Second Thoughts

Richard Goldstone has changed his mind about the Gaza war. Should we? Goldstone is the South African judge who served as head of a panel appointed by the U.N. Human Rights Council to look into allegations of war crimes and crimes against humanity committed during Israel’s 2008-2009 invasion of Gaza. The report reached the damning conclusion that "disproportionate destruction and violence against civilians were part of a deliberate policy" on Israel’s part. On this score, Goldstone has recanted. Writing in the Washington Post on April 1, he now says that Israel’s own investigations "indicate that civilians were not intentionally targeted as a matter of policy."

Human rights groups and others who embraced the Goldstone report were unfazed. Writing in the Huffington Post, Media Matters’ M. J. Rosenberg dismissed the change of heart as an "edit." In the Guardian, Kenneth Roth, executive director of Human Rights Watch, argued that his organization had never accepted the claim of intentional targeting, and pointed out — as others have — that Goldstone did not retract many serious allegations against Israel, including "the indiscriminate use of heavy artillery and white phosphorous in densely populated areas."

That’s true. It’s also true that Israel has been dilatory  — and Hamas contemptuously indifferent — about investigating its own behavior in Operation Cast Lead, as the Gaza invasion was called. But the difference between "deliberate policy" and unintended outcome is no mere edit. Goldstone does not state whether he now thinks that Israel was recklessly indifferent to that outcome or, as the Israelis themselves say, had little choice but to respond to Hamas’s tactics in ways that caused civilian deaths and the massive destruction of property and livelihoods. This is no small difference. If it’s the latter, the war in Gaza was an unavoidable tragedy. If it’s the former, the war was an avoidable tragedy, and many of the alleged acts constitute war crimes.

This is not the place to re-litigate an endlessly litigated report. My own view, which I expressed in an essay in World Affairs Journal a year ago, is that the report made a strong case that "Israel pursued a policy of disproportionate destruction" of property, but not of "wanton killing." But the deeper question the report raised, I wrote, was, "Can Israel fight Hamas — or can any state fight such an adversary — without the means that the Goldstone Report insists that international humanitarian law prohibits?" Gabriela Shalev, Israel’s former U.N. ambassador, has said that Goldstone’s change of heart proves that "there is no way to deal with this terror other than the same way we did in Cast Lead."

I doubt that Goldstone would endorse that view; and even some Israeli supporters of Cast Lead have conceded that Israeli soldiers may have committed terrible acts, including "cold-blooded murders" of civilians. And Israel’s destruction of Gaza’s meager economic capacity, as documented in the Goldstone Report, is of a piece with its longstanding policy of depriving the area of basic economic goods in the hopes of discrediting Hamas in the eyes of the Gazan people (a policy that hasn’t succeeded so far, and isn’t likely to).

But if Israel didn’t set out to kill civilians, then critics have to show that it could have ended the threat of further attacks from Gaza without using means, such as the shelling of urban areas, that were bound to cause significant civilian deaths — without exposing Israeli soldiers to dangers that no responsible commander would permit. That’s not an easy case to make. Even if you remove the reckless acts and the isolated crimes, Israel might still have killed many hundreds of civilians in the course of ending the threat from Gaza.

Insurgents now understand that they can lose a war to a more powerful adversary but still win by fighting from inside the ranks of civilians, thus forcing the other side to kill many innocent people. This tactic has virtually no effect on countries such as Sri Lanka and Russia, which seem perfectly prepared to kill any number of civilians in order to crush an uprising. But it can be very effective against states that are answerable to public opinion, which is why Taliban soldiers in Afghanistan try to lure NATO troops into attacking villages. Israel, as I said in my earlier Goldstone piece, "called Hamas’ bluff," going after the insurgents who hid behind civilians. It was a tragic choice — for the Palestinians, not the Israelis.

If we concede that many civilian deaths were both foreseeable and unavoidable, the essential question shifts from the way Israel chose to prosecute the war to the very fact that it chose to do so. Did Israel really have to do what it did? Israel and Hamas had observed a ceasefire during the second half of 2008; it unraveled only after an Israeli operation in Gaza in early November, which prompted Palestinians to fire rockets into Israeli cities. Hamas had continued to stockpile weapons, and plainly posed a long-term threat, but not an imminent one. Israel could have eased the chokehold on Gaza’s economy by opening some crossings with Israel and Egypt, and by expanding the list of products that could be trucked into the area (which it in fact did in the aftermath of the Mavi Marmara incident in the summer of 2009). Such a choice, of course, would have transferred some of the risk from Palestinians to Israelis, especially if Hamas continued to import weapons despite the concessions. But it also might have avoided a war that killed hundreds of innocent women and children.

What, in the end, did Israel gain from Cast Lead? A few very welcome years of relative freedom from rocket attacks. But now the attacks have resumed, including a horrendous missile attack earlier this month on a bus full of schoolchildren. The tide of reciprocal violence is rising once again, raising fears of a new Gaza war. Hamas is, if anything, under more pressure from extremist groups to take the fight to Israel.

And Israel lost a lot, too. Goldstone’s partial recantation cannot begin to compensate for the reputational damage Israel suffered as a result of the military operation. And reputation matters to Israel more than it does to Russia or Sri Lanka: Thanks to growing anger and frustration at the government of Prime Minister Benjamin Netanyahu, many Western countries now seem prepared to recognize a Palestinian state at the U.N. in September, though the United States will do everything it can to forestall a vote. Israel may also have lost a previous opportunity at a wider peace. We now know that in the fall of 2008 top Israeli officials were conducting secret, parallel peace discussions with the Palestinian Authority and Syria. Cast Lead put an end to both sets of talks. Peace talks, of course, come and go, and both might well have failed in any case. But in both cases, Israeli negotiators felt more optimistic than they had in years.

Israel’s losses, of course, pale before Gaza’s. And Gaza wasn’t the only loser. The Palestinian Authority was seen as a helpless bystander and the United States was rightly viewed as Israel’s chief defender and enabler. Recent revelations about the lengths to which Barack Obama administration officials have gone to quash the Goldstone report have only added to the damage.

Cast Lead, in short, may not have been a crime, but it may have been something just as bad: a terrible mistake. It was fully consistent with Israel’s policy in Gaza: defensible to the same degree, short-sighted and self-defeating to the same degree. Israel knows it can’t win the game of tit-for-tat violence. But so long as it keeps playing that game, Hamas will respond with brutal acts against civilians that seem to leave Israel no choice but to respond with massive force. Now the two sides seem to be preparing to plunge into war once again. There’s no sign that either Israel or Hamas feels enough regret about the tragedy last time to avoid repeating it.