The Goldstone’s report underscored a liberal threat to war-making governments. By applying common law to warfare, any army can be prosecuted. As crimes against humanity have no statute of limitations, the Allies’ pilots can be brought to the International Criminal Court for bombing Nazi towns.

After the WWII, international jurists were still reasonable. The Nuremberg trials prosecuted those responsible on the grand scale and left it to German courts to prosecute individual war criminals. That legal balance was eminently sensible because it discounted individual crimes and focused on the overall criminality of the particular war enterprise. The standard of government’s criminality was very high: only unspeakable atrocities figured in the convictions. Such issues as human shields, restrictions on relief aid, curtailing of human rights, and non-lethal collective punishment were ignored. Indeed, if a war is genocidal, then those technicalities are insignificant, and if the war is justified, then those unpleasantries are unavoidable. In both cases, investigating them on the international macro level is superfluous.

After the international tribunal established the overall criminality of German war intent, domestic courts slowly and thoroughly investigated individual crimes. Except for a few incidents, the Allies did not prosecute their own war crimes – out of the victor’s justice, for sure, but also because those were isolated events, sometimes justifiable by military necessity, such as carpet-bombings or shootings of POWs where internment had been impossible.

To a large extent, ends justify the means. We would condemn a bank robber generally, but not when he has no other option for feeding his hungry family. British bombing of Dresden is different from Nazi bombing of Coventry.

Soldiers are not automatons. The enterprise of war-making is so different from civil life that applying peacetime norms of criminality to it is meaningless. States deliberately induce hatred of enemies through propaganda, and cannot cry wolf when soldiers act on that hatred.

Human rights might be natural, but their restriction during wars is similarly natural. Applying the same standard of human rights to America’s peaceful Middle West and the Middle East’s war zone is unreasonable, especially if the wartime restrictions are short-lived. Most military theorists recognize that the double effect doctrine only protects civilian life rather than property or vaguely defined dignity. It would be unrealistic to expect that a country that feels offended to such an extent that it goes to war, risks its soldiers, and expends vast material resources, would care of houses and other property which belong to the enemy government’s voters and taxpayers. Indeed, the very dissociation of population from government is a feat of idealism which might hold in a monarchy but not a responsive democracy where people elect their governments and are responsible for its actions. Nor is it possible to fight any war without inflicting substantial damage on the population, both as a matter of collateral damage in attacks on possible (rather than, as Goldstone contends, probable) military targets and in a deliberate squeeze on the population to warn it off supporting the hostile government. Though Goldstone decries it, the squeeze doctrine is perfectly compatible with the double effect standard.

The bottom line is, you cannot wage war the way police enforce law domestically. There is no way to single out fighters in urban areas. Many factories produce dual-use goods which aid the enemy’s war effort indirectly, at the very least – by paying taxes; those apparently civilians installations must be destroyed to crush the enemy. Even when individual fighters and factories can be pinpointed, attacking them with smart munitions is not feasible; Israel spent more than $2 million per a killed Palestinian in the Gaza war, much more than the government allocates to Israeli Health Ministry to save Jews.

War crimes were thought of as something egregious to the point of barbarity. As Israeli Supreme Court put it after the Kfar Qasem debacle, “The distinguishing mark of a manifestly illegal order is that above such an order should fly, like a black flag, a warning saying: ‘Prohibited!’.” Certainly, human conscience does not revolt at the events Goldstone details as war crimes, nor is it possible to fight a war while respecting his safeguards.

Six decades ago, when military jurisprudence has not been yet taken over by idealists, a US tribunal acquitted Nazis of an alleged war crime of the Siege of Leningrad, which left hundreds of thousands civilians dead. According to cruel logic of war, starving the enemy population was a legitimate military tactics. The Geneva conventions moderated that a bit to allow food supplies to women and children. But who can ascertain that the food won’t end up with war-fit males? After being confronted with obvious impracticality of such approach, in 1977 leftists changed the law in one swoop by banning starvation as a method of warfare. By such standard, every single war in human history was illegal.

Goldstone builds his accusations on two contradictory approaches. In order to condemn Israel for the alleged starvation of Gazans, he frames the conflict as international war to bring it under the jurisdiction of Geneva conventions. But in the same document, he claims Israeli occupation of stateless Gaza, which reduces the issue of starvation to Israel’s domestic matter where Geneva conventions do not apply.

Since the absolute prohibition of starving civilians is laid down in subsequent protocols rather than the 1949 Conventions, the ICC’s power to prosecute them is in doubt. The Extraordinary Chambers set up for Cambodia, for example, had an explicit authority to prosecute grave breaches of the Conventions, but not of the protocols. The difference is not accidental as the protocols were recognized as idealistic pronouncements rather than law.

Moreover, prosecution under the Fourth Convention is only possible if the starvation is explicitly related to the international armed conflict. This is hardly a case because both Egypt and Israel limited cargo supplies to Gaza before the Qassam war has started. The current round of cargo restrictions started with abduction of an Israeli soldier which was arguable an act of kidnapping rather than taking POWs, if only because he is not treated as a POW or held by a recognized army. There is a strong argument that Israeli cargo restrictions against Gaza are not strictly related to armed conflicts, even less an inter-state conflict.

There is no judicial way to interpret the Fourth Geneva Convention as criminalizing restrictions in free passage of food to besieged territory. Thу Convention details various crimes, but does not list border restrictions among them. The omission is deliberate: it is inconceivable for any fighting army to allow free movement of the allegedly humanitarian goods to the battle zone. Inspecting them all in heat of the battle or ascertaining delivery to civilians only is impossible, and they would greatly strengthen the enemy.

The allegations of genocide in Gaza are similarly unsubstantiated. The genocide law does not apply to social or political groups for a reason: actions against them are often militarily or politically sensible, they lack the wanton brutality of destroying ethnic, national, or religious groups. Clearly, Israel is not up to destroying hundreds of millions Arabs or a billion Muslims, in whole or in part. At any rate, hard evidence of Israeli intent to destroy Arabs as a national group is lacking.

Recognizing the weakness of genocide charges, Goldstone circumvents the “social or political group” exception by claiming crimes against humanity. He would have a hard time arguing that Israel has an intent to kill Gazans as a political group when in fact the Gazan population increased by almost six times in the last forty years. The ICC’s Statute clarifies that deprivation of food only constitutes a crime against humanity if it is “calculated to bring about the destruction of part of a population.” Looking at the absence of deaths from starvation, no such calculation took place. Goldstone ignores that the UN delivered to Gaza all the essential foodstuffs it wanted, so even if some starvation occurred, it had not been preventable by Israel.

Both in Cambodia and Rwanda tribunals, starvation was only viewed as a means for large-scale killing. Goldstone’s attempt to lower that standard to criminalize starvation which only leads to suffering rather than death is not built upon the international law and is unlikely top be adopted as it criminalizes boycotts and sanctions, as well.

Israel harmed herself when framing the operation as anti-terrorist rather than war. We were attacked by a Palestinian government whose parliament unanimously support fighting Israel. In the war, the Palestinian government utilized state resources: police and government-funded militias, taxes, hospitals, and diplomatic efforts. That was not an anti-terrorist operation of the kind that Britain performed against domestic terrorists of the IRA. By wartime standards, Israel would be accorded more rights and less obligations to protect our enemy’s rights.

Israel also did a disservice to other armies by establishing a new, ultra-high benchmark for caring about the enemy population: warning them to flee with phone calls. Americans tried something similar in Vietnam where they distributed warning leaflets and announcements before attacks, a policy which greatly contributed to their inefficiency. Israel pushed that approach over the edge: while Americans were content with destroying empty villages, Israel did not destroy the emptied town districts but merely combed them in urban combat. Soon, everyone will forget that Israel was fighting a minuscule conflict in Gaza, and demand application of such standards in large-scale wars.
It remains to be seen whether the common sense would triumph over the idealism, or the leftist will succeed in tying the hands of Western militaries to put them on equal footing with terrorists.