Since its release, the Goldstone Report has received thorough scrutiny from the Israeli government, various think tanks, and concerned bloggers. The important effort to assemble a point-by-point criticism of this deeply flawed document has revealed serious shortcomings on the part of the UN Fact Finding Mission on the Gaza Conflict. There remains an issue, however, that appears to evade both the international community that comes down on Israel and the steadfast pro-Israel advocates committed to defending the Jewish State. A closer look will facilitate a more rational, sober outlook not only on this persistent conflict, but also on the reality of urban, guerrilla warfare today.
Among its claims, the report states that the Fact Finding Mission could not determine whether Palestinian combatants operated among civilians in order to shield themselves from Israeli attacks. This may baffle those who follow the Israeli-Palestinian conflict. There is, of course, plenty of footage demonstrating that Palestinian militants permeate civilian infrastructure when fighting the IDF. How could the UN Fact Finding Mission suggest that Palestinian combatants do not use this strategy?
As a matter of fact, the Goldstone Report features several acknowledgements that Hamas militants, clad in civilian clothes, launched rockets from within the immediate vicinity of civilian buildings. The issue, it seems, is not the location of these fighters but rather their intention. While the report concedes that Palestinian combatants operated in civilian areas, it claims that there is insufficient evidence to support the charge that these combatants did so in order to shield themselves.
This is where the first problem arises. Even if it were true that Hamas did not intend to operate among civilians, the point remains that the IDF had to negotiate a tricky and dangerous blurring of the line between fighter and bystander. The complex and exhausting task of managing hundreds of troops and coordinating dozens of operations while dealing with a largely amorphous adversary inevitably results in collateral damage. As detailed by Col. Richard Kemp of the British Army in his testimony to the UN Human Rights Council, this is the chaos and friction of war that all armies must face, and Israel has faced them impressively in comparison to others confronting guerrillas in urban theatres.
As the Goldstone Report itself acknowledges in paragraph 495, “the launching of attacks from or in the vicinity of civilian buildings and protected areas are serious violations of the obligation on the armed groups to take constant care to protect civilians from the inherent dangers created by military operations.” In short, Hamas’ intention is irrelevant to the point of the causes behind Palestinian civilian fatalities.
But what was Hamas’ intention?
The Goldstone Report suggests that there is room to speculate on whether Hamas restricted its activities to populated areas because of a desire to evade IDF attack. The most obvious excuse would be the point that Gaza is densely populated and, therefore, Hamas had no choice but to operate among houses, hospitals, schools, and mosques.
But the fact of the matter is that there is open space in Gaza, and Hamas makes ample use of it during training. If it truly wanted to separate itself from civilian areas, it could. Furthermore, there is open space—and a lot of it—in the West Bank, where Hamas has also faced off with the IDF. During Operation Defensive Shield in 2002, did Hamas retreat to the Samarian wilderness in order to fight the IDF in a civilian-free environment? Of course not. In fact, it made quite effective use of Jenin’s alleyways and corridors in order to force the IDF into the confusing and dangerous conditions of urban, guerrilla warfare.
Why did Hamas choose to operate among civilians in the West Bank and the Gaza Strip? The answer should be obvious, and this is why the Goldstone Report (and the international legal system it represents) is so disturbing.
It would be suicidal for Hamas to not use civilian infrastructure. Despite the report’s admonition that “attacks from or in the vicinity of civilian buildings…are serious violations” of the UN’s code of conduct, it should be clear to anyone with common sense that a decision to place all of Hamas’ military ordinance and personnel in open areas would result in instant annihilation by way of a very neat, quick, and effective Israeli bombing campaign. Therefore, Hamas’ decision to operate among civilians is understandably due to defensive concerns (i.e. self-preservation), given the alternative. Speculation as to Hamas’ intention demonstrates a fundamental detachment from the reality of asymmetrical combat.
This analysis does not require an abundance of experience and credentials. One need not be a four-star general out of West Point to understand that Hamas should not be in the guerrilla warfare business if it chooses to fight in the open. Nevertheless, the Goldstone Report includes such inane statements as the following: “the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack.”
This myopia concerns not only Hamas, but Israel as well. As UN envoy Richard Falk said at a session of the UN Human Rights Council in regard to Operation Cast Lead, “If it is not possible to [distinguish between military targets and the surrounding civilian population], then launching the attacks is inherently unlawful, and would seem to constitute a war crime of the greatest magnitude under international law.”
Applying common sense to the above statement is illuminating: According to the UN, if there is a showdown between the IDF and Hamas, Hamas should commit suicide. If (or when, rather) it chooses to not do so by blending in with its civilian surroundings, the IDF must not fight.
These are the surreal expectations placed upon parties to an urban, guerrilla conflict today. For all intents and purposes, the demand is that there simply be no fighting.
Apparently, the UN cannot appreciate the strategic element of fighting in civilian areas, as demonstrated by its embarrassing inability to determine intention on the part of Hamas fighters. Furthermore, it seems to think it practicable for Hamas militants to ascend to the hilltops and embrace whatever gravity-guided bombs and artillery shells the Israeli military can dish out. When this bizarre scenario fails to materialize, the UN warns that responding to rocket fire from Gaza is inherently unlawful.
The cause of this profound naiveté is provided in Paragraph 491:
“The Mission finds it useful to clarify what is meant, from a legal perspective, by using civilians or a civilian population as a human shield. Parties to a conflict are not permitted to use a civilian population or individual civilians in order to render certain points of areas immune from military operations. It is not in dispute that both Palestinian armed groups and Israeli forces were fighting within an area populated by civilians. Fighting within civilian areas is not, by itself, sufficient for finding that a party is using the civilian population living in the area of the fighting as a human shield.”
Now it becomes clear. Only if Hamas actively uses civilians (taking them hostage, for example) can it be determined that they are using the civilian infrastructure and populace in order to shield themselves from an IDF attack.
Did Hamas do this? Probably not routinely, as it would have difficulty maintaining its image as a popular resistance movement if it constantly forced civilians to put themselves at risk. However, there is photographic and video evidence that civilians have acted as human shields voluntarily, and the Goldstone Report cites testimonies collected by various organizations about Hamas punishing civilians who expressed disapproval of having their property used as bases for launching rockets. Furthermore, the report acknowledges more than once that “those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups,” and that this is likely attributable to fear of retribution. This trend has been documented on numerous other occasions as evidence that Hamas has operated in particularly reprehensibly ways—egregious enough that it would punish witnesses for notifying journalists or UN investigators. This is not an insignificant footnote; this is a structural deficiency that pervades the entire report, as witnesses are likely to be especially unwilling to give testimony of Hamas’ most nefarious tactics.
More to the point, however, is the fact that the “legal perspective” at the root of the Goldstone Report’s ignorance with respect to Hamas’ intentions in civilian areas is clearly not the only form of using the civilian population as a shield. The Report relies on an outdated understanding of human shielding as expressed in the Geneva Convention, a document arising from a massive war involving regular state armies. The UN is still operating on War 1.0.
Make no mistake, the Geneva Convention and international humanitarian law is invaluable as an expression of the worldwide sentiment that motivates Israel to distribute warnings to civilians of coming attacks via leaflets and telephone calls. It is the cause of Israel’s decision to invest in research and development of less morally-problematic tactics such as “roof knocking,” in which a dummy missile is launched at a house used for storing weapons in order to scare away civilians who have gathered on the roof in order to prevent bombing. It is also the sentiment that has led to the IDF’s decision to phase out its use of the contentious flechette tank shells. There should always be a certain amount of pressure to encourage militaries to refine their tactics and properly ventilate claims of misconduct. In this sense (as an idealistic outlook), the UN’s position of “don’t fight, just get along” is understandable, even if naive.
However, it is now being used to indict and cultivate hostility towards Israel. It is no longer a non-binding expression of sentiment; it is a problem to be confronted and corrected. Therefore, it is high time international legal scholars, journalists, and military experts update the world’s understanding of guerrilla tactics and non-state actors in order to produce a more grounded, nuanced, and realistic reception of unpalatable facts.
The author has begun this process for himself by circulating an e-mail among Amnesty International, Human Rights Watch, the International Crisis Group, the United Nations Human Rights Council, B’tselem, Yesh Din, the Palestinian Center for Human Rights, and the Palestinian Human Rights Monitoring Group requesting stances on what Hamas should be expected to do if operating among civilians is unacceptable. Obviously, there is no easy answer to this question because it entails acknowledging that international law comes up short in this case and that Hamas’ tactic of operating among civilians is clearly a shielding strategy.
Unsurprisingly, not one organization has offered a response.
Maoz Brown previously worked as a researcher for the Jerusalem Center for Public Affairs. He holds a degree in English literature with highest honors from Rutgers University and is currently pursuing a masters degree at Hebrew University.
 Paragraphs 450, 480, 481 of the Goldstone Report
 Paragraphs 478, 451 of the Goldstone Report
 Paragraph 481
 Paragraph 447