There's No Point to a Commission of Inquiry

Ruth Gavison
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Ruth Gavison

The Goldstone report has rediscovered an old truth: The security forces do not conduct reliable and prompt external inquiries into suspected departures from norms. The damage from the absence of such inquiries is twofold: We don't draw lessons and cannot ensure a certain level of performance, and we don't enforce accountability when such enforcement is both essential and justified.

The Israel Defense Forces' opposition to an external inquiry is natural but wrong. No entity should investigate itself. The military advocate general and the Military Police's investigations department are important and professional, but they do not suffice because only an external independent body can carry out an effective and reliable investigation. If we had such a body and tradition that combined inquiry (what happened and how improvements can be made) with investigation (examining enforcement of accountability), Israel would be able to deal more effectively with the sharp criticism, part of which has not yet been adequately rebutted.

The Goldstone report raises significant questions. Some touch on accountability, discipline and conduct in wartime, but some have to do with policy and strategy. A judicial commission of inquiry would not be the appropriate instrument for handling either of these categories. Appointing one would look like an attempt by "Goldstone's accused" to appeal against his conclusions. Such a panel would not effectively respond to the report and its repercussions, and an inquiry might point out strategic and political topics that need to be clarified, resembling an admission that Israel's judicial machinery is no more than a fig leaf. Here we must distinguish between the types of accusations.

An external investigation, prompt and trustworthy, is essential when it comes to the war-crime allegations such as abuse of civilians, shooting civilians carrying white flags, using human shields or willful destruction of water sources and a flour mill. However, the Goldstone report's flaws illustrate the problems inherent in commissions of inquiry. The Or Commission did not fix criminal accountability for the events of October 2000, so the Arab community still wants to see justice applied fully to "the murderers."

This will be repeated even more starkly with a commission examining complaints and findings of external factors, some of them not professional, regarding dozens of incidents in geographic areas that are not under Israel's control. Such an investigation will be protracted, but the wielders of universal authority will not wait and will act to have Israelis brought to trial abroad. Ultimately, a report will be a source for allegations against Israel, and will seem like an admission of guilt.

More grave are the findings in the Goldstone report that the planning and goals of Operation Cast Lead included many fundamental breaches of international law and the laws of war, as well as the statement that here too the enforcement of criminal accountability should be examined. The result of these findings is that the entire operation, and even the Gaza blockade, are not legitimate means in Israel's fight against terrorist acts emanating from the Strip. From Goldstone's point of view, not only the soldiers who took part guilty, but so are the politicians who did the planning and the legal advisers who approved the objective and modi operandi that Goldstone describes as war crimes.

These issues are not purely judicial ones, and they certainly do not require an investigation. We must give a political and professional response, including a clarification of appropriate strategies for the challenges of defense and international law. Goldstone wants to deny Israel the alternatives of comprehensive military operations, and even of blockades, against territory from which the enemy attacks from among a civilian population. The report does not state what Israel is allowed to do to defend its citizens from firing by members of organizations operating among a civilian population whose semi-elected government is ideologically committed to Israel's destruction. That is the question up for debate, and the reply will not be found in a further investigation.