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Alan Dershowitz’ Brief Against the “Goldberg” Report

magneszionistJerry Haber, 5 February 2010

No, the headline is not an error.

I promised my readers, when I wrote my ad hominem screed” against Prof. Alan Dershowitz‘s defamation of Judge Richard Goldstone (some of which he, barukh ha-Shem, subsequently retracted), that I would read the brief he submitted to the UN against the report. People say all sorts of nasty things in person (and in blogs, mea culpa), but Alan Dershowitz is a Harvard Law professor, and one assumes that he can write a good brief and make a good argument – not an argument that one need agree with, but an argument worth reading the same.

So I sat down and read through his forty-nine page brief and found it in good part a mixture of website cherry-picking and invective. Nothing new there, we all do that. But the oddest thing about it was that when I got to the meat of the brief – the argument against the evidential methodology used by the Goldstone Panel, I found that, despite many quotations from the report, Prof. Dershowitz had not written about the Goldstone Report at all. Rather he had fashioned in his mind another report – let’s call it the “Goldberg” Report – and having shaped this straw man, picked it apart.

Before I show how he fundamentally misread or misunderstood the Goldstone Report, let me give you an example of cherry-picking.

Prof. Dershowitz, like many other critics of Judge Goldstone, point out that Mary Robinson, former United Nations High Commissioner for Human Rights and former President of Ireland, refused to head the commission investigating the Gaza Op because of the mandate’s bias. If Mary Robinson, “whose bias against Israel has been deep and longstanding,” rejected it, then what can one say about Judge Goldstone, or, for that matter, the report? What Prof. Dershowitz does not say is that a) Judge Goldstone had the mandate changed to make it less one-sided, and b) Mary Robinson, herself, after the Goldstone report was made public, emphasized the integrity of Judge Goldstone and the importance of investigating the allegations contained therein.

I am aware that Judge Goldstone, a dedicated and unimpeachable human rights lawyer and advocate, shared similar concerns [of a biased mandate -JH] when he was initially approached. But he was able to work with the Council’s president to secure an agreement he felt confident would permit the mandate to be interpreted in such a way as to allow his team to address the actions taken by both parties to the conflict.

Experts can debate whether this was in conformity with UN rules and procedures. I have no doubt that those involved were seeking a way forward that would allow for a full investigation and help overcome the political divisiveness currently undermining the Human Rights Council within the UN system.

The question now is whether governments will give Judge Goldstone’s findings the serious attention they deserve, or instead fall back into an overtly political posture…For the sake of human rights and peace in the region, my hope is that the international community will bear witness to these circumstances, consider Judge Goldstone’s report in its entirety and press for accountability for the most serious crimes.

It is the way of the polemicist to quote selectively from sources. No doubt Prof. Dershowitz may argue that the above citation reflects Mary Robinson’s “deep and longstanding bias.” But not even to tell his readers a) that Judge Goldstone attempted and succeeded to have the mandate changed, or that b) Mary Robinson endorsed a serious reading of the Goldstone Report, which she would not have done, had she considered it biased – well, that borders are deliberately concealing the truth.

Why, “deliberate”. Because we are told at the outset that Prof. Dershowitz had a research assistant, Josh Sharp, whom he thanks for providing “excellent research”. It took me a few seconds to find out what Dershowitz/Sharp omitted. One could do the same thing for the human rights NGO’s that Dershowitz selectively quotes.

All the above, of course, is not the heart of the brief, just the vorspiel. The heart of the brief is the attempt to refute the Goldstone Report’s central conclusion: “that Israel’s policy was to maximize the death of civilians” or “that the rocket attacks merely served as an excuse for the Israeli military to achieve its real purpose: namely the killing of Palestinian civilians” (p. 6) “The Goldstone Report accuses Israel of using Hamas rocket attacks against its civilians as an excuse—a cover—for a carefully planned and executed policy of deliberately targeting innocent civilians for mass murder.” (p. 6)

The only problem is that nowhere in the Goldstone Report is any of these claims made. In fact, such claims are by implication rejected by one of the Goldstone’s Conclusions:

1681. In this respect, the operations were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support.

This conclusion, a grave accusation in its own right, says nothing about “maximizing civilian deaths,” of “mass murder”, etc., nor is such nonsense anywhere in the Goldstone Report. In fact, if the purpose of Israel was to force a change in support for Hamas, why exactly would it want to perform “genocide” (another Dershowitz term,” etc.)?

The story that the Goldstone Report describes is an Israel that wanted to show to Hamas and to the Gazans that the price for support for Hamas would be high. Is this so unreasonable a conclusion? Israel has conducted a crippling siege against Gaza, and all sanctions – including the ones Prof. Dershowitz supports against Iran – involve the collective suffering of a population. Nowhere in the Goldstone Report is Israel accused of using the rockets as an “excuse” or “pretext” – the words are Prof. Dershowitz’s own.

There is no contradiction between stopping the rocket fire and targeting the civilian population, by bombing infrastructure, loosening the rules of engagement, not providing for safe exit routes for civilians that have been warned to leave house — if you think that this is the only way to stop the rocket fire.

But once you accept the misrepresentation of the conclusions of the Goldstone Report, it is very easy to show that none of the sources cited by the Report support that conclusion.

Thus, the so-called “Dahiya doctrine” of responding to rocket attacks with disproportionate force intended to destroy infrastructure says nothing about specifically targeting civilians for death.

Agreed. But the Goldstone never claimed that it did. According to Dershowtiz, the so-called “Dahiya doctrine” calls for the “suffering of hundreds of thousands of people” in order to achieve military aims. That is more than enough for the actual conclusions of the Goldstone Report, not the ones that Dershowitz invents.

One-by-one Dershowitz shows that the statements about “disproportionate response” made by several Israeli military and political leaders do not support a conclusion of deliberately killing civilians. One by one he tries to put the best possible construal on some of these statements. Each time when he has to deal with a particularly outrageous one, one that he cannot interpret in accordance with the international humanitarian law and the rules of war, he falls back on his straw man, Judge Goldberg. Each time he triumphantly shows that the evidence fails to support its conclusion that Israel had a deliberate policy of maximizing the deaths of civilians.

Thus, regarding the bombing of the flour factory, Prof. Dershowitz first dutifully notes that Israel has disclaimed responsibility. And then he continues:

Even if it were true that Israel sought to punish the civilian population of Gaza by attacking food and sewage facilities, it would not follow that Israel intended to kill civilians.

Where in the Goldstone Report is it claimed that the Israel deliberately attacked the flour factory in order to kill civilians? Where is it claimed that it follows from the deliberate bombing of the factory that Israeli intended to kill civilians?

More revealing is Prof. Dershowitz’s continuation.

Israel acknowledged that it deliberately limits the flow of consumer goods into Gaza as part of an effort to impose sanctions on the Hamas government for its policy of targeting Israeli civilians with anti-personnel weapons. Just as American sanctions against Iran would cause the Iranian “people [to] suffer,” so too to do Israeli sanctions. But it is a far cry from sanctions to murder, and it is a non-sequitur to argue that the destructions of non-human civilian targets proves an intention to target human beings for death.

Note how he moves seamlessly from the deliberate wartime bombing of a flour factory to peacetime economic sanctions, as if there is no distinction between them, and as if the justification of sanctions is the same as the justification for bombing civilian food production. Statements such as these suggest that Prof. Dershowitz hasn’t a clue about the laws of war, that for him, anything short of mass killings isn’t so serious – which is why he has to invent the Goldbergian accusation of “genocide” against Israel.

I have spent much more time than I should have on this post. I devote a lot more time and space to Prof. Moshe Halbertal’s post because I thought it worthy of discussion.

But why bother to refute Prof. Dershowitz’s criticisms of the “conclusions” of a non-existent Goldberg Report?

Shabbat Shalom from a snowy Washington.

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