UN Gaza Report / Will U.S. Now Let Goldstone Into Afghanistan?

In the end, it is not about the law, but about power, both military and political.

The New York Times, which vociferously opposes the murder of noncombatants, was indirectly involved in the deaths of women, children and other civilians just a week ago. It happened near Kunduz, Afghanistan, when British and Afghani commandos liberated kidnapped Times journalist Stephen Farrell: Civilians were caught in the cross-fire and killed, as was Farrell's Afghani interpreter.

Had the Times, a bastion of opposition to harming to civilians in war zones, known that civilians would be killed in the rescue, would it have preferred that the operation be called off, and that Farrell remain in the hands of his captors? What will it write if a similar operation is undertaken to release Gilad Shalit?

Unlike journalists, governments and field commanders deal with this dilemma every day. It is easy to decide when the target is a battalion of tanks in the desert. But it is more complex when the threat to a military unit comes from within a civilian environment - the very civilians the unit has been sent to protect. Ignoring the nature of military action is the height of hypocrisy. The leader of the United Nations fact-finding mission, Richard Goldstone, ought to be smart enough to know that in reality, the gold and the stone are not separated, they are entwined.

In that same Afghan strip of land known as Kunduz, dozens of civilians were killed this month in an air strike carried out by American warplanes looking to provide cover fire for German forces on the ground. The incident is still being investigated, yet it is believed that the civilians did not die as a result of the actual bombing of fuel tankers hijacked by the Taliban and which could later be used as mobile bombs against the Germans. Rather, the deaths are believed to have occurred as a result of explosions which took place after the air strikes, when civilians are believed to have tried to extract fuel from the tankers. The result is bad for all parties concerned given that the commander of the NATO force in the country, Stanley McChrystal, has stated that the local population's security and its support of either the central government or the Taliban are key to aiding the alliance in accomplishing its military goals. Who's guilty in this case? The Germans? The Americans? The Taliban? Was a war crime perpetrated in this case?

Such questions have no unequivocal answer. There is Goldstone and there is Goldstein. A massacre carried out by a uniformed officer like Baruch Goldstein, who killed 29 Muslim worshipers at the Tomb of the Patriarchs in Hebron, is that of a single individual if no one in the army was party to it, but a war crime if it was authorized, or even known about by others in advance. This case, or that of the unit commanded by William Calley in My Lai, Vietnam, or the murder of prisoners, are all easy to define as utterly prohibited. If the army does not punish these criminals or tries to cover up the atrocities, its leaders, both military and civilian, must be roundly condemned.

The Israel Defense Forces was not always careful in this area in its early years. Even later on, a chief of staff pardoned murderers. But nowadays, concerns over officers being tried abroad have led the IDF to fine-tune its system of operational planning, approvals and legal involvement to reduce to almost nil the possibility of purposeful harm to civilians.

Then there is negligence - ignoring the possibility that the military target is full of civilians. In July 2006, defense minister Amir Peretz declared the Lebanese civilians in whose homes launch-ready rockets were being hidden as "involved," thus turning them into targets. Yet that definition contravened no law.

In the end, it is not about the law, but about power, military and political. Goldstone is now free to go to Kunduz, but American might means there is no chance that he will.

When the smoke of Goldstone's report clears, the IDF and the government can emerge from the bunker to find that little damage has been done. Israel's cooperation is needed in the diplomatic arena. After Operation Defensive Shield, Israel succumbed to external pressure and agreed to establish a committee of inquiry headed by U.S. General William Nash on the massacre-that-never-was in Jenin. Only after Maj. Gen. Giora Eiland and UN envoy Terje Roed Larsen intervened was the committee called off.

Then, U.S. president George W. Bush preferred to push his diplomatic initiative to establish a Palestinian state. And that is what President Barack Obama will probably do: He will curb the propagandistic trend of slamming Israel for war crimes in order to extract tangible concessions from it as a peace partner.