SOUTH AFRICAN JURIST Richard Goldstone’s retraction of the most serious charge in his report for the UN Human Rights Council (UNHRC) on the 2008-9 Gaza War – that the IDF deliberately targeted civilians – has reopened the debate on the dilemmas Israel faces in its fight against fundamentalist terror.In an op-ed published in The Washington Post on April 1, Goldstone argued that new facts, which had largely come to light through Israeli investigations, clearly indicated that “civilians were not targeted as a matter of policy.” For example, the bombing in which some 29 members of the al-Samouni family were killed was the result of an erroneous interpretation of a drone image and the Givati Brigade commander responsible is under military police investigation. The Israeli government, which had always claimed the charge of deliberate targeting of civilians was tantamount to a blood libel, insisted that the entire UN-initiated report be annulled, a demand categorically rejected by UN Secretary-General Ban Ki-moon.Goldstone’s op-ed came just two weeks after former New York judge Mary McGowan Davis, who heads a follow-up committee of independent experts, reported to the UNHRC that Israel had dedicated “significant resources to investigate over 400 allegations of operational misconduct in Gaza.”Davis, however, did not have only praise for Israel. She complained that “only a fraction” of the investigations had been completed, and that Israel had not “opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.”From an Israeli point of view, the initial 574-page Goldstone Report, released in September 2009, created two major problems. The report seemed to deny the country the right to self-defense against rockets fired from within civilian areas and it made a significant contribution to the campaign of delegitimization. It also emboldened Hamas, providing it with an unanticipated stick with which to beat Israel.So what, if anything, has the IDF done in the interim to restore international legitimacy for its operations? How has Israel gone about refuting the Goldstone Report? Has it prosecuted cases of wrongdoing? Indeed, are Israel’s procedures for investigating alleged breaches of the Laws of Armed Conflict (LOAC) adequate? And what has Hamas made of Goldstone’s retraction? DESPITE ISRAEL’S CATEGORICAL rejection of most of the Goldstone Report findings, the storm of international criticism it engendered led the IDF to make a number of significant doctrinal changes. These include modifying the way the army fights in urban areas, teaching relatively low-level combat officers about the nuances in the laws of war, attaching humanitarian liaison officers to active forces and prioritizing media relations.In May 2010, just eight months after the release of the Goldstone Report, the army issued a document defining rules of engagement in urban warfare. Although the ideas it elaborated had long been standard practice, putting them down in writing was tantamount to introducing a new doctrine for fighting in built-up areas. It noted that during the Gaza operation, even after every effort had been made to induce civilians to evacuate areas where combat was expected – by dropping flyers and making direct telephone calls, for example – more often than not, some non-combatants stayed behind.The new doctrine requires that after efforts have been made to warn the civilian population to leave, the incoming troops must first fire warning shots and give the remaining civilians a chance to leave safely. Then, to minimize casualties among civilians who nevertheless choose to stay, IDF fighters and commanders must use the most accurate weapons at their disposal and choose munitions of relatively low impact.The IDF has also taken significant legal steps. According to Avi Kober, a military expert at Bar Ilan University’s BESA Center for Strategic Studies, officer training courses at company, battalion and brigade level now include detailed study of international law, with special reference to the rules of war. The Military Advocate General’s Office and the Foreign Ministry consult regularly with foreign governments and international organizations to ensure that all IDF operations conform to accepted legal norms.During the Gaza War, legal advisers from the Military Advocate General’s Office already served with combat forces, advising commanders in real time of what might constitute a breach of the law. In January last year, then chief of staff Lt.-Gen. Gabi Ashkenazi standardized this practice, instructing commanders to consult with legal advisers not only in the planning stages of military operations, but also during the actual fighting. However, Kober adds, in order to prevent possible loss of military focus, Ashkenazi ordered that the legal advisers be seconded to divisional headquarters, rather than battalions or brigades as is common in some other western armies.Another step the IDF has taken to help minimize civilian casualties and humanitarian distress on the other side is to attach humanitarian liaison officers to troops in the field. These officers come from a pool set up by the Coordinator of Government Activities in the Territories (COGAT) and are in regular contact with the Palestinian Authority in the West Bank and international aid organizations in Gaza. Their task in the event of hostilities would be to help coordinate humanitarian needs on the Palestinian side and to point out locations of sensitive facilities like hospitals, schools and UN aid centers to ensure that they are not mistakenly targeted.Such officers were assigned during the Gaza War on ad hoc basis and, despite a number of serious targeting blunders by IDF troops, the IDF Spokesperson’s Office says that on the whole, they proved very effective. As a result, in February last year, Ashkenazi decided to refine and institutionalize the system.But the most radical change in IDF thinking since the Goldstone Report has been in the realm of media relations. There is now a firm consensus in the army that the way military actions are perceived is at least as important as their physical impact. Outgoing IDF Spokesperson Brig.-Gen. Avi Benayahu is fond of quoting the US Joint Chiefs of Staff Chairman Adm. Mike Mullen’s dictum that whereas PR was once supplemental to battle, now battle is supplemental to PR. More than ever, IDF generals agree, all operations must now be planned with media, legal and international legitimacy aspects in mind.Notably, though, the IDF signally failed its first real post-Goldstone test on this score. The boarding by Israel Navy naval commandos of the Turkish ship “Mavi Marmara” as it attempted to run Israel’s naval blockade of Gaza last May quickly turned into a PR disaster.Nevertheless, in the wake of the new heightened PR awareness, the IDF Spokesperson’s Office now routinely sends a mobile unit from one combat group to the next teaching officers the importance of the lurking TV cameras and how to get messages across in 20-second sound bites. Trained media officers are now also attached to combat units.This means that in future combat situations, commanders will have legal, humanitarian and media advice on tap. Not all are pleased at the prospect. Some say this will simply make it difficult for the IDF to operate in combat situations and won’t prevent the next “Goldstone Report,” because, they say, war is always ugly, brutal and destructive.BECAUSE THEY HAD REFUSED to cooperate with Goldstone, given his mandate and the fact that his commission had been set up by the notoriously anti-Israel UN Human Rights Council, the Israeli authorities did not submit an official answer to its charges.But a string of Foreign Ministry, IDF and non-official reports published in its wake challenged its methodology, its interpretations of fact and its main arguments. In January 2010, the Foreign Ministry published “Gaza Operation Investigations” – an update of an earlier paper on “Factual and Legal Aspects” issued a few months before the Goldstone Report came out – which noted, inter alia, that Israel’s system for investigating alleged violations of the Laws of Armed Conflict is similar to those in force in the UK, US, Australia and Canada: The Military Advocate General’s Office (MAG), which is independent of the IDF hierarchy, investigates; the Attorney General provides civilian oversight; and the Supreme Court sitting as the High Court of Justice allows for further review.Two months later, at its own initiative, a team at the Intelligence and Terrorism Information Center led by Reuven Erlich, produced “Hamas and the Terrorist Threat from the Gaza Strip: The Main Findings of the Goldstone Report Versus the Factual Findings,” which pointed to four basic flaws in Goldstone’s treatment of the security threat Israel faces from Hamas: he did not deal with Hamas ideology or character; he minimized the extent of the terror launched against Israel from Gaza and did not hold Hamas accountable; he ignored Hamas’s military build-up; and he made no mention of Iranian, Hizballah and Syrian military aid to Hamas.“The Goldstone Report is one-sided, biased, selective and misleading since it simply accepts Hamas claims at face value and presents everything through Hamas’s eyes,” Erlich declared at the time.In April the IDF completed a 1000-page report by Brig.-Gen. Yuval Halamish which showed the scope of the army’s self-investigation. It noted that it had launched approximately 400 investigations, questioning over 500 soldiers as well as scores of Palestinians and human rights activists. This had led to 50 criminal investigations by military police; some are still ongoing.In addition, the IDF investigated 36 alleged cases of war crimes, including all 34 referred to in the Goldstone Report. This has led to criminal proceedings in just three cases, including one in which two Givati soldiers allegedly forced a nine year-old Palestinian boy to open bags they thought might be booby-trapped.The most articulate case against the Goldstone Report was made as early as November 2009 by Moshe Halberthal, a Hebrew University philosopher and one the authors of the IDF’s ethical code. In “The Goldstone Illusion,” published in The New Republic, Halberthal noted four principles of moral conduct in war that guide the IDF: Necessity – using no more than necessary force; distinction – no targeting of non-combatants; avoidance – doing everything possible to avoid harming civilians; proportionality – taking the utmost care that, in accordance with the laws of war, civilian casualties, if and when they occur, are not disproportionate to the anticipated military gain.Given these principles, and the fact that the ratio of civilian to militia dead in Gaza was far smaller than in other modern conflicts, for example in Afghanistan or Serbia, Halberthal termed the charge – since retracted – that Israel deliberately targeted civilians “outrageous.” He also noted that the report included rambling irrelevant sections on the Israel-Palestinian conflict, slamming Israel and ignoring Hamas. “The honest reader of these sections cannot avoid the impression that their objective is to prepare a general indictment of Israel as a predatory state that is geared towards violating human rights all the time,” he wrote.According to Robbie Sabel, Hebrew University lecturer on international law, Goldstone’s “original sin” was in his fact-finding methodology, which included accepting Hamas’s testimony at face value. “As a judge, he was deeply offended that one of the parties on trial, Israel, refused to cooperate. So he didn’t make any serious independent effort to determine the facts,” Sabel tells The Report.Worse, in Sabel’s view, in judging Israel, Goldstone applied human rights rules, rather than the laws of war. “So he assumed the moment civilians were killed something wrong had happened. His thesis was: The fact that there were civilian casualties meant that Israel had committed a crime. That is ridiculous,” Sabel asserts. He notes that on D-Day, when the allies landed in Normandy, over 13,000 French civilians were killed by allied bombing, whereas in Gaza, according to Israeli figures, of the 1,166 Palestinians killed in 22 days of fighting, less than 450 were non-combatants. Palestinian and Hamas figures put the civilian dead at no more than 740.“Unfortunately,” Sabel observes, “civilian casualties are an inevitable part of armed conflict in a built-up area.”The upshot of Goldstone’s failure to recognize this was that he failed to address the key question: What is a state to do to defend its citizens when terrorists fire rockets from inside civilian areas? “The laws of war don’t allow belligerents to use civilian shields to rule out any possible military response. Of course, you still have to try to minimize civilian casualties, but you can’t grant immunity to enemy missiles just because they are deliberately fired from civilian areas,” Sabel maintains.Human rights activists are equally critical, but for different reasons. According to Jessica Montell, executive director of B’Tselem, which monitors the treatment of Palestinians by IDF forces in the occupied territories, Goldstone hurt the cause of truth twice: His initial report was so unbalanced that it diverted attention from legitimate concerns over IDF conduct, and his retraction gave Israel an excuse to claim that everything was beyond reproach.However, says Montell, many questions about Cast Lead remain unanswered, both on the level of individual cases, and, even more importantly, on the level of military policy.Her sharpest criticism of the Israeli system is that the investigations, currently conducted solely by the Judge Advocate General, who is party to IDF legal policy-making, and the military police, are fine for dealing with individual soldiers suspected of war crimes, but wholly inadequate for issues of suspect policy. “After Cast Lead, we sent 20 individual cases that are quite dramatic,” Montell tells The Report. “We did not intend that only the actual soldier who pulled the trigger or fired the missile be investigated. We wanted an investigation of broader issues, such as what sort of weapons were authorized, what levels of force were applied, what were the rules of engagement given to the soldiers and what were defined as legitimate military targets. The military police do not have the tools or the mandate to investigate any of these issues,” she insists In mid-April, Montell appeared before the Turkel Commission on the “Mavi Marmara” incident, which is now considering whether Israel’s system for investigating alleged war crimes meets international standards. Montell argued that it does not, precisely because there is no independent mechanism for investigating issues of policy. For this, she argued, Israel needs to establish a permanent standing commission, made up of both civilians and military people, but totally independent of the IDF. “For me, having a credible process of investigation is important to ensure that justice is done if individuals broke the law and that policies are amended if found to be illegal. But it’s also important for the message it sends to soldiers: That we value all human life, including Palestinian life, and that we take it very seriously when civilians are hurt,” she concludes.ON THE PALESTINIAN SIDE, Hamas leaders are seething over Goldstone’s retraction.They see it as part of a Jewish/Zionist plot to pave the way for Cast Lead 2, says Palestinian expert Yohanan Tzoref, now a senior adviser to Strategic Affairs Minister Moshe Ya’alon. Hamas had hoped the report would tie the IDF’s hands, but, Tzoref says, the recent sharp cross-border exchanges have clearly shown that it won’t.Indeed, according to Tzoref, the newly installed Iron Dome system, which intercepted several Grad missiles fired from Gaza in early April, could prove a game-changer. “From a wider Palestinian perspective, it seems to prove what (Palestinian Authority President Mahmud) Abbas has been saying all these years: that the rockets are “empty,” and serve no purpose, since Israel can always find a more sophisticated counter. In other words, another Palestinian organization, like Abbas’s own Fatah before it, gets into an ultimately futile exercise of using all the military means at its disposal to fight Israel, and then realizes that it’s getting them nowhere. I think Hamas is slowly reaching the point where they will turn to a more political approach,” Tzoref tells The Report.In the meantime, as both sides gear up for Cast Lead 2, with all the diplomatic, legal and military force they can muster, the IDF finds itself hampered by two major constraints: care not to conduct operations that might incur international censure, or operations that could lead to heavy Israeli military casualties. Sometimes these two principles are at odds -- as when Israeli ground forces used heavy fire in the Gaza War to avoid casualties, and in so doing put Palestinian civilian lives at risk. But often they are complementary -- as in the IDF’s reluctance to commit ground troops unless absolutely necessary.Part of the solution to this post-Goldstone Report dilemma lies in technology. For example, super-accurate munitions that can pinpoint terrorist targets, pilotless planes that can identify and attack would-be rocket launchers, and active defense systems like Iron Dome – which not only downed Grad rockets launched from Gaza, but simultaneously located their launch points, enabling immediate attacks on the militiamen firing them. These capabilities enabled Israel cool the Gaza flare-up in early April without incurring international opprobrium or risking soldiers’ lives.In other words, the Goldstone Report and its international ramifications have pushed the IDF into a process of self-examination resulting in a new emphasis on “fighting smart,” from operational, legal, humanitarian and media points of view.