Goldstone: Asymmetric legal warfare

The Goldstone Report was released last September.

The Goldstone Commission members were appointed on April 3. They first convened on May 4. They spent about 10 days in Gaza listening to testimony from people whose testimony was guaranteed not to offend Hamas, and another two days in Geneva listening to other people.

By the beginning of August, they were done with their investigation and started writing the report.

In those mere three months, they say they investigated some 36 incidents from thousands that occurred during a complex military action. These incidents were specifically chosen to make Israel look as bad as possible - in other words, they chose incidents for which they felt that there was overwhelming evidence that Israel was wholly in the wrong, based on the already biased evidence and testimonies.

As Goldstone said,

The Report contains an analysis of 36 specific incidents in Gaza as well as a number on the West Bank and in Israel.

In Chapter XI of the Report, for example we detail a number of specific incidents in which Israeli forces launched direct attacks against civilians with lethal consequences. These were, with only one exception, where the facts establish that there was no military objective or advantage that could justify the attacks

...These attacks amounted to reprisals and collective punishment and constitute war crimes.

The bolded statement is the linchpin of the Goldstone Report. Based on the Goldstone Commission's supposed military expertise, faced with incomplete evidence and biased testimonies, they determined that Israel engaged in numerous operations in Gaza that had no military advantage and therefore, in the view of the commission, must have been purely for reasons of punishing ordinary Gazan civilians.

Generalizing from these cherry-picked incidents, Goldstone then implies that the entire war was at least in part for that same purpose - a war to target Gaza civilians. As the report said:

While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.

Since then, the Israeli government has released three reports about the Gaza war. These reports reflected painstaking investigations of the Goldstone 36 incidents as well as those alleged by various NGOs and others. Even a cursory look at the Israeli reports on the specific incidents shows that the number of man-hours spent in interviews and reviewing evidence far outweigh what Goldstone did, and that the seriousness with which they took these investigations likewise far outstripped Goldstone's.

While a couple of the incidents were found to be problematic, the vast majority of these incidents were shown by the Israeli investigators to fall within the guidelines of the laws of war. Incidents that Goldstone was convinced had no military value and were purely a spiteful targeting of civilian infrastructure were shown, at length, to be the exact opposite.

For example, Goldstone describes the destruction of the Sawafeary chicken coops. He spends most of the paragraphs describing the terror of the family living there and other ultimately irrelevant information. The only paragraphs that describes the destruction were these:

946. Mr. Sawafeary and Mr. Mughrabi informed the Mission that they had watched Israeli armoured bulldozers systematically destroy land, crops, chickens and farm infrastructure. Mr. Mughrabi stated that he watched the bulldozers plough through fields with crops and trees, destroying everything in their path. Mr. Sawafeary stated that he saw less, as he was watching through a small opening because he was afraid of being seen and shot. He stated that he saw only two or three “tanks”, but was not in a position to say whether there were more. He watched as the armoured bulldozers destroyed the chicken farms, crushing the wire mesh coops with the chickens inside. He could not see his own farms and the chickens he could see being destroyed were not his. He noted that the drivers of the tanks would spend hours flattening the chicken coops, sometimes stopping for coffee breaks, before resuming their work.

948. The Mission visited the site and saw the still flattened mesh coops, which had been
covered with corrugated iron, as well as the remains of water tanks and machinery

Based on this evidence - a chicken farm that no one disputes was destroyed - Goldstone concludes:

955. An inspection of the scene indicates that the area is relatively sparsely populated. The Mission rejects the idea that the Sawafeary farm was destroyed in the pursuit of any military objective.

956. The destruction of the farms appears to have been wanton and not militarily necessary. Not only were the coops with the chickens destroyed, but all of the plant and machinery of the farms as well.

957. From the facts ascertained by it, the Mission finds that the Sawafeary chicken farms, the 31,000 chickens and the plant and material necessary for the business were systematically and deliberately destroyed, and that this constituted a deliberate act of wanton destruction not justified by any military necessity.

Because the commission could not imagine any scenario where the chicken coops can be justifiably destroyed, it concludes that no such justification could exist.

Now look at the IDF report:

(1) The Sawafeary Chicken Coops
122. According to allegations included in the HRCFF Report,58 in January 2009 IDF forces bulldozed several chicken coops owned by the Sawafeary family in Zeytoun, purportedly as part of a deliberate strategy of destroying civilian infrastructure.

123. The command investigations conducted with regard to this incident reveal that the Sawafeary chicken coops were destroyed for reasons of military necessity.

124. Specifically, the investigations revealed that the area around the Sawafeary chicken coops was occupied by an IDF ground force beginning on 4 January 2009, as part of the ground maneuver, with the intention to take control of rockets and mortar launching sites and reducing the number of terror attacks on Israeli territory. The force took positions in several houses, including one house that was adjacent to the chicken coops. This positioning was necessary to secure the area for military operations against Hamas and to protect the IDF troops in those operations. The IDF’s defense plan for this area needed to meet three serious threats to the safety and security of the IDF troops: the firing of anti-tank and RPG missiles on IDF positions; sniper fire; and infiltration of terrorist operatives into the immediate vicinity of the forces in order to plant and detonate explosive devices, including by suicide bombers.

125. The terrain in the area made this location more dangerous for IDF forces. The area was agricultural in its original use and thus included many orchards, groves, and greenhouses, located between and around the houses occupied by the IDF. This made it harder for the IDF to identify Hamas positions and fighters. The threat was not theoretical—on 5 January 2009, an RPG missile was launched at one of the IDF positions in that area. In addition, several shooting incidents occurred originating from the orchards located to the south of the chicken coops.

126. In order to overcome these threats, the IDF decided to create a security zone around each of the IDF positions with a perimeter of 20–50 meters around each post, which would allow uninterrupted observation and firing capabilities for the force in each position, as well as joint protection among the different IDF outposts. These security zones allowed IDF forces to anticipate at an earlier stage the approach of terrorist operatives.

127. The Sawafeary chicken coops were located only a few meters away from one of the key IDF positions. The IDF position was, itself, dictated by the lay of the terrain in the area. As the command investigation determined, this IDF position could not be adequately secured if the chicken coop structures were left intact. The demolition of these structures was needed to allow a clean line of sight for protection of IDF forces. The investigation also determined that the decision to destroy the coops was consistent with the demands of the principle of proportionality: there was a compelling military need for the area to be cleared for the safety of the IDF forces and for the success of IDF operations against the Hamas forces operating in the area. The local commanders determined that these advantages outweighed the damage to private property that would result from the demolition. The commanders avoided the destruction of residential buildings or other facilities in the area, when such destruction was not required by military necessity or appeared to be disproportional.

128. The MAG reviewed the findings of the command investigation and concluded that the destruction of the chicken coops was lawful, as it was necessary to protect IDF forces operating in the area. It did not violate the limitation on destruction of private property because it was justified by military necessity. The MAG also found that the destruction of the chicken coops did not violate the ban on destroying any object that is indispensable to the survival of the civilian population. It was dictated by the location of specific operations against Hamas,
and not part of a campaign to interfere with the production of food supplies in Gaza. It was not intended to deny the civilian population in Gaza access to essential commodities.59 As a result of these findings, the MAG determined that no further proceedings were necessary.

129. Although the MAG found no violation of the Law of Armed Conflict in this incident, he recommended several changes to IDF procedures in cases involving destruction of private property, which are detailed below in Section IV of this Paper. In particular, the MAG found that the decision to destroy the chicken coops was made by a relatively junior IDF officer, and that such decisions were more appropriately and typically made at more senior levels. While the MAG found that the particular rank of the officer making the decision did not indicate wrongful or criminal conduct (as neither the Law of Armed Conflict nor IDF procedures at the time required that such decisions be taken by an officer of any particular rank), he has recommended that the IDF’s procedures for destruction of civilian property be reviewed in several respects, as detailed in Section IV below.

In short, Goldstone looked at the scene without even having a clue as to why Israel would want to be in the area, what its objectives were there, what dangers it faced and how those dangers could be minimized. The commission, despite the presence of an anti-Israel colonel who has no experience in real-life conflicts, made an ill-informed judgment that there was no military advantage to this action.

This is not an isolated incident. Example after example of comparing Goldstone to the IDF reports shows that Goldstone was out of his league in determining military necessity. Yet he made recommendations based not only on incomplete data, but on sheer ignorance of how modern urban warfare works. He shows no knowledge of even the basics of what the IDF goals were in the operation. And, worst of all, rather than admit his ignorance of the issues, he made assumptions that there could be no possible reason he is unaware of that would justify the destruction of civilian property or the deaths of civilians altogether.

In some ways, the Goldstone Report is the human-rights equivalent of asymmetric warfare. Terrorists can attack a target with relatively little planning and at relatively little expense. To defend against crude attacks takes much planning and incredible expense. Similarly, a Goldstone (and HRW) can parachute into a war zone for a couple of weeks with limited expertise and lots of biased witnesses, determine that Israel targeted civilians based on ignorance of the basics of war, and it takes Israel months and months to refute the charges.

By the time the true story comes out, the entire world has already made up its mind. And, in this case, the response gets no press coverage altogether, except for the few cases where the IDF admits it could have done a better job or some individuals went against IDF policy.

Yet it is impossible to respond to scattershot allegations in real time - if one cares about the truth. The damage was done because of the irresponsible and ignorant charges that were made last year. Even worse, Goldstone and his team still sanctimoniously insist that there has been no response to their report that has any value. It is as if their 700 page report, filled to the brim with irrelevancies, is authoritative based purely on its size.

Goldstone could have written a fair report even without Israeli cooperation. He could have spent a bit of time with people who are real experts, rather than relying on a self-selecting set of people who responded to his "call for submissions."

More importantly, he could not have come to his conclusions without having already been convinced ahead of time  that the IDF could possibly have waged a war, on a policy level, as a punitive measure against civilians. His failure to go a little deeper betrays he fact that he investigated in order to support a foregone conclusion, not to find out the truth.

The bar to make such an accusation against any modern army should be significantly higher than accepting problematic testimony and making uninformed assumption - yet this is exactly what Goldstone did.