather than less immunity if they refuse to wear uniforms (as required by conventional law)?
So Goldstone’s approach was already blinkered by the framework in which he, without audible complaint, was thrust. This was then compounded by the lack of an Israeli defense to the specific accusations that were brought. Having no “official” explanation that needed to be taken into account, as a straight-laced jurist he then not only accepted any claims of atrocities at face value but also attributed them to deliberate policy rather than the mistakes, negligence, and misconduct out of which most wartime violations are compounded.
Ruth Lapidoth, who has represented Israel in many international legal frameworks, and other leading Israeli jurists have argued that it was a mistake to leave Israel unrepresented in the presentation of evidence and argument before Goldstone. It may be that the final product would still not have been to Israel’s liking, but presenting one’s case in full force would make it more difficult to ignore the basic limitations of the framework (lack of attention to causes, unconventional warfare) and to assign to deliberate policy what could be attributed, in “the fog of war,” to deviations from the rules of engagement that the IDF (Israel Defense Forces) had in fact set out.
A second effective means of damage control would be to address forthrightly the specific cases in the Goldstone report and to draw the necessary conclusions: a clear statement of the facts if the accusation is not warranted, and appropriate disciplinary action if it is. In fact, in international law, taking this step would remove the threat of prosecution abroad that now appears to hang over the head of top-level Israeli military commanders. The army that can fight a bloody conflict in an urban setting, without any cases of misconduct among its ranks, has yet to be created.
According to recent report, it was Defense Minister Ehud Barak who prevailed on Prime Minister Benjamin Netanyahu to boycott the UN inquiry. If so, it is further testimony to Barak’s inability to learn from experience, and it comes as no surprise that the latest poll predicts that, if elections were held now, his Labor Party, once the dominant force in Israel, would be reduced to an abysmal seven seats.
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