If Goldstone’s tactics succeed, future imitators will surely build cases for “war crimes” in Iraq, Afghanistan or Yemen. Indeed, the ICC’s top prosecutor, Luis Moreno-Ocampo, has already expressed interest in trying allegations against NATO troops, including Americans, operating against al Qaeda in Afghanistan.

The United States should protect Israel in this case as if it were protecting itself — because it is.

Barry Rubin wonders how the Obama administration defines “U.S. interests.”

There are two possibilities in explaining this phrase about “U.S. interests.” The first is that it was careless phrasing, a sign of low competence.

The second is that it does reflect a thinking which conflates defining any force that poses a threat to U.S. interests with identifying a force that seeks a direct attack on the U.S. homeland. After all, the Obama Administration only views itself as being at war with al-Qaida because al-Qaida wants to attack New York or Detroit and–though they don’t necessarily seem clear on this point–Fort Hood.

But what signal does this send to U.S. allies? That, Hizballah, Pakistani-based terrorists striking against India, Syria which is subverting Iraq, Iran’s growing power, or countries like North Korea or Venezuela are no big problem?

This may seem a minor problem in Washington but it is a huge concern in dozens of other countries. And if the administration is hazy on this point, it is some day going to find itself in a much weaker position in terms of both America’s friends and enemies.

Given the news from the new fronts of the war on terror, how the adminstration answers these questions will clearly affect America’s efforts to defend itself.

When a window of opportunity opened to strike the leader of al-Qaeda in East Africa last September, U.S. Special Operations forces prepared several options. They could obliterate his vehicle with an airstrike as he drove through southern Somalia. Or they could fire from helicopters that could land at the scene to confirm the kill. Or they could try to take him alive.

The White House authorized the second option. On the morning of Sept. 14, helicopters flying from a U.S. ship off the Somali coast blew up a car carrying Saleh Ali Nabhan. While several hovered overhead, one set down long enough for troops to scoop up enough of the remains for DNA verification. Moments later, the helicopters were headed back to the ship.

The strike was considered a major success, according to senior administration and military officials who spoke on the condition of anonymity to discuss the classified operation and other sensitive matters. But the opportunity to interrogate one of the most wanted U.S. terrorism targets was gone forever

While the Washington Post reporter seemingly decries the hit on Saleh Ali Nabhan for the loss of actionable intelligence, there’s something else going on here. If Israel had undertaken a comparable action, it would have been decried by many as an extrajudicial killing. If killing Al Qaeda operatives is the preferred anti-terrorist approach of the administration, it ought to regard the Goldstone commission as a direct threat to its ability to defend America and take a much more active role – not just a rhetorical one – in fighting Goldstone’s slander. How long will it be before some radical leftist or Islamist starts agitating for putting America’s current leadership on trial for the very same actions they deplore when Israel carries them out.

(Isn’t it ironic that the administration considers incarceration at Guantanamo as inhumane and a blot on America’s reputation while killing terrorists – without trial – is acceptable?)

As Barry Rubin makes clear, though, it appears that the administration isn’t giving that much forethought to its efforts to defend the country. It does not see threats against America’s allies as threats against America itself. So one can hardly expect the administration to take the necessary steps to fight the Goldstone report instead of just criticizing it.

Crossposted on Soccer Dad.

IN ORDER to eliminate the Taliban leader Baitullah Mehsud, the United States launched at least 15 missile strikes in Pakistan this year and killed, besides Mr. Mehsud, somewhere between 200 and 300 people, according to a study by the New America Foundation. At least a quarter of those who died were civilians.

Was that toll “disproportionate” to the threat posed by a single terrorist and therefore a war crime? How about the recent NATO bombing of hijacked fuel tankers in northern Afghanistan, in which a mix of 80 to 120 Taliban militants and civilians died? Justified strike, accident or war crime?

These observations give some background for what comes next: a harsh repudiation of the Goldstone report.

A commission appointed by the Human Rights Council to investigate Israel’s war with Hamas in Gaza last winter could have set an example of serious treatment of such issues. Headed by the respected South African jurist Richard Goldstone, the panel altered the one-sided mandate it received, so as to examine abuses by both Israel and Hamas during the three-week conflict.

But Israel refused to cooperate — and the Goldstone commission proceeded to make a mockery of impartiality with its judgment of facts. It concluded, on scant evidence, that “disproportionate destruction and violence against civilians were part of a deliberate policy” by Israel. At the same time it pronounced itself unable to confirm that Hamas hid its fighters among civilians, used human shields, fired mortars and rockets from outside schools, stored weapons in mosques, and used a hospital for its headquarters, despite abundant available evidence.

The contrast between the events described in the opening two paragraphs and the reaction to Israel’s war against Hamas could not be clearer. The editorial correctly infers that Israel is being held to an impossible standard.

I could quibble with the editorial. How could the Post’s editors describe Judge Goldstone as “respected” at this point, even as they show his absolute disregard for any legal standards? And did the Post’s editors really expect anything else? After all if the investigation was about establishing international standards shouldn’t the commission have investigated NATO’s war against the Taliban or even the war against Serbia from a decade ago? Clearly the commission was convened specifically to hamstring Israel’s efforts to defend itself.

Still this shouldn’t take away from the importance of the editorial. The editorial should also serve as a rebuke to put upon NGO’s like Human Rights Watch. If they were true to their mission they wouldn’t have uncritically endorsed Goldstone. Rather Goldstone was doing their work for them; giving the imprimatur of the UN on a condemnation of Israel. What matters to HRW, is not the methods but the conclusion. If the conclusion damns Israel, it must be correct. Fortunately the editors of the Washington Post are more discerning.

Crossposted on Soccer Dad.

62. The tactics used by Israeli military armed forces in the Gaza offensive are consistent with previous practices, most recently during the Lebanon war in 2006. A concept known as the Dahiya doctrine emerged then, involving the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to
civilian populations. The Mission concludes from a review of the facts on the ground that it
witnessed for itself that what was prescribed as the best strategy appears to have been precisely
what was put into practice.
63. In the framing of Israeli military objectives with regard to the Gaza operations, the concept of Hamas’ “supporting infrastructure” is particularly worrying as it appears to transform civilians and civilian objects into legitimate targets. Statements by Israeli political and military leaders prior to and during the military operations in Gaza indicate that the Israeli military conception of what was necessary in a war with Hamas viewed disproportionate destruction and creating the maximum disruption in the lives of many people as a legitimate means to achieve not only military but also political goals.
64. Statements by Israeli leaders to the effect that the destruction of civilian objects would be justified as a response to rocket attacks (“destroy 100 homes for every rocket fired”), indicate the
possibility of resort to reprisals. The Mission is of the view that reprisals against civilians in armed hostilities are contrary to international humanitarian law.

More here:

1191. In its operations in southern Lebanon in 2006, there emerged from Israeli military thinking a concept known as the Dahiya doctrine, as a result of the approach taken to the Beirut neighbourhood of that name.578 Major General Gadi Eisenkot, the Israeli Northern Command chief, expressed the premise of the doctrine:
What happened in the Dahiya quarter of Beirut in 2006 will happen in every
village from which Israel is fired on. [...] We will apply disproportionate force on it
and cause great damage and destruction there. From our standpoint, these are not
civilian villages, they are military bases. [...] This is not a recommendation. This is a
plan. And it has been approved.579

Here:

1683. In this respect, the Mission recognizes that not all deaths constitute violations of international humanitarian law. The principle of proportionality acknowledges that under certain strict conditions, actions resulting in the loss of civilian life may not be unlawful. What makes the application and assessment of proportionality difficult in respect of many of the events investigated by the Mission is that deeds by Israeli forces and words of military and political leaders prior to and during the operations indicate that as a whole they were premised on a deliberate policy of disproportionate force aimed not at the enemy but at the “supporting
infrastructure.” In practice, this appears to have meant the civilian population.

And here:

1691. The Mission has noted with concern public statements by Israeli officials, including senior military officials, to the effect that the use of disproportionate force, attacks on civilian population and destruction of civilian property are legitimate means to achieve Israel’s military and political objectives. The Mission believes that such statements not only undermine the entire regime of international law, they are inconsistent with the spirit of the United Nations Charter and, therefore, deserve to be categorically denounced.
1692. Whatever violations of international humanitarian and human rights law may have been
committed, the systematic and deliberate nature of the activities described in this report leave the Mission in no doubt that responsibility lies in the first place with those who designed, planned, ordered and oversaw the operations.

The above paragraphs contain four of the five mentions of “disproportionate force” mentioned by the Goldstone commission. (The fifth was a footnote.)

Note a few things. I’ve faulted the Goldstone commission for cherry picking evidence. In these paragraphs we see something else. There’s an effort here to define a term of international law, that is nowhere nearly as clear as the Commission presumes and uses it to condemn Israel.

Furthermore, the commission engages in a huge reversal. Look at the final section of paragraph 1683:

What makes the application and assessment of proportionality difficult in respect of many of the events investigated by the Mission is that deeds by Israeli forces and words of military and political leaders prior to and during the operations indicate that as a whole they were premised on a deliberate policy of disproportionate force aimed not at the enemy but at the “supporting infrastructure.” In practice, this appears to have meant the civilian population.

One of Israel’s defenses for the collateral damage inflicted upon civilians is that Hamas hid among civilians and used civilian facilities for military purposes. With the two sentences above, the Goldstone commission takes away that justification.

Yet it is part of the Commissions lead-up to 1692:

1692. Whatever violations of international humanitarian and human rights law may have been committed, the systematic and deliberate nature of the activities described in this report leave the Mission in no doubt that responsibility lies in the first place with those who designed, planned, ordered and oversaw the operations.

In other words, the commission’s personal opinion has now been substituted for settled law and it draws the conclusion that Israel’s military planners are responsible.

This conclusion of the Goldstone report appears to be the opinion of the commission, not a legal conclusion in any way. Worse by substituting their judgment for sound legal reasoning, the commission stacked the deck against any independent Israeli investigation. If an Israel investigation would consider Israel’s military doctrine sound and in accordance with international law, Goldstone (and those who support and rely on him) would say that the Israeli conclusions were dishonest. In other words, the Goldstone commission is ensuring that any Israeli investigation would find Israel’s military leaders guilty of war crimes or that Israel was protecting its military brass.

In a paper for the U.S. Army, Jonathan Keiler argues that proportionality is a concept that really had been defined but rarely used – before the Israel war against Hezbollah in 2006.

The 2006 Israel-Lebanon war generated the first large-scale and systemic references to a heretofore mostly ignored law of war concept, the doctrine of proportionality. Occasional references to proportionality are found in accounts of the Iraq War and in histories or scholarly works of the last century. In general, prior to Israel’s 2006 campaign the proportionality
doctrine received little scholarly interest and even less attention among the governing classes and international media.1 In all likelihood, critics of American action in Iraq or Afghanistan would have more thoroughly employed this doctrine in their efforts to end or limit US military involvement had they simply thought of it. But by 2006, when the doctrine was widely known, the major battles in Iraq and Afghanistan were finished.

One important point that Keiler makes is:

A year before the Gaza offensive, in February 2008, then-Secretary of State Condoleezza Rice declined a reporter’s invitation to label Israeli retaliatory action as “disproportionate.”3

This is a sound policy that the Obama Administration would be well advised to follow. Though American military action in Afghanistan or Iraq has not yet received comparable condemnation (at least on grounds of “disproportion”), it is only a matter of time before this occurs, as soon as a fight is significant enough to warrant it. There is little difference in the operational
practices used by the Israeli and American militaries, which not only share many weapon systems but also elements of tactics and training.4

In other words the idea of declaring a war “disproportionate” is an attack on a country’s ability to defend itself by nullifying part of its military doctrine. If this standard is applied to Israel, it’s only a matter of time before it’s applied to the United States.

Keiler writes further:

The problem with the proportionality rule is its frequent and remarkable misinterpretation. The extent of this confusion is so great as to severely limit the utility of this law of war concept as presently structured. As both the Lebanon and Gaza campaigns illustrate, the doctrine is subject to distortion to the degree that applying it is actually harmful to the conduct of lawful and legitimate military campaigns.7 As a practical matter, invoking the doctrine confuses important issues and undermines respect for the law of war. Michael Walzer, one of the most prominent ethicists of war and its consequences, notes that false claims of disproportion typically have the effect of justifying excessive violence, which he characterizes as a “dangerous idea.”8 This article will propose the elimination of proportionality as a law of war concept, at least by the American military. Existing doctrine, standards, proscriptions, and ethical guidelines are more than sufficient to govern proper conduct in combat without descending into the semantic, legal, and ethical miasma of proportionality.

Ive read someplace that a group of South Africans have recommended that Israel carry out an investigation of its military operations in response to the Goldstone report. But the nature of this investigation would be to compare Israeli actions in Gaza to American and NATO actions in Afghanistan and Iraq. The point would be to show how Goldstone manufactured a standard and then applied it only to Israel. There may be some wisdom in that suggestion.

Crossposted on Soccer Dad.