Israel’s reported refusal to conduct an independent, thorough probe of its military’s handling of last winter’s 22-day war against Hamas in Gaza as demanded by the United Nations is a “missed opportunity,” according to Moshe Halbertal, co-author of the Israeli military’s code of ethics.
Responding to reports that Israel is preparing to establish a committee of senior jurists to conduct a limited review, Halbertal said that although it is “an important step, I don’t think it would be enough to answer the larger question of policy.
“This is a good way to explain the particular charges, but there is another dimension — larger questions of policy and the challenges of an asymmetrical war that such a review cannot provide,” said Halbertal, a professor of Jewish philosophy at the Hebrew University of Jerusalem.
“In that respect, Israel has an opportunity to clarify those issues and state its principles of operation in this situation,” he continued. “But the review they are [apparently] offering is not adequate for that and in that respect it is a missed opportunity.”
Mark Regev, a spokesman for Israeli Prime Minister Benjamin Netanyahu, said in a phone interview Tuesday while traveling with Netanyahu in Poland that no decision has yet been made regarding the UN-demanded review. But he pointed out that the Israel Defense Forces conducted its own review.
“The military process of investigation is both professional and independent, and I urge any objective person to compare it with any NATO country,” he said. “Our military justice is independent and professional, and anyone who knows the Israeli system knows that our military decisions are open to judicial review. We have a system of checks and balances, and I challenge any other country to investigate in such a thorough way.”
The Jerusalem Post reported last month that the IDF review of the 36 “most serious” cases of war crimes cited by Judge Richard Goldstone in his report found that 30 were “baseless accusations.” The other six were found to have been operational errors and mistakes. A reported 1,400 Palestinians and 13 Israelis were killed during the conflict. The entire report is expected to be completed in coming days and is reportedly to be released within two months.
The Goldstone Report demanded that Hamas also conduct an independent inquiry to probe the alleged war crimes it committed. A committee set up by the Hamas justice minister, Farah al-Ghoul, is reportedly preparing to release its findings shortly.
Israel has said its Gaza incursion occurred in response to a nearly incessant barrage of rocket fire by Hamas terrorists in Gaza on Israeli civilians. It said the large number of Palestinian civilian casualties was because Hamas terrorists fought Israeli troops from civilian areas.
Israeli media reported this week that Netanyahu, Defense Minister Ehud Barak and Israel Defense Forces Chief of Staff Gabi Ashkenazi favored a limited review of the war by a committee of senior Israeli jurists. They would be permitted to question political and military leaders, as well as Israeli military officials who investigated UN allegations of war crimes, but would be barred from interviewing officers and soldiers who took part in the war.
But Israel’s Information and Diaspora Affairs Minister Yuli Edelstein said he spoke with Netanyahu Tuesday just prior to meeting here with UN Secretary General Ban Ki-Moon and that Netanyahu did not mention such a committee. Edelstein said he is against the formation of such a committee.
“We have investigated enough,” he told The Jewish Week. “I’m not sure it leads anywhere. It’s not necessary. I hope it won’t be done. ... Whether it will satisfy the General Assembly is hard to tell.”
Edelstein said, however, that after his meetings Monday with the secretary general and others at the UN that he is “cautiously optimistic” that the Goldstone Report will “in the near future” disappear from the UN’s agenda.
“What I said to the secretary general is that the atmosphere it created is dangerous,” he said. “Anti-Semites now find a platform for their views.”
For example, Edelstein said, he told Ban Ki-Moon that while Israeli medical teams were working in Haiti to save lives, word was being spread across the Internet that “the Israelis were there to harvest organs. It’s all over the Web sites. A Lebanese journalist asked a UN official here whether he could comment on this.”
In addition, he referred to the comments published Monday of Polish Bishop Tadeusz Pieronek, a former head of the Polish bishops’ conference, who in an interview with the Pontifex.Roma Web site was quoted as saying about Jews and the Holocaust: “It should not be that one group steals this tragedy and uses it for propaganda purposes.” He asserted also that Jews had used the Holocaust as a “propaganda weapon,” using it to silence international criticism of their treatment of Palestinians.
Should Israel create a committee of senior jurists, it would be seen as a compromise between an outright rejection of the UN demand for an independent probe and full compliance.
“The Israelis are on the horns of a dilemma,” said Abraham Foxman, national director of the Anti-Defamation League. “This is an intrusion into their sovereignty and judicial system, and they find that Goldstone is biased and bigoted. And yet it has a life of its own. Even though Israel has the law on its side, it has to deal within the confines of a real, bigoted world. It can’t ignore it [even though] its desire is to tell everyone to go fly a kite.”
An Israeli official who spoke anonymously because of the sensitivity of the subject said Israel is afraid that if it ignores Goldstone, “it will hinder us in the future — we will not be able to operate. We don’t have a choice. The whole world is speaking about Goldstone. We were asked by the [UN] secretary general to answer Goldstone. We are a part of the UN and have to answer.”
Jerusalem was particularly concerned about the report’s recommendation to refer the issue to the International Criminal Court where Israel could be tried for war crimes should it refuse to conduct its own investigation. Such a judicial review could open a Pandora’s box.
“No Israeli official would then be able to travel abroad because we could be arrested in any country of the world and we would become international pariahs,” the Israeli official pointed out.
Will the limited review being proposed by Israel satisfy the UN General Assembly, which is slated to convene Feb. 5 to discuss progress on the report and its recommendations? Efraim Inbar, director of the Begin-Sadat Center for Strategic Studies, said he believes it might satisfy the General Assembly or at least “Western countries that make similar suggestions to us,” including the United States.
He said the reported decision not to permit the proposed committee’s questioning of soldiers is correct because “we should protect our soldiers from too much legal intervention.”
“It would be impossible for the IDF to operate with such legal intrusions,” Inbar said. “People don’t understand what war is all about. War is chaotic. Most of our casualties in the  Lebanon War were friendly fire. So if we make mistakes concerning our own troops, we can make mistakes facing our enemy. ... Don’t forget, Hamas fought from civilian quarters and they had the moral responsibility for civilian losses.”
A major charge in the Goldstone Report is that the Israeli military deliberately destroyed Gaza’s only flour mill to deny sustenance to the civilian population, an explicit war crime. The IDF investigation found photographed evidence that the mill was hit accidentally by an artillery shell during a battle with Hamas gunmen.
Inbar pointed out also that Israel stopped fighting during the war “to allow convoys to come in” with food.
“Can you give me an example of a war in which an army stopped to allow the enemy to get food?” he asked.
Jonathan Rynhold, an expert in U.S.-Israel relations at Bar-Ilan University, said that the “overwhelming majority of the Israeli public believe Goldstone was unfair and politicized.”
“I don’t think anybody in Israel believes there was an attempt to target civilians,” he added. “If there was, there would have been a hell of a lot more civilian deaths. The question is, how much risk do Israeli soldiers have to take? That is still an issue for us.”
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