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We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.

The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

Our report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying — its rockets were purposefully and indiscriminately aimed at civilian targets.

The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.

While I welcome Israel’s investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum. Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.

Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).

As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.

Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government. Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.

Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.

In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.

I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous “lessons learned” and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas. The Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions — perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.

Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.

The writer, a retired justice of the Constitutional Court of South Africa and former chief prosecutor of the U.N. International Criminal Tribunals for the former Yugoslavia and Rwanda, chaired the U.N. fact-finding mission on the Gaza conflict.

Goldstone op-ed praises Israeli investigation of Gaza war crimes, but UN committee paints a different picture

Adam Horowitz, 2nd April 2011

Judge Richard Goldstone has a confusing and potentially damaging op-ed in today’s Washington Post titled “Reconsidering the Goldstone Report on Israel and war crimes.” Confusing, in that it directly contradicts Goldstone’s own work and that of the UN Human Rights Council, and damaging in that it undercuts some of the most important claims of the UN mission that he led to investigate the Israeli attack on Gaza in the winter of 2008-09.

Goldstone’s main point seems to be that the UN report that commonly bears his name would have looked different if Israel had given him access to information during the fact-finding mission, and now that Israel has conducted some of its own investigations it appears vindicated to a certain degree. In his article he refers to the U.N. committee of independent experts (led by former New York judge Mary McGowan Davis) which was charged with following the Israeli and Palestinian investigations following the Goldstone report. The committee of independent experts recently issued a report on its findings and Goldstone says “McGowan Davis has found that Israel has [investigated itself] to a significant degree; Hamas has done nothing.” While it is clear that Hamas has not followed the recommendations of the Goldstone Report in establishing a credible investigation, a closer reading of the March 18, 2011 committee of independent experts’ report (PDF) shows that Israel has also neglected to do the same.

Goldstone uses the Israeli investigation into the attack on the al-Samouni family (which killed 24 people) as an example of Israel’s thourough investigatory and legal process in examining his report’s claims. He writes:

For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.

This endorsement of the Israeli investigation is directly contradicted by the expert’s report he appears to be referencing. Here is the relevant passage from the experts’ report:

The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern: reportedly 24 civilians were killed and 19 were injured in the related incidents on 4 and 5 January 2009. Furthermore, the events may relate both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG’s decision to investigate was opposed by the then Head of the IDF Southern Command. Media reports further inform that a senior officer, who was questioned “under caution” and had his promotion put on hold, told investigators that he was not warned that civilians were at the location. However, some of those civilians had been ordered there by IDF soldiers from that same officer’s’ unit and air force officers reportedly informed him of the possible presence of civilians. Despite allegedly being made aware of this information, the officer apparently approved air strikes that killed 21 people and injured 19 gathered in the al-Samouni house. Media sources also report that the incident has been described as a legitimate interpretation of drone photographs portrayed on a screen and that the special command investigation, initiated ten months after the incidents, did not conclude that there had been anything out of the ordinary in the strike. As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial. The same officer who assertedly called in the strike reportedly insisted that ambulances not enter the sector under his control, fearing attempts to kidnap soldiers.

Despite Goldstone’s insinuation, it appears that the officer responsible for bombing the Samouni house is not being legally investigated for the incident.

That being said, there have been Israeli investigations into cases of possible war crimes in the fighting in Gaza. But, this is a separate issue from whether these investigations are credible. One such investigation was the case of Majid Rabah, a 11 year old, boy who was used as a human shield by the Israeli military (a case that was not specifically mentioned in the Goldstone Report). IDF soldiers were accused of using Rabah and a younger child as human shields and where found guilty. For their crime the soldiers were simply demoted and given a suspended sentence. Here is the experts’ report take on the Israeli investigation:

According to media reports, two soldiers forced a boy to search bags suspected of being booby trapped and were convicted of offenses including inappropriate behavior and overstepping authority. Both soldiers were demoted and received suspended sentences of three months each.

It should be noted that while some media reports described the conviction as a credit to the IDF, a former IDF deputy chief of staff reportedly said that the soldiers’ criminal records should be cleared and that such events should be probed inside the units and not in interrogation rooms.The boy’s mother apparently indicated her disappointment over the decision to suspend the prison terms and expressed concern at the message that such a lenient sentence would send to IDF soldiers. Reportedly, in the ruling, the actions of the soldiers were condemned by the judges, but they also gave weight to issues such as the contribution of the soldiers to Israel’s security and their personal circumstances, as well as to their fatigue at the time, the unprecedented nature of the case, and that the soldiers did not seek to degrade or humiliate the boy. Evidently the court also indicated that any future such incidents would be dealt with more severely.

The Committee does not have sufficient information to comment definitively on this judgment, although it is hard to square the apparent finding that the soldiers “did not seek to degrade or humiliate the boy” with evidence that they intended to put him directly in harm’s way at grave risk to his life. The Committee is likewise mindful of other judicial decisions, such as the case of the soldier who was sentenced to a prison term of seven and a half months for stealing a credit card during the operation in Gaza, where a harsher penalty was imposed for acts that did not entail danger to the life or physical integrity of a civilian, much less to a nine year old child.

Is this the kind of Israeli investigation that Goldstone wants to hold up?

Finally, Goldstone makes perhaps his most damning point, “While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.”

This claim is directly contradicted by the experts’ report. In fact, they point to Israel’s unwillingness, and inability, to investigate the policies of the Israeli military as the greatest fault of the Israeli investigation to this point. The report specifically says, “The Committee reiterates the conclusion of its previous report that there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.” This implies the entire question of policy has been left unaddressed. This is really disappointing from Judge Goldstone, and will most likely be used to attack the one of the Goldstone Report’s most important charges that Israel executed an intentional strategy to attack Gaza’s civilian infrastructure.

The experts’ report also addresses the structural reason the Israeli investigation has failed to look into military policy. Evidently the Israeli office responsible for investigating the question of crimes committed in Gaza is the same office that would be responsible for providing legal counsel to the Israeli military’s Chief of Staff and other military authorities. So basically, office that would accusing the military of committing crimes is the same one that would be defending them from the same charges. The experts’ report explains:

The Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s independence, his dual responsibilities as legal advisor to the Chief of Staff and other military authorities, and his role as supervisor of criminal investigations within the military, raise concerns in the present context given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations. It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” Therefore, the Committee remains of the view that an independent public commission – and not the MAG’s office – is the appropriate mechanism for carrying out an independent and impartial analysis, as called for in the FFM report, into allegations that high-level decision-making related to the Gaza conflict violated international law.

The original Goldstone Report itself pointed to these structural contradictions as reasons for why Israel will not be able to conduct a thorough investigation into the issues raised in the report. Why Judge Goldstone is now ignoring this issue is unclear.

In the Post article Goldstone defends his initial report in a manner he has for some time claiming that it wasn’t meant as a thorough legal investigation, it was an initial fact-finding mission. He says:

Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government.

Goldstone is absolutely correct, and the inconsistencies and contradictions of his op-ed only demonstrate the need for a thorough legal proceeding has never been greater. Over two years since the fighting in Gaza has ended it is clear that neither Israel nor Hamas is going to conduct credible investigations into the charges leveled against them by the UN fact finding mission. The experts’ report summarized:

The Committee heard the respective parties’ claims that their systems have established mechanisms to ensure accountability and justice. Yet, after listening to victims, witnesses and human rights organizations, it is clear that the needs of victims are not being adequately addressed.

For this reason, it is obvious that it is now time to follow-up on the recommendation of the Goldstone Report and refer the case to the prosecutor of the International Criminal Court to conduct a proper legal investigation.

Judge Goldstone’s Washington Post Op-ed

Jeremiah Haber 2 April 2010

It is the unfortunate fate of Judge Richard Goldstone to be condemned and praised for what he doesn’t write. The responses to his op-ed in Washington Post from the Israel advocates are laughable. Even a superficial reading of the op-ed shows that he has not retracted a single comma in the Goldstone Report, nor does he express any regret for having written the report the way it was written. He simply says that had he known then what he knows now, the report would have been different.

In fact, he has been saying for over a year that had Israel cooperated with the Mission instead of boycotting it, the report would have looked different. In the op-ed he gives good marks to some of the IDF investigations, though he does not say that he finds the investigation entirely adequate (more on that below.) Some cases of killing civilians which looked prima facie intentional have now been explained to his satisfaction. Yet he refers approvingly to the UN final report which does not find that investigation adequate. He says that the IDF has investigated better than has Hamas, and gives good marks to the IDF and PA (but failing marks to Hamas) for implementing new policies. Although he doesn’t say it – perhaps he is modest — the IDF investigations would probably not have occurred without the Goldstone Report.

For a careful reading of the WaPo op-ed, see this piece of Yaniv Reich here. I thank Yaniv for saving me the time, and I thank Hashem for commanding us Jews to observe the Sabbath. Had I read Judge Goldstone’s op-ed when it was posted, I would have spent hours writing on it.

Reich refers to the tone and the timing of the WaPo op-ed. The tone of the original report seemed to me to be an angry one. Israel’s decision not to cooperate with the Goldstone mission cost it in two ways: first, its side of the story was not heard, and, second, its refusal to deal civilly with the mission had an impact on the tone of the final report. It certainly had an impact on the tone of some of the interviews that Judge Goldstone gave. The nasty blowback that Judge Goldstone received also may have affected some of the tone, not of the report, but of some of his statements; he is human.

But in speaking before various audiences the tone has always been a bit different. There was criticism of Israel, but there was always the emphasis that the findings were not judiciary and that the report called for investigations. Judge Goldstone constantly affirmed his fundamental support of Israel, and he seems to have found it difficult to understand why the positive aspects of the report (e.g., the criticism of Hamas) were being neglected

What is puzzling, then, is why Judge Goldstone has decided to write an op-ed for the Washington Post now that may give the impression that Israel has discharged its obligations with its ongoing, private, IDF investigations. As Reich puts it:

Goldstone’s latest op-ed…does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way. In fact, his findings under severe constraints have held up remarkably well with time. But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong. Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel. This is nothing more than a bone to Israel’s apologists, which is deeply misleading for all the reasons discussed here.

Reich concludes:

I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.

I cannot agree with Reich here. I would agree with him had Judge Goldstone explicitly back-tracked. I would agree with him had he said that the IDF has discharged its duty. I would agree had Reich given convincing proof of “intentionality,” i.e. that Goldstone intentionally mislead his readers.

But I do think that the op-ed raises questions that could easily be laid to rest were Judge Goldstone to make explicit his views on whether Israel has discharged its obligation. In the original op-ed, he wrote.

Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree.

Is a “significant degree” a “sufficient degree”? According to McGowan Davis, no. According to Judge Goldstone in the Bill Moyers interview, an internal IDF investigation would not be sufficient:

BILL MOYERS: But just this week, the Israeli defense minister said, we don’t want any investigations. He says, “There’s no need for a committee of inquiry. The Israeli military knows how to examine itself better than anyone else.” And he blocked a meeting this week that was going to discuss whether or not Israel should launch an investigation. RICHARD GOLDSTONE: Well the question is whether he’s going to succeed. You know, Ariel Sharon, when he was defense minister, did exactly the same blocking, unsuccessfully, in respect of Sabra and Shatila, and a very appropriate independent investigation was set up under judges and the then attorney general. And of course, they found Sharon guilty, and forced his dismissal as defense minister. So there’s precedent both for the minister blocking it, and for his losing, and I hope that will happen here.

Well, it did not happen here. And it is surprising, and puzzling, that Judge Goldstone did not repeat his call for an independent inquiry in his op-ed. But until he explicitly says that there is no further need for one, then the statement above should represent his final word.

From: Omar Barghouti
Sent: 03 April 2011 10:19
Subject: Dr. Goldstone and Mr. Hide (with an “i”)

Goldstone has always been a Zionist with deep emotional ties to Israel and, consequently, a very problematic tendency to let it off the hook on some of the most serious evidence of war crimes during its attack on Gaza 2008-2009. I’ve personally always alluded to his bias in my talks, ever since the report was published, albeit in a diplomatic and nuanced way.

Of all the biased procedures followed and conclusions reached in the Report, I shall cite just one that should make any moral person’s blood boil (page 13):

“37. …The Mission acknowledges the significant efforts made by Israel to issue warnings through telephone calls, leaflets and radio broadcasts and accepts that in some cases, particularly when the warnings were sufficiently specific, they encouraged residents to leave an area and get out of harms way. However, the Mission also notes factors that significantly undermined the effectiveness of the warnings issued. These include the lack of specificity and thus credibility of many pre-recorded phone messages and leaflets. The credibility of instructions to move to city centres for safety was also diminished by the fact that the city centres themselves had been the subject of intense attacks during the air phase of the military operations. The Mission also examined the practice of dropping lighter explosives on roofs (so-called “roof knocking”). It concludes that this technique is not effective as a warning and constitutes a form of attack against the civilians inhabiting the building. Finally, the Mission stresses that the fact that a warning was issued does not relieve a commander and his subordinates of taking all other feasible measures to distinguish between civilians and combatants.”

Imagine if such “early warning” techniques of “roof knocking” were to be used against Israeli civilian buildings to “encourage” residents to leave for a safer place before bombing the building! Would Goldstone have described that as “not effective” or merely a “form of attack against the civilians inhabiting the building”?! Given the fact that the Report itself acknowledges that civilians had NO REFUGE to escape to and that willful killings were actually committed by Israeli forces against many Palestinian civilians whose buildings were bombed over their heads because of their failure to heed the Israeli army’s humane “roof knocking,” is this the most accurate and legally precise description of this crime that such a luminous judge can issue?

By now, and under sustained, vicious and inhumane pressure by Israel and its lobby groups in South Africa, the US and elsewhere, Goldstone’s ideological commitment to Israel and Zionism has won over his relatively professional commitment, making him lose any veneer of respectability or credibility. His argument in the Washington Post op-ed below takes the Israeli investigation’s claims as truths, more or less, ignoring the conclusion that he and his colleagues who produced the Report have reached regarding Israel’s justice system. Referring to “structural flaws” in the so-called Israeli justice system, the Goldstone report concluded that Israel cannot be trusted to administer justice according to international standards [Goldstone Report, paragraph 1756] Here’s the exact clause:

1756. After reviewing Israel’s system of investigation and prosecution of serious violations of human rights and humanitarian law, in particular of suspected war crimes and crimes against humanity, the Mission found major structural flaws that in its view make the system inconsistent with international standards. With military “operational debriefings” at the core of the system, there is the absence of any effective and impartial investigation mechanism and victims of such alleged violations are deprived of any effective or prompt remedy. Furthermore, such investigations being internal to the Israeli military authority, do not comply with international standards of independence and impartiality. The Mission believes that the few investigations conducted by the Israeli authorities on alleged serious violations of international human rights and humanitarian law and, in particular, alleged war crimes, in the context of the military operations in Gaza between 27 December 2008 and 18 January 2009, are affected by the defects in the system, have been unduly delayed despite the gravity of the allegations, and, therefore, lack the required credibility and conformity with international standards. The Mission is concerned that investigations of relatively less serious violations that the GOI claims to be investigating have also been unduly protracted.

http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_Report.pdf

Has any of that changed or only its author’s commitment to the truth?

To his credit, from the very beginning, Goldstone was reluctant to take this UN job, arguing that the issues involved in this investigation were “deeply charged and politically loaded.” Indeed! Someone should have heeded his advice!

Goldstone was from the start the wrong choice for leading this investigation, given his political and ideological allegiance to Israel. Imagine, for instance, if the UN were to select an overt supporter of Iran — who also happens to be a Shiite Muslim — to head a UN investigation of allegations of Iranian violations of international law in crushing demonstrations last year!

Furthermore, the Goldstone report added little new evidence to what had already been very well documented by Amnesty International, Human Rights Watch, UN officials on the ground, leading Palestinian human rights organizations and experienced journalists. As UN Special Rapporteur and leading international law expert Prof. Richard Falk writes:

“Perhaps, most damning of all the material available before the Goldstone report was the publication of a document entitled ‘Breaking the Silence,’ containing commentaries by 30 members of the Israeli army who had taken part in Operation Cast Lead (the Israeli official name for the Gaza war). These soldiers spoke movingly about the loose rules of engagement issued by their commanders that help explain why so little care was taken to avoid civilian casualties. The sense emerges from the testimony of these Israeli soldiers who were in no sense critical of Israel or even of the Gaza war as such, that Israeli policy emerged out of a combination of efforts ‘to teach the people of Gaza a lesson for their support of Hamas’ and to keep Israeli military casualties as close to zero as possible even if meant massive death and destruction for innocent Palestinians.”

http://electronicintifada.net/v2/article10788.shtml

Despite welcoming the report and praising its many positives and its authors’ uprightness at the time of its issuance, Falk accurately describes Goldstone as “deeply sympathetic to Israel” and the Report as giving Israel “the benefit of the doubt” in key areas. He presents in the article cited above devastating evidence of Goldstone’s political bias:

“Arguably, [the Report] was more sensitive to Israel’s contentions that Hamas was guilty of war crimes by firing rockets into its territory than earlier reports had been. And in many ways the Goldstone report endorses the misleading main line of the Israeli narrative by assuming that Israel was acting in self-defense against a terrorist adversary. The report does describe the success of the ceasefire with Hamas that had cut violence in southern Israel to very low levels, and attributes its disruption to Israel’s attack on 4 November 2008, but nowhere does it make the inference that would seem to follow, that the Israeli attacks were an instance of the international crime of aggression. Instead, the report focuses its criticism on Israel’s excessive and indiscriminate uses of force. …

… the report takes for granted the dubious proposition that Israel was entitled to act against Gaza in self-defense, thereby excluding inquiry into whether crimes against the peace in the form of aggression had taken place by the launching of the attack. In this respect, although the report takes notice of the temporary ceasefire that had cut the rocket fire directed at Israel practically to zero in the months preceding the attacks, it seems to avoid drawing any legal conclusions as to the bearing of this context in which the Gaza war was initiated. The report also ignores Hamas’ repeated efforts to extend the ceasefire indefinitely provided Israel lifted its unlawful blockade of Gaza. Israel disregarded this seemingly available diplomatic alternative to war to achieve security on its borders. Recourse to war, even if the facts were to justify self-defense, is according to international law, a last resort. By ignoring Israel’s initiation of a one-sided war the Goldstone report implicitly accepts the dubious central premise of Operation Cast Lead, and avoids making a finding of aggression.

Also disappointing was the failure of the report to comment upon the Israeli denial of a refugee option to the civilian population trapped in the tiny, crowded combat zone that constitutes the Gaza Strip. Israel closed all crossings during the period of the Gaza war, allowing only Gaza residents with foreign passports to leave. It is rare in modern warfare that civilians are not given the option to become refugees. Although there is no specific provision of the laws of war requiring a state at war to allow civilians to leave the combat zone, it seems like an elementary humanitarian requirement, and should at least have been mentioned either as part of customary international law or as a gap in the law that should be filled. The importance of this issue is reinforced by many accounts of the widespread post-traumatic stress experienced by the civilians in Gaza, especially children, who comprise 53 percent of the population. One might also notice that the report accords considerable attention to the one Israeli soldier held prisoner by Hamas in Gaza, recommending his release on humanitarian grounds, while making only a very general recommendation that Israel release some of the thousands of Palestinians being held under conditions of harsh detention, suggesting that children especially should be released.”

One can only conclude that the UN made a mistake by appointing Goldstone to lead this investigation, given his obvious and explicit predispositions and biases. It should fix it now, especially after this damaging, obviously political reversal, by commissioning a new, neutral judge or group of international law experts to investigate Goldstone’s pathetically weak attempt here to exonerate Israel despite the mass of evidence compiled condemning it.

Dr. Goldstone has turned into Mr. Hide, shamelessly attempting to retrospectively conceal and whitewash Israel’s war crimes, sacrificing any judicial or moral integrity he may have once had, all to appease Zionist groups that strove to excommunicate him, more or less. The blood of hundreds of Palestinians killed in Gaza, including hundreds of children, during the Israeli massacre is on Goldstone’s hands now, not just Israel’s. The Goldstone Report, as flawed and biased towards Israel as it is, will not go down to the dustbin of history; the credibility of and respect for its main author may, though.

Omar

Goldstone retraction shows West’s changed attitude toward Israel in light of Arab world turmoil

Lesson to be drawn is it’s better to fight Israel’s cause during investigation rather than counter subsequent conclusions by the UN that have already been officially adopted.

Aluf Benn, 3rd April 2011

Israel achieved a major public relations coup this weekend, comparable to the United Nations rescission of its notorious resolution equating Zionism with racism. South African Judge Richard Goldstone, who came to symbolize more than anyone else the efforts to delegitimize Israel as a civilized and law-abiding country, has now retracted his allegations that Israel had committed war crimes and crimes against humanity during Operation Cast Lead.

In his opinion piece published in Friday’s Washington Post, Goldstone underlined Israel’s clear moral superiority over Hamas, saying the Israel Defense Forces did not intentionally hit civilians in its operation in the Gaza Strip, while Gazans by contrast did in fact deliberately hit Israeli civilians.

Goldstone also acknowledged being naive in thinking Hamas would conduct itself as a law-abiding government and investigate allegations of its own war crimes and crimes against humanity committed by those firing rockets and mortar shells from the Strip into Israel. He has come to the understanding, however belatedly, that Hamas is not interested in humanitarian laws or human rights, but rather only in waging war against Israel.

Now Goldstone is calling for the international community to enforce the laws of war that apply to states to entities such as the Hamas-controlled Gaza Strip as well.

Goldstone’s change in position followed hundreds of IDF investigations into exceptional events during Cast Lead. Doubtless these investigations would not have come about had it not been for the Goldstone Report and concern over a future international investigation. In this way, the former jurist performed a service in support of the IDF’s enforcement of the laws of war and in deterring Israel from entanglement in a new operation in Gaza.

It is once again clear that Israel erred in boycotting the Goldstone commission and refusing to cooperate with it. Former cabinet minister Isaac Herzog was correct in advocating dialogue with Goldstone, but stood against 11 cabinet colleagues.

The lesson to be drawn here is that we must not cut ourselves off and assume that judges and investigators are biased against us. Even if that is the case, it’s better to fight Israel’s cause during the investigation rather than counter subsequent conclusions by the UN that have already been officially adopted.

Goldstone’s op-ed provides Turkey and Israel the opportunity to rehabilitate their relations, which soured over Cast Lead. If Israel’s explanations are worthy of consideration, it may mean its explanations about the flotilla are, too.

Secondly and more importantly, the new Goldstone captures the change in how the West relates to Israel against the backdrop of the turmoil in the Arab world. Israel may be aggressive sometimes, but there is no other country in the Middle East whose stability is assured and which isn’t threatened by a popular uprising. Israel isn’t perfect, but it’s much closer to Western standards than its enemies.

Goldstone: ‘retractions’ vs facts

Ben White, 3rd April

[This has been cross-posted at Mondoweiss.]

The publication of Richard Goldstone’s op-ed in The Washington Post on Friday heralded a weekend of frenzied hasbara. Goldstone’s “retraction” (though ‘qualification’ is more accurate) of the report into Operation Cast Lead was welcomed by Israeli leaders, Israel advocates in the USA, and others. Ha’aretz columnist Aluf Benn described Goldstone’s op-ed has “a major public relations coup”, claiming that Goldstone had “retracted his allegations that Israel had committed war crimes and crimes against humanity during Operation Cast Lead”.

These responses ironically paralleled the fallout to the Report itself, with sound and fury (and in this case, delight) preferable to cold facts. Since the Israeli government and its propagandists have a track record in establishing certain ‘myths’ and ‘truths’ that are then repeated for years to come, here are five points about the Goldstone op-ed and the fallout.

1. The Washington Post is not the United Nations.

Or, in other words, an opinion column in a newspaper does not have the same weight – to say the least – as a UN-commissioned report stretching over 500 pages, written by four respected international jurists. Sounds obvious I know, but you wouldn’t think it, to see some of the Israel lobby responses. Oh, and just to reiterate a point – the Report was written by four jurists, not Goldstone by himself.

2. What the Report actually claimed about the targeting of civilians.

In his op-ed, Goldstone wrote that Israel’s own investigations (see below) “indicate that civilians were not intentionally targeted as a matter of policy”. This in particular has been seized on as an indication that a core element of the Report has been ‘retracted’.

This is misleading. The Report never claimed that Israel set out to intentionally murder civilians, but said that Cast Lead was “deliberately disproportionate” and intended “to punish, humiliate and terrorize”. Kenneth Roth, Executive Director of Human Rights Watch, has been making this point on Twitter. He commented, that the “crime of indiscriminate warfare” – not “deliberate killing” – was indeed “state policy”, and that there had been “no retraction” on that part.

There is no shortage of evidence regarding Israel’s deliberately disproportionate use of force. Even during the attacks, Israel was preparing for the ‘day after’, under “the working assumption” that “Israel has suffered a blow to its image in the West in the wake of heavy civilian casualties” –a “negative sentiment” that would “only grow as the full picture of destruction emerges”.

An IDF spokesperson said that: “Anything affiliated with Hamas is a legitimate target”, while on 14 January, as the military assault continued, The Jerusalem Post reported Shimon Peres’ description of Israel’s aim as “to provide a strong blow to the people of Gaza so that they would lose their appetite for shooting at Israel”.

Then there’s the so-called ‘Dahiya Doctrine’ (after the Lebanon war in 2006) – coined when the IDF Northern Command chief in October 2008 discussed how Israel would conduct the next war: “civilian villages” would be considered as “military bases”, an “approved” plan, he affirmed. Another paper written by a reserve Colonel for the Institute of National Security Studies (INSS) at Tel Aviv University – titled ‘Disproportionate Force’- observed:

With an outbreak of hostilities, the IDF will need to act immediately, decisively, and with force that is disproportionate to the enemy’s actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes.

These recommendations were noted by Ha’aretz, two months before Operation Cast Lead, in an article titled, ‘IDF plans to use disproportionate force in next war’.

One could go on – there are the booklets given to soldiers by the Israeli army’s chief rabbinate, especially produced for Cast Lead, that in one section compared “Palestinians to the Philistines”, or the disclosures by Israeli military personnel since the attack, such as one commander’s admission that the IDF “rewrote the rules of war for Gaza”

3. The Goldstone Report’s findings were corroborated by other groups and investigations…

…such as the Human Rights Watch report on white phosphorus, Breaking the Silence’s testimonies, and evidence from PCHR in Gaza. B’Tselem documented 252 dead children, a report by two Israeli used testimonies to allege the use of human shields, and Amnesty International concluded that “Israeli forces committed war crimes and other serious breaches of international law”, including “indiscriminate and disproportionate attacks against civilians”. There is also the report[PDF] by the US National Lawyers Guild delegation to Gaza, and the Independent Fact Finding Committee report [PDF] commissioned by the Arab League, and made up of experts from South Africa, Netherlands, Norway, Chile/Germany, Portugal, and Australia.

An important side point here –remember how in the wake of the publication of the Goldstone Report, Israeli military officials and politicians spoke about the need “for changes in the international laws of war”. Why the imperative to ‘change’ the laws, if Israel had not broken any?

4. When the accused conducts ‘independent’ investigations of itself.

In his op-ed, Goldstone makes reference to Israel’s own internal investigations of allegations regarding Cast Lead, commenting that “Israel has done this [investigate ‘transparently and in good faith’] to a significant degree”. Goldstone cited the UN report into how the original Report’s recommendations are being implemented, yet there is a strange discrepancy.

While Goldstone felt able in his op-ed to refer to what was (or wasn’t) being endorsed by Israel as “a matter of policy”, the UN Committee[PDF] repeats testimony by Israel’s Military Attorney General (MAG) that “the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions”. The Committee also (somewhat drily) noted that the MAG’s “dual responsibilities” as both “legal advisor” to the “military authorities”, as well as “his role as supervisor of criminal investigations…raises concerns” [my emphasis]. In other words, Israel’s internal investigations are conducted by the lawyer of the subject of the investigation.

The Goldstone Report itself noted that the Israeli system “to deal with allegations of serious wrongdoing by armed forces personnel does not comply” with the relevant international principles. There is no shortage of examples of the culture of impunity. Amnesty International slammed the Turkel Commission into the murderous assault on the flotilla as a “whitewash”. Last November, The Jerusalem Post reported that the IDF had investigated 400 “complaints” related to Operation Cast Lead, interviewed “more than 600 officers and soldiers”, and the total number of indictments to date was three. A report by Israeli NGO Yesh Din revealed that between 2000 and 2009, less than 6 percent of investigations by the military police “against soldiers suspected of committing offenses against Palestinians and their property” led to indictments. B’Tselem’s report last year, ‘Void of Responsibility’, featured similar statistics: out of 148 cases in which Palestinians were killed between 2006 and 2009, only 22 resulted in a military police probe.

5. What the op-ed did not even mention.

As others have pointed out, the Goldstone Report’s findings were not just related to the deaths of civilians; on the contrary, there were numerous other aspects of Israel’s conduct in Gaza that the Report considered unlawful, including: use of certain weapons, the use of human shields, and the destruction of property.

Not only that, but the Report also focused on the context for the assault, and described Israel’s “blockade policies” as a “violation” of the Geneva Convention. The Report said that Operation Cast Lead cannot be viewed “in isolation” from the Israel’s general policies in the Occupied Palestinian Territory, many of which constitute “violations of international law”.

None of this was even mentioned, let alone ‘retracted’, in Goldstone’s op-ed. As ‘The Magnes Zionist’ blog pointed out, “even a superficial reading of the op-ed shows that he has not retracted a single comma in the Goldstone Report”. Indeed. In fact, Goldstone restates the Report’s original position: “Our report found evidence of potential war crimes and ‘possibly crimes against humanity’ by both Israel and Hamas.” Perhaps for the sake of closure then, though I’m not sure Israel’s propagandists will concur, it’s time to refer the matter to the International Criminal Court.

Goldstone: An act of negligence

Downplay of Israeli aggression towards civilians during the Gaza War, causes scholars to question Richard Goldstone.

Noura Erekat, 04 Apr 2011 15:04

In the wake of a monumental victory in the human rights community to move the Goldstone Report out of the Human Rights Council (HRC) to the General Assembly where it can be underpinned by actionable follow up, Justice Richard Goldstone’s recent editorial makes some human rights practitioners wish it had been left to languish in the HRC.

Goldstone sought to do two things in his op-ed: to amend the record by stating that Israel’s attacks may not have been deliberate and second, to emphasise Hamas’s culpability under the laws of war. In the best case scenario, Goldstone’s intervention is a problematic attempt to cajole Israel to participate in the international process for accountability.

However, even in that case, the editorial is counterproductive, short-sighted, and casts Goldstone’s attempts as no less than curious.

Just last week, I had the chance to speak to Goldstone at Stanford Law School where I participated in a debate on the report featuring him as a discussant.

Goldstone seemed struck by recent revelations made in Israel’s investigation of itself that its murder of 29 civilians in the Sammouni home, where approximately 120 civilians had taken refuge, was the result of negligence and not a deliberate attack.

He emphasised that had Israel participated in the investigatory process rather than boycott it, it would have been able to contest the mission’s findings before the report’s release thereby correcting its alleged bias.

He echoes this sentiment in his op-ed where he writes:

I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.

Goldstone should have known better: on the one hand, he accepts Israel’s investigatory findings at face value notwithstanding the Independent Committee of Experts’ conclusions that they are structurally flawed and unlikely to yield effective measures of accountability and justice.

Second, and perhaps more importantly, Goldstone takes for granted that Israel preemptively rejected the report precisely because the mission treated Hamas evenhandedly rather than dismiss it as a terrorist organisation whose annihilation is justified by any means necessary.

That is why it should come as no surprise that rather than respond to his proclamations with a renewed faith in international legal mechanisms, Israel’s staunchest allies are opportunistically characterising Goldstone’s editorial as an attitudinal shift towards Israel in the West while its prime minister has called on the UN to retract the report all together.

The Goldstone Report documents eleven incidents where the Israeli military directly targeted civilians. Four other fact-finding missions underscore these findings: Human Rights Watch, Amnesty International, Physicians for Human Rights-Israel, and the National Lawyers Guild.

‘No humanitarian consideration’

In a report conducted by Israeli war veterans, 26 Israeli soldiers who participated in the Operation confirm that there were no clear rules of engagement.

One soldier laments:

There was a clear feeling that no humanitarian consideration played any role in the army at present. The goal was to carry out an operation with the least possible casualties for the army, without its even asking itself what the price would be for the other side.

Together, the four investigations and the soldiers’ testimonies, demonstrates an Israeli policy of targeting of civilians and/or negligent behaviour that amounts to the direct targeting of civilians according to Article 51 of the First Additional Protocol.

This comports with a policy adopted by Israel since 2006, known as the Dahiyeh Doctrine. As captured by the Goldstone Report itself, according to Major General Gadi Eiskenot:

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 perspective, these are not civilian villages, they are military bases.

Israel’s perspective however is not what matters – according to the twin linchpins of humanitarian law, namely the principles of distinction and proportionality, civilian villages are not to be targeted, are to be protected, and are to be spared excessive loss unless they directly partake in the hostilities.

Arguably therefore, no mission could have written a report to Israel’s liking unless it accepted this perversion of humanitarian law casting villages as bases.

In fact, after the report’s dissemination, Prime Minister Netanyahu requested “the facilitating of an international initiative to change the laws of war in keeping with the spread of terrorism throughout the world”.

Accordingly, Goldstone’s painstaking efforts to highlight Hamas’s culpability, which he already makes plain in paragraph 108 of the report, are futile because the controversy has not been over the report’s inequitable application of the law but rather over Israel’s insistence that it should be freed from the laws’ restraints in order to have its way with its “terrorist” adversaries.

Goldstone also miscalculates the value of Israel’s domestic investigations.

To date, the Independent Committee of Experts, chaired by New York Judge Mary McGowan Davis, has reviewed the domestic investigations process twice, and both times it found Israel’s investigations to be inadequate.

Whereas Goldstone applauds Israel for “dedicating significant resources to investigating 400 incidents of operational misconduct”, he does not mention the rest of the committee’s findings.

‘No’ Israeli investigatory initiative

In particular, it took issue with the fact that “there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead”.

The committee goes onto note that “more than one-third of the 36 incidents in Gaza are still unresolved or unclear. [And] Finally, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report – over two years since the end of the Gaza operation – could seriously impair their effectiveness and, therefore, the prospects of ultimately achieving accountability and justice”.

In light of these conclusions, it is perplexing that Goldstone would accept Israel’s assertion that its attack on the Sammouni home was a regrettable act of negligence by those commanders “making difficult battlefield decisions”. Consider also that this is the home where emaciated children were rescued four days after the attack because Israel prevented access to the Red Cross.

What kind of remorseful military commander negligently orders an air strike on a home full of civilians and then prevents humanitarian relief to its victims for four days? At most, Israel’s conflicting investigatory findings should have buttressed the report’s recommendation for an international judicial enquiry.

Perhaps Goldstone sincerely believes that Israel’s boycott of the mission was a function of remedial short-sightedness. Arguably then, his willingness to overlook a compelling record is an effort to lure Israel to the table of multilateral reconciliation.

In fact, his endorsement of “applying international law to protracted and deadly conflicts” for the sake of making warfare more humane indicates his enduring faith in the mission’s mandate as well as the need for accountability, rather than a disavowal of the report and the exoneration of Israel for its alleged crimes.

If this is indeed the case, the Justice exercised excessive good faith and poor judgement to believe that Israel would accept his gesture as an opportunity to reconcile with the UN-investigatory process, rather than cast the final blow against the report and the HRC.

Regardless of what may have been his best intentions, Goldstone has negligently, one hopes not deliberately, undermined the laws of armed conflict and emboldened those states, like Israel, who believe that it is a surmountable nuisance.

Noura Erekat is a Palestinian human rights attorney and activist. She is currently an adjunct professor at the Center for Contemporary Arab Studies in Georgetown University. She is also a co-editor of Jadaliyya.com.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.

Goldstone reminded us of the real face of Kadima

Operation Cast Lead 1, manufactured by Kadima, constitutes an Israeli and international license for Cast Lead 2.

Akiva Eldar, 4 April 2011

Upon seeing Prime Minister Benjamin Netanyahu’s radiant face as he celebrated Judge Richard Goldstone’s confession that his UN report on Operation Cast Lead dealt too harshly with Israel, and upon hearing Foreign Minister Avigdor Lieberman’s attack on the Jewish judge – one might have thought that those two politicians were the ones who sent the Israel Air Force to bomb the Gaza Strip in the winter of 2008-2009. What about a good word for Ehud Olmert? A small bouquet of flowers for Tzipi Livni? After all, they’re the ones who showed the whole world that Israel can attack Palestinian residential areas and come out looking like the victim.

Operation Cast Lead 1, manufactured by Kadima, constitutes an Israeli and international license for Cast Lead 2. The Cast Lead saga demonstrates the similarity between the two largest political parties with respect to the use of force against Hamas. Even the defense minister was not dislodged in the last election.

Likud is considered a “right-wing party” because of Netanyahu’s reluctance to act promptly in negotiations with the Palestinians, and his failure to freeze construction in the settlements. Kadima has assumed the “centrist party” label, thanks to Olmert’s accelerated talks with Palestinian Authority President Mahmoud Abbas. In practice, the Annapolis process made it possible for the Kadima government to impose an extended blockade on 1.5 million people in Gaza and ignore the theft of land in the West Bank. Peace, as we all know, was not the result, and it remains very much in doubt whether any Israeli government in the foreseeable future will herald a breakthrough leading to a peace treaty.

It was not for nothing that Netanyahu provoked Livni from the Knesset podium about whether she is willing to give up the West Bank settlement of Ariel, evacuate the Jewish neighborhood of Har Homa in East Jerusalem, or allow a limited number of Palestinian refugees to return to Israel. Netanyahu presumably knows the answers. Indeed, they can be found in the Al Jazeera papers, which documented the talks between Livni and the senior Palestinian representative at the time, Ahmed Qureia – and they are: No, no and no. And if the head of Kadima changes her mind on those issues, how many fellow leaders will back her up?

Kadima’s behavior pattern in the Knesset refutes the assumption that an agglomeration of “refugees” from the Likud, Labor and Yisrael Beiteinu parties will be waving the tattered flag of the peace camp. The elected officials of Kadima have stood out more for defending the settlement policy and attacking democracy than for criticizing the suspension of peace talks or protesting the damage done to the weaker segments of the population.

For the benefit of the left-wingers who voted for Kadima, here is a selection of Kadima’s actions during the Knesset session that just ended:

* Two Kadima MKs (Otniel Schneller and Eli Aflalo ) voted in favor of a law requiring a national referendum to approve any Israeli return of land, and only 15 out of 28 faction members voted against.

* After attacking colleagues who participated in J Street’s annual conference in Washington in February, and accusing them of doing damage to the state, Schneller initiated a debate in the Knesset Committee for Immigration, Absorption and Diaspora Affairs on the left-wing Jewish lobby, which doesn’t see settlement construction as something that contributes to a two-state solution. He told fellow Kadima MK Yoel Hasson, who attended the conference, that “it’s strange that the chairman of Likud Youth and the former chairman of Betar are assisting a pro-Palestinian organization.” Hasson responded: “You haven’t been part of Kadima for a long time; you don’t represent Kadima.” Unfortunately, it’s looking like Schneller very much represents Kadima.

* Schneller was one of three Kadima MKs (the other two were Yulia Shamalov Berkovich and Robert Tibayev ) who supported a Yisrael Beiteinu proposal to investigate the funding sources of human-rights groups in Israel.

* Hasson and fellow Kadima MK Shai Hermesh co-sponsored a recently passed law, along with radical right-winger David Rotem, allowing certain small communities to use admissions committees to screen potential residents. Only one Kadima MK (Shlomo Molla ) voted against it.

* No more than five Kadima MKs voted against the Nakba Law, and two (Gideon Ezra and Orit Zuaretz ) voted for a law revoking the citizenship of Israelis convicted of espionage, of an act of terror against the country or of aiding Israel’s enemies. No Kadima member voted against it.

Now that Kadima is five years old, it is looking more like a satellite branch of the right wing, disguised as a centrist party. The shared victory party of those behind Operation Cast Lead and the leaders of the struggle against the so-called “delegitimization” of Israel is an excellent opportunity to bring them all together under the chuppah.

Thank you, Judge Goldstone. Thank you for reminding us what the real face of the alternative actually looks like.

Member of UN Fact Finding mission on Gaza Conflict insists report stands unchanged

Hina Jilani interviewed, 04 April 2011

Hina Jilani: “Absolutely not; no process or acceptable procedure would invalidate the UN Report; if it does happen, it would be seen as a ‘suspect move”.

EXCLUSIVE INTERVIEW

In what has been the first statement after the op-ed article by Judge Richard Goldstone by a member of the UN Fact Finding mission on the Gaza conflict, Hina Jilani, affirmed nothing will change the substance of the original report submitted to the UN.

In an exclusive interview given to the Middle East Monitor (MEMO), the internationally recognized human rights lawyer dismissed claims that the op-ed article by Judge Richard Goldstone in the Washington Post (1 April 2011) would make any difference to the report. She said, “Ultimately, the UN Report would not have been any different to what it was”.

Jilani, it would be recalled, served as the United Nations Special Representative of the Secretary-General on Human Rights Defenders from 2000 to 2008. She was also appointed to the UN International Fact-Finding Commission on Darfur, Sudan in 2006.

Ms Jilani denies Goldstone’s op-ed article expresses any actual regret. “Absolutely not; no process or acceptable procedure would invalidate the UN Report; if it does happen, it would be seen as a ‘suspect move”.

Looking ahead, she insisted the Report “is and remains an important report.” She added that the UN Security Council now needs to investigate further to see how both parties – Israel and Hamas – have violated international law: “The UN cannot allow impunity to remain,” she stressed, “and will have to act if it wants to remain a credible international governing body.”

Although the fact finding report is often referred to as the ‘Goldstone Report’, the mission was actually comprised of four members. In addition Goldstone and Jilani, other members were Christine Chinkin, Professor of International Law at the London School of Economics and Political Science and Desmond Travers, a former colonel in the Irish Defence Forces and member of the Board of Directors of the Institute for International Criminal Investigations.

“Goldstone’s Statements Support Our Consistent Position”

Update: 4 April 2011

Israeli Human Rights Organizations: The recent statements by Richard Goldstone support the consistent position we have been upholding since the operation in Gaza, that when concerns arise regarding harm to civilians due to violations of international law, an independent investigation must be launched.

The human rights organizations – the Association for Civil Rights in Israel (ACRI), B’Tselem, Gisha, Public Committee against Torture in Israel (PCATI), Yesh Din, Hamoked: Center for Defense of the Individual, Adalah, Rabbis for Human Rights, Physicians for Human Rights Israel, and Breaking the Silence – have appealed to the Attorney General immediately following Operation Cast Lead, calling on him to investigate allegations regarding violations of the laws of war during the operation.

The organizations continue to stress that in cases of concerns regarding violations of the laws of war, Israel is obligated to initiate a thorough examination of the matter – by an independent and impartial investigative body.

Since the publication of the Goldstone Report, the Israeli army opened more than 50 investigations regarding events that took place during the operation in Gaza. 3 of those investigations led to indictments. More than two years after the operation, it is still unclear what happened to the majority of these investigations. Furthermore, no inquiry was initiated regarding the policies determined by senior military and government officials.

Although Israel has not yet established an independent and non-military inquiry committee to investigate the events of Operation Cast Lead, most of the investigations that were opened used information provided by various human rights organizations. We hope that the authorities have realized the importance of such investigations, and therefore we reiterate our appeal to the state, to launch and independent, non-military, and transparent investigative process to examine the body of complaints regarding the Israeli military’s conduct during Operation Cast Lead.

The Turkel Commission, an independent committee set up by the Israeli government following the events of the Gaza Flotilla, is currently examining whether the existing inquiry system is compatible with the obligations set upon the state by the laws of war. We call on the committee to recommend that the government set up a permanent independent inquiry body, according to the obligations defined in international law, and that this body shall be responsible for investigating suspicions regarding violations of international law when such suspicions arise, and not as a result of external pressures.

A country that seeks to uphold the laws of war and to minimize the harm to innocent persons, must also deal with suspicions of wrongdoing by the military. It is thus crucial to highlight the accepted norms of protecting civilian population during combat, and to do everything possible in order to minimize harm to civilians in the future.

Further background:

January 2009 letter to the Attorney General, submitted by eight human rights organizations and demanding the establishment of an independent mechanism to investigate the killing and injuring of civilians during the operation in Gaza: http://www.acri.org.il/en/?p=602

January 2010 letter to the Prime Minister (one year after Operation Cast Lead and before the UN debate the Goldstone report) urging Netanyahu to conduct an impartial inquiry: http://www.acri.org.il/en/?p=708

Open Letter to Justice Richard Goldstone
by Coalition of Women for Peace on Tuesday, 05 April 2011

By email, April 5, 2011

Dear Justice Richard Goldstone

The recent escalation in the Israeli army incursions into the Gaza strip is of grave concern to us at the Coalition of Women for Peace. The prospect of yet another flare out of large scale violence against civilians is alarming. Your recent comments on the Goldstone report are already interpreted by Israeli officials and the mainstream media channels as complete and full absolution of Israel’s military conduct in its entirety. Yet, the conclusions drawn from your statement with respect to Israel’s conduct during the Cast Lead military campaign and especially its aftermath are not backed by any new facts or findings. This seriously undermines the international, Israeli and Palestinian civil society struggle for accountability and against impunity from grave violations of human rights and humanitarian law.

You state that “we know more today about what happened in Gaza.” Which new facts have been uncovered? We who monitor the Israeli government and the situation closely on the ground know that no information was brought out to contradict the meticulous documentation of the fact finding mission you headed. In fact, it is the international pressure generated by the publication of the Goldstone report that has forced Israel to launch a significant number of investigations in the first place. These investigations corroborate what the Israeli and Palestinian civil societies already know: Israel systematically fails to conduct thorough and impartial investigations meeting international standards. As a matter of fact, most investigations prompted by the Goldstone report have not been completed yet, and those which have been completed generated only three rather minor indictments of lower rank soldiers. Considering the scope of destruction and the civilians killed during operation Cast Lead, it cannot be said that those responsible for grave violations that amount to war crimes and crimes against humanity have been brought to justice.

A key contribution of the Goldstone report to the public comprehension of the Israeli/Palestinian reality has been its readiness to approach seriously the actual context of the outbreak of violence in Gaza. This is the persistent blockade imposed by Israel on the Gaza Strip, and its continued control on Palestinians in the Occupied Territories. The recommendations to Israel – carrying your distinguished signature as a world renowned jurist – clearly addressed the blockade on Gaza, calling on Israel to immediately cease the border closures and allow free passage of goods and people to and from the Strip. The report recommends that Israel release Palestinian political prisoners, and cease actions that limit the expression of dissent by civil society organizations. The innovation of the report was precisely its readiness to acknowledge the overwhelming responsibility of the powerful party in the conflict.

Israel ignored the report and its recommendations, and did not lift the blockade or stop the persecution of Palestinian civilians and human rights defenders. The only notable change in the status quo was the escalation, immediately following the publication of the Goldstone report, of government attacks and the campaign of de-legitimization of human rights organizations and civil society. The Israeli government is currently promoting legislation, which aims at curbing our freedom of expression, freedom of association and basic social and political liberties. This political persecution is further marginalizing and excluding Palestinian and Jewish women in Israel, who oppose the militarized political establishment.

The Goldstone report gave an official international force to the ever increasing demand to hold Israel accountable for grave violations of international law. Your statements undermine the credibility of the United Nations and its ability to effectively enforce international standards of conduct and international humanitarian and human rights law. Now more than ever the stakes are high for those struggling for accountability and against impunity in Israel/Palestine. Your statement raises the stakes further by granting Israel legitimacy it so desperately needs to continue its aggressive campaigns of repression of dissent on the domestic and international front.

Dear Justice Goldstone, we are asking you to do all that is in your power to enable the international community to hold Israeli leaders accountable. Only a serious commitment to accountability, which would end Israel’s impunity can prevent the next war. As it stands now, your statement is already used to justify and legitimize future crimes, even before the next war has started.

Coalition of Women for Peace (Israel)
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Jonathan Cook: Goldstone’s rethink

5 April 2011

The cleansing of Israel’s war crimesIsraeli leaders have barely hidden their jubilation at an opinion article in last Friday’s Washington Post by the South African jurist Richard Goldstone reconsidering the findings of his United Nations-appointed inquiry into Israel’s attack on Gaza in winter 2008.

For the past 18 months the Goldstone Report had forced Israel on to the defensive by suggesting its army – as well as Hamas, the ruling faction in Gaza – had committed war crimes and crimes against humanity during Israel’s three-week Operation Cast Lead. Some 1,400 Palestinians were killed, including hundreds of women and children.

Goldstone’s report, Israeli officials worried, might eventually pave the way to war crimes trials against Israeli soldiers at the International Criminal Court in the Hague.

In what appeared to be a partial retraction of some of his findings against Israel, Goldstone argued that he would have written the report differently had Israel cooperated at the time of his inquiry.

Benjamin Netanyahu, the Israeli prime minister, immediately called on the United Nations to shelve the Goldstone Report; Ehud Barak, the defence minister, demanded an apology; and Avigdor Lieberman, the foreign minister, said Israel’s actions in Gaza had been “vindicated”.

Israel would certainly like observers to interpret Goldstone’s latest comments as an exoneration. In reality, however, he offered far less consolation to Israel than its supporters claim.

The report’s original accusation that Israeli soldiers committed war crimes still stands, as does criticism of Israel’s use of unconventional weapons such as white phosphorus, the destruction of property on a massive scale, and the taking of civilians as human shields.

Instead Goldstone restated his position in two ways that Israel will seek to exploit to the full.

The first was an observation that since his report’s publication in September 2009 “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct”.

In the past Goldstone has made much of the need for Israel and Hamas to investigate incidents where civilians were targeted, saying that otherwise his report should be transferred to the ICC. In his article he favourably compared Israel’s investigations to the failure by Hamas to carry out any probes.

The significance of Goldstone’s reassessment from Israel’s point of view was underlined this week by comments to the Jerusalem Post newspaper from a senior unnamed legal official in the Israeli military. He said Goldstone’s professed confidence in Israel’s investigatory system would help to forestall future war cimes probes by the UN.

That will be cause for Palestinian concern at a time when, in response to renewed hostilities between Israel and Hamas, some Israeli government ministers have called for a Cast Lead 2.

Another unnamed commander told the popular Israeli news website Ynet yesterday that Goldstone’s change of tack might lift the threat of arrest on war crimes charges from Israeli soldiers travelling abroad.

However, according to both Israeli human rights groups and a committee of independent legal experts appointed by the UN to monitor implementation of the report, Goldstone’s applause for Israel’s investigations is unwarranted.

Sarit Michaeli, a spokeswoman for B’Tselem, an Israeli organisation monitoring human rights in the occupied territories, said Israel had failed to conduct a prompt, independent or transparent inquiry.

“The materials on which Israel has relied have not been made available to us, so we are not in a position to judge the quality of the investigations or the credibility of the findings.”

Likewise, the UN committee of experts, led by a New York judge, Mary McGowan-Davis, has complained that the Israeli army is probing itself and questioned the effectiveness of the investigations following “unnecessary delays” in which evidence may have been “lost or compromised”.

Human rights groups have pointed out that, despite the large number of deaths in Gaza, only three of the 400 investigations cited by Goldstone have so far led to indictments.

One of those cases involved the theft of a credit card. Another, in which two soldiers used a nine-year-old boy as a human shield, led to their being punished with three-month suspended sentences and demotion.

The second, more significant reassessment by Goldstone is that he was wrong to conclude in his report that Israel intentionally targeted civilians “as a matter of policy”.

Despite Goldstone’s misleading wording in the article, he is referring not to an Israeli order to intentionally murder civilians but a policy in which indiscriminate attacks were undertaken with a disregard to likely casualties among civilians.

Strangely, he appears to base his revised opinion on Israel’s own military investigations, even though no evidence from them has yet been made public.

Rina Rosenberg, the international advocacy director of the Adalah legal centre in Israel, which has been monitoring Israel’s investigations on behalf of Palestinian legal groups, said Goldstone had given Israel a “gift” with this observation.

“Israel has tried to focus the debate entirely on whether it intended to kill civilians, as though a war crime depends only on intentionality. Israel knows that intention – outside a policy like targeted assassinations – is very difficult to prove.”

She pointed out that there were other important standards in international law for assessing war crimes, including negilgence, disregard for the safety of civilians, and indiscriminate use of force.

Also, observers have wondered what new information has emerged since Goldstone published his report to justify a rethink on whether Israeli policy left civilians in the line of fire.

His original conclusion drew in part on public statements by Israeli military commanders that in Gaza they had applied the Dahiya doctrine – an Israeli military strategy named after a suburb of Beirut that Israel levelled during its 2006 attack on Lebanon. In his article, Goldstone cast no fresh doubt on his earlier premise that such a strategy would by definition endanger civilians.

In addition, Israeli group Breaking the Silence has collected many testimonies from soldiers before and since publication of the Goldstone Report indicating that they received orders to carry out operations with little or no regard for the safety of civilians. Some described the army as pursuing a policy of “zero-risk” to soldiers, even if that meant putting civilians in danger.

Similarly, leaflets produced by the military rabbinate – apparently with the knowledge of the army top brass – urged Israeli ground troops in Gaza to protect their own lives at all costs and show no mercy to Palestinians.

The timing of Goldstone’s article has raised additional concern among Israeli and Palestinian human rights groups that he may have succumbed to political pressure.

Late last month the UN’s Human Rights Council, which set up the fact-finding mission, recommended that the General Assembly refer the Goldstone Report to the Security Council – the decisive stage in moving it to the International Criminal Court.

It is expected that the US, which has consistently opposed such a referral, will block the report’s progress to the ICC – further embarrassing Washington after its recent veto at the UN of a Palestinian resolution against Israeli settlements.

Shawan Jabareen, director of the Palestinian legal rights group al-Haq, said Goldstone’s article had provided Israel and the US with a “new weapon” to discredit the report even before it reached the Security Council.

Jonathan Cook is a writer and journalist based in Nazareth, Israel. His latest books are “Israel and the Clash of Civilisations: Iraq, Iran and the Plan to Remake the Middle East” (Pluto Press) and “Disappearing Palestine: Israel’s Experiments in Human Despair” (Zed Books). His website is www.jkcook.net.

Goldstone’s Edit Changes Nothing

MJ Rosenberg, 4 April 2011

Defenders of Israel’s Gaza onslaught of 2008-9 can barely contain their joy. In a Washington Post op-ed on Friday, Judge Richard Goldstone — the famed South African jurist who headed that country’s Truth and Reconciliation Commission — offers some second thoughts about the Gaza war and softens his earlier criticism of Israel’s actions in Gaza, which his U.N.-backed report described as “war crimes.”

In fact, Goldstone alters only one of his original findings. He now says that he has concluded that the Israeli Defense Forces did not intentionally target civilians during attacks in which 1,400 Palestinians died, of whom half were civilians and 400 were children. Goldstone concludes they were collateral damage — not the intended targets, but people who were in the wrong place at the wrong time.

This “exoneration” of Israel’s behavior has Prime Minister Benjamin Netanyahu, Defense Minister Ehud Barak, and their defenders in Israel and the United States crazily dancing in the end zone. You see, they shout, Goldstone lied all along. We didn’t kill all these people on purpose. Hooray for us.

These celebrations tell us infinitely more about the Israeli government and its cutouts here than Goldstone’s column does about what happened in Gaza.

Imagine if the United States government were forced to admit that it killed hundreds of innocent people in a few days and that hundreds of that number were kids. Does anyone imagine that our government would pat itself on the back because the killings were deemed unintentional?

No doubt, many innocent people have been killed at American hands just as at Israel’s in Gaza. But it is hard to recall American officials saying that the discovery that the deaths were unintentional exonerated us. As for victory laps such as those being taken by Netanyahu and Barak, they just wouldn’t happen here, especially by prominent officials in the government.

The only way Goldstone could really exonerate Israel would be to prove that the hundreds of non-combatant dead, including all those kids, were, in fact, not civilians at all. He would have to prove that they were fighters who were killed while engaging in battle with Israel. Not even the Israelis claim that.

The civilian dead were indeed civilians, and they are still dead. They are dead because the Israeli government decided that taking care not to kill innocents would put more Israeli soldiers in harm’s way.

Elections were coming and the Israeli government felt that their public would not tolerate a war that took more than few soldiers’ lives. So the army would bombard targets from afar; if civilians were killed, so what?

The strategy worked. 1,400 Palestinians were killed, compared to about a dozen Israelis. That was a ratio — almost unprecedented in the history of warfare — that would not hurt any politican’s political standing. (Actually, it suggests that Gaza was not a war at all, but rather an attack by a powerful army against powerless militants and unarmed civilians.)

The jubilation over Goldstone’s minor edit is also misplaced because the strong opposition felt in most quarters to the Gaza onslaught had nothing whatsoever to do with whether or not the killings of civilians were intentional, but rather was over the fact that they took place at all.

Even if it could be proven that the United Nations school was destroyed by accident, what difference would it make? It was destroyed. Would Israel exonerate Hamas if it, by accident, hit an Israeli hospital when its target was a nearby army base? It is a distinction without a difference and only the morally bankrupt would point to it with pride.

Furthermore, opponents of the Gaza war were outraged by Israel’s actions in Gaza right from the start, not following publication of the Goldstone report. The outrage came when it became clear that Israel was not exercising its legitimate right to defend itself against rocket fire from Gaza by targeting the people launching the missiles but by targeting everyone who lived in Gaza.

Additionally, the whole war was unnecessary. A cease-fire between Hamas and Israel had been in effect for the six months leading up to Israel’s decision to invade. Why did it end?

The answer comes from U.S. News, a newsweekly owned by Mortimer Zuckerman, one of the Israeli government’s leading defenders in the United States and the former president of the Conference of Presidents of Major American Jewish Organizations.

Why now? Two reasons: the expiration of the Israeli-Gazan cease-fire on December 19 and the Israeli national election coming up on February 10. The six-month cease-fire started coming apart at the beginning of November after Israeli commandos killed a team of Hamas fighters during a raid on a tunnel they suspected was being dug for the kidnapping of Israeli soldiers. That raid set off more Palestinian rocketing which prompted further Israeli attacks. All this prompted Hamas to declare that it wouldn’t extend the cease-fire unless Israel lifted its punishing siege of the Gaza Strip, which was imposed after the militant group Hamas was elected to power nearly three years ago.

U.S. News has it exactly right. The cease-fire ended because Israel decided to end it. And then when the rockets started falling, Israel had the pretext it wanted to attack. None of this is surprising; Israeli leaders have never been shy about saying that their goal is not merely ending mortar attacks from Gaza but eliminating the Hamas government (elected, incidentally, in a democratic election forced on the Palestinians by the United States).

The bottom line is that Goldstone’s edit doesn’t matter except to those who defended and still defend this indefensible war. The damage done to Israel’s reputation cannot be eradicated. But that is insignificant compared to the pain felt by all those still mourning loved ones killed in the monstrous Gaza war.

The next Israel-Arab war, Goldstone will be there

Knowingly or not, every member of the IDF will be carrying excerpts of the Goldstone Report into combat, into the next war we fight, and the next, and into every battle, raid, and incursion in between.

Bradley Burston, 3 April 2011

We owe Richard Goldstone a vote of thanks.

We, and by that I mean people who want to see Israel thrive as a healthy country and a strong member of the community of nations, owe him the respect to acknowledge that – both in carrying out his inquiry on the Gaza War, and in reassessing its findings – he was acting as a person who wanted to see an Israel that he loved, live up to its own standards.

We, and by that I mean people who have served and are serving in Israel’s armed forces, should acknowledge that Goldstone believes deeply in Israel’s right and obligation to defend itself and its citizens against attack. We should acknowledge that when he calls Hamas rocket attacks aimed at civilians heinous and criminal, when he urges the UN Human Rights Council to condemn the Itamar murders, when he states that the council’s history of anti-Israel bias “cannot be doubted,” he is speaking from a profound sense of conviction and justice, and out of compassion for Israelis.

That is why we should be pleased that when the peculiar glee of the moment dies down, when the choral fugues of we-told-you-so die out, when we no longer hear ourselves demanding that the UN formally retract its Report of the Fact Finding Mission on the Gaza Conflict, or demanding that NGOs disband themselves in disgrace, Richard Goldstone will still be with us.

We should take comfort in knowing that when politicians have grown hoarse in declaring a slam-dunk vindication of Israel’s policies and actions in the Gaza War, and editorial writers grow tired of demanding that Richard Goldstone spend the rest of his life in penance, this will remain:

Knowingly or not, every member of the Israel Defense Forces, and certainly every commander, will be carrying excerpts of the Goldstone Report into combat, into the next war we fight, and the next, and into every battle, raid, and incursion in between.

If Benjamin Netanyahu is right in saying that there are no armies more moral than the IDF, and that the military acts in accordance with international law, it will be because Israel takes heed of the moral issues raised by the inquiry, and makes every effort – a much more vigorous effort than it did during the decade just past – to take into strict account the welfare of civilians in areas targeted by Israel.

We needed Goldstone after that horrible war, and we need him now.

And like it or not, Goldstone has become an integral part of us.

As in the Passover seder, when we traditionally set an extra place for a prophet who never physically shows up, the long table at the central Tel Aviv compound where the IDF General Staff meets, has a virtual extra place-setting as well.

Despite its admittedly flawed methodology – for which Israel’s pre-emptive and persistent stonewalling was to blame every bit as much as the bias of the council – the scope of the report, the questions raised, and the hundreds of internal IDF inquiries the report prompted, mean that the work of Richard Goldstone and his inquiry will doubtless be a factor in the IDF’s conduct of a future war. And that is good news for Israel. Some examples:

1. There will need to be a clear and demonstrable military advantage if and when the “bank of targets” includes such civilian sites as water wells, flour mills, chicken farms, electrical power plants, sewage treatment plants.

2. There will need to be clear instructions given troops regarding intentional humiliation of civilian populations, in addition to overtly criminal acts such as theft and vandalism. Penalties for violations must be severe and swift.

3. White flags will need to be respected. Civilians, and certainly children, must never be used as human shields, nor as forced inspectors of possible bombs.

4. There will need to be a re-examination of the doctrine of using denial of goods and other measures in an effort to bring a civilian population to heel, with the expectation of its turning on and toppling Hamas, Hezbollah or similar entities. The policy has not only proven to be self-defeating, fueling fury against Israel, it has also raised the moral red flag of collective punishment.

5. Israel must in the future cooperate with international investigators, assisting them in understanding the actions, and giving them access to testimony by military commanders, government officials, and the civilian population.

6. Israeli officials must stop making bellicose, media-grabbing statements which, as a matter of public record, lend credence to charges of Israel targeting civilians:

[Deputy PM Eli Yishai, 6 January, 2009, as cited in the Goldstone Report: “It (should be) possible to destroy Gaza, so they will understand not to mess with us”. Yishai, 2 February 2009: “Even if the rockets fall in an open air or to the sea, we should hit their infrastructure, and destroy 100 homes for every rocket fired.”]

Wrote Goldstone at the weekend, “Our report has led to numerous ‘lessons learned’ and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas.” Lauding the Palestinian Authority for also taking the report seriously, Goldstone added, “Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.”

Beyond all else, what Richard Goldstone has given us is an example of someone who is willing, despite everything, to acknowledge when mistaken and to come forward and own up.

This is heroism of the first order. If there is one example we need apply – prime minister and defense minister on down – this is the one.

“Justice Goldstone is an extraordinarily courageous man,” veteran military analyst Alex Fishman wrote this week, praising that rarest of public acts: unforced admission of error.

“The man is willing to lose his entire world, including his good name and the reputation he’s earned, only to be at peace with his conscience.”

This is what we, and by that I mean, people who care that Israel have a future, can learn from Richard Goldstone. We owe him a vote of thanks, if only in showing, by personal example and at risk of his own standing, that moral courage means getting to the truth, not hiding behind what one so desperately wants to believe is the moral high ground.

Goldstone report: the unanswered questions

Indiscriminate warfare, as opposed to deliberate killing, was undoubtedly Israel’s state policy

Guardian Editorial, 6 April 2011

It is difficult, in this digital world of instant claim and rebuttal, to say that you were wrong. But Richard Goldstone’s retraction of one of the claims of the report that he chaired – that Israel targeted civilians in the war on Gaza as a matter of policy – is one such instance. Mr Goldstone deserves credit for honesty. It is another matter altogether to decide whether all the other claims of a 575-page report are now invalidated. The Goldstone report was a fact-finding mission, not a judicial inquiry. It was not a document of verdict, but put forward evidence for further investigation. So which facts caused Mr Goldstone to retract? Three, principally: that the shelling of a home in which 22 members of one family died was the consequence of an Israeli commander’s erroneous interpretation of a drone image; that the officer was still under investigation; and that Israel has since investigated over 400 allegations of operational misconduct. Had he known then what he knows now, he concludes, the report would have been very different.Two of the three other members of the mission disagree with their former chairman’s change of heart. Hina Jilani, who served on a similar fact-finding mission on Darfur, said that nothing changed the substance of the original report, and Desmond Travers, an expert on international criminal investigations, still feels the tenor of the report stands “in its entirety”. Mr Goldstone has parted company with the other members of his mission. It is therefore worth returning to the original report. The retracted allegation refers to the attack which killed 22 members of the Samouni family, who, following instructions from Israeli soldiers, were sheltering in a house in Zeitoun. But there are 35 other incidents that Goldstone’s team investigated. It found seven cases where civilians were shot leaving their homes waving white flags; a direct and intentional attack on a hospital which may amount to a war crime; numerous incidents where ambulances were prevented from attending to the severely injured; nine attacks on civilian infrastructure with no military significance, such as flour mills, chickens farms, sewage works and water wells – all part of a campaign to deprive civilians of basic necessities. The key paragraph of the report states: “The Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of wilful killings and wilfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.” On the Samouni killings it states that even if it amounted to an operational error and the mission concludes that a mistake was made, “state responsibility of Israel for an internationally wrongful act” would remain. All of this still stands, as does the charge that Hamas’s rockets deliberately targeted Israeli civilians.

Clear to one side the superheated flak of the debate today. It arises from Israel’s current international isolation, of which the Gaza operation formed only a part. It is now said that the Goldstone report became the cornerstone of a campaign to delegitimise Israel. None of this is relevant to what happened in Gaza between 27 December 2008 and 18 January 2009, events which led to the deaths of 1,396 Palestinians, 763 of whom, according to the Israeli human rights group B’Tselem, were not taking part in hostilities when they were killed. The report did not in fact claim that Israel set out deliberately to murder civilians. It said that Operation Cast Lead was “deliberately disproportionate” and intended to “punish, humiliate and terrorise”. That charge stands unanswered. Indiscriminate warfare, as opposed to deliberate killing, was undoubtedly state policy. Shooting the messenger is always easier than dealing with the message itself. This time, the messenger had the grace to shoot himself. It does not change what happened in Gaza, nor what will happen the next time war breaks out.

Goldstone says he won’t seek nullification of Gaza war report

Goldstone makes clear in Associated Press interview that he feels only one correction needs to be made in the war report regarding ‘intentionality on the part of Israel.’

The Associated Press, 6 April 2011

South African jurist Richard Goldstone said Tuesday that he did not plan to seek nullification of his highly critical UN report on Israel’s 2008-2009 offensive in the Gaza Strip and asserted that claims to the contrary by Interior Minister Eli Yishai were false.

The 2009 Goldstone report initially concluded that both Israel and Hamas had committed potential war crimes and possible crimes against humanity during three weeks of fighting. The findings that Israeli forces had intentionally fired at Palestinian civilians triggered outrage in Israel and a personal campaign against Goldstone, who is Jewish.

In an interview with The Associated Press, Goldstone said that Yishai had called him on Monday to thank him for an op-ed piece published Friday in The Washington Post in which the judge wrote that new information had come to light that made him rethink his central conclusions.

Goldstone said, however, that he never discussed the report with Yishai in the telephone conversation. Israeli leaders have called for the report to be retracted since it was issued in 2009.

“There was absolutely no discussion about the Goldstone report on the call,” the jurist said in a telephone interview from Stanford University in Palo Alto, California.

Goldstone said he thanked Yishai for calling and “stated that my concern was to work for truth, justice and human rights.”

Goldstone did confirm that Yishai had invited him to visit Israel and that he had accepted but would be unable to travel there until July.

“I ended the conversation by expressing my love for Israel,” Goldstone said, adding that Yishai spoke in Hebrew which was translated for the judge.

In the Post article, Goldstone lauded Israel for conducting dozens of investigations into alleged wrongdoing. In particular, he sighted evidence that a deadly strike that killed more than 20 members of a Palestinian family resulted from faulty intelligence and was not an intentional attack.

Nevertheless, Goldstone said, he did not intend to seek the report’s nullification.

“As appears from the Washington Post article, information subsequent to publication of the report did meet with the view that one correction should be made with regard to intentionality on the part of Israel,” the judge said.

“Further information as a result of domestic investigations could lead to further reconsideration, but as presently advised I have no reason to believe any part of the report needs to be reconsidered at this time.”

Yishai told Army Radio station that he phoned Goldstone to express his appreciation for Goldstone’s “courageous” reconsideration of his charges, and to invite him to tour Israel’s southern communities that have sustained years of Palestinian rocket fire.

Yishai said Goldstone “as a Jew understands well the story of the Jewish people’s suffering … and it is very important for him to come and see this.”
The minister added that Goldstone promised him he would take additional steps to retract his UN report.

Also speaking on Army Radio, Danny Gillerman, a former Israeli ambassador to the UN who also participated in the phone call, quoted Goldstone as saying he was ready to take steps to change the status of the report, but first wanted to “wait for the dust to settle” following his op-ed article in the Post.

The Geneva-based Human Rights Council has said it will continue to treat the report as a legitimate working document. Spokesman Cedric Sapey told the AP on Monday that Goldstone would have to submit a formal request for the report to be withdrawn.

Last month, a majority of the council’s 47 members voted to pass the report up to the General Assembly, recommending the powerful UN Security Council be asked to submit it to prosecutors at the International Criminal Court.

Such a move is unlikely to pass the Security Council, where Israel’s strongest ally, the United States, has veto power. But the mere suggestion of bringing war crimes charges has infuriated Israel.

In Washington, State Department spokesman Mark Toner had welcomed Goldstone’s article that said he subsequently determined Israel had not intentionally attacked civilians.

“We’ve made clear from when the Goldstone Report was initially presented and maintained ever since that we didn’t see any evidence that the Israeli government had intentionally targeted civilians or otherwise engaged in any war crimes; and now that we see that Justice Goldstone has reached the same conclusion,” Toner said Monday.

“I can say that we remain concerned and we’ll continue working to an end to the what we believe is an anti-Israel bias in the Human Rights Council,” Toner said.

Israel attacked the Gaza Strip in December 2008 in response to years of persistent rocket fire from militants in Gaza at southern Israel.

Some 1,400 Palestinians, including hundreds of civilians, and 13 Israelis were killed during the campaign.

Israel has blamed Hamas for the heavy civilian toll, saying the militant group staged attacks from heavily populated residential areas, as well as mosques and schools.

Beyond Goldstone: A truer discussion about Israel, Hamas and the Gaza conflict

Jessica Montell, Tuesday, April 5

The writer is executive director of B’Tselem: the Israeli Information Center for Human Rights in the Occupied Territories.

JERUSALEM

The word Goldstone has entered the modern Hebrew lexicon as shorthand for anti-Israel bias and the deterioration of Israel’s international position. When the fact-finding U.N. mission headed by Judge Richard Goldstone released its report into Operation Cast Lead in the Gaza Strip 18 months ago, it seemed as if the world divided into two camps. There was the pro-Goldstone camp, arguing that Israel had committed war crimes in Gaza and must be held accountable; and there was the anti-Goldstone camp, which insisted that the report was nothing less than a blood libel against the Jewish state. Everyone had to pick sides.

Where did that leave me? B’Tselem, the organization I lead, had extensively documented Operation Cast Lead and was pushing hard for domestic accountability. So we worked to leverage what was positive about the Goldstone Report — particularly the central recommendation that both Israel and Hamas must investigate the grave allegations and hold accountable anyone found responsible for violating the laws of war. But it was impossible to ignore some glaring problems with the report, particularly the conclusions regarding Israel’s intention to harm Palestinian civilians and what appeared to be different standards to prove Israel’s crimes and those of Hamas.

Now Goldstone himself acknowledges that the report was flawed. In a Post op-ed that has created a media storm, he conceded that Israel did not willfully target civilians as a matter of policy. Yet the column, while acknowledging that Israel has opened criminal investigations into the allegations raised, by no means absolves Israel of all the grave allegations regarding its conduct, as official spokespeople rush to conclude.

In the operation, according to rigorous research by B’Tselem, Israel killed at least 758 Palestinian civilians who did not take part in the hostilities; 318 of them were minors. More than 5,300 Palestinians were injured, over 350 of them seriously. More than 3,500 houses were destroyed, and electricity, water and sewage infrastructure was severely damaged. In many ways, the Gaza Strip has yet to recover from the unprecedented destruction this operation wrought.

The extent of the harm to civilians does not prove that Israel violated the law. But Israel has yet to adequately address many allegations regarding its conduct, including: the levels of force authorized; the use of white phosphorous and inherently inaccurate mortar shells in densely populated areas; the determination that government office buildings were legitimate military targets; the obstruction of and harm to ambulances.

Accordingly, Goldstone’s praise of Israel’s investigations seems a bit premature. Of the 52 criminal investigations Israel opened into incidents in Cast Lead, only three have led to indictments. Nearly 2½ years after the operation, we do not know the status of the remainder of the investigations. Furthermore, these investigations look at individual incidents and at the behavior of individual soldiers. There have been no investigations into the policy questions.

Of course, as Goldstone wrote Sunday, this is far more than Hamas has done to investigate its crimes. And that is perhaps the most disturbing aspect of Goldstone’s opinion piece and the Israeli spin of it: the measuring of Israel against Hamas. Israel did not willfully target civilians; Hamas did. Israel initiated investigations; Hamas did not. When the bar is set so low, Israel easily clears it.

The Goldstone Report’s shortcomings contributed to a polarization that left little room to address the complexity of the issues involved. The Israeli army was either a gang of criminals or the most moral army in the world. Operation Cast Lead was either flawlessly executed or a crime against humanity. Goldstone’s op-ed presents an opportunity to break down these false dichotomies and generate a more nuanced understanding of the operation, both in the domestic Israeli discourse and among the international community.

It is therefore regrettable that the Israeli government and many in the media have portrayed Goldstone’s op-ed as a retraction of everything in the 575-page report. “The one point of light,” Gabriela Shalev, former Israeli ambassador to the United Nations, said of Goldstone’s op-ed, “is that if we have to defend ourselves against terror organizations again, we will be able to say there is no way to deal with this terror other than the same way we did in Cast Lead.”

Shalev’s words make chillingly clear that this debate is not only about the past but also about the future. For this reason it is vital that we move beyond the slogans and soundbites around Goldstone. Instead, we must honestly discuss how to ensure genuine accountability for past wrongs, full respect for international humanitarian law and protection for civilians in any future military operations.

Where now for the Goldstone report?

Posted by John Dugard – 06 April 2011

In short, there are no new facts which could possibly have lead Richard Goldstone to change his mind.

In an op-ed in the Washington Post Richard Goldstone, former South African Constitutional Court judge and Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, expresses misgivings about the central finding of the UN Human Rights Council Fact Finding Mission Report on the Gaza Conflict of 2008-9 (named after its chairman, “the Goldstone report”) that Israel’s indiscriminate attacks on civilians were intentional.

The op-ed makes strange reading.

It states that the Goldstone report would have been a different document “had I known then what I know now” but fails to disclose any information that seriously challenges the findings of the Goldstone Report.

It claims that investigations published by the Israeli military and recognised by a follow-up UN Committee Report chaired by Judge Mary McGowan Davis, which appeared in March, “indicate that civilians were not intentionally targeted as a matter of policy”, but the McGowan Davis report contains absolutely no such “indication” and instead seriously questions Israel’s investigations, finding them to be lacking in impartiality, promptness and transparency.

Goldstone expresses “confidence” that the officer responsible for perhaps the most serious atrocity of Operation Cast Lead (Israel’s codename for its assault on Gaza) — the killing of 29 members of the al-Samouni family — will be properly punished by Israel despite the fact that the McGowan Davis report provides a critical assessment of Israel’s handling of the investigation into this killing.

Finally he claims that the McGowan Davis report finds that Israel has carried out investigations “to a significant degree”, but in fact this report paints a very different picture of Israel’s investigations of 400 incidents which have resulted in two convictions, one for theft of a credit card, resulting in a sentence of seven months imprisonment and another for using a Palestinian child as a human shield which resulted in a suspended sentence of three months!

In short, there are no new facts which exonerate Israel and which could possibly have led Goldstone to change his mind. What made him change his mind therefore remains a closely guarded secret.

The Goldstone report was not the only fact-finding report on Operation Cast Lead. Amnesty International, Human Rights Watch and the League of Arab States (whose mission I chaired) all produced thorough reports on the conflict.

In all reports, including the Goldstone report, there were accounts of the killings of civilians by Israel Defense Forces (IDF) in a cold, calculated and deliberate manner. But the principal accusation levelled at Israel was that in its assault on Gaza it used force indiscriminately in densely populated areas and was reckless as to the foreseeable consequences of it actions which resulted in at least 900 civilian deaths and 5,000 wounded.

In terms of the Rome Statute of the International Criminal Court it is a war crime to intentionally direct attacks against a civilian population (article 8(2)(b)(i)). Such an intention need not be premeditated: it suffices if the person engaging in such action meant to cause the consequence of his action or “is aware that it will occur in the ordinary course of events”(article 30).

Goldstone’s op-ed may be interpreted to mean that he is now satisfied (although there is no evidence to support this) that Israel did not as a matter of policy deliberately and in a premeditated manner target civilians and that where the calculated killing of civilians occurred this was without the blessing of the Israeli military and political leadership.

But he could not possibly have meant that Israel did not “intentionally target civilians as a matter of policy” in the legal sense of intention. That Israel’s assault was conducted in an indiscriminate manner with full knowledge that its consequences would be the killing and wounding of civilians is a matter of public record fully substantiated by the Goldstone Report and other equally credible reports.

In his op-ed Goldstone declares that Hamas’s indiscriminate firing of rockets into Israel, which resulted in the killing of four civilians, was an “intentional” targeting of civilians and consequently a war crime. But how he can suggest that the indiscriminate bombing and shooting of Palestinians in Gaza by the IDF, which resulted in nearly a thousand civilian deaths, was not “intentional” is a mystery.

Goldstone does not, like his critics, describe his op-ed piece as a retraction of the Goldstone report. This is not surprising. Richard Goldstone is a former judge and he knows full well that a Fact Finding Report by four persons, of which he was only one, like the judgment of a court of law, cannot be changed by the subsequent reflections of a single member of the committee.

This can be done only by the full committee itself with the approval of the body that established the Fact Finding Mission – the UN Human Rights Council. And this is highly unlikely in view of the fact that the three other members of the Committee – Professor Christine Chinkin of the LSE, Ms Hina Jilani, an advocate of the Supreme Court of Pakistan and Colonel Desmond Travers, formerly an officer in the Irish Defence Force – have indicated that they do not share Goldstone’s misgivings about the report.

Last month the Goldstone report was referred to the General Assembly of the United Nations by the Human Rights Council with the request that it be referred by the Assembly to the Security Council and that the Security Council submit the matter to the prosecutor of the International Criminal Court, as it has done in the cases of Darfur and Libya.

Doubtless the General Assembly will refer the Goldstone report to the Security Council, despite Goldstone’s op-ed, but it will end there as the customary United States veto will ensure that Israel remains unaccountable.

The Goldstone report is a historical milestone. It is a credible, reasoned, comprehensive and thoroughly researched account of atrocities — war crimes and crimes against humanity — committed by Israel in the course of Operation Cast Lead and of war crimes committed by Hamas in the indiscriminate firing of rockets into Israel. It is a serious attempt to secure the accountability of a state that has for too long been allowed by the West to behave in a lawless manner.

That the credibility of the Goldstone report has been undermined by Richard Goldstone’s strange op-ed in the Washington Post cannot be denied.

Although the Report was authored by four experts with the backing of a team from the office of the High Commissioner for Human Rights it has undoubtedly come to be associated with the name of Richard Goldstone. Inevitable the misgivings he has expressed about his own role in the Report will weaken its impact as an historical record of Operation Cast Lead.

Already the Israeli Government has expressed delight at what it construes to be a retraction of the Report and demanded both a contrite apology from Goldstone and a refutation of the Report by the United Nations. Predictably the US Department of State has welcomed Goldstone`s op-ed and one fears that European governments will find in it an excuse to justify their continued support for Israel.

Richard Goldstone has devoted much of his life to the cause of accountability for international crimes. It is sad that this champion of accountability and international criminal justice should abandon this cause in such an ill-considered but nevertheless extremely harmful op-ed.

John Dugard is Professor of Law, University of Pretoria; Emeritus Professor, University of Leiden; former UN Special Rapporteur on Human Rights in the Occupied Palestinian Territory.

Justice Goldstone’s reversal and the question of intent

Miri Weingarten, 6 April 2011

Crossposted with JNews

In its attempts to evade international accountability, Israel is silencing its own civil society, without which it cannot credibly establish intent, or lack of it, under international criminal law

About the author:Miri Weingarten is an Israeli human rights activist and Director of JNews – Alternative Jewish Perspectives on Israel-Palestine

The struggle for accountability under occupation has led Palestinian victims to depend on international law. Fearful of international legal mechanisms, the Israeli government and its supporters reacted to the Goldstone report with personal intimidation and bullying of Goldstone himself. They seem to have succeeded in bringing about a partial retraction of conclusions that threatened to bring Israeli policy-makers to international trial for the first time. However cautiously worded, Goldstone’s ‘reconsideration’ may drive another nail in the coffin of Israeli accountability, and at the same time exacerbate the growing attacks on Israeli Human Rights Defenders.

In his op-ed in the Washington Post, Justice Goldstone seeks to ‘reconsider’ the conclusions of the UN Fact-Finding Mission (FFM) he chaired. Its mandate was to investigate violations of international human rights law and international humanitarian law (war crimes) committed by all sides during and in the context of Israel’s offensive on the Gaza Strip between 27 December 2008 and 18 January 2009.

The FFM recommended that its report serve as a basis for domestic investigations and prosecutions by both Israeli and Palestinian authorities, failing which it should be referred to international justice mechanisms.

A key point in the Op-Ed and in the broader debate triggered by the Goldstone report is the matter of willfulness, or criminal intent.
In war crimes trials, the prosecution must prove not only that the accused committed an offence, but also that it was committed ‘with intent and knowledge’. The accused must intend the consequences of his or her act, or be aware that such consequences can be expected in the ordinary course of events.

The Goldstone report concluded that many of the incidents reported regarding the Gaza offensive were the result of ‘deliberate planning and policy decisions’; ‘deliberately disproportionate force’ was applied; there was ‘deliberate damage to civilian property and infrastructure’; and these were ‘designed to humiliate and terrorise a civilian population.’

It said the broader policy of siege employed against Palestinians in the Gaza Strip was designed ‘to punish the Gaza population for its resilience and for its apparent support for Hamas’, and could amount to ‘persecution’, a crime against humanity.

With regard to Hamas, the report concluded that in cases where rocket attacks were not directed at military targets and were launched into a civilian population, they too constituted a ‘deliberate attack against a civilian population’ and were therefore war crimes, and may also amount to crimes against humanity.This issue of intent, as raised by the Goldstone report, has been treated by Israel and its supporters as a serious threat. It has also led to unprecedented attacks against dissenting voices within Israel.

Arguably, the only people able to demonstrate the ‘intentionality’ or ‘willfulness’ of a criminal offence are those who committed it, or those close to the culprits, witnesses to the decision-making processes or to the atmosphere within which decisions were made. In the case of Israeli policies toward Palestinians, it is Israeli soldiers, citizens and human rights defenders who have the right level of credibility to establish intent in the violation of human rights.

Since the end of the Gaza offensive, and especially since the publication of the Goldstone report, Israeli groups and individuals have come under sustained attack from the government and its supporters. Common to all those attacked is their access to information relevant to human rights violations and their willingness to make this information public.

The first to be targeted was IDF veterans group Breaking the Silence, which published a report in June 2009, including testimonies by Israeli soldiers who had participated in the attack. These seemed to corroborate the Goldstone Report’s conclusions regarding wanton and deliberate assaults on civilian infrastructure and deliberately disproportionate use of force. In response, Israel’s Prime Minister Binyamin Netanyahu devoted a speech to the denigration of this group and discrediting of its testimonies, during a visit to London. The Israeli Foreign Ministry followed up by lobbying Dutch, Spanish and UK governments to cut funding to the group, citing interference in Israel’s internal affairs.

Shortly after the adoption of the Goldstone report and recommendations by the UN Human Rights Council, an Israeli right-wing group, Im Tirtzu, alleged that the Goldstone report could not have come about without the aid of 16 Israeli groups that had testified to the FFM.

The result was public defamation, parliamentary incitement and legislation seeking to limit and discredit the activities of Israeli human rights and peace groups, and especially those willing to provide information to international justice mechanisms. Proposals have been made to set up parliamentary committees to investigate groups that assist prosecution of IDF soldiers overseas and a bill seeking to close down NGOs engaging in Universal Jurisdiction is awaiting discussion in the Knesset plenary.

Last but not least is the case of conscript soldier Anat Kamm and journalist Uri Blau. As an office manager for Major General Yair Naveh, then the head of Israel’s Central Command, Kamm was exposed to policies she found problematic within the context of the occupation of the Palestinian territories. When she was discharged, she copied classified documents with a view to exposing these policies. Among them was the policy of ‘targeted assassinations’ of Palestinian activists, whose legality had been examined by Israel’s High Court of Justice. The court’s verdict permitted such actions only if arrest was impossible and if innocent civilians were not hurt. Kamm was present at a meeting during which an assassination was given prior approval without reference to the possibility of arrest, and in which the killing of a number of bystanders was approved, in writing, in advance. The smoking gun of intent was thus established.

In 2008 Kamm gave the documents to Uri Blau, an Israeli investigative reporter for Haaretz, who published the information in a manner compromising Kamm as a source. The article had been approved prior to publication by the Israeli military censor – but in the aftermath of the Gaza offensive and as the threat of international justice mechanisms grew, the Israeli secret police (shabak) started following Blau, and eventually obtained the incriminating documents. In early 2010 Kamm was secretly detained and held in house arrest for several months under a media gag order, until a report by blogger Richard Silverstein made the affair public.

The case became a saga of defamation against Kamm and Blau, who were portrayed as traitors. Kamm was convicted in February this year of unauthorised transfer of classified materials, under the offence of ‘aggravated espionage’. She is now awaiting her sentence. Blau, who was abroad at the time of Kamm’s arrest, stayed outside the country until assured by the shabak that he would not be indicted. However, when he returned in March this year he was told to expect an indictment.

Public incitement was followed by legislation. In March this year, a draft amendment to Israeli criminal law, nicknamed the ‘Anat Kamm law’, was approved for a vote by the Knesset plenary. It makes transfer of classified documents to unauthorised persons punishable by a 10-year prison term, even if not done with intent to harm state security. In addition, any unauthorised persons (including journalists) holding classified information would be liable for 7 years in jail.

If the public crucifixion of Kamm and Blau is not enough to deter potential leakers of proof of intent of war crimes, this law is designed to achieve that aim.

It is fortunate that the Goldstone report’s recommendations did not rely on the original FFM members to continue the process of accountability, but very presciently recommended that a separate experts’ committee be charged with assessing the local investigations undertaken by Israel and the Palestinian authorities. This committee has already published its conclusions, and the Goldstone process will continue in the UN bodies, irrespective of Goldstone’s personal views.

It remains to be seen whether Israeli activists and groups will also be cowed into silence, or if they will continue to provide the world with the information and insight only they have access to.

The Goldstone report quotes Palestinians as saying that every time a report is published and no action follows, this emboldens Israel and her conviction of being untouchable. The triumphalist use of Goldstone’s retraction by Israeli leaders certainly vindicates this claim.

Reconsidering Goldstone’s reconsideration Yaniv Reich, April 2, 2011

Israel is “vindicated”, claims FM Lieberman about Richard Goldstone’s latest op-ed in the Washington Post, adding that “we knew the truth and we had no doubt it would eventually come out.” Netanyahu has gone so far as to demand the Goldstone report be retracted from the UN. Among all the celebrations and self-congratulatory pats on the back, it is worth pausing for a moment to ask: what exactly does Goldstone’s latest essay vindicate?

The answer seems much less clear than Israel’s unconditional supporters want to argue. The most charitable portions of his piece (to Israel) suggest that “if I [Goldstone] had known then what I know now, the Goldstone Report would have been a different document.” This statement is so patently obvious as to be meaningless, particularly given Israel’s steadfast non-cooperation at the time of the investigation, but let’s assume Goldstone means this in a substantive way. He did publish this piece under a headline of “reconsidering the Goldstone report” after all (in fairness, he likely didn’t write the title himself, but his piece certainly opens this door).

What else is there in this op-ed that suggests a change from the original Goldstone report? The op-ed focuses on a very select group of three themes. The first point relates to the ongoing investigations into allegations of war crimes. Goldstone refers to the UN committee of independent experts’ report to support this argument, and he quotes that report to the effect that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.” The second key claim in Goldstone’s op-ed is confusing, but suggests that the ongoing investigations have proven that Israel did not attack civilians as a matter of intentional policy. How these conclusions have been reached before the investigations, which the Goldstone report called for as its primary recommendation, have been concluded is unclear. The third theme is that Hamas has not done any of the good things Israel has done: Hamas did deliberately target civilians, Hamas didn’t investigate anything, Hamas continues to be guilty of war crimes by firing rockets into civilian areas, and Goldstone admits he was maybe “unrealistic” and “mistaken” to believe Hamas would investigate itself.

I want to first highlight several general observations about what this op-ed does and doesn’t say. Then I will address these three themes in detail.

What the Goldstone Op-Ed Doesn’t Say

Limited to one of seven categories of possible war crimes

The Goldstone commission’s findings on deliberate attacks on civilians is one of at least seven broad findings (which comprise hundreds of specific incidents) that raise issues about Israel’s conduct. These other key findings include: (1) Israel’s illegal siege on Gaza, which constitutes a form of collective punishment and so violates the Fourth Geneva Conventions; (2) The political institutions and buildings of Gaza cannot be lawfully considered part of the “Hamas terrorist infrastructure” and so Israel’s attacks on them are unlawful; (3) Israel taking insufficient measures to protect the Palestinian civilian population; (4) “indiscriminate” attacks (as distinct from “deliberate” attacks) killed many civilians without any credible military rationale for those actions; (5) Israeli use of weapons, such as white phosphorous and flechette missiles, which, although not banned under current international law, were used in ways that do violate the laws of war; and (6) Israel’s deliberate destruction of civilian infrastructure, including industrial plants, food production facilities, sewage treatment plants, and water installations; this destruction has no military justification (for example, Israel’s “wanton destruction” of Mr. Sameh Sawafeary’s chicken coops, killing all 31,000 chickens inside despite there being no military activity in the area) and could constitute a crime against humanity.

Goldstone’s op-ed pointedly excludes discussion of all of these very serious charges of possible war crimes and possible crimes against humanity, so it’s odd that FM Lieberman and his hasbara “excreta” (his word, not mine) think Israel is somehow absolved of all responsibility. One cannot avoid the impression that Israel’s unconditional supporters still haven’t actually read the report.

Overlooks key impacts of the report

One of the strangest omissions in the op-ed was the recognition that, assuming Israel is conducting investigations in good faith (again, more on that terrible assumption below), it was the Goldstone report that caused Israel to conduct these investigations. The best evidence this is the case was Israel’s absolute refusal to investigate anything except the credit card theft case, until, that is, it got worried that Israeli leaders might end up in the International Criminal Court. More evidence to support this argument can be found in Israel’s response to a conflict without a Goldstone kick in the rear: the 2006 Lebanon war. In that case, Israel constituted the whitewashing Winograd Commission, which didn’t even pretend to investigate “the government policies and military strategies that failed to discriminate between the Lebanese civilian population and Hizbullah combatants and between civilian property and infrastructure and military targets”, as Amnesty International and other human rights organizations observed. Thus, without the Goldstone report, there is absolutely no reason to believe Israel would be conducting the investigations for which Goldstone is largely praising Israel now.

Another important impact, which was a direct result of the report’s recommendations, was the policy changes, such as “new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas.” I have argued elsewhere that these policy changes acknowledge implicitly that Israel had not been minimizing civilian casualties, as it so vociferously claims, or else there wouldn’t be any possible policy changes that could further minimize civilian harm. Either civilian casualties were being minimized before, in which case the policy changes are meaningless, or are minimized now (hypothetically, of course), in which case Israel wasn’t doing its utmost to protect civilians from harm before. It certainly can’t be both. Either way, these policy changes are directly related to the report, a point Goldstone’s op-ed also makes.

Validity of Specific Claims Made in Goldstone’s Op-Ed

The credibility of Israel’s investigations

Goldstone’s op-ed gives the strong impression that, despite the length of Israel’s military investigations being “frustrating”, Israel has “appropriate processes” in place. It is difficult to understand where this belief comes from, because it certainly does not appear in this form in McGowan Davis report he cites (McGowan Davis chairs the UN committee of independent experts monitoring implementation of the Goldstone report recommendations). That report paints a far less appealing picture of Israeli’s military investigations, noting, for example, that:

“That Israel’s military justice system provides for mechanisms to ensure its independence”, but “the Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s [Military Advocate General’s] independence, his dual responsibilities as legal advisor to the Chief of Staff and other military authorities, and his role as supervisor of criminal investigations within the military, raise concerns in the present context given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations.”

“The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni.. . . As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial.” This case is of course cited directly by Goldstone, yet his arguments are incompatible with the actual McGowan Davis report.

“The Committee has discovered no information relating to four incidents referred to in the FFM [Goldstone] report: incident AD/02, incident AD/06, the attack on the Al-Quds hospital, and the attack on the Al-Wafa hospital. Nor has the Committee uncovered updated information concerning the status of the criminal investigations into the death of Mohammed Hajji and the shooting of Shahd Hajji and Ola Masood Arafat, and the shooting of Ibrahim Juha. Accordingly, the Committee remains unable to determine whether any investigation has been carried out in relation to those incidents.”

“It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” “

“The Committee expressed strong reservations as to whether Israel’s investigations into allegations of misconduct were sufficiently prompt. In particular, the Committee expressed concern about the fact that unnecessary delays in carrying out such investigations may have resulted in evidence being lost or compromised, or have led to the type of conflicting testimony that characterizes the investigations into the killings of Majda and Raayya Hajaj, and the inconclusive findings reported with respect to the tragic deaths of Souad and Amal Abd Rabbo and the grave wounding of Samar Abd Rabbo and their grandmother Souad.”

“The promptness of an investigation is closely linked to the notion of effectiveness. An effective investigation is one in which all the relevant evidence is identified and collected, is analyzed, and leads to conclusions establishing the cause of the alleged violation and identifying those responsible. In that respect, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report – over two years since the end of the Gaza operation – may seriously impair their effectiveness and, therefore, the prospects of achieving accountability and justice.”

These conclusions of the McGowan Davis report give a very different impression of mechanisms for accountability in Israel’s military justice system than one would understand from a casual reading of Goldstone’s latest op-ed. For additional, excellent analysis of these points, Adam Horowitz’s piece at Mondoweiss is a must-read.

Was it a deliberate policy of targeting Palestinian civilians?

If this op-ed “vindicates” anything, it seems to be about Israel deliberately targeting civilians as a matter of policy. The Goldstone report investigated 11 specific cases, which were concerning because civilians were killed “under circumstances in which the Israeli forces were in control of the area and had previously entered into contact with or at least observed the persons they subsequently attacked, so that they must have been aware of their civilian status.” After reviewing the details of these cases, which included not only the attack on the Samouni family (discussed in the op-ed) but also attacks on a mosque at prayer time and the shootings of civilians waving white flags, the report concludes:

“From the facts ascertained in the above cases, the Mission finds that the conduct of the Israeli armed forces constitute grave breaches of the Fourth Geneva Convention in respect of willful killings and willfully causing great suffering to protected persons and as such give rise to individual criminal responsibility.” (Goldstone report, pp. 16)

This finding, of course, is precisely why the report recommends that Israel launch credible investigations into possible wrongdoing, which Goldstone claims Israel is now doing (more on this later). In that sense, Israel’s investigations confirm many of the key findings of the Goldstone report, a point I’ve raised previously.

The conclusion above, which is easily the strongest charge in the entire Goldstone report, has very little to do with Goldstone’s latest statement that “civilians were not intentionally targeted as a matter of policy.” The Goldstone commission and other human rights investigations have never said the IDF maintains a policy of deliberately targeting civilians. This is a red-herring; nobody seriously believes there is a high-level policy to murder civilians. With that said, there are nearly always instances in war in which certain operational orders, often with much stress, often combined with racism or other forms of dehumanization, result in civilians being deliberately murdered; there is evidence of several such instances in the Goldstone report. There is also a larger, systemic issue. Insufficient concern for civilian life combines with operational orders to result in the systematic murder of civilians. To argue these attacks are not deliberate does not mean they are not easily foreseen, or that those ordering the attacks are not directly responsible for the murder of civilians. The actual issue at hand is not whether there was a high-level policy to kill civilians as civilians, but rather that “these incidents indicate that the instructions given to the Israeli forces moving into Gaza provided for a low threshold for the use of lethal fire against the civilian population” (Goldstone report, pp. 16). This low threshold was an intentional policy, as has been confirmed by dozens of soldiers’ and officers’ statements. For example, many people have commented before about how the IDF “rewrote the rules of war for Gaza”, in particular by getting rid of “the longstanding principle of military conduct known as ‘means and intentions’—whereby a targeted suspect must have a weapon and show signs of intending to use it before being fired upon—as being applicable before calling in fire from drones and helicopters in Gaza last winter.” The intentional, deliberate policy was one of “literally zero risk to the soldiers”, an order that is inescapably related to the high civilian casualties among the Palestinians. For these reasons the main argument in Goldstone’s latest op-ed, which FM Lieberman erroneously believes “vindicates” Israel, is entirely besides the point.

Condemning Hamas

Hamas certainly, and unlawfully, does deliberately target civilians. This is not only grotesque but illegal, and Hamas military leaders should be referred to the International Criminal Court for this since Hamas’ political leadership has refused to investigate the matter themselves and hold those responsible for war crimes to account. But, of course, this was already well known by anybody who read the Goldstone report, which wrote:

“The Mission has further determined that these [8000 rocket] attacks [since 2001] constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity.”

One could have also reached the same level of awareness by reading any of Amnesty International, Human Rights Watch or other human rights organizations‘ press releases and reports. In this sense, there is absolutely nothing new about Hamas in Goldstone’s latest op-ed, yet some Israelis and Jewish groups seem surprised (see, e.g., AIPAC’s one of many tweets on the matter).

A Sad, Integrity-Damaging Turn

The first time I saw Judge Goldstone speak in person he was striking in his equanimity and unshakeable commitment to international law. Even in the face of hate-filled attacks by Jews in the audience, who compared his report to the Protocols of the Elders of Zion, he handled himself with a level of firm principle that I imagined to be unmovable. The second time I saw him speak in public a year later, he seemed tired and worn down by the relentless attacks against him by those who chose to attack the messenger instead of deal with the message. It was nothing concrete that he said, but there was a withered tone in his voice and a sort of quiet resignation that his best intentions had been so vehemently manipulated—and misunderstood.

Goldstone’s latest op-ed is something else altogether. It does not challenge a single concrete finding in the entire report, and he has not conceded absolutely anything to his critics in that way. In fact, his findings under severe constraints have held up remarkably well with time. But the tone and timing of this current piece suggest that somehow the report should be “reconsidered”, that it was somehow wrong. Moreover, his comments seem to intentionally mislead about the content of the UN independent committee’s findings on due process in Israel. This is nothing more than a bone to Israel’s apologists, which is deeply problematic for all the reasons discussed here. I am afraid this is a sad, integrity-damaging turn for a man who had singlehandedly done so much to protect people from war crimes in Israel, Palestine, and elsewhere.

And he should have known better, that is, he should have known that this craven gesture to Israel would not cause his enemies to forgive him and welcome him back to the broader Jewish community. Already these enemies, sensing weakness, attack for the final kill attempt. Jeffrey Goldberg, with the tone of the intellectual gatekeeper he fashions for himself, makes it clear this doesn’t change the “blood libel.” The editor-in-chief of the Jerusalem Post, David Horovitz, tells Goldstone “an apology is not good enough“. We can expect many, many more such attacks.

Goldstone has done neither his causes of international law and accountability for war crimes—nor himself—any favors with this latest, depressing op-ed.

Justice for Gaza conflict victims: a response to Richard Goldstone

Palestinian human rights organisations express their concern about Goldstone’s revised position

Open letter, 7 April 2011

Dear Richard Goldstone

As Palestinian human rights organisations, we were surprised by your op-ed, Reconsidering the Goldstone report on Israel and war crimes. Your conclusions that “civilians were not intentionally targeted [by Israel] as a matter of policy‟ and that Israel has “to a significant degree‟ sufficiently self-investigated incidents potentially amounting to war crimes in Operation Cast Lead are of particular concern.

The intentional targeting of civilians, which was the central element of your op-ed, is only one among 13 headings dealing with violations of international law perpetrated by Israel during Operation Cast Lead. Even if we were to discount the intentional targeting of civilians, this would not affect the fundamental conclusions of the report. As Hina Jilani, one of the report’s co-authors, affirmed, nothing will change the substance of the original report.

In the immediate aftermath of Operation Cast Lead, a number of reports, including those conducted by the UN fact-finding mission, Human Rights Watch and Amnesty International, concluded that the many civilian casualties and the extensive destruction of civilian infrastructure during Operation Cast Lead cannot be attributed to human error alone.

One very troubling aspect of your revised position is that your amended understanding of Operation Cast Lead is based on evidence provided by investigations published by the Israeli military. However, as confirmed by the UN-appointed committee of experts mandated to assess domestic investigations, Israel failed to conduct effective investigations into serious allegations of international crimes. Therefore, regardless of the number of investigations carried out, their outcome is what should be relevant. Unfortunately, your op-ed diverts attention from this main issue: justice for victims.

As the committee of experts affirmed, the victims of this conflict – who continue to live in difficult and unsafe conditions under an illegal blockade and without any effective remedy – have been completely neglected by Israeli investigations, which lack transparency and effectiveness. Thus far, only three cases have resulted in criminal prosecutions. Of these, one Israeli soldier was sentenced to seven and a half months in prison for stealing a credit card, whereas two other Israeli soldiers convicted of using a nine-year-old Palestinian child as a human shield did not serve a single day in prison. For the victims, these outcomes reinforce their lack of trust in domestic investigations and their sense that accountability and justice will never be achieved.

The fact-finding mission report represents a unique opportunity for victims to challenge the culture of impunity and promote adherence to international law by all the parties to this protracted conflict. Unsurprisingly, following your op-ed, Israel is calling upon the UN Human Rights Council to retract the report. Nevertheless, the grave criminal allegations outlined in the report remain unanswered by all sides. The failure of domestic investigations necessitates recourse to international justice mechanisms, including the referral by the UN security council to the international criminal court.

We, the undersigned organisations, will continue to call upon the international community of states to abide by their obligations under international humanitarian law by moving this legal process forward. On behalf of the victims and survivors, we remain committed to advancing the cause of justice at the UN general assembly in September 2011 in order to finally pursue accountability for the commission of international crimes and redress for the victims.

Yours sincerely,

Addameer Prisoners’ Support and Human Rights Association
Al Dameer Association for Human Rights
Al-Haq and Al-Mezan Centre for Human Rights
Badil Resource Centre for Palestinian Residency and Refugee Rights
Defence for Children International – Palestine Section
Ensan Centre for Democracy and Human Rights
Jerusalem Legal Aid and Human Rights Centre
Ramallah Centre for Human Rights Studies
Women’s Centre for Legal Aid and Counselling
The Civic Coalition for Defending the Palestinians’ Rights in Jerusalem

Goldstone has paved the path for a second Gaza war

>Anyone who honored the first Goldstone has to ask him: What exactly do you know today that you didn’t know then? Do you know today that criticizing Israel leads to a pressure-and-slander campaign that you can’t withstand, you ‘self-hating Jew’?

Gideon Levy, 7 April 2011

All at once the last doubts have disappeared and the question marks have become exclamation points. Dr. Ezzeldeen Abu Al-Aish wrote a short book in which he invented the killing of his three daughters. The 29 dead from the Al-Simoni family are now vacationing in the Caribbean. The white phosphorus was only the pyrotechnics of a war film. The white-flag wavers who were shot were a mirage in the desert, as were the reports about the killing of hundreds of civilians, including women and children. “Cast lead” has returned to being a phrase in a Hanukkah children’s song.

A surprising and unexplained article in The Washington Post by Richard Goldstone caused rejoicing here, a Goldstone party, the likes of which we haven’t seen for a long time. In fact, Israeli PR reaped a victory, and for that congratulations are in order. But the questions remain as oppressive as ever, and Goldstone’s article didn’t answer them – if only it had erased all the fears and suspicions.

Anyone who honored the first Goldstone has to honor him now as well, but still has to ask him: What happened? What exactly do you know today that you didn’t know then? Do you know today that criticizing Israel leads to a pressure-and-slander campaign that you can’t withstand, you “self-hating Jew”? This you could have known before.

Was it the two reports by Judge Mary McGowan Davis that led to your change of heart? If so, you should read them carefully. In her second report, which was published about a month ago and for some reason received no mention in Israel, the New York judge wrote that nothing indicates that Israel launched an investigation into the people who designed, planned, commanded and supervised Operation Cast Lead. So how do you know which policy lay behind the cases you investigated? And what’s this enthusiasm that seized you in light of the investigations by the Israel Defense Forces after your report?

You have to be a particularly sworn lover of Israel, as you say you are, to believe that the IDF, like any other organization, can investigate itself. You have to be a blind lover of Zion to be satisfied with investigations for the sake of investigations that produced no acceptance of responsibility and virtually no trials. Just one soldier is being tried for killing.

But let’s put aside the torments and indecision of the no-longer-young Goldstone. Let’s also put aside the reports by the human rights organizations. Let’s make do with the findings of the IDF itself. According to Military Intelligence, 1,166 Palestinians were killed in the operation, 709 of them terrorists, 162 who may or may not have been armed, 295 bystanders, 80 under the age of 16 and 46 women.

All the other findings described a more serious picture, but let’s believe the IDF. Isn’t the killing of about 300 civilians, including dozens of women and children, a reason for penetrating national soul-searching? Were all of them killed by mistake? If so, don’t 300 different mistakes require conclusions? Is this the behavior of the most moral army in the world? If not, who takes responsibility?

Operation Cast Lead was not a war. The differences in power between the two sides, the science-fiction army versus the barefoot Qassam launchers, doesn’t justify things when the blow was so disproportionate. It was a harsh attack against a crowded and helpless civilian population, among which terrorists hid. We can believe that the IDF didn’t deliberately kill civilians, we don’t have murdering soldiers as in other armies, but neither did the IDF do enough to prevent them from being killed. The fact is, they were killed, and so many of them. Our doctrine of zero casualties has a price.

Goldstone has won again. First he forced the IDF to begin investigating itself and to put together a new ethics code; now he unwittingly has given a green light for Operation Cast Lead 2. Leave him alone. We’re talking about our image, not his. Are we pleased with what happened? Are we really proud of Operation Cast Lead?

Goldstone’s Washington Post op-ed: No basis to deny justice to victims of the Gaza War

Euro-Mediterranean Human Rights Network/International Federation for Human Rights, 8 April 2011

In September 2009 the UN Fact-finding Mission headed by Justice Richard Goldstone issued its report regarding the 27 December 2008 – 18 January 2009 conflict in the Gaza Strip.

In a recent opinion piece published in The Washington Post on 1 April 2011[1], Justice Goldstone has reignited the public debate regarding the conflict in the Gaza Strip, and the subsequent Report of the UN Fact-Finding Mission.

In this op-ed, Justice Goldstone contrasts the investigations conducted by the Israeli military into alleged violations by Israeli forces with the Hamas de facto administration’s failure to investigate alleged violations by Palestinian armed groups in Gaza. He also comments that the Israeli military investigations indicate that civilians in Gaza “were not intentionally targeted as a matter of policy” by Israeli forces.

Based on this op-ed the Israeli government has called for the UN to retract the UN Fact-Finding Mission Report. In order to accurately inform the debate, it is important to highlight certain issues.

The Report of the UN Fact-Finding Mission, uncovered evidence indicating widespread commission of war crimes and possible crimes against humanity by Israel and the Palestinian side. These findings were corroborated by international organisations including Amnesty International, Human Rights Watch and the International Federation for Human Rights, by Israeli and Palestinian human rights organisations as well as in the Fact-Finding Mission mandated by the Arab League.

Key allegations about Israeli violations relate to widespread indiscriminate attacks, the choice of targets, use of certain prohibited weaponry, and the extensive destruction of public and private infrastructure. Despite Justice Goldstone’s personal re-consideration of Israel’s intent to strike civilians, as expressed in his opinion piece, no credible evidence has come to light to contest the validity of these claims.

Based on the conclusions of international, Palestinian and Israeli human rights organisations, the incidents specified in the UN Fact-Finding Mission Report have been insufficiently investigated, domestically, in accordance with international law. The two reports of the UN Committee of Independent Experts mandated to “monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side” have concurred with the assessment of these organisations. Among others, the Committee notes that “there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.”

In the over two years since Operation Cast Lead, Israel and the Palestinian side have failed to conduct genuine investigations, and where appropriate, prosecutions.

To-date one Israeli soldier has served 7.5 months in jail for the theft of a credit card and two others have received three month suspended sentences for using a Palestinian child as a human shield. These three convictions, and the ongoing trial of a fourth soldier, have been the only concrete judicial outcomes of Israeli Operation Cast Lead investigations. It is noted that neither these indictments nor the sentences handed down for the human shield conviction reflect the gravity of the actual crimes committed. It appears that the majority of other investigative procedures have been closed without charge.

All alleged international crimes must be subject to genuine investigation, and, if appropriate, those responsible must be prosecuted in accordance with the requirements of international law. In light of the domestic authorities’ failure to conduct such investigation, the International Criminal Court now constitutes the most appropriate forum, as recommended by the Human Rights Council on 25 March.

It is essential that the current controversy – which does not relate to the principal substantive allegations of international crimes arising from Operation Cast Lead – is not used to further impunity. The Government of Israel’s call for a ‘retraction’ of the Report is unfounded, and inappropriate.

The equal application of the law is the very least that victims on all sides deserve.

Kamel Jendoubi Souhayr Belhassen

President of the EMHRN President of FIDH

For more information, please contact:

Henriette Irminger Sonne, EMHRN, Communications Officer (English, Danish, French): +4530828337

Shaimaa Abou Elkhir, EMHRN, Communications Officer (English, Arabic): +20101077207

The Gold and the StoneUri Avnery, 9 April 2011

THERE IS something tragicomic about the persona of Richard Goldstone.First there was a veritable storm of fury when the original Goldstone report was issued.

What a fiend! A Jew who claims to be a Zionist and an Israel-lover, who publishes the most abominable slanders about against our valiant soldiers, aiding and abetting the worst anti-Semites around the world! The very prototype of a self-hating Jew! Still worse, a “mosser” – a Jew who turns another Jew over to the evil Goyim, the most detested figure in Jewish folklore.

And now the turnabout. Goldstone, the Jew who has recanted. Goldstone who has publicly confessed that he was wrong all along. That the Israeli army committed no crimes in the 2008-2009 “Cast Lead” Gaza operation, On the contrary, while the Israeli army has conducted honest and meticulous investigations into all the allegations, Hamas has not investigated any of the horrendous crimes it has committed.

Goldstone, the Man of Stone, has become Goldstone, the Man of Gold. A man of conscience! A man to be admired!

It was, of course, Binyamin Netanyahu who had the final word. Goldstone’s recantation, he summarized, has confirmed once again that the IDF is the Most Moral Army in the World.

MY HEART bleeds for Judge Goldstone. From the beginning he was placed in an impossible situation.

The UN commission which appointed him to head the inquiry into the allegations of war crimes committed during the operation was acting on a seemingly logical but actually foolish calculation. Appointing to the job a good Jew, and an avowed Zionist to boot, would disarm, it was thought, any allegation of anti-Israeli bias.

Goldstone and his colleagues undoubtedly did an honest and conscientious job. They sifted the evidence laid before them and arrived at reasonable conclusions on that basis. However, almost all the evidence came from Palestinian and UN sources. The commission could not interrogate the officers and soldiers of the Israeli forces because our government, in a typical and almost routine act of folly, refused to cooperate.

Why? The basic assumption is that all the world is out to get us, not because of anything we do, but because we are Jews. We know we are right, and we know that they are out to prove us wrong. So why cooperate with these bloody anti-Semites and Jewish self-haters?

Today, almost all influential Israelis concede that this was a stupid attitude. But there is no guarantee that our leaders will behave any differently next time, especially since the army is dead set against allowing any soldiers to appear before a non-Israeli forum, or, for that matter, before an Israeli non-military forum either.

BACK TO poor Goldstone. After the publication of his commission’s report, his life became hell.

The full fury of the Jewish ghetto against traitors from its midst was turned on him. Jews objected to his attending his grandson’s Bar Mitzvah. His friends turned away from him, He was ostracized by all the people he valued.

So he searched his soul and found that he had been wrong all along. His findings were one-sided. He would have found differently if he had heard the Israeli side of the story. The Israeli army has conducted honest investigations into the allegations, while the barbarous Hamas has not conducted any investigations at all into their obvious war crimes.

So when was Goldstone wrong? The first or the second time?

The answer is, alas, that he was wrong both times.

THE VERY term “war crimes” is problematic. War itself is a crime, never to be justified unless it is the only way to prevent a bigger crime – as with the war against Adolf Hitler, and now – on an incomparably smaller scale – against Muammar Qaddafi.

The idea of war crimes arose after the horrendous atrocities of the 30-year war, which devastated central Europe. The idea was that it is impossible to prevent brutal actions if they are needed to win a war, but that such actions are illegitimate if they are not needed for this purpose. The principle is not moral, but practical. Killing prisoners and civilians is a war crime, because it serves no effective military purpose, since both sides can do it. So is the wanton destruction of property.

In Israel this principle was embodied in the landmark judgment by Binyamin Halevy after the 1956 Kafr Qasim massacre of innocent farmers, men, women and children. The Judge ruled that a “black flag” flies over “manifestly” illegal orders – orders which even a simple person can see are illegal, without talking to a lawyer. Since then, obeying such orders has been a crime under Israeli law.

THE REAL question about Cast Lead is not whether individual soldiers did commit such crimes. They sure did – any army is composed of all types of human beings, decent youngsters with a moral conscience besides sadists, imbeciles and others suffering from moral insanity. In a war you give all of them arms and a license to kill, and the results can be foreseen. That is one reason why “war is hell”.

The problem with Lebanon War II and Cast Lead is that the basic approach – the same in both cases – makes war crimes as good as inevitable. The planners were no monsters – they just did their job. They superimposed two facts one on the other. The result was inevitable.

One consideration was the requirement to avoid casualties on our side. We have a people’s army, composed of conscripts from all walks of life (like the US army in Vietnam but not in Afghanistan.) Our public opinion judges wars according to the number of (our) soldiers killed and wounded. So the directive to the military planners is: do everything possible so the number of our casualties will be next to nil.

The other fact is the total disregard for the humanity of the other side. Years and years of the occupation have created an army for whom Palestinians, and Arabs in general, are mere objects. Not human enemies, not even human monsters, just objects.

These two mental attitudes lead necessarily to a strategic and tactical doctrine which dictates the application of lethal force to anyone and anything that can possibly menace soldiers advancing in enemy territory – liquidating them in front of the soldiers preferably from afar by artillery and air power.

When the opposition is a resistance movement operating in a densely populated area, the results can almost be calculated mathematically. In Cast Lead, at least 350 Palestinian civilians, among them hundreds of women and children, were killed, together with about 750 enemy fighters. On the Israeli side: altogether 5 (five!) Israeli soldiers were killed by enemy fire (some six more by “friendly fire”).

This result did not contradict the undeclared political aim of the operation. It was to pressure the Gaza Strip population into overthrowing the Hamas government. This result, of course, was not achieved. Rather the opposite.

The logic – and the balance of casualties – of Lebanon War II were about the same, with added huge material destruction of civilian targets.

FOLLOWING THE Goldstone report, our army did indeed conduct quite extensive investigations into individual incidents. The number is impressive, the results are not. Some 150 or so cases were investigated, two soldiers were convicted (one for theft), one officer was indicted for the killing – by mistake – of an entire extended family.

This seems to satisfy Goldstone, who this week gratefully accepted an invitation from the Israeli Minister of the Interior – perhaps the most rabid racist in the entire government, in which racists abound – to visit Israel. (When the conversation was leaked, Goldstone cancelled the matter and stated that the report would not be withdrawn.)

On the other side, Goldstone is aflame with indignation against Hamas, for launching rockets and mortar shells at civilians in Israel and conducting no investigations at all. Isn’t it rather ridiculous: using the same standards for one of the five mightiest armies in the world and a band of irregular and poorly equipped resistance fighters (alias terrorists).?

Terrorism is the weapon of the weak. (“Give me tanks and airplanes, and I promise I won’t plant bombs’” a Palestinian once said.) Since the entire military strategy of Hamas is terrorizing Israeli communities along the border in order to persuade Israel to put an end to the occupation (and, in the case of Gaza, to the ongoing blockade), Goldstone’s indignation seems a bit surprising.

Altogether, Goldstone has now paved the way for another Cast Lead operation which will be far worse.

I expect , however, that he can now pray in any synagogue he chooses.

Judge Goldstone: Too little, too late

7 April 2011

It is to Richard Goldstone’s credit that he has now, a year and seven months after the publication of his eponymous report into Operation Cast Lead, changed his mind over its most damning and poisonous allegation.

The Goldstone Report found Israel guilty of a “deliberately disproportionate attack designed to punish, humiliate and terrorise a civilian population”. In other words, Israel had set out to murder Palestinians when it launched its operation to stop Hamas from firing rockets at Israel in December 2008.

Last week, writing in the Washington Post, he said that was wrong. His report “would have been a different document” if he had known then what he knows now.

What he knows now is that “civilians were not intentionally targeted as a matter of policy”. Israel’s detailed investigations of over 400 allegations of war crimes have led him to this revised conclusion.

That admission that he got it wrong is indeed to his credit. But that is the only thing to his credit in this entire episode, with his report’s seeming insouciance towards facts and justice.

It seems clear that Mr Goldstone still does not have the least conception of the harm that his report’s lies about Israel’s conduct have done. The idea that writing an article admitting his mistake somehow wipes the slate clean is, to put it mildly, breathtakingly naÃ¯ve. As one observer, Jeffrey Goldberg, has said: “It is somewhat difficult to retract a blood libel, once it has been broadcast across the world.”

The harm done by the report is incalculable. It has, for instance, directly aided terrorists. Realising that their tactic of using of civilians as protection was effectively recommended by the report – Israeli action against Hamas camps was viewed as a war crime – Hizbollah have carefully moved their encampments into towns and villages in southern Lebanon.

More broadly, the report acted as a form of acceleration device for the most insidious tactics used by Israel’s enemies. It gave credibility to the delegitimisation of Israel, to the Boycott, Divestment and Sanctions movement, and to the idea of Israel as a rogue state.

With its supposed evidence of war crimes, the report lies behind the inability of Israeli politicians and soldiers to travel to the UK. Every anti-Israel activist has trumpeted the report, written by a Jew, and with the imprimatur of the United Nations. Or rather, of the UN Human Rights Council, an organisation which even Mr Goldstone admits has a “history of bias against Israel”.

But whatever Mr Goldstone might write in an article, the process he set in train is, after a UN Human Rights Council vote last month, seemingly unstoppable. The UN High Commissioner for Human Rights and the Secretary-General are now mandated to step up their action against Israel.

So while Mr Goldstone offers a modest mea culpa, the tempest which he unleashed gets stronger with every passing month.

The damage of his report has been done, its lies set in stone and Israel’s image shattered among those who will probably never learn of the judge’s retraction.

The admission of his mistake was a necessary and essential first step. But what does Mr Goldstone intend to do next? The worst accusations, on which so much of the attacks on Israel have been built, are wrong. He cannot in all conscience, surely, do anything other than demand that the report be formally withdrawn, and the facts given their head.

The Goldstone conundrum