As the UN endorses Goldstone report, even Goldstone now criticizes the UN

October 17, 2009

* UN endorses Goldstone report by large majority
* Israelis now one step closer to prosecution at International Criminal Court

* Ha’aretz: “Is the ‘Obama effect’ turning the world against Israel?”
* WSJ: Britain (and France)’s moral disgrace over Gaza vote
* Are the British and French proud of their governments for putting them in the same voting camp as Angola, Kyrgyzstan and Madagascar, three of the worst dictatorships in the world?

* Al Jazeera: Israel threatens to release tape of high-ranking PA officials urging Israel to be more forceful in Gaza

* As most of world turns against Israel, Goldstone starts to back away from his own report. He tells the liberal American Jewish newspaper, The Forward, that the report contained no actual “evidence” of wrongdoing by Israel and that it was no more than “a road map”.

* Goldstone went so far as to tell The Forward that he himself “wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved” and said “If this was a court of law, there would have been nothing proven.”(Too late, Judge Goldstone. The damage is done.)

* Speaking in a personal capacity, the former commander of British forces in Afghanistan, Northern Ireland, Bosnia and Macedonia, submits testimony (which was ignored) to the UN Human Rights Council yesterday: “During Operation Cast Lead, the Israeli army did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.”

* “Many missions that could have taken out Hamas military capability were aborted to prevent civilian casualties. During the conflict, the IDF allowed huge amounts of humanitarian aid into Gaza. To deliver aid virtually into your enemy’s hands is, to the military tactician, normally quite unthinkable. But the IDF took on those risks.”

 

CONTENTS

1. UNHRC endorses Goldstone’s Gaza report by large majority
2. India, Britain, France: Particularly disappointing votes
3. Even Goldstone himself now criticizes UN
4. Campaign against Israel by European politicians launched on basis of Goldstone report
5. Former Afghan/Bosnia commander: “Israeli self-defense is not a war crime”
6. Ha’aretz: “Is the ‘Obama effect’ turning the world against Israel?”
7. South African chief rabbi makes scathing attack on Goldstone
8. Wall Street Journal: “Britain’s moral disgrace on Gaza”
9. New York Post: A “UN Show Trial” for the Jews
10. Sanity check, anyone?
11. Al Jazeera: Israel threatens to release tape of PA urging Israel to be more forceful in Gaza
12. Testimony at UN Human Rights Council by Col. Richard Kemp, Oct. 16 2009
13. “It looks like law, but it’s just politics” (By Warren Goldstein, Jerusalem Post, Oct. 14, 2009)
14. “Goldstone backs away from report: The two faces of an international poseur” (By Alan Dershowitz)


UNHRC ENDORSES GOLDSTONE’S GAZA REPORT BY LARGE MAJORITY

[All notes below by Tom Gross]

Following yesterday’s UN vote, I attach further items connected to the aftermath of the Goldstone report, which is largely based on utterly false testimony and fabricated evidence, and threatens to make it impossible for Israel to defend herself in future against potentially existential threats.

Please see these four previous dispatches on this list for background on this issue:

* Even B’Tselem now criticizes Goldstone (& Saudi Arabia’s interfaith Nazi)
* “Goldstone’s crime against human rights” (& a mental patient at the UN)
* Transcript: CNN grills Netanyahu on Israeli “war crimes” (& other items)
* Dachau survivor asks Goldstone: How dare you? (& Peres: Goldstone “legitimized terrorism”)

 

ISRAEL ALMOST ALONE

Despite intense Israeli lobbying (but not such intense lobbying by the Obama administration), the UN Human Rights Council in Geneva yesterday endorsed the Goldstone report by 25-6, passing it on to the UN Security Council with the request that the matter be forwarded to the International Criminal Court in The Hague, so that Israelis could be put on trial there as war criminals.

The two countries that submitted yesterday’s resolution were Egypt, Israel’s supposed ally, and Pakistan. Only yesterday, prominent Hamas member Yusef Abu Zuhri was tortured to death in Cairo by the Egyptian regime, which also continues to block aid into Gaza. Meanwhile Pakistan this morning launched massive bombing raids and sent 30,000 troops into south Waziristan, killing an unknown number of civilians.

(The lack of media sensationalism over this operation compared to the slightest act by Israel is startling. Earlier this year, the Pakistani army created one of the biggest refugee movements of modern times, forcing over two million people to flee their homes, and killing thousands of civilians.)

EMERGENCY?

Yesterday’s UN resolution also condemned alleged Israeli human rights violations in Jerusalem, a matter not mentioned in the Goldstone report. And although the Goldstone report also accuses Hamas of war crimes, yesterday’s five-page UN resolution makes no mention of this.

In fact, yesterday’s “emergency” UN Human Rights Council meeting had nothing to do with human rights. And the only emergency was for these despicable regimes to cover up the crimes they perpetrate on a daily basis against their own people, and in many cases against other countries or peoples too.

 

INDIA, BRITAIN, FRANCE: PARTICULARLY DISAPPOINTING VOTES

The resolution passed 25-6, with the U.S. and five European countries opposing. Eleven mostly European and African countries abstained, while Britain, France and three other members of the 47-nation body took the most cowardly course of all and declined to vote.

That India, which has employed far more deadly tactics to crush terrorism than Israel has, and is supposedly an increasingly close ally of Israel, should have voted in favor of having Israel tried for war crimes, is particularly disappointing.

Even more hypocritical were the “yes” votes of Russia, China, Pakistan and Indonesia – all of whom have been far, far more brutal than Israel has ever been. (If only Chechens were as lucky as the Palestinians, one Chechen dissident told me at a conference in Prague last year. The same could be said by Tibetans or Uighurs about the Chinese.)

France and Britain’s refusal to vote “no” is also disappointing. What will happen when Britain is put on trial for crimes against humanity in Iraq, Afghanistan, Northern Ireland, the Falklands and elsewhere?

And so much for Israel’s supposed allies Jordan and Egypt, both of whom voted “yes”.

***

Here is the vote breakdown:

25 Yes, 11 Abstain, 6 No. Five countries declined to vote.

NO:

Hungary
Italy
Netherlands
Slovakia
Ukraine
USA

ABSTAIN:

Belgium
Bosnia
Burkina Faso
Cameroon
Gabon
Japan
Mexico
Norway
Korea
Slovenia
Uruguay

COUNTRIES THAT DID NOT VOTE:

Angola
France
Kyrgyzstan
Madagascar
United Kingdom

YES:

Argentina
Bahrain
Bangladesh
Bolivia
Brazil
Chile
China
Cuba
Djibouti
Egypt
Ghana
India
Indonesia
Jordan
Mauritius
Nicaragua
Nigeria
Pakistan
Philippines
Qatar
Russia
Saudi Arabia
Senegal
South Africa
Zambia

***

The media have also played a role in this despicable charade, with supposedly responsible outlets like the Associated Press and The Washington Post printing inflated figures about the number of Palestinian dead without mentioning that these figures were Hamas claims.

What would the reaction be if, for example, the same media greatly reduced the numbers who died as a result of the 9/11 attacks? But then AP would likely do some fact-checking in that case.

And why does the BBC continue to employ such biased reporters as Middle East correspondent Katya Adler? She is a specialist at withholding important information from viewers, such as the fact that Egypt has imposed a blockade on Gaza.

In fact, Israel’s blockade is best described as partial, since it continues to supply electricity, water, food and medical supplies to what is virtually an enemy state, the government of which, Hamas (as not mentioned by Adler and her colleagues) is even now continuing to fire rockets into Israel, while Egypt’s blockade is much tighter.

***

As not reported by the BBC or CNN, yesterday’s UN resolution starts off with a purely anti-Semitic section that would bar Jews from visiting their holiest places in Jerusalem as well as from building synagogues in the Old City.

***

In response to yesterday’s vote, the Israeli government said: “Israel will continue to exercise its right to self-defense, and take action to protect the lives of its citizens.”

 

EVEN GOLDSTONE HIMSELF NOW CRITICIZES UN

Even Judge Richard Goldstone himself, who was in Bern for a conference yesterday, criticized the UN Human Rights Council resolution for targeting only Israel and failing to include Hamas.

Yesterday’s UN resolution is peppered with references to “recent Israeli violations of human rights in occupied east Jerusalem” (which are not mentioned in the Goldstone report) but failed to mention Hamas even once.

“This draft resolution saddens me as it includes only allegations against Israel. There is not a single phrase condemning Hamas as we have done in the report. I hope that the council can modify the text,” Goldstone said in remarks published in the Swiss newspaper Le Temps.

***

See also the important article which I have placed at the end of this dispatch, “Goldstone backs away from report: The two faces of an international poseur” by Alan Dershowitz. I suggest you read it in full.

Dershowitz discusses Goldstone’s extraordinary interview last week with the liberal American Jewish newspaper, The Forward, in which Goldstone now says his report contained no actual “evidence” of wrongdoing by Israel and he “wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved.”

“If this was a court of law, there would have been nothing proven,” Goldstone now says. (Of course, it is too late, Judge Goldstone. The damage is done.)

If Goldstone is now telling the truth, it seems that he didn’t even properly read the final version of his own committee’s 575-page report.

 

CAMPAIGN AGAINST ISRAEL BY EUROPEAN POLITICIANS LAUNCHED ON BASIS OF GOLDSTONE REPORT

An email (that has been leaked to me) sent out yesterday from the “Palestinian General Delegation” makes it clear that British politician Claire Short is shortly to lead a group of European parliamentarians in a fresh assault on Israel. On the basis of the Goldstone report and the UN vote, the email says the European politicians are contemplating legal action against the European Union.

It says “Claims of clear violations of international law by Israel are now supported by the conclusions of another investigation headed by the respected international judge Richard Goldstone. In light of the mounting evidence the European Community has clear obligations under the Association Agreement to take punitive steps against Israel.”

 

FORMER AFGHAN/BOSNIA COMMANDER: “ISRAELI SELF-DEFENSE IS NOT A WAR CRIME”

Colonel Richard Kemp made a statement to the UN Human Rights Council “12th Special Session” on Israel yesterday.

He said: “I am the former commander of the British forces in Afghanistan. I served with NATO and the United Nations; commanded troops in Northern Ireland, Bosnia and Macedonia; and participated in the Gulf War. I spent considerable time in Iraq since the 2003 invasion, and worked on international terrorism for the UK Government’s Joint Intelligence Committee.

“Mr. President, based on my knowledge and experience, I can say this: During Operation Cast Lead, the Israeli Defense Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.

“Hamas, like Hizbullah, are expert at driving the media agenda. Both will always have people ready to give interviews condemning Israeli forces for war crimes. They are adept at staging and distorting incidents.”

(His full testimony is posted further down this dispatch, or you an watch it in this video.)

 

HA’ARETZ: “IS THE ‘OBAMA EFFECT’ TURNING THE WORLD AGAINST ISRAEL?”

As I have argued before, with the Bush White House no longer around to actively lobby other countries not to leave Israel to hang out to dry, the so-called international community has Israel in its sights more than ever.

This phenomenon has now been noticed by the Obama-supporting left-wing Israeli newspaper Ha’aretz. The headline for this weekend’s piece by Yoel Marcus, the lead columnist for Ha’aretz’s weekend edition, is “Is the ‘Obama effect’ turning the world against Israel?”

Marcus writes:

“Over the past year, Israel has found itself having to fight for its honor and reputation, and has become the world’s doormat. As if Israel’s history of wars (about one every six years), two intifadas and many terror attacks on its civilian population were not enough for Israelis to suffer, Hamas rained Qassam rockets and mortar shells on the communities in the south of the country for eight years.

“No one spoke out against this, and no one’s conscience was pricked, not that of [Turkish PM] Erdogan or of any other bleeding hearts, wherever they may be. Moreover, Hamas fighters carried out a massacre of Fatah supporters in Gaza and the entire world watched as the functionaries of Fatah were tossed to their deaths from the rooftops. Not one Islamic country demanded Hamas stop the massacre.

“How is it that no Goldstone panels were set up to examine the destruction Hamas sowed in Gaza or the murderous attacks that the terrorist organizations perpetrated on women and children in the heart of Israel?

“… Now Israel finds itself having to defend its honor and reputation. What has happened? Is the whole world really against us once again? In my opinion, only one thing has changed. It is the emergence of the ‘Obama effect,’ similar to the theory that when a butterfly flaps its wings in Brazil it can cause a tornado in Texas.

“In the eyes of Israel’s enemies, the election of Barack Obama has turned what was considered the unwavering American support of Israel into something that is not taken for granted any more. And when the nuclear-producing Ahmadinejad calls the Holocaust a lie, it is clear whom he is threatening.

“… Netanyahu took a giant step forward when he proposed two states for two peoples. But that is not enough for them and they want more and more. To be more accurate, they themselves do not know what they want. Gaza will be just Gaza? And the West Bank will be just the West Bank? And will there be no union between them?

“… Go to Washington, Bibi was advised time and again. He went and he came back; he went and came back and offered them what he had proposed during his speech at Bar-Ilan University. Mahmoud Abbas is acting out of anger. The more we [Israel] help the West Bank to flourish and to take care of its security, the more he bad-mouths us, and the same holds true of what he has done in the wake of the Goldstone report.”

 

SOUTH AFRICAN CHIEF RABBI MAKES SCATHING ATTACK ON GOLDSTONE

Warren Goldstein, who is the chief rabbi of South Africa and also has a PhD. in human rights law, slams his fellow South African Jew, Judge Richard Goldstone.

He writes:

Much has been written and said about the inaccuracies, shortcomings and the moral inversion of the United Nations Human Rights Council’s Mission presided over by Judge Richard Goldstone and his three fellow members. Most critics have understandably addressed the political and military issues involved. It is important, however, also to deconstruct the Goldstone Mission’s Report from a legal point of view.

This is so because the report uses the veneer of respectability that comes with legal methodology, and with the presence of an internationally respected judge, to gain credibility. Law is a very powerful weapon to give respectability to contemptible actions and opinions. The South African Apartheid Government was very legalistic in its approach to racial oppression, and was punctilious about promulgating proper laws, and about maintaining a fully functioning judiciary to give the façade of respectability to its repugnant policies.

The United Nations, through its various organs, but particularly through its Human Rights Commission, uses the superficial veneer of law and legal methodology to give credence and credibility to its anti-Israel agenda. The Goldstone Mission is a case in point. Careful analysis reveals that the legalities utilized are merely a cover for a political strategy of delegitimizing Israel.

… Any civilized legal system requires that justice be done on two levels: procedural and substantive. The Goldstone Mission is replete with procedural and substantive injustices. From a procedural point of view, there are four main areas of injustice.

… The second procedural injustice is that the members of the Mission publicly expressed beforehand their opinions on this conflict. The most explicit in this regard, Professor Christine Chinkin, was one of the signatories to a letter published in the Sunday Times of London which stated that “Israel’s actions amount to aggression, not self-defense, not least because its assault on Gaza was unnecessary.” The letter is published under the heading “Israel’s bombardment of Gaza is not self-defense – it’s a war crime.”The other three members, Judge Richard Goldstone, Hina Jilani and Desmond Travers, all signed a letter initiated by Amnesty International stating: “Events in Gaza have shocked us to the core.” Thus, all four members of the Mission, including Goldstone himself, expressed public opinions concerning the Gaza conflict before they began their work.

… Any lawyer with even limited experience knows that there was just not sufficient time for the Mission to have properly considered and prepared its report. One murder trial often takes many months of evidence and argument to enable a judge to make a decision with integrity. To assess even one day of battle in Gaza with the factual complexities involved would have required a substantial period of intensive examination. According to the Mission’s Report, the Mission convened for a total of 12 days.

They say that they considered a huge volume of written and visual material running into thousands of pages; they conducted three field trips; there were only four days of public hearings; and yet in a relatively short space of time the members of the Mission agreed to about 500 pages of detailed material and findings with not one dissenting opinion throughout.

They made no less than 69 findings, mostly of fact, but some of law and within those 69 there were often numerous sub-findings. All of this was quite simply physically impossible if the job had been done with integrity and care.

… The Goldstone Mission is a disgrace to the most basic notions of justice, equality and the rule of law. And it is dangerous. Injustice will only lead to more death and destruction…

(Chief Rabbi Goldstein’s full article, which is well worth reading, is below.)

 

WALL STREET JOURNAL: “BRITAIN’S MORAL DISGRACE ON GAZA”

In an editorial yesterday, titled “Britain’s Terror Double Take: Help on Afghanistan, a moral disgrace on Gaza,” The Wall Street Journal slams Britain for not standing by Israel.

The paper writes: “British Prime Minister Gordon Brown this week made the politically hard call, no more than eight months before a national election, to send more British troops to Afghanistan…

“So it’s especially unfortunate to see Mr. Brown’s government take a different side in another front of this global war on terror. Today at the U.N. Human Rights Council in Geneva, the U.K. plans to abstain in a vote on Israel.

“… The U.K. says the report ‘raised serious issues’ and ‘is perfectly valid,’ though it allows that the report fails to give a full account of Hamas’s behavior or properly acknowledge Israel’s right to self defense. Otherwise Britain may have voted in favor. Bringing Goldstone to the Security Council serves Hamas’s purposes to a tee and damages the ability of Western democracies to defend themselves against all such terrorist groups that don’t fight by accepted rules of war.”

The Wall Street Journal concludes by saying that Winston Churchill may have been charged with war crimes, and so might the current British Prime Minister.

***

Tom Gross adds: 42 countries have troops in Afghanistan. All of them are now potential defendants in war crime trials. Of course not having endured wave upon wave of suicide bombing, as Israel has, they will have more trouble claiming self-defense.

 

NEW YORK POST: A “UN SHOW TRIAL” FOR THE JEWS

In an editorial titled “A UN Show Trial,” The New York Post slams the “misnamed UN Human Rights Council” and the “infamous Goldstone report” for their “blatantly biased assault on Israel.”

It calls on the White House to “move fast to squash this anti-Israel ploy, before U.S. soldiers become the UN’s next ‘war crimes’ target.”

It adds: “Israeli Prime Minister Benjamin Netanyahu warns Israel itself won’t ‘take risks for peace if it can’t defend itself.’ And who could blame it? The sooner Team Obama squashes this dangerous UN move, the better the chances for peace all around.”

 

SANITY CHECK, ANYONE?

Middle East expert Professor Barry Rubin sums up the Goldstone report in this email to me:

Regarding the debate on the Goldstone report discussion in the UN. Basically, what happened is that a radical, anti-Semitic terrorist group seized control of Gaza through violence (no international response); then attacked Israel through rockets, mortars, and cross-border raids (no international response); then broke a ceasefire and restarted the war (no international response).

Israel defended itself in the only way it could – especially given the lack of any international effort. Hamas used human shields, turned homes and mosques into firing positions, and put its military headquarters in a hospital. Then there was an international response: to send a commission many of whose members had already made up their minds to hear witnesses who were almost all Hamas supporters or at least people who sought Israel’s destruction. Without doing any independent investigation of its own, the commission then condemned Israel for “war crimes.”

This report has now gone to an international body [Barry Rubin is referring to the UN meeting two weeks ago] which is chaired by Libya and where the largest voting bloc is led by Sudan, and whose Human Rights Committee is run largely by countries like Iran, Russia, and Algeria. The charge to demonize Israel and put sanctions against it is led by the Palestinian Authority, its supposed negotiating partner for peace and the victim of Hamas’s murders and tortures which – by the way – is trying harder to make a deal with Hamas than with Israel.

Sanity check, anyone?

 

AL JAZEERA: ISRAEL THREATENS TO RELEASE TAPE OF PA URGING ISRAEL TO BE MORE FORCEFUL IN GAZA

Al Jazeera reports that Israel is threatening to release a tape recording of high-ranking Palestinian Authority officials urging Israel to be much more aggressive during the war in Gaza, and to wipe out Hamas even if it would mean thousands of dead Palestinians.

The recording is said to contain a conversation involving Palestinian Authority President Mahmoud Abbas, his adviser Tayeb Abdel Rahim, the Israeli defense minister, Ehud Barak, and the former Israeli foreign minister, Tzipi Livni. Al Jazeera reports, quoting the Gaza website Al Shehab, that when Israel said it wouldn’t take such a course of action because thousands of Gazans might die, Abdel Rahim replies: “They all elected Hamas, and they have chosen their own destiny, not we.”

So Abbas and his Fatah group urged Israel to attack Gaza much more forcefully than it did, and now – for not doing so – Abbas (whose regime is funded by billions of dollars of American and European taxpayers’ money) is urging Israeli leaders to be put on trial for war crimes.

[All notes above by Tom Gross]


FULL ITEMS

SELF-DEFENSE IS NOT A CRIME OF WAR

Testimony at the UN

Self-Defense is not a Crime of War

UN Watch Oral Statement
Delivered by Colonel Richard Kemp, 16 October 2009

UN Human Rights Council: 12th Special Session

Thank you, Mr. President.

I am the former commander of the British forces in Afghanistan. I served with NATO and the United Nations; commanded troops in Northern Ireland, Bosnia and Macedonia; and participated in the Gulf War. I spent considerable time in Iraq since the 2003 invasion, and worked on international terrorism for the UK Government’s Joint Intelligence Committee.

Mr. President, based on my knowledge and experience, I can say this: During Operation Cast Lead, the Israeli Defense Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.

Israel did so while facing an enemy that deliberately positioned its military capability behind the human shield of the civilian population.

Hamas, like Hizbullah, are expert at driving the media agenda. Both will always have people ready to give interviews condemning Israeli forces for war crimes. They are adept at staging and distorting incidents.

The IDF faces a challenge that we British do not have to face to the same extent. It is the automatic, Pavlovian presumption by many in the international media, and international human rights groups, that the IDF are in the wrong, that they are abusing human rights.

The truth is that the IDF took extraordinary measures to give Gaza civilians notice of targeted areas, dropping over 2 million leaflets, and making over 100,000 phone calls. Many missions that could have taken out Hamas military capability were aborted to prevent civilian casualties. During the conflict, the IDF allowed huge amounts of humanitarian aid into Gaza. To deliver aid virtually into your enemy’s hands is, to the military tactician, normally quite unthinkable. But the IDF took on those risks.

Despite all of this, of course innocent civilians were killed. War is chaos and full of mistakes. There have been mistakes by the British, American and other forces in Afghanistan and in Iraq, many of which can be put down to human error. But mistakes are not war crimes.

More than anything, the civilian casualties were a consequence of Hamas’ way of fighting. Hamas deliberately tried to sacrifice their own civilians.

Mr. President, Israel had no choice apart from defending its people, to stop Hamas from attacking them with rockets.

And I say this again: the IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.

Thank you, Mr. President.

 

GOLDSTEIN SLAMS GOLDSTONE

It looks like law, but it’s just politics
By Warren Goldstein
The Jerusalem Post
Oct. 14, 2009

Much has been written and said about the inaccuracies, shortcomings and the moral inversion of the United Nations Human Rights Council’s Mission presided over by Judge Richard Goldstone and his three fellow members. Most critics have understandably addressed the political and military issues involved. It is important, however, also to deconstruct the Goldstone Mission’s Report from a legal point of view.

This is so because the report uses the veneer of respectability that comes with legal methodology, and with the presence of an internationally respected judge, to gain credibility. Law is a very powerful weapon to give respectability to contemptible actions and opinions. The South African Apartheid Government was very legalistic in its approach to racial oppression, and was punctilious about promulgating proper laws, and about maintaining a fully functioning judiciary to give the façade of respectability to its repugnant policies.

The United Nations, through its various organs, but particularly through its Human Rights Commission, uses the superficial veneer of law and legal methodology to give credence and credibility to its anti-Israel agenda. The Goldstone Mission is a case in point. Careful analysis reveals that the legalities utilized are merely a cover for a political strategy of delegitimizing Israel. Judge Goldstone claims that the Mission “is not a judicial enquiry [but is] a fact-finding mission.”

This is a distinction without a difference. The Mission’s Report makes numerous factual findings, and some legal, just as if it were a judicial body.

The Report could have salvaged some measure of integrity had it stated that its findings, both legal and factual, were only prima facie. It did not do so.

Judges make factual and legal findings which have practical implications. There are very real consequences for Israel resulting from the findings of the Mission. Apart from holding Israel liable in international law to pay war reparations, Judge Goldstone refers the findings to the highest authorities of international law, including the United Nations’ General Assembly and the Security Council, and he recommends the commencement of criminal investigations in the national courts of the state signatories to the Geneva Convention of 1949. Of course, the Report also inflicts very great and real harm to Israel’s reputation in the court of world opinion. This has serious political, economic and military implications for Israel’s future, and for its very survival.
Any civilized legal system requires that justice be done on two levels: procedural and substantive. The Goldstone Mission is replete with procedural and substantive injustices. From a procedural point of view, there are four main areas of injustice.

FIRSTLY, THE Human Rights Council’s Resolution S-9/1 establishing the Mission expressly states that it “[s]trongly condemns the ongoing Israeli military operation [in Gaza] which has resulted in massive violations of the human rights of the Palestinian people,” and in so doing pre-judges the guilt of Israel. The Resolution refers many times to Israel’s guilt in a very lengthy document which is phrased in wide, undisciplined and aggressive language. Furthermore, it calls upon the Mission to investigate Israel’s conduct and not that of Hamas. Although Goldstone and the President of the Human Rights Council purported to extend the ambit of the mandate, the legal basis for their doing so without the express authority of the Council is not clear.

The second procedural injustice is that the members of the Mission publicly expressed beforehand their opinions on this conflict. The most explicit in this regard, Professor Christine Chinkin, was one of the signatories to a letter published in the Sunday Times of London which stated that “Israel’s actions amount to aggression, not self-defense, not least because its assault on Gaza was unnecessary.” The letter is published under the heading “Israel’s bombardment of Gaza is not self-defense – it’s a war crime.”

The other three members, Judge Richard Goldstone, Hina Jilani and Desmond Travers, all signed a letter initiated by Amnesty International stating: “Events in Gaza have shocked us to the core.” Thus, all four members of the Mission, including Goldstone himself, expressed public opinions concerning the Gaza conflict before they began their work.

Thirdly, the Goldstone Mission violated another basic principle of justice, audi alteram partem – let the other side be heard. At least due to the procedural injustices already referred to, the State of Israel correctly refused to cooperate with the Mission. Once it had done so the Mission ought, if it were objective and fair, to have accepted Israel’s right to remain silent and then ought to have desisted from making findings whether factual or legal. But it did not do so, and as any lawyer knows unanswered allegations often prove unreliable and in almost all conflict situations there are serious disputes of fact, and often of law as well.

The Mission’s findings were based on accepting the allegations of only one party to the conflict. The Mission did not try to cross-examine or challenge the witnesses in any real way. There is a lengthy, fascinating article by Jonathan HaLevi of the Jerusalem Center for Public Affairs in which he analyses in detail the methodology employed by the Mission in respect of witnesses. He demonstrates that there was a lack of adequate cross-examination of the testimony of the witnesses. Unproven allegations of Hamas officials were accepted as established facts. Even the most basic questions were not asked; when, for example, allegations were made of Israel’s bombing civilian installations, witnesses were not asked whether there were Hamas fighters or weaponry in the vicinity, or whether any attacks had been launched from the area.

There is a fourth procedural injustice which undermines the integrity and credibility of Judge Goldstone and the three other members of the Mission: There simply was not enough time to do the job properly.

Any lawyer with even limited experience knows that there was just not sufficient time for the Mission to have properly considered and prepared its report. One murder trial often takes many months of evidence and argument to enable a judge to make a decision with integrity. To assess even one day of battle in Gaza with the factual complexities involved would have required a substantial period of intensive examination. According to the Mission’s Report, the Mission convened for a total of 12 days.

They say that they considered a huge volume of written and visual material running into thousands of pages; they conducted three field trips; there were only four days of public hearings; and yet in a relatively short space of time the members of the Mission agreed to about 500 pages of detailed material and findings with not one dissenting opinion throughout.

They made no less than 69 findings, mostly of fact, but some of law and within those 69 there were often numerous sub-findings.

All of this was quite simply physically impossible if the job had been done with integrity and care.

The fourth procedural injustice also demonstrates the total sham of this process.

THE SUBSTANTIVE injustices of the Goldstone Mission’s Report are too numerous to mention in this article, but one illustrates how far the Mission was prepared to go, and that relates to the very important legal element of intent. Goldstone and his Mission impute the worst of intentions to the actions of the State of Israel, finding that Israel’s conduct was motivated by a desire to repress and oppress, and to inflict suffering upon the Palestinian people, and not primarily for the purpose of self-defense. It does this without any evidence and then, without any supporting evidence, asserts that many of Israel’s military operations such as that of Lebanon were motivated by the same goal.

The Mission fails to mention a modern leading military expert, Colonel Richard Kemp (the former commander of British forces in Afghanistan), who said, “From my knowledge of the IDF and from the extent to which I have been following the current operation, I do not think there has ever been a time in the history of warfare when an army has made more efforts to reduce civil casualties and deaths of innocent people than the IDF is doing today in Gaza.”

By contrast, on the Palestinian side, there is very clear evidence as to Hamas’s intentions – the Hamas Charter openly calls for the destruction of Israel, irrespective of borders. It also calls for the murder of all Jews worldwide. Hamas’s clear intention was to murder as many Israeli civilians as possible and to use its own civilian population as human shields. But not a word of Hamas’s expressly stated intentions appear in the report.

One aspect of the evidence, presented to but not accepted by the Goldstone Mission, was that of Hamas leader Fathi Hammad, who said: “This is why we have formed human shields of the women, the children, the elderly and the mujahideen, in order to challenge the Zionist bombing machine. It is as if we are saying to the Zionist enemy: We desire death while you desire life.”

These procedural and substantive injustices demonstrate the complete lack of integrity and fairness of the process. It looks like law, but it is not. It is just politics.

The Goldstone Mission is a disgrace to the most basic notions of justice, equality and the rule of law. And it is dangerous. Injustice will only lead to more death and destruction.

The Talmud says “The world stands on three things: truth, justice and peace.” These three values are linked. There can never be peace without justice and truth.

The Goldstone Mission is unjust and wanting in truth. It has, therefore, harmed the prospects for peace in the Middle East.

(The writer, who has a PhD. in Human Rights Law, is the chief rabbi of South Africa.)

 

“THE TWO FACES OF AN INTERNATIONAL POSEUR”

Goldstone backs away from report: The two faces of an international poseur
By Alan Dershowitz
Oct. 13, 2009

With so much (though not all) of the civilized world justly condemning (or ignoring) the Goldstone report for its distortion of the facts and its one-sided condemnation of Israel, Richard Goldstone himself now seems to be backing away from the report’s conclusions – at least when he speaks to his Jewish audiences.

In an interview with Jewish Forward, Goldstone denied that his group had conducted “an investigation.” Instead, it was what he called a “fact-finding mission” based largely on the limited “material we had.” Since this “material” was cherry-picked by Hamas guides and spokesmen, Goldstone acknowledged that “if this was a court of law, there would have been nothing proven.” He emphasized to the Forward that the report was no more than “a road map” for real investigators and that it contained no actual “evidence,” of wrongdoing by Israel.

“Nothing proven!” No “evidence!” Only “a road map!” You wouldn’t know any of that, of course, by reading the report itself or its accompanying media release. In the text of the report itself, Goldstone neither sought to clarify nor explain what he now claims is the limited scope and legal implications of the report. The language of the report reads like a judicial decision, making findings of fact (nearly all wrong), stating conclusions of law (nearly all questionable) and making specific recommendations (nearly all one-sided). According to the Forward:

“…the report itself is replete with bold and declarative legal conclusions seemingly at odds with the cautious and conditional explanations of its author. The report repeatedly refers, without qualification, to specific violations of the Fourth Geneva Convention committed by Israel and other breaches of international law. Citing particular cases, the report determines unequivocally that Israel “violated the prohibition under customary international law” against targeting civilians. These violations, it declares, ‘constitute a grave breach’ of the convention.”

It is as if there were two entirely different “Goldstone Reports.” The first submitted to the United Nations and the second to the Jewish community. In speaking so differently to different “audiences,” Goldstone is reminiscent of Yasser Arafat, who perfected the art of double-speak, by using bellicose language when addressing Arab audiences and more accommodating language when addressing western audiences.

Goldstone apparently lacked the courage to stand up to the other members and staffers of his commission and to insist that his clarifying language be included in the report itself. Nor did he have the courage to file a dissenting or concurring statement. Instead, he spoke out of both sides of his mouth, sending one message to those who read the actual report and a very different message to those who read his words in the Jewish Forward (and the New York Times for whom he wrote a more ameliorative op-ed on the day after the release of the Report). In doing so, he is trying to have it both ways.

Goldstone went so far as to tell the Forward that he himself “wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved.” This is total nonsense. Goldstone has put his imprimatur – and his reputation – behind the reports’ conclusions. The only reason anyone is paying any attention to yet another of the serial condemnatory reports by the United Nations Human Rights Council is because Richard Goldstone – a “distinguished” Jew – allegedly wrote it and signed on to its conclusions. If he really doesn’t stand by its conclusions – if he doesn’t care one way or another whether they are true or false, proven or unproven – then no extra weight should be given to its findings or conclusions because of the “distinguished” reputation of its Jewish chairman.

But weight is being given by some to its “unproven” and uninvestigated allegations which Goldstone admits may be wrong. There have been calls for boycotts, divestments, war crime prosecutions and other forms of condemnation based on the conclusions reached (or not reached, depending on which side of Goldstone’s mouth one is listening to) by the Report.

If Goldstone stands behind what he told the Forward, then he must come forward and condemn those who are treating his report as if the allegations were based on “evidence” and “proven.” Don’t hold your breath, because such a statement would be heard by both of Goldstone’s audiences at the same time.


All notes and summaries copyright © Tom Gross. All rights reserved.