The Goldstone Illusion

What the U.N. report gets wrong about Gaza--and war.

The aim of the IDF ethics code is to strike a coherent and morally plausible position that provides Israel with the effective tools to protect its citizens and win the war while also setting the proper moral limits that have to be met while legitimately securing its citizens. In debating the code, I heard many times that it imposes constraints upon Israeli action that would limit the capacity of the army to win the battle and to provide security. In fact, the moral constraints and the strategic goals are mutually reinforcing. Radical groups such as Hamas start their struggle with little support from their population, which tends to be more moderate. They increase their base of support cynically, by murdering Israeli civilians and thereby goading Israel into an overreaction (this is not to deny, of course, that Israel can choose not to overreact) in a way that ends up causing suffering to the Palestinian civilians among whom the militants take shelter. The death and the suffering of the civilian Palestinian population, in the short run, is a part of the Hamas strategy, since it increases the sympathy of the population with the movement’s aims. An Israeli overreaction also leads to the shattering of Israel’s moral legitimacy in its own struggle. In a democratic society with a citizen’s army, any erosion of the ethical foundation of its soldiers and its citizens is of immense political and strategic consequence.

And so, Israel’s goal in its struggle with Hamas and Hezbollah is to reverse their attempt to strengthen themselves politically by means of their morally bankrupt strategy. Rather than being drawn into a war of all against all and everywhere, Israel has sought to isolate the militants from their environment: to mark them and “clothe” them with a uniform, and to force them to a definite front. The moral restraints in this case are of great strategic value. I am convinced, for this reason, that targeted killing, especially of the militants’ leadership, is an effective and legitimate endeavor. It is for this same reason that I believe that Israel’s siege of Gaza, and its harsh effect upon general civilian life, is morally problematic and strategically counterproductive.

 

II.

In accordance with the just war tradition in Western history and philosophy, three principles are articulated in the IDF code concerning moral behavior in war. The first is the principle of necessity. It requires that force be used solely for the purposes of accomplishing the mission. If, for example, a soldier has to break down the door of a home in order to search for a suspected terrorist, he has no right to smash the TV set on his way in: Such gratuitous use of force has no relation to the mission. This is a straightforward principle, professionally and morally, though its implementation might be complicated if the mission is not well-articulated or if there are serious arguments about what kind of force is necessary to accomplish a given mission. In ordinary war, the collapse of the enemy’s army is a more or less clear event; but in an asymmetrical war, victory is never final--the mission seems not so much to end as to shift; and so it may be difficult to apply the necessity principle.

The second principle articulated in the code is the principle of distinction. It is an absolute prohibition on the intentional targeting of noncombatants. The intentional killing of innocent civilians is prohibited even in cases where such a policy might be effective in stopping terrorism. At the height of the violence in 2002, some suggested that the only deterrence against suicide bombers who wish to die anyway is the killing of their families. But such a policy is blatantly murderous, and it is prohibited. An Israeli soldier is prohibited from intentionally targeting noncombatants, and, in the event that he is given such an order, he must refuse it. He is obligated to engage in fighting only those who threaten his fellow soldiers and civilians.

The implementation of the principle of distinction is also very difficult in an asymmetrical war. Since the enemy does not appear in uniform and there is no specified zone that can be described as the battlefield, the question of who is a combatant becomes crucial. In the process of identifying combatants, a whole causal chain must be established and marked as a legitimate target. This “food chain” of terrorism is made up of people whose intentional actions, one after the other, will end up threatening Israeli civilians or soldiers. This chain includes the one who plans the attack, the one who recruits the bomber, the one who prepares the bomb, the driver of the car that transports the bomber to his or her target, and so on. It is clear that such an attempt gives rise to difficult cases, and even the most scrupulous effort will leave some room for doubt. What about the financer of the bombing, for example?

It is also clear that applying the international law of war to this new battlefield is fraught with problems. Consider a painful issue that comes up in the Goldstone Report--the matter of the Gaza police force. In the first minutes of the war, Israel targeted Hamas police, killing dozens. There is no question that, in an ordinary war, a police force that is dedicated to keeping the civilian peace is not a military target. The report therefore blames Israel for an intentional targeting of noncombatants. But such a charge is only valid concerning a war against a state with a clear and defined military institution, one that therefore practices a clear division of labor between the police and the army. What happens in semi-states that do not have an institutionalized army, whose armed forces are a militia loyal to the movement or party that seized power? In such situations, the police force might be just a way of putting combatants on the payroll of the state, while basically assigning them clear military roles. Israeli intelligence claims that it has clear proof that this was the case in Gaza. This is certainly something that Israel will have to clarify. But it is clear to me that Goldstone’s accusation that targeting of the police forces automatically constitutes an attack on noncombatants represents a gross misunderstanding of the nature of such a conflict.

COMMENTS (25)

11/06/2009 - 3:38pm EDT |

From direct contacts, I am stating that many Palestinians - spread over Gaza, West Bank, USA, Germany - are very nice people.

The close influence of Israel was also a mostly positive factor in the development of the Palestinian society.

The religious and political leaders of Palestine have to gather honesty and start a constructive attitude without listening to the incitement of the foreign interventionists.

The Hamas leaders, Haniya and Meshal are enemies of progress.

Goldstone made a mistake. He had to expose the barbarism of Hamas leaders' policies. Running kindergardens, and clinics during the day, is nice, but digging tunnels for terror acts, or shooting missiles during the night, still m ... view full comment

11/06/2009 - 5:21pm EDT |

Marty Peretz: I want to thank you for whatever role you played in having this essay published in TNR.

It's exemplary in its no nonsense, lucid and balanced reasoning.

What a pleasure it is to read! What a breath of fresh air it is!

I'll be interested to read comments people make and maybe get into some of that discussion.

11/07/2009 - 4:35am EDT |

Ditto basman. Nice work.

A couple of quibbles:

On the issue of Goldstone's lengthy focus on the "context of the history that led to the war", it was indeed done with remarkable shoddiness, but the basic necessity of providing an accurate and appropriate context seems to me unavoidable. Lack of recognition of basic historical reality has been one of the most significant factors in perpetuating this conflict. Encouraged by everyone from do-gooders like Goldstone to the Soviet KGB, the Pals have, as a function of their relatively recent invention as a discreet nation (as opposed to the traditional identification as more generally simply "Arabs"), come to except themselves from one of the more rob ... view full comment

11/07/2009 - 2:57pm EDT |

No surprise to see yet another attack on the Goldstone report in TNR... but beyond the polutical manoeuvering here, Halbertal makes some specific claims that are pretty easy to dismiss:

(1) Moshe Yaalon may have claimed that the collateral deaths in the assassination of Salah Shehadeh were unforeseeable, but if so, he's lying. The IDF dumped a 2000-lb bomb on Shehadeh's house, in a densely-settled part of Gaza. The computed danger zones for a US Mk 84 2000-lb bomb extend out to just about 250 metres. There were obviously-occupied houses just metres from the bomb's impact point: see the photo at http://www.li ... view full comment

11/07/2009 - 4:14pm EDT |

With all due respect Mac, the Mk. 84 is a 500 not a 2000 pounder. And if I felt I had to order counterfire on a mortar position, I'd much rather have the option of the 120.

The Goldstone Report has enough obvious holes in it to make "attack" the wrong description of efforts to point some of them out. Goldstone is "balanced" in the same way the UN was in Bosnia, excellently described by Paddy Ashdown: "We had a clear case of good v. evil, and we tried to split the difference."

11/07/2009 - 6:05pm EDT |

Nope, sorry, a Mk. 84 is a 2000-lb bomb, it's the Mk. 82 which is a 500lb bomb, and it was the former that was dropped on Salah Shehadeh's house. And certainly, a 120mm mortar will make a bigger bang... which is the whole issue in a built-up area with a lot of civilians around. Bigger bang = more dead civilians, all other things being equal.

The great sin of the Goldstone Report was an attempt to be even-handed, to look at the conduct of war on both sides - and not to assume that the conduct of one side (or, as Halbertal claims, the conduct of Russia in Chechnya) excuses the conduct of the other. In a situation where the lives of Arabs are assumed to be worth less than those of Israelis, that ... view full comment

11/07/2009 - 7:19pm EDT |

SMacEachern2

“No surprise to see yet another attack on the Goldstone report in TNR... but beyond the polutical manoeuvering here,”

No surprise to see yet another attack on Israel by one of the the mac team (MacEachern2 and mackenzie) is no surprise. What is surprising is that maceachern2 bothers to subscribe to a magazine he hates. Is he is paid to do so?

Any way his “critique of the Halbertal is easy to dismiss:

“(1) Moshe Yaalon may have claimed that the collateral deaths in the assassination of Salah Shehadeh were unforeseeable, but if so, he's lying.”

And of course Mac is munitions expert and he knows that for sure that Yaalon was lying (rather than mistaken) when he said the ... view full comment

11/07/2009 - 8:55pm EDT |

Richard Landes did a thorough job critquing the Goldstone report:

"Fisking Goldstone’s Response to Berman: Whereas Clause #3"

by Richard Landes

http://www.theaugeanstables.com/

The article is in many parts. Scroll down the thread till you get to the first article.

11/07/2009 - 8:57pm EDT |

An example of Godstone's dishonesty:

"Whereas clause #3: “Whereas the mandate of the `fact-finding mission’ makes no mention of the relentless rocket and mortar attacks, which numbered in the thousands and spanned a period of eight years, by Hamas and other violent militant groups in Gaza against civilian targets in Israel, that necessitated Israel’s defensive measures;

[Goldstone:] “2. Paragraph 4: This is factually incorrect. Chapter XXIV of the Report considers in detail the relentless rocket attacks from Gaza on Israel and the terror it caused to the people living within their range. The finding is made that they constituted serious war crimes and possibly crimes against humanity. ... view full comment

11/08/2009 - 2:12am EDT |

I think it may be a bit unrealistic to expect that any side in any war is going to value the lives of the enemy, even if it's only the most active and dangerous enemies' family members, supporters, and neighbors, the same as its own citizens and soldiers. The value of the lives of Israeli citizens to Hamas, not to mention the lives of the Arabs they regularly kill, torture, use as hostages, etc., is pretty clear

That said, I don't think there is an example in all of history when an army defending its home and people has taken greater and more costly measures to safeguard the lives of enemy civilians who are not actively firing on them than Israel's.

11/08/2009 - 4:05am EDT |

Illuminating to the extent that it reveals the largely irreconcilable ethical quandaries which exist as a result of the status quo. The author tries to discount the report (with sound argument) but proceeds in an attempt to narrow accountability to individual circumstance. More revealing, though, is a general lack of accountability, a purposeful ambiguity meant to allow the conflict to be fought on a microcosmic level. This code allows for a flexibility as demanded by a particular situation, but doesn't give much in the way of establishing a universal code and accordingly abandons a need for specialized ethical training and decentralizes decision making, all of which are mutually supportiv ... view full comment

11/08/2009 - 10:01am EDT |

Josh Milstein “Illuminating to the extent that it reveals the largely irreconcilable ethical quandaries which exist as a result of the status quo. The author tries to discount the report (with sound argument) but proceeds in an attempt to narrow accountability to individual circumstance. More revealing, though, is a general lack of accountability, a purposeful ambiguity meant to allow the conflict to be fought on a microcosmic level. This code allows for a flexibility as demanded by a particular situation, but doesn't give much in the way of establishing a universal code and accordingly abandons a need for specialized ethical training and decentralizes decision making, all of which are ... view full comment

11/08/2009 - 10:08am EDT |

Milstein: the military code of which country in the world, the military practices of which country in the world, the military training of which country in the world, the ethical training in which military of which country in the world, meet your high standards?

11/08/2009 - 11:17am EDT |

Josh Milstein makes it seem that can use code words like "progressive" and that would be sufficient to clinch an argument. Problem is this Norman Geras post makes clear progressive has had many meanings including a number of reactionary ones. (Remember uncle Joe?)

http://normblog.typepad.com/normblog/2009/11/not-peace-but-a-sword-by-se...

“Not peace but a sword? (by Sean Coleman)”

[The comment below, emailed to me by Sean, is posted here with his permission - NG.]

Slavoj Žižek's misappropriatio ... view full comment

11/08/2009 - 11:36am EDT |

I think, if correct, Mr. Halbertal raises a significant issue as to why certain critical questions were not even asked in the Goldstone report. Drawing conclusions after failing to ask critical questions, reveals a bias. An illustration. I remember when Senator D'Amato's Whitewater Committee went after Hillary Clinton on whether she had the missing Rose Law Firm billing records. One morning, majority counsel, Michael Chertoff, got up from his panel seat and headed around to testify to the committee about his thorough study into who had the billing records when the banking committee was looking for them. He divided up the world into time periods and groups and asked everyone on his list ... view full comment

11/08/2009 - 3:26pm EDT |

jacksondyer: "And of course Mac is munitions expert and he knows that for sure that Yaalon was lying..."

(Shrug) Last time I had direct experience of this was at the Staunch Gladiator firepower exercises at CFB Gagetown a couple of years ago, where the safety zone used for air-dropped _500-lb_ bombs was about a kilometer. Before that, my military experience was in the 1970s. Mk 84s were around at that point, and the fundamental properties of detonating Tritonal and fragmenting metal haven't changed since that time.

So, yeah. If Yaalon claims that the IDF can drop a 2000-lb bomb into a crowded Gaza residential neighbourhood and have any reasonable expectation of not causing a lot of collateral ... view full comment

11/08/2009 - 4:48pm EDT |

" Last time I had direct experience of this was at the Staunch Gladiator firepower exercises at CFB Gagetown..."

So are you Canadian?

I have had experience with anti-tank weaponry, but I wouldn't presume to set myself up as an expert who can gainsay what Israeli experts in the field say.

"So, yeah. If Yaalon claims that the IDF can drop a 2000-lb bomb into a crowded Gaza residential neighbourhood and have any reasonable expectation of not causing a lot of collateral casualties, then He. Is. Lying. Through. His. Fucking. Teeth."

Cool it boy.

Shehadeh was no boyscout and he was one of the founders of Hamas's Izzedine al-Qassem Brigades. Of course killing and terrorizing Jews is no big deal to y ... view full comment

11/08/2009 - 4:50pm EDT |

I apologize if you were taking aback at my wordiness, jacksonyder

At no point does the author suggest that an ethical code is unnecessary. Quite to the contrary he reveals his personal investment in devising such a code and merely relates that difficulty to the larger one of reconciling moral issues involved with asymmetrical warfare with the positions held by the international community. I’m not sure where you got the idea that he suggests that a code may be unnecessary. As he stated several times throughout the article, there is a code in place but it is predicated on the need for flexibility. The effect this has is to decentralize the accountability; try to take this more as neutral cons ... view full comment

11/08/2009 - 8:15pm EDT |

jacksondyer: Sorry, but there's nothing complicated there. A 2000-lb bomb will have certain effects when it detonates, that's all. Blast will kill people directly and topple walls out to a particular distance, fragments will kill people at a greater distance. The question isn't whether Shehadeh was a bad man: he was. The question is whether Halbertal's channeling of Moshe Yaalon's excuses is anything but self-serving. The IDF approved a tactic for killing Shehadeh that guaranteed the deaths of innocent people in the area: those people were then killed. Crocodile tears about their deaths from the IDF afterward, and Halbertal's pathetic little excuses, just make the whole exercise even more ob ... view full comment

11/08/2009 - 8:30pm EDT |

Josh I don’t usually take seriously people who make assumptions about their interlocutors as you do without knowing anything about them. I have been posting here for many years have some other posters and I can tell your assumptions are completely off.

Here are some of the assumptions you made about me:

“Your attack on my personal credentials is alarming in that it reveals precisely the reactionary trend to which I was referring. Your infant-like diatribe is all too common but understandable when considering your associations, which I assume to be among the right of center unequivocal supporters of the State of Israel, focused on narrowing the dialogue to more particular issues.”

Then:

“ ... view full comment

11/08/2009 - 8:38pm EDT |

SMacEachern2

“jacksondyer: Sorry, but there's nothing complicated there. A 2000-lb bomb will have certain effects when it detonates, that's all. Blast will kill people directly and topple walls out to a particular distance, fragments will kill people at a greater distance. The question isn't whether Shehadeh was a bad man: he was.”

Well, no the question is how best to fight the Hamas terrorist infrastructure. The bomb did what it was supposed to do kill Shehadeh a lethal architect of murder and terror.

You can gainsay the methods used, but are you sure that had they used a smaller size bomb it wouldn’t have had equally disastrous collateral damage? What if a smaller bomb had kille ... view full comment

11/09/2009 - 2:09pm EDT |

I am not sure anyone is reading this thread any more. However, just in case Josh shows up he should be aware of this insightful post about what it means to be pro-Israel:

Pro-Israel

http://normblog.typepad.com/normblog/2009/11/proisrael.html

"In case anyone had failed to notice it, let me just say that this blog is pro-Israel. If I'd ever been asked to say whether it was, I would have affirmed it without any hesitation; I wouldn't have stopped to ponder the meaning of 'pro-Israel', merely taking this in a rough and ready sense. I say that merely by way of ... view full comment

11/09/2009 - 9:07pm EDT |

I liked the comment by Geras and am happy to be introduced to his blog.

It's of course a telling critique of the inveterate Israel bashers (as opposed to responsible criticism of specific policies or actions) to ask them what countries meet the standards they hold Israel to.

Once they can't answer, they are in fact answering other things.

11/10/2009 - 12:07am EDT |

For Example:

The Right Way to Investigate Gaza

Evelyn Gordon - 11.09.2009 - 10:51 AM

"...A group of South African immigrants to Israel submitted a novel proposal to Prime Minister Benjamin Netanyahu last week. Netanyahu, they said, should accede to the UN’s demand that Israel investigate its own actions during January’s war in Gaza. But it should do so in the only way that makes sense: not by focusing on Israel’s actions in a vacuum but by comparing them to those of other Western military campaigns in populated areas – for instance, American operations in Iraq and Afghanistan or NATO’s bombing of Serbia.

“I particularly mention Serbia, where the number of bombs dropped on a civilian ... view full comment

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