Friday, October 23, 2009

Column:

The Goldstone Report fails on moral and legal grounds. I'll explain.

The Report's conclusion can be summed up in a few short words: Israel and Hamas should both be censored for crimes against civilians. Eleven words. It took Goldstone and his cohorts 875 pages to get there. Most of those pages were filled with harsh, damning critique of Israel and a carefully crafted attempt to create a sense of fairness - equating Israeli actions with those of Hamas.

The actions taken by Israel and the actions of Hamas are not equal and the same. Hamas is a terrorist operation fighting a terrorist campaign. Hamas leaders might be politicians, but they are first and foremost terrorist guerillas. Israel is a democracy, a country that wages war in order to provide a safe home for Israeli citizens. The Israeli army conducts wartime campaigns in a manner that is consistent with accepted military doctrine, it is an army that values the lives of soldiers and citizens alike - including the lives of civilians living among the enemy.

There are always mistakes made during wars. There are always situations that could have been handled better, or differently. There are always people who violate moral precepts. It happens in every war. But in the Israeli military they are isolated incidents and isolated individuals. The Goldstone Report portrays the opposite.

For better and for worse, Israel has always been held to a higher standard than her neighbors and the region and even to other democratic nations. Israel holds herself to a high and strict moral standard with a code of engagement that is written down and taught. That standard has evolved as times have changed and is evolving now, accommodating for new tools of war and changing methods of war. It is precisely because the Goldstone Report also holds Israel to that higher standard.

Mistakes that happened during the course of Operation Cast Lead must be acknowledged and corrected. The people responsible for those mistakes must be held accountable and responsibility should flow along the chain of command. Punishments should be meted out where required and restitution provided where appropriate.

That is not where the Goldstone erred.

The Goldstone Report erred because, if accepted as the Golden Standard for the Proper Practice of Warfare, it will become nearly impossible for the democratic world to fight the world of terror. And terror is the new face of war. Terror tactics have been insinuated into the tactics of conventional warfare and terror has its own set of laws and by laws, rules and permissible acts. And that is why the Goldstone Report will not win the vote of the Security Council, why China and Russia will vote against the Goldstone Report and why, by default, the Goldstone Report will not become a tool to indict Israel for war crimes in The Hague.

Russia and China understand how wars are now being fought. So does Israel. Goldstone does not.

And the Goldstone Report erred because the document does not differentiate between a defensive military operation and an offensive military action. It glosses over this vital distinction in a few paragraphs and focuses on only one element of the internationally accepted norms of warfare. It focuses on the military imperative to prevent civilian populations from becoming victims. And then it chastises Israel repeatedly for not doing enough to prevent injuries and deaths in the civilian Palestinian population. But it does not place adequate responsibility with Hamas for using human shields in order to better fight Israel. It does not chastise Hamas for hiding among civilian populations and for not wearing uniforms. Instead, it blames Israeli troops for using human shields.

In this war, in this defensive war, Israel's obligations shifted. Israel's objective was to eliminate the threat to Israeli citizens. During Operation Cast Lead that meant finding Hamas fighters and caches of Hamas' weapons and neutralizing them - and they were found among civilian populations, Palestinian populations.

The problems of fighting in the densely populated urban environment in which Hamas was hiding, commanding and fighting from behind civilians, was not dealt with in the Goldstone Report. That a moral obligation shifts in a defensive war when one party is hiding unidentified and uniformed behind innocent civilians was not dealt with in the Goldstone Report. That the moral obligation falls on the fighters who are hiding, in this case Hamas, was not dealt with in the Goldstone Report. But it is in international law. According to international law Hamas - not Israel - is morally and legally responsible for the deaths of civilians as Israel went in pursuit of Hamas fighters.

International law and morality warrant that an army does its most to prevent injury to civilians. And international law and morality recognize that Israel met those obligations by sending text messages in Arabic to the cell phones of the Palestinians in the areas being targeted and dropping leaflets written in Arabic in those areas.

War is different today than it was in the 1864 when Henri Dumont initiated the Geneva Conventions. Hamas and other terrorist organizations are responsible for many of those differences.

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