April 5, 2011

The Cleansing of Israel's War Crimes

Goldstone's Rethink

By JONATHAN COOK
Nazareth.
http://www.counterpunch.org/cook04052011.html

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
observation.

"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
settlements.

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 www.jkcook.net.

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