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Israel’s refusal to Participate


UNHRC


On April 3, 2009, four months after the end of Israel's Operation Cast Lead in Gaza (December 27, 2008-January 1, 2009), the UNHRC appointed (former) Chief Justice of South Africa, Richard Goldstone the head of a "Fact-Finding Mission on the Gaza Conflict." The Goldstone Fact-Finding Mission was controversial from the start.  It was commissioned by the UNHRC, an organization, headed and manned by representatives from nations who are systematic violators of their own people’s human rights, and whose hypocritical obsession with condemning Israel to the exclusion of all other human catastrophes is a matter of justifiable satire.

Mandate

The mandate the UNHRC developed is a matter of great importance.  Judge Goldstone explicitly claims he took the position as head of the FFM because they had changed the mandate to be more "even-handed." Originally it specifically targeted Israel, and, in its language, anticipated a verdict of guilty.  The accusations that Hamas had used human shields, fired from among civilians at civilians, dressed as civilians, used ambulances and hospitals—all of which are war crimes and which helped explain civilian casualties, were not on the agenda for examination at all.  With so one-sided a mandate, even Mary Robinson, who presided over one of the most vocal anti-Israel assemblies of the new century – Durban, August 2001 – refused to head the commission.

Richard Goldstone accepted with a request that the range of the inquiry be enlarged to include Hamas’ behavior, and, in appointing Goldstone and other members of the Mission, the Council President rephrased the charge in accordance with Goldstone’s request. However, the President never requested nor received any UNHRC approval for the change; the “revised” mandate was never legally binding; and the Report reflects the original mandate in almost every aspect of its approach – from its framng narrative, to its selection of evidence and witnesses, to its harsh conclusions.

Choice of Judges:

Further controversy surrounded the choice of judges, three of whom – Goldstone, Travers and Jalani – signed an Amnesty International petition, stating they were “shocked to the core” by events and calling for a war crimes investigation, a call some found disturbingly one-sided.  The fourth member, Christine Chinkin, signed an even more openly hostile public letter to the Sunday Times, in the midst of the fighting and long before any investigation could take place, in which she and her co-signers accused Israel of acting “contrary to international humanitarian and human rights law” and committing “prima facia war crimes.”

Chinkin’s inclusion in the committee prompted a group of Australian lawyers and UN Watch to request Chinkin’s removal on the basis of expressed bias.  The request was denied, and Chinkin defended herself by falsely claiming that her Sunday Times letter did not address international humanitarian law and human rights law and instead addressed only jus ad bellum. Even Goldstone admitted that, if this were a real tribunal and not a “Fact-Finding Mission,” her participation would be problematic.  A group of Canadian lawyers and British lawyers and academics wrote formal protests.


Israel’s Refusal to take part:


Israel’s refusal to take part in the inquiry, even refusing Goldstone entry to Gaza through, was based on these issues, in particular the The Mandate of the Mission and its composition and conduct. The decision remains controversial to this day, with Goldstone claiming that Israel's participation would have changed the results significantly in its favor, and others challenging his counter-factual version of history.



Perhaps the most critical point of contention in the Goldstone Report concerns Hamas use of civilians as human shields (and more broadly, the ways in which Hamas and other militant groups deliberately hid among their own civilian population).  This is a crucial issue because if one ignores and dismisses such evidence, then Israel's firing at places where there were civilians can seem like "targeting civilians" -- one of the Goldstone Reports key findings -- and yet, if one includes Hamas' behavior in the calculations, then the judgment might be the opposite: given Hamas' behavior, the IDF did everything it could to avoid civilians, and Hamas is guilty not only of targeting Israeli civilians, but its own.  Here we bring to bear the evidence -- systematically excluded from its hearings and reasoning -- by the Goldstone Mission.

 


The civilian casualty count plays a major role in the world’s reaction to OCL.  Almost all expressions of shock, outrage, and condemnation of Israel for everything from “disproportionate response” to “war crimes” cites the terrible toll of civilian casualties inflicted on the Palestinian population.  Initially, all figures of civilian casualties either came from Palestinian sources (e.g., the Hamas-run Ministry of Health), or from NGO volunteers and UNWRA sources which emphasized the civilian catastrophe.  Eventually, the most widely used statistics came from a list of 1414 named dead provided by PCHR, of which, they claimed, 1180 were civilians (or 83%).  Other counts differed somewhat: B’tselem claimed that their study revealed 1387 dead, of which 773 were civilians. The Israeli army issued its own count: 1166, 709 combatants, 295 civilian and 248 police, or (if one includes the police as combatants), 82.7% combatant casualties.
But statistics, despite their seeming “factual objectivity,” can be misleading.  In this case there were four major problems.


  • Inflation of civilian count: The PCHR civilian count was systematically inflated by designating Hamas members, as civilians and including the  hit on the first day.  This may be in part because Hamas systematically tries to downplay and hide its own casualties. A systematic search at Hamas and other Jihadi websites revealed that 348 of those listed as civilians were, in fact, listed as members of these groups.

  • Definition: many organizations, including B’tselem, used a severely restrictive definition of combatant, so that even Hamas militants who were not actually in the act of firing on the Israelis.  As a result, one comes out with statistics that make no sense: among the category of children (under 18) most likely to be involved in fighting (11-18), more than three times as many boys were killed as girls, and for 18-29, four times as many (whereas, were they randomly killed civilians one would expect, as with children under 11, similar numbers for both sexes).

  • Police: Both the Palestinian sources and B’tselem count the police as civilians.  But the vast majority (78%) of policemen killed during Operation Cast Lead were members of terrorists groups whose exploits are detailed at the Al Izzadin al Qassam Brigades website. The Goldstone Report takes pains to define the police force as purely civilian, despite the ignoring evidence that proves otherwise and characterizing Israel's initial airstrikes at the Hamas police stations as an unjustified attack on civilians.

  • Perspective: Even if one accepts the PCHR’s figures, a 1:3 ratio of military to civilian casualty rate may seem high, but in comparison with other cases of warfare conducted in urban areas, it’s among the lowest ratio on record.  The recent US-led drone attacks on Pakistan there has been a 1:15 ratio (50 combatants to 780 civilian dead).  According to the British military expert Richard Kemp (whom Goldstone chose not to hear:

 

I don’t think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.

 

The Goldstone Report came out with civilian statistics that resemble closely those of the NGOs – Palestinian, Western and Israeli.  They took no account of the volume of hard evidence that undermined those numbers, and they drew the same severe conclusions about Israeli recklessness as had their sources.  Indeed, one might argue that the civilian statistics the Goldstone Report adopted play a key role in their most serious charge: that Israel targeted civilians and therefore that they may well be guilty of crimes against humanity.

 

For a review of all the material and a list of "civilian" combatants, see Elder of Ziyon, "More of those civilians killed in Gaza"

 

For an interactive site with all the links to the Jihadi sites, see Casualties of truth: how the PCHR lies about the casualties of Cast Lead.



The Goldstone Report not only ignored evidence of Palestinian media and religious hate speech and the incitement to violence against Israelis, it even entertained the proposal that Israel is the real culprit in demonizing the "other."  The questions/statements of the judges, the claims and accusations of the report, show a radical ignorance of the situation in Palestinian territories, especially under the control of Hamas.  This issue may constitute the single most important factor in the conflict, contributing at a fundamental level to the perdurance of the conflict, to the suicidal hatreds that motivate much aggression towards Israel.  The committee's disregard for this element in the story represents one of its greatest failures of "due diligence," a failure for which the NGOs, the MSNM, and other "reporters" from the territories are also consistently guilty.

The failure of the MSNM to cover this aspect of the problem took on a particularly striking and dangerous profile at the beginning of the Second Intifada, when even reporters investigating incitement covered it in silence.
William Orme, correspondent for the New York Times, came to Israel in November of 2000, to explore the Israeli claim that Palestinian “incitement” drove much of the violence of the Second Intifada. In his article, “A Parallel Mideast Battle: Is It News or Incitement?”, he tackled the case of Sheikh Halabiya who, on Palestinian TV,  called for killing Jews everywhere:
The Jews are the Jews. Whether Labor or Likud the Jews are Jews... They must be butchered and must be killed… It is forbidden to have mercy in your hearts for the Jews in any place and in any land. Make war on them any place that you find yourself. Any place that you meet them, kill them.”
When it came to the case of Halabiya, Orme wrote:
"Israelis cite as one egregious example a televised sermon that defended the killing of the two soldiers [at Ramallah on October 12, 2000]. “Whether Likud or Labor, Jews are Jews," proclaimed Sheik Ahmad Abu Halabaya in a live broadcast from a Gaza City mosque the day after the killings.

The Palestinian success in silencing the news media on the subject of their indoctrination to hatred and genocidal incitement comes out clearly in an exchange between Colonel Travers questioned two Palestinian psychiatrists, allowing them to project Palestinian attitudes onto the Israelis.  Elihu Richter, who tried to draw the Commission's attention to these matters with a brief submitted during their hearings, concluded that the report systematically failed to recognize the problem and, as a result, failed to understand Hamas' behavior:
In his search for the appearance of  false symmetry between Israel, a society committed to life, live and let live, and Hamas - an authoritarian, repressive terror organization committed to death, Judge Goldstone has advanced  the use of "asymmetric lawfare" on behalf of the asymmetric warfare waged by genocidal terrorists ("armed organizations" in his report). Judge Goldstone's ignoring of state sanctioned incitement and hate language by Hamas and its benefactor, Iran, is the equivalent of a traffic cop ignoring radar evidence that a driver is doing 190 kph on a city street and has a blood alcohol concentration of 0.30%.


The report calls for both Israel and Hamas to launch major investigations of their behavior during the hostilities, to counter what Goldstone referred to as the "culture of impunity" in the Middle East. Goldstone has repeatedly insisted both in the report and subsequently, that he considers Israel's mechanisms for self-regulation and self-investigation to be categorically inadequate.  Writes Dershowitz:

The lowest blow and the worst canard contained in this lie-laden report is that the Israeli judicial system is incapable of conducting investigations and bringing about compliance with international law.  This is a direct attack on the Israeli Supreme Court by a lawyer who knows full well that there is no country in the world that has a judicial system that demands more accountability than the Israeli system does. There is no judicial system in the world - not in the United States, not in Great Britain, not in South Africa, not in France - that takes more seriously its responsibility to bring its military into compliance with international law.

The long-term president of the Israeli Supreme Court, Professor Aharon Barak, opened the Supreme Court of Israel to all claims of law violation.  Cases that would be rejected by the courts of other nations have been pursued by the Israeli Supreme Court. This part of this infamous report has literally turned black to white and white to black. It has condemned the most responsive judicial system in the world, without even bothering to compare it to other systems. In doing so, they have made a mockery of international human rights and turned into a weapon that targets only Israel.

At the same time, Goldstone he has expressed a truly bizarre confidence in Hamas' willingness to investigate itself, with the help of the international community.
Well Hamas has courts open. There are courts in Gaza. People are convicted. Some people are, regrettably in my view, are sentenced to be executed. But if Hamas hasn’t got the sufficient resources, hasn’t got sufficient lawyers and judges, which I doubt, I’ve no doubt that the international community will fill any gap that there may be in such an absence of resources.
This presumes that Hamas considers "wrong" the things that Goldstone and the "human rights" community condemn and want investigated.  On the contrary, their courts execute people for collaboration and are proud of the culture of death and making their civilians human shields.

The distance between these expressions of confidence and lack thereof and the concrete differences between Israeli and Palestinian authorities constitute one of the most astonishing inversions of the Report.  Here we investigate the two sides in the conflict and assess the meaning of "cultures impunity" means to each of them.


There are two kinds of ad hominem: the conventional attack on an argument by attacking the reputation of the author, and the less frequently identified inverse ad hominem, where one supports an argument by invoking the good reputation of the author.  Neither are necessarily fallacious -- one can reasonably trust or mistrust a source based on past performance.  But in the case of the Goldstone report, both these arguments must receive close scrutiny.  Supporters consistently dismiss criticism by claiming that the attack on Goldstone is ad hominem when, as in the case with this site, most criticism focuses first, and above all, on substantive arguments; and, at the same time, consistently defending the report not by an analysis of its content or reasoning, but by an appeal to Goldstone's sterling reputation.  We contend that, once one has systematically explored the pervasive flaws of the Report, the question arises: What happened to Goldstone?  How did a man known for his courage and fairness end up becoming the chief architect of such a travesty of justice?  Our argument runs ab re [absurdo] ad usque hominem ipsum: from the deeply flawed argument to a questioning of the judgment of the man who articulated it himself.
The Goldstone report explicitly and implicitly adopts a narrative that reflects Palestinian claims: sequence of events the "explain" the "blockade," the military incursions into Gaza including the reasons for Operation Cast Lead, the status of Gaza as "Israeli-occupied," consistently promote the chronologically challenged contention that Hamas firing at Israeli populations is a response to Israeli aggression.  Here we examine the cases where the Report makes such determinations of narrative causality and consider their validity.

 

 

 
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