Israeli Cast Lead Report: Yes, Virginia, There WERE Crimes

I’ve just finished reading the Israeli report updating investigations into alleged war crimes in Operation Cast Lead. The report quite clearly shows there were some serious issues in that war, and that international outrage was not unwarranted, even if Israel would still maintain it was exaggerated.

Many make the case that the report vindicates the Goldstone Report and, in some ways, it does, though I don’t think it

quite “proves the Goldstone Commission right” as other commentators have said. But what I think is more important is that it shows that if Israel had set up a credible, independent and civilian investigation of Cast Lead as soon as the war was over, and in response to calls from its own civil society, it would be in a much better position than it is today.

The character of such an investigation is important, as is demonstrated within this Israeli report itself, when it says that

“Another challenge is that some Palestinian witnesses have refused to make any statement, even in writing, to IDF investigators. Other Palestinian witnesses have declined to provide testimony in person. While an affidavit can provide investigators with valuable information and serve as the starting point for an investigation, a written affidavit alone is generally inadmissible as evidence at trial. In the Israeli legal system, as in many others, proving a criminal case instead requires that witnesses be willing to appear in court to permit cross-examination on issues such as the witness’s ability to observe the events, whether a witness has any bias, and whether there were other relevant facts not recounted in the written statement. Hence, in some cases, the unwillingness of a complainant to cooperate in criminal investigations may deprive the investigators of the most significant evidence.”

Well, yeah, are we really surprised that the investigative team from the army that just wreaked havoc across your land, and which was previously occupying that land (by even the strictest definition) for almost 40 years would not be trusted by the victims?

I believe in approaching this question from a best-case scenario view. In other words, if we assume that Israel wants to balance its security needs with human rights concerns, and that it wants to minimize the negative backlash from any action it takes, what would it need to do? If it fails to meet even that standard, a purely Israel-centric one, what faith can it ask the rest of the world to have in it?

I’m more sympathetic than most of my blogging colleagues to some of Israel’s claims. I can understand that Israelis feel picked on with the international attention on Cast Lead while there are no such international investigations into the massive damage and civilian casualties resulting from the invasions of Iraq and Afghanistan – two countries who did not perpetrate the terrorist attacks that led to the US-led invasions of both of them.

I’m also sympathetic to the contention by Israel that the laws of war need revision to deal with the realities of modern

warfare which, far more often, does not occur between two armies, but between armies and guerilla forces.

And I think Israel is probably right when it says if the USA was attacked, even in ineffectual ways as with the qassam rockets, as often as Israel is, the American response would be less restrained than Israel’s.

None of this, in the end, changes the fact that Cast Lead was monstrous, that it killed a great many civilians, and that it, as well as the siege more generally, has done great harm to the people of Gaza with minimal, at best, effect on Hamas. And that’s the bottom line.

Indeed, those sympathies of mine only reinforce just how foolish and self-defeating Israeli obstinacy has been in regard to accountability for Gaza. The diplomatic fallout has been immense, and the momentum it has given to boycott movements is something no one but Israel could have provided.

And it could have been avoided at the outset if Israel had decided to appoint a credible investigative team, outside of the military but with military experience at the highest levels, with full transparency and outside observers, from the EU, Arab League, UN and USA.

Israel’s human rights community was screaming for something like that. But it didn’t happen. Now, the Military Advocate General lays out its report, which does find significant problems, comes up with some reasonable responses to some allegations (though these remain dubious because of the source and because, as the MAG admits, its very nature presents unique obstacles to its investigations), but fails again to examine the top echelon, and the basic guidelines, (based in good part on the work of Prof. Asa Kasher, who has repeatedly stated that he prioritizes the lives of soldiers over the lives of “enemy” civilians) which are framing Israeli military planning.

Perhaps, though I remain skeptical, the Tuerkel Commission will address some of the defects of credibility.

In any case, the latest Israeli report simply reinforces the need for impartial review. It gets closer to the mark, but the source will diminish its credibility. And, the enormous respect I have for Justice Richard Goldstone notwithstanding (and both Israel’s and the Jewish community’s treatment of this man is shameful beyond description), the UN Human Rights Council’s reports suffer the same credibility problem from the opposite direction. The UNHRC’s ridiculous record when it comes to Israel taints its products. I wonder if Israel could have obfuscated the Goldstone Report even to the extent it did if the UN had done the obvious thing and had the mandate for the commission come from a different body, such as the Secretary General’s office, rather than one so clearly biased against Israel.

Neither of those points means either report is wrong. The Goldstone Report was thorough and, though I thought there were some issues with it (what report, especially one that was prepared so hastily, doesn’t have problems), a fair

reading of the full report cannot but determine that it was based on evidence and drew reasonable conclusions. A similar thing can be said about the latest Israeli report, while both reports are obviously grounded in their respective perspectives (Goldstone in international law, the Israeli one in Israeli operational parameters).

In the end, it is politics, not law, that have really brought more of the facts to light. We’d all do well to stop pretending otherwise; international law is a joke as long as it is selectively enforced. That includes its lack of enforcement with regard to Israel’s occupation as well as the total absence of any enforcement on NATO’s operations in Afghanistan and Iraq (and a host of other issues, like France’s current operations in Mauritania, or a whole slew of American operations around the world). It is politics, not law, which is determinative.

And there are ways to make it work. If the political will is there.