US bias binds Gaza

RICHARD Goldstone, a prominent South African jurist, claims in The New York Times that he hesitatingly accepted his UN mandate to investigate the three-week December-January war between Hamas and Israel because he was taking on something "deeply charged and politically loaded". Many states considered this mandate one-sided. Prominent individuals offered the view that it was more about politics than human rights. Goldstone was wise to hesitate, but he took the mission that will forever bear his name.

The Goldstone report was the product of the Gaza fact-finding mission, which could never have been a judicial mission, given the inclusion of publicly biased members. Still, despite a lack of co-operation from key parties, notably Israel, Goldstone's mission reached the conclusion that Israel was guilty of directing its military operations, at least in part, "at the people of Gaza as a whole". The reaction has been to drive all parties even further into their corners and has contributed very little clarity to the big issues.

Goldstone claims he has a deep belief in the law of war and that civilians "should to the greatest extent possible be protected from harm". He states that Israel "could have done more to spare civilians" who died from "disproportionate attacks". The Israeli military, he claimed, repeatedly "failed to adequately distinguish between combatants and civilians, as the law strictly requires". And he concludes that Israel should have refrained from attacking "clearly civilian buildings and from actions that might have resulted in a military advantage but at the cost of too many civilian lives".

The way that Goldstone frames these statements in his article should lead us to question how he confidently reached a guilty verdict. The law of war is rightly full of the kind of restricting concepts mentioned above. A formal example is Article 51(5)(b) of Protocol I, which prohibits "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated".

Is this modified and reasonable statement the discrimination that the judge says "the law strictly requires"?

The just war principles emerged as society moved towards a less dark age, and include conflict that is morally justified. We can all have an opinion on how just the Israeli attack on Hamas was, but it remains an opinion shaped by our prejudices. Jurists of the just war era even differentiated between the commentator and the statesman, acknowledging that the statesman has an obligation to deal with threats to their citizens, not just talk about them. Goldstone is no statesman in this sense, he is the commentator.

The law of war is a body of rules regulating the conduct of states and combatants engaged in armed hostilities, drawing heavily from the Hague and Geneva conventions, as well as numerous agreements that limit the means and conduct of hostilities. This body of law often speaks in terms of attacker and defender.

When I was involved in military operations in the second year of the Iraq war, working with the US military, I found it useful to reduce the legal regime to several key concepts. Every offensive action I took had to be necessary for military reasons, not result in unnecessary suffering, was amenable to distinction between military and civil people and property, and did not cause destruction or suffering disproportionate to the expected military gain, even against legitimate military targets. I satisfied myself that I achieved these and I satisfied the system that scrutinised every action I took. I probably never will convince those who have on occasions publicly, ignorantly and incorrectly associated me with war crimes.

Our adversary in Iraq consistently ignored all humanitarian law as well as the laws of war, particularly the blatant abuse of medical facilities and places of worship. Our adversary's major strategy was to blow the arms and legs off innocent women and children at times calculated to fit the need of the world's media networks. This was an immorality of strategy that was breathtaking, exercised not just once or twice, but over years. Despite the nature of our enemy, we realised that our right to injure even our enemy was limited.

But the defender also has obligations. He cannot exploit these laws by deliberately commingling his fighters with civilians, as Hamas admits it did. This violates the most basic principle of the law of war. However, should our opponents do this, the attacker is not relieved of all legal obligations: we still had to comply with proportionality principles and refrain from attacks likely to result in civilian damage excessive in relation to military gain.

Let us not forget that it is very common for our adversaries, be they al-Qa'ida or Hamas, to exploit legal constraints for their strategic or tactical gain. Proportionality is always an issue, but to see Hamas as David to the Israeli Goliath, and to then feel undue empathy for David while blaming everything on Goliath, is to distort the complexity of each position. For example, I would argue that to comply with the law of war it is essential that if a combatant possesses the precision-guided munitions that the report seemed to see as unfair, he is obligated to use those because they discriminate.

Inherent in the principle of protecting the civilian population is a requirement that civilians not be used to render areas immune from military operations. A party to a conflict that chooses to use its civilian population for military purposes violates its obligation to protect its own civilians. It should not complain (but of course it will) when inevitably, although regrettable, civilian casualties result.

With experience of having to tread through this legal and moral minefield while acting as an agent of the statesman who has an obligation to act, I was looking forward to how Goldstone was going to react to questions such as: How much discrimination is enough? How much of the inevitable killing of innocents is too much? How do we equate our complex war aims with the use of military force against a terrorist organisation that flouts the rule of law? How do you assess in legal terms the proportionality of a war between a terrorist force and one of the world's most advanced militaries? If one side uses backyard rockets is the other side not allowed to use precision-guided missiles? Do three Israelis killed and hundreds wounded by backyard rockets equal 1000 Gazans killed by Israeli actions? Given the legal regime recognises the difficulty of military decision-making amid the fog of war, and thus obligates planners and commanders to base decisions on information reasonably available at the time, how did the report handle this issue?

On these and many other questions, the Goldstone report is strangely silent, a luxury that I did not have in Iraq, and a luxury that the Israeli commanders probably did not have in Gaza.

The Goldstone report is an opinion by one group of people putting forward their judgments, with limited access to the facts, and reflecting their own prejudices. The difference in tone and attitude in the report when discussing Israeli and Hamas actions is surprising.

I probably do not need to state for most readers that as a soldier who has run a war against an opponent not dissimilar to Hamas, facing problems perhaps similar to those faced by Israeli commanders, my sympathies tend to lie with the Israelis. I can hold and openly declare those prejudices even while I acknowledge that within institutions that may be overall just and moral, there can be individuals or small groups who act outside the law. They must be dealt with, and in my war, they were.

But having stated my prejudice, I think I may be more honest than Goldstone, who seems to pass off his prejudices in a report that cannot be based on fact, and uses judicial language and credibility to do so. It comes down to equality of scepticism: if you refuse to believe anything the Israelis say, then you have no right to unquestioningly accept what Hamas says.

Goldstone is a former chief prosecutor for war-crime tribunals on Rwanda and the former Yugoslavia. Perhaps it is easier to come to a judicial decision with some integrity in such circumstances, than it is to examine the Israeli and Hamas roles in the last Gaza war. This kind of report, with all its biases, is one of the reasons why the US did not subject its military to the International Criminal Court. But Australia did.

As George Walden recently wrote in Britain's The Times, "Morality minus practicality is pious grandstanding, something best left to pop stars and theatre folk." And perhaps to the UN.

Retired major general Jim Molan was chief of operations of the Iraq multinational force in 2004-05.