Israel Must Now Heal Itself

Israel Must Now Heal Itself

After the Goldstone report, Israel should hold its own inquiry and end its use of disproportionate force and collective punishment

Friday 18 September 2009 11.00 BST

The report of the UN fact-finding mission on the Gaza conflict is outrageous, a disgrace. The mission's head, Richard Goldstone, was the chair of the Friends of the Hebrew University in Jerusalem, chair of the World ORT education organisation with more than 150 schools in Israel and a self-declared friend of Israel whose daughter made aliyah – Zionist emigration to Israel – and she told Israeli army radio this week, "Israel is more important to me than anything."

Wait a moment, that doesn't sound right. Ah, here it is – the report of the UN fact-finding mission on the Gaza conflict is outrageous, a disgrace. The UN Human Rights Council is composed of non-democratic, Israel-hating, human rights-violating nations and the mission was born in sin to delegitimise Israel and excuse terrorism.

That second narrative has been pushed harder since the report's publication, but they are equally ridiculous. Indeed there exist two extreme poles of response to a report such as this: one, of the reflexive Israel-haters for whom this is a gotcha moment extraordinaire, and they gleefully wave the latest proof that Israel is a world pariah without parallel. Their mirror image is the Pavlovian and delusional Israel-can-do-no-wrong crowd, for whom behind any serious critique of Israel lays the nefarious machinations of age-old antisemitism, singling out the Jewish state and to hell with the facts.

But for the vast majority of non- or only mildly partisan individuals with a capacity for cognitive reflection, the Goldstone report should be treated seriously and even perhaps as a wake-up call.

The report investigates events during Israel's Operation Cast Lead from 27 December 2008 to 18 January 2009, the context in which they occurred and the events preceding and following that operation. In 574 pages of painstaking and well-documented detail, the report is unsparing and casts a broad net in its criticism. It finds grounds for concern that Israel did not take necessary precautions to protect Gaza's civilians. This covers disproportionate use of force, targeting of civilians and the foundations of civilian life, among other things, all against the backdrop of the sophisticated and precision weaponry at Israel's disposal (Israel is a world leader in defence and military R&D and manufacturing, and was the world's third-largest arms exporter in 2008).

The Hamas-led authorities in Gaza are accused of indiscriminately and deliberately attacking the civilian population in southern Israel, as well as the targeting and use of violence against internal actors and notably Fatah opponents inside Gaza. Even the Palestinian Authorities in the West Bank are cited for their violence targeting Hamas supporters and restrictions applied on the opposition's freedom of movement and assembly.

In its conclusions, the report calls for a process to be set in motion of independent investigations by the respective local authorities whose veracity would be internationally verified, and for procedures that include referrals to the UN security council and ultimately the international criminal court in The Hague and even recourse to national courts using universal jurisdiction in states that are parties to the 1949 Geneva conventions. Both Israeli and Hamas officials have expressed opposition to the report, although the latter have praised parts of it and are considering implementing the investigation recommended by the mission.

Most of the pushback and the vituperative attacks have come from the Israeli side, and indeed while comprehensive, the preponderance of the report does deal with Israel's actions. This is no coincidence. The overwhelming majority of causalities and destruction were incurred on the Palestinian side (which is not to detract from the fact that all loss is tragic). The report is forthright in acknowledging the power dynamic at work, noting that there is no equating "the position of Israel as the occupying power with that of the occupied Palestinian population or entities representing it. The differences with regard to the power and capacity to inflict harm or to protect, including by securing justice when violations occur, are obvious and a comparison is neither possible nor necessary" (report, clause 1,673, p521).

This relationship of power is crucial – too many Israelis and Palestinians have effectively dehumanised the other, but the practical policy and operational consequences of that dehumanisation are very different for an occupying power as opposed to an occupied people. Since the report's publication, and in the context of its pushback, Israel has bemoaned a different power dynamic, namely that investigations such as these are not conducted when it comes to, for instance, American transgressions in Iraq or Afghanistan.

Indeed, it is not a fair world: the Palestinians are to Israel as Israel is to America. Ironically, it is international human rights law and humanitarian law, the essence of this report, that exists to partially redress this unfairness.

The official Israeli response has followed a familiar if disappointingly ritualistic pattern. The emphasis has been on pre-emptively discrediting the report's findings rather than substantively addressing them. Israel's key claim – that the mission had concluded its findings in advance of its investigation – would appear to be true, only in reverse: namely that the Israeli government had decided on its response to the report in advance of its publication.

Official Israel refused to co-operate with the mission, refused to meet with its members or grant them official entry into Israel (or to the West Bank or Gaza via Israel), and had even banned the media from being in Gaza at the time of Operation Cast Lead. Israeli officials have marched in lock-step in their assertive rejection of the report, from the avuncular figure of Shimon Peres right down to the pugnacious ex-bouncer foreign minister, Avigdor Lieberman (lambasting the report from, of all places, Serbia – no sense of irony was detected).

Israel has launched a veritable global PR offensive. The relentless bashing of the UN Human Rights Council, reconstituted in 2006 (and certainly far from perfect), sits uneasily with the fact that the US assumed a seat on the council this year and along with others is working to reform and upgrade that body's standing. However, this response is in part understandable. The report is very problematic, and offence as the best form of defence is as natural in the political world as in the sporting arena. But a PR-centric response is insufficient, both substantively and legally.

The Goldstone report is only the most recent, albeit the most important, of a series of investigations that Israel has chosen to dismiss as biased. Israel has, I would argue, mistakenly chosen not to undertake its own independent commission of inquiry. Had that taken place, the Goldstone report would either never have been commissioned or (assuming a credible Israeli inquiry) would never have suggested referral to the UN security council or the international criminal court. Instead, Israel produced a 157-page internal report mainly conducted by the IDF on the Gaza operation, but this serves as an exercise in self-justification, not investigation.

For months, the Israeli human rights community has been beseeching its government to launch a credible, independent Israeli inquiry as the alternative to being hauled in front of the international community. Nine Israeli human rights NGOs responded to the Goldstone report by repeating this call and suggesting the Israeli government take the Goldstone findings seriously.

Such an inquiry would not be unheard of – prominent precedents exist such as the Kahan Commission Report on Sabra and Shatila in 1982, the Winograd Commission Report on the events of military engagement in Lebanon 2006 and the Or Commission Report with regard to the treatment of Israeli-Arabs. There was even the SELA Disengagement Authority Report in 2006 to investigate the functioning of the administration established to absorb Gaza settlers following the withdrawal.

Will a UN mission manage to nudge Israel in ways that the reports by human rights NGOs, including Israeli ones, failed to do? The instinctive answer would be no. Israel, if anything, has entered into more of a hunker-down mode with its highly dismissive response and has a track record of deep suspicion towards the UN. Repetitions of the mantra that the IDF is the most moral army in the world are again being heard from Jerusalem. Yet closer examination of these first 48 hours since the report's publication suggest the picture is more nuanced. One of Israel's most prominent, uncritical and rightist commentators, Ben Dror Yemini in the daily Ma’ariv suggested that the lesson perhaps was that Israel should have ended the war after the first 48 hours of the strike. Haaretz's Aluf Benn argued that Israel would not be able to act in such a way again after this report, a comment quite widely echoed.

While official Israel is now focusing on out-manoeuvring the implementation of Goldstone's recommendations, it is also coming closer to a recognition that there may be consequences and repercussions for what happened during the Gaza operation. Israel's image was already tarnished but the attention that a report of such magnitude attracts and the unimpeachable credibility and standing of its lead author, Goldstone, may cause many who dismissed previous reports to take a second look. This is likely to be a cause for particular division and concern within Jewish communities. Those groups who unquestioningly attack the report's veracity find themselves further alienated from significant swaths of Jewish opinion, especially among the younger generation. But it is in the arena of practical judicial consequences and of implications for future behaviour that the Goldstone report could have most impact.

In these matters there is always a tension between the demands of seeking justice now and of influencing the course of future events. I anticipate that the constellation of political forces will mean that this does not reach international criminal proceedings, and I have no desire to see Israelis appearing before such tribunals. But what this report does, and this is one of its most significant contributions, is to point a finger at a failure and in fact an illegitimacy to the overall policy that guided Israel's actions in Gaza. The report finds that the manifestations of human rights violations in Gaza were the structural by-product of policies that encouraged the targeting of civilians – namely, an expansive definition of the so-called infrastructure of terrorism and an intentional price-tag of disproportionality.

In its Lebanon war of summer 2006, Israel declared the existence of a Dahiya doctrine, after the southern Beirut neighbourhood of the same name, a Hizbullah stronghold. The Goldstone report quotes the IDF's then head of northern command as stating, "What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on … we apply disproportionate force on it and cause great damage and destruction there … This is a plan, and it has been approved" (report, p329). Israel applied the Dahiya doctrine in Gaza.

The second doctrine is an expansive definition of the so-called "supportive infrastructure of terrorism", whose practical application, according to the report, by extension made "the foundations of civilian life" and the "civilian population" a target. Since the Hamas election victory in 2006 and more assertively after the Hamas Gaza takeover in 2007, a policy was quite openly proclaimed that was sometimes known as the "West Bank first" approach. Living conditions in the West Bank would be improved while Gaza would be kept at a subsistence level, with the supposed intention of turning the population against their rulers. Instructively, the report digs deep into this issue, explaining the system of blockade imposed on Gaza prior to the operation and the attempt to deny Gazans a dignified living. The precise term for this is collective punishment. It is a short distance from this collective punishment to what was pursued during the operation, which translated into the targeting of governmental institutions, police services, prisons and even hospitals.

On this score, Israel is far from standing alone in the dock – the international community was complicit and in some cases actively assisted this policy. Many of us considered it to be misguided – the ceasefire period after June 2008 was far more effective in providing southern Israel with security and may well have achieved more had the siege been lifted. There is now a strong body of evidence to suggest that it was also illegal under international law. In some measure, the Palestinian Authority in the West Bank lent a hand to this policy, presumably out of a calculation of its own political gain. Egypt too lent a hand by maintaining the closure of Gaza's one non-Israeli controlled entry/exit point to the world – the Rafah border crossing in Egyptian Sinai (it is true that Egypt was under pressure to adhere to this policy, but it is a sovereign state and makes its own choices). Some members of the Quartet and the international donor community were too timid in raising their opposition. Others were instrumental in implementing the policy. The report explicitly acknowledges this international failure, and this is one reason among many for a likely lack of appetite of international actors to pursue the legal recourse that the report recommends.

It is, however, time to acknowledge the inadmissibility of the twin policies of a Dahiya doctrine and of collective punishment, based on an expansive definition of the so-called infrastructure of terrorism. I hope that Israel will do so, at least privately and practically, if not declaratively.

Finally, Goldstone's report is clearly asking to be interpreted as a red flag regarding future behaviour. The report makes a central theme of the ongoing impunity and lack of accountability of actions taken by Israel in the context of its occupation of the Palestinian territories: "The prolonged situation of impunity has created a justice crisis in the oPT that warrants action" (p543, item 1,755).

There is no military solution. Israel, in fact, negatively affects its own population's security by pursuing one, let alone what it does to the situation of the Palestinians. The endless and ever-more-entrenched occupation constitutes the greatest threat to Israel and its future. Reading this report powerfully brings home the fierce urgency of a political solution. Certainly the report's findings on human rights violations will have to be addressed, and it would be advisable for Israel to do so with its own investigation. I hope that any resolution that the UN security council may vote on in six months is one that approves an internationally sponsored peace plan for a viable and dignified two-state solution, and not one that sends the legal pursuit of Israel's actions to the international criminal court.

From the perspective of a friend and supporter of Israel – wishing to see Israel healed and its future guaranteed – the message is loud and clear. To rephrase a well-known adage, occupation corrupts, but prolonged occupation corrupts profoundly.

[The independent Middle East News Service concentrates on providing alternative information chiefly from Israeli sources. It is sponsored by the Australian Jewish Democratic Society. The views expressed here are not necessarily those of the AJDS. These are expressed in its own statements

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