Shalev: Goldstone Fallout is Political, not Legal

In this article from The Jerusalem Post, Dan Izenberg considers the impact of the Goldstone report as "political and not legal." The article points to mistakes Israel had made after Operation Cast Lead, and suggests that the current laws of war should be changed, as they do not address the new reality involving civilians in warfare.

The challenge facing Israel over the Goldstone Report is political and not legal, Israel's ambassador to the UN Gabriella Shalev said on Wednesday.

The report, which has unleashed worldwide criticism of Israel, accused it of violating the laws of war during Operation Cast Lead.

Shalev was speaking from New York by video conference to participants in a round table discussion in Jerusalem sponsored by the Israel Democracy Institute on the challenges to Israel posed by the report and what Israel should do about them.

According to Shalev, some countries are challenging Israel's right to exist as a result of the report.

"We are facing an attack on Israel, our army and our judicial system," she said, adding that Israel must not shy away from the fight or treat it as a lost cause but should participate in every forum and try to prove its case.

"We rely on our friends, the US and other enlightened countries," she said.

Welfare and Social Services Minister Isaac Herzog said Israel had made mistakes all along the line in its handling of the situation that developed after Operation Cast Lead.

First of all, he said, Israel should have agreed to cooperate with the Goldstone Commission and should not have treated Goldstone himself as a persona non grata. The government not only refused to cooperate with the commission, but also prohibited it from entering Israel to visit Sderot and the Gaza periphery or entering the West Bank via Israel.

Herzog added that the government should have challenged the appointments of the other three members of the commission and perhaps tried to cancel some of them. All three appointments were problematic, said Herzog, since one of them, Professor Christine Chinkin, had already accused Israel of committing war crimes while fighting was still going on in Gaza, another, Hina Jilani, was Pakistani and the third, Colonel Desmond Travers, lacked battleground experience.

Herzog also blamed Israeli leaders for making irresponsible and bombastic statements which had no operative significance but were used by the Goldstone Commission to "prove" that Israel's aim in the fighting was to punish the Palestinian civilian population for Hamas's military actions.

He said Israeli leaders continued to talk too much about establishing an investigative commission to examine the allegations that Israel violated the laws of war. Herzog warned that should an investigative commission be established, such statements, which he called thoughtless, would be exploited in the future to "prove" it was solely a tactical move to preclude the possibility of an international investigation, rather than the result of genuine desire for a serious and objective investigation.

Herzog added that he sided with those who believe the laws of war must be changed to address the issue of fighting terrorist organizations which deliberately involve civilians. The current laws of war did not address the new reality, he said.

Hebrew University Prof. Mordechai Kremnitzer charged that the Goldstone Report was clearly influenced by the political opinions of the commission. "Goldstone," said Kremnitzer, "believes that Hamas is fighting for independence. So he thinks that there is nothing the poor, innocent organization can do but fire rockets at Israel.

"This is obvious because Goldstone did not attribute any motive to the fact that the Hamas fought from among the Palestinian civilian population, but had no problem determining that, given the number of Palestinian civilian casualties, Israel's premeditated aim must have been to wage war against Palestinian civilians."

But Kremnitzer added that Israel did not act wisely by angering Goldstone during the investigation. "The courtroom rule is that you don't make the judge angry," said Kremnitzer. "But that is exactly what Israel did in systematically refusing requests by Goldstone throughout the investigation."

In the long run, he added, the only way Israel stood a chance of putting an end to the harsh international criticism against it was by reaching a diplomatic solution to the Israeli-Palestinian conflict. So long as the conflict was unresolved, no amount of Israeli propaganda or information would help, he said. 

This article written by Dan Izenberg was originally published in The Jerusalem Post on October 29, 2009 and was reposted with permission.