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From the field

5 April '11: Goldstone then and now

In a recent Washington Post opinion article, Justice Richard Goldstone, head of the UN fact-finding mission into the hostilities in the Gaza Strip (Operation Cast Lead), retracted some of the claims in the original report. He contended that, had he had access to information from the Israeli military, he would have reached different conclusions. He now states that Israel did not intentionally target civilians as a matter of policy, and that there are no grounds for believing Israel committed crimes against humanity. He also praises Israel for taking great effort to investigate complaints, contrary to Hamas’ failure to do so.

B'Tselem stated at the time the Goldstone Report was published that its conclusions were not sufficiently based on the facts presented, precisely on this point of an intentional policy directed at targeting civilians. Goldstone's recent statement is welcome to the extent that it corrects flaws in the original report.

However, this criticism does not negate the report’s main recommendation: that both Israel and Hamas must investigate their conduct during the operation. Goldstone now contends that Israel is doing this, while Hamas is not. But on this point, too, he hastily draws conclusions on a weak factual basis. He states that Israel properly investigated the events, although most of the investigations are still ongoing, nearly two and a half years later. He bases his determination on an interim report on behalf of the UN in which the drafters themselves admit that they are unable to determine the quality of the Israeli investigations and their current status. 

The calls now being made by Israeli officials, which interpret Goldstone’s article as a complete retraction of the report’s contentions, completely ignore the fact that that an appreciable number of the investigations that he favorably mentions in his article were opened as a result of the report itself. Were it not for the Goldstone Report and the international process that followed, it is unclear how many investigations, if any, would have been opened and what would have been investigated. For this reason, the calls to shelve the report because Israel has carried out investigations are baseless. 

Review of the actual investigative process raises doubts about Goldstone’s statement that Israel deserves praise for its work. Israel has opened 52 criminal investigations into the events of Operation Cast Lead. Three of them have resulted in indictments. It is unclear how many cases have been closed and how many have been finalized. Two and a half years after the operation, we still do not know the results of most of the investigations. Goldstone refers to 400 investigations in his article, but these are operational inquiries carried out by the military and are not an effective investigative tool.

Primarily, though, the criminal investigations focus on specific cases in which individual soldiers ostensibly violated the law. These investigations completely ignore the question of the policy outlined by the senior military echelon and by the political echelon. Who determined which objects were legitimate targets, who established the rules of engagement, who set the number of forces employed? These extremely important fundamental questions have not been examined.

The Goldstone report blamed Israel for the worst of crimes – the possible commission of crimes against humanity. It made this claim without any factual basis and without hearing Israel’s official version (in large part due to Israel’s miserable decision not to cooperate with the fact-finding mission). Since the publication of Goldstone’s retraction, Israeli officials conclude that all its actions were carried out in accordance with law. However, it is imperative to note that in operation Cast Lead Israel killed 758 Palestinian civilians who did not take part in the hostilities, 318 of them minors. In excess of 5,300 Palestinians were injured, more than 350 of them seriously. More than 3,500 houses were destroyed, and electricity, water, and sewage infrastructure was damaged. Gaza has not yet been rehabilitated from the unprecedented destruction it suffered.

The bar pursuant to which Israel’s actions must be judged is not whether the army committed crimes against humanity or war crimes, but rather whether it adhered to all of its obligations under international humanitarian law. The issue of intentionality is only part of the picture. The prohibition on the deliberate targeting of civilians is absolute, but an additional provision of the laws of war is that both sides to a conflict must take all feasible precautions to avoid as much as possible harming civilians.

Dozens of investigations by B'Tselem, other organizations, and the media raise suspicions of illegal conduct during Operation Cast Lead. The only way to investigate these suspicions is by means of an independent Israeli inquiry that deals also with questions of policy. A democratic society must demand more of itself than simply being cleared of the most severe of suspicions.