UNDERSTANDING
THE GOLDSTONE REPORT

David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada.  He is honourary senior counsel to B'nai Brith Canada and the author of the book Aftershock: Anti-Zionism and Antisemitism. He has kindly permitted us to post this lengthy and careful critique of the Goldstone Report at UtGR even though it has yet to be published elsewhere.

The Goldstone Report: Stone or Gold?

by David Matas

Table of Contents

A. Introduction

B. Exclusions

1) The Human Rights Council mandating resolution

a) The problem

b) Preambular paragraphs

c) Operative paragraphs

d) The World Court precedent

e) The Presidential mandate

2) The bias of Christine Chinkin

a) The problem

b) The answer

c) The Report

3) The Hamas Covenant

4) Terminology

a) Blockade

b) Collective punishment

5) The blockade and Egypt

6) Standard of proof

7)  The distinction between disproportionate and indiscriminate response

a) The omission

b) The differences

c) The blending

8) Sources

9) Military expertise

10) The wings of Hamas

C. Conclusions

The Goldstone Report: Stone or Gold?^[1]

by David Matas

A. Introduction

The Report of the United Nations Fact Finding Mission on the Gaza Conflict chaired by Richard Goldstone is an astounding 575 pages. Yet, what is most striking on reading through it is what is not there, rather than what is there.  In particular, there are ten different elements one would expect to find in this Report which are absent.

B. Exclusions

1) The Human Rights Council mandating resolution

a) The problem

There is no attempt to address the issue of bias raised by the wording of the Human Rights resolution mandating the Mission.   It would seem pretty obvious and straightforward that any UN Mission would address charges of bias made against it, even if only to dismiss the charges.

It is not as if the charges are frivolous.  The mandating resolution for the Mission, Human Rights Council resolution S-9/1 of 12 January 2009, assumes that Israel occupies Gaza which is patently not the case, in light of the withdrawal.  The resolution continually refers to Israel as the occupying power.

Moreover, Israel never was an occupying power, even when it had control of Gaza.  There is a difference between occupation and control, but the resolution does not make the distinction^[2].

The resolution assumes that Israel is violating international law and asks for a detailing of those violations.  The possibility that there was no violation is not contemplated by the resolution.

The resolution asks the Mission to Report on Israeli violations only.  It does not ask the Mission to Report on violations by Hamas.

The resolution asks for Reports of Israeli violations "throughout the Occupied Palestinian Territory" without indicating what those territories are.  Gaza and East Jerusalem are specifically mentioned.  But the resolution leaves open the possibility that all of Israel is occupied Palestinian territory.

b) Preambular paragraphs

To be specific, preambular paragraph 3 of the resolution asserts the right to self determination of the Palestinian people.  But it says nothing about the right to self determination of the Jewish people.

The paragraph refers to the "inadmissibility of the acquisition of land by the use of force" implying that Israel has been guilty of such acquisition.  The resolution says nothing about the inadmissibility of terrorism.

Preambular paragraph 6 affirms the applicability of the Fourth Geneva Convention to "Occupied Palestinian Territory".  The Fourth Geneva Convention applies to international armed conflict.  It does not apply to internal armed conflict.  Whether the conflict between Hamas and Israel is internal or international is a question of mixed fact and law which, in principle, the independent mission would decide.  The resolution takes away from the Mission a fundamental component of its task and decides in advance what the conclusion would be.

Preambular paragraph 8 recalls the obligation of the "Parties" to the Fourth Geneva Conventions.  But the only relevant state party is Israel.  Hamas is not a party to the Convention.  Nor could it be. The recall here suggests that Israel has obligations and that Hamas has none.

Preambular paragraph 11 expresses "serious concern about the lack of implementation" by Israel of previous resolutions.  This is an empty charge.  There is no indication of which resolutions were not implemented nor any indication of what should have been done and was not done.

Preambular paragraph 12 notes the Israeli response to terrorist attacks by referring to "massive ongoing Israeli military operations". But it does not note the terrorist attacks which precipitated the response.

The paragraph states that the Israel operation "has caused grave violations of the human rights of the Palestinian civilians", "exacerbated the severe humanitarian crisis", and undermined peace efforts.  Again here there is a pre-emption of the work of the Mission, telling the Mission in the mandating resolution what its conclusions should be.

Preambular paragraph 14 then refers to the Israeli attempts to use border controls to prevent terrorism, something that happens in every state in the world, as a "siege", "collective punishment" and "disastrous".  These conclusions, aside from being factually misplaced, tell the Mission yet again what its conclusions should be.

c) Operative paragraphs

And those were just the preambular paragraphs.  Operative paragraph 1 "strongly condemns the ongoing Israeli military operation" and asserts that this operation "resulted in massive violations of human rights of the Palestinian people and systematic destruction of Palestinian infrastructure".  The possibility that the Mission, in the face of this paragraph, would conclude that the Israeli military operation was a justifiable response to terrorist attacks, that all human rights violations inflicted on the Palestinian people and all destruction of Palestinian infrastructure were solely attributable to those terrorist attacks, something I believe to be the reality, does not, to the authors of the resolution, exist.

Operative paragraph 2 calls for an end to both Israeli military attacks and the launching of rockets against Israeli civilians.  However, the way it does so implies a criticism that the Israeli response is disproportionate.  The resolution refers to more than nine hundred Palestinians killed and more than four thousand injured Palestinians injured and contrasts that with the loss of four civilian lives and some injuries.  There is no indication of how many Palestinians killed and injured were armed combatants, nor any recognition of the fact that disproportionality is not a legal standard.

Operative paragraph 3 calls for an immediate withdrawal of Israeli forces.  This call means that there is no willingness to acknowledge the military necessity to defend against terrorist attacks.

Operative paragraph 4 calls upon Israel to commit to the establishment of an independent Palestinian state, something Israel has done since its creation.  It does not ask Hamas to accept the existence of Israel, something Hamas has never done.

Operative paragraph 5 "demands" that Israel stop the targeting of civilians, medical facilities and staff and the systematic destruction of the cultural heritage of the Palestinian people and public and private properties.  Yet, Israel has done none of this.  Again, the resolution tells the Mission what its conclusions should be. Here, the conclusions it dictates are counter-factual, sheer fabrications.  They are not supported by any evidence within the resolution or outside of it and are concocted for political reasons only.

Operative paragraph 8 calls for international action to put an end to the "grave violations" committed  by Israel.  Again the resolution dictates a conclusion to the Mission.

Operative paragraph 11 asks the United Nations High Commissioner for Human Rights to Report on the violations of the human rights of the Palestinian people by Israel.  There is no request of a Report  on the violations of the human rights of the Palestinian people by Hamas nor a request of a Report on the violations of the human rights of the Jewish people.

Operative paragraph 12 asks all special procedures to Report on the violations of the human rights of the Palestinian people.  There is no similar request for violations of the human rights of the Jewish people.

Operative paragraph 13 asks requests Israeli cooperation.  There is no request for Hamas cooperation.

Operative paragraph 14 decides to dispatch a Mission to investigate violations of human rights and humanitarian law by Israel against the Palestinian people.  The paragraph assumes the violations have taken place.  There is no request of an investigation of the violations of the human rights and humanitarian law by Hamas against the Palestinian people.  Nor is there a request of an investigation of the violations of the human rights and humanitarian law against the Jewish people.

Operative paragraph 16 requests that the Secretary General investigate the "latest targeting" of UNRWA facilities.  The paragraph assumes without factual foundation that the facilities have been targeted.  It moreover assumes without evidence or even specification that such targeting has occurred in the past.

This resolution does not really ask for the Mission to find facts.  It rather asks for endorsement of conclusions already formed.  A request for a fact finding mission which answer the questions posed to the mission is not truly a request for fact finding but just a statement of political opinion for which the Human Rights Council is seeking outside support.

d) The World Court precedent

There is no doubt what conclusions the Human Rights Council wanted the Mission to give.   The Human Rights Council resolution was an anti-Israel diatribe.  Given the tendentious nature of the question, for the Mission to conclude that Israel had been in full compliance with international law would mean thumbing their noses at the Human Rights Council.

This sort of mandate by way of diatribe is common to UN bodies when it comes to Israel.  The UN Human Rights Council resolution which triggered the Goldstone Report is similar in tone to the UN General Assembly resolution asking for an advisory opinion on the Israel security barrier.

The wording of the question asked by the General Assembly was this:

"What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?"

The question as posed was hardly neutral.  It adopted terminology that Israel rejects.  It calls a fence a "wall", though the barrier when complete will be a fence for more than 97% of its length and a wall for only less than 3% of its length^[3].  It refers to Israel as "the occupying Power".  It refers to the West Bank as "Occupied Palestinian Territory".  It defines this "Occupied Palestinian Territory" to include East Jerusalem.

The notion that the fence is a "wall" is a contested issue of fact.  In fact, the barrier is a fence and not a wall for over 93% of its length. The notion that Israel is an occupying Power, that the West Bank is "Occupied Palestinian Territory", that this "Occupied Palestinian Territory", insofar as it exists, includes East Jerusalem, are all contested issues of international law.

This too was not a request for an opinion but rather a request for endorsement of an opinion already formed.  Questions posed to the Court which attempt to answer questions of international law are not truly requests for advisory legal opinions but just statements of political opinion for which the General Assembly was seeking outside support.

Judge Koojmans wrote: "the request is phrased in a way which can be called odd to put it mildly"^[4].  He nonetheless sided with the majority in favour of answering the question.  He reasoned that, though the question was political and that a decision to answer to the question also was political, so would be decision not to answer the question.  The fault for the politicization of the Court lay with the General Assembly for asking the question rather than with the Court for answering it^[5].

The resolution did not ask the Court to determine whether or not Israel was in violation of international law.  In substance, the question the General Assembly posed was: what were the legal consequences of Israel's blatant violations of international law?

Judges of the Court are elected by the General Assembly, that is to say, by the very body posing the question.  Members of the Court are elected for nine years and may be re-elected.  This system creates a bias.  For the judges to have held that the Israel security fence conformed to international law would have been rejecting the firmly held views of those who had put them on the Court and would be deciding whether or not they stay on the Court.

The General Assembly elects judges to the Court from candidates nominated from regional groupings. All the judges in the Court but one were nominated from states or regions that had already declared that the fence was illegal.  Even the European Union, long before the advisory opinion, had expressed the view that the fence violated international law.  For many of the judges, a pro-Israel opinion would have been a career ending move.

Judge Buergenthal, the American, was the only judge in the Court expressing an independent view, a view not tainted by a prior expression of legal opinion by those who would decide on the judge's future legal career. The American Government, to my knowledge, had not expressed an opinion on the legality of the fence.  Buergenthal dissented, reasoning that the Court should have declined to answer the request for the advisory opinion on the basis that the Court did not have before it the requisite information and evidence to answer the question.

Whether you agree with Judge Buergenthal or Judge Koojmans, at least the Court addressed the issue of bias posed by the tendentious question.  The Goldstone Mission engaged in no such exercise.

e) The Presidential mandate

The mandate of the Goldstone Mission as stated by President of the Human Rights Council Ambassador Martin Ihoeghian Uhomoibhi was different from the mandate stated by the Council resolution.  The Presidential mandate was

"to investigate all violations of International Human Rights Law and International Humanitarian Law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009 whether before during or after".

It is noteworthy that

1) The Presidential mandate left open the question whether there were any violations, using the phrase "might have been committed".

2) The Presidential mandate imposed no restriction limiting the investigation to Israeli violations.  The Presidential mandate encompasses Hamas violations.

3)   The Presidential mandate imposed no restriction limiting the investigation to violations committed against the Palestinian people only.  The Presidential mandate encompassed violations against the people of Israel.

Did the shift from the resolution mandate to the Presidential mandate cure the defect posed to the Mission by the initiating Council resolution?  In my view, it did not.

The Mission Report quoted the Presidential mandate and noted that it followed the adoption of a Human Rights Council resolution^[6].  The notion that the Council resolution was problematic and that its mandate for the Mission was different from the Presidential mandate are missing from the Report.

The Mission needed to confront this situation up front.  It should have noted the difference between the Council mandate and the Presidential mandate and indicated that, in accepting the appointment to go about its work, it had either accepted or rejected the Council mandate.

What would have happened if the Mission came up with a report exonerating Israel?  It seems pretty clear.  The Mission did not report to the President of the Council Martin Ihoeghian Uhomoibhi for him to report in turn to the Council.  The Mission itself reported to the Council.  A Mission report exonerating Israel would have led to a resounding scolding.

Look what happened to the Lebanon quartet mission, which considered the Israeli response to terrorist attacks from Hezbollah.  That mission was conducted by the rapporteurs on health Paul Hunt, arbitrary executions Philip Alston, internally displaced Walter Kalin and housing Miloon Kothari.  This quartet reported to the second session of the UN Human Rights Council in October 2006.

The report of this quartet did not accuse Israel of war crimes.  It raised the possibility only that individuals might be guilty of war crimes.

It did not say that Israel violated the Geneva Conventions on the Laws of War through disproportionate attacks.  The mission report noted that Lebanon is party to Protocol I of the Geneva Conventions in which the excessive response standard is found but Israel is not.  The report referred to the correct standard, that the attack is excessive in relation to the direct military advantage anticipated.

Because the report avoided repeating the standard legal errors and omissions in which anti-Zionists indulge, many states at the UN condemned the report as pro-Israel.  Pakistan speaking on behalf of the Organization of Islamic Conference said the report was a "one sided narrative", the report was "deferential towards Israel" and "accusatory towards Hezbollah". According to the press release of the debates for October 4:

"The OIC believed that in the case of Lebanon, the principles of distinction between civilians and combatants, prohibition against indiscriminate attacks and proportionality had been violated. The OIC as a whole and OIC Council members had decided to distance themselves from the conclusions of the report, which did not have any operative value, direct or indirect."

There was a spate of statements at the Council from individual anti-Zionist states to the same effect.

The anti-Zionist states did not want to be confronted with the facts.   For them, the Israeli response was disproportionate, no matter what the UN experts said.  If the UN experts were not prepared to condemn Israeli behaviour as disproportionate, the fault lay with the experts not with the OIC position.  As the OIC statement indicated, for anti-Zionists Israeli disproportionality is not a question of fact or law; it is a question of belief.  Like all bigotry, the belief in Israel disproportionality has nothing to do with facts or law; the only question is whether or not you are a true believer.

As the prior quartet mission to Lebanon showed, anything which diverges from the assumptions of the resolution is bound to be met with condemnation.  The only way to avoid that condemnation would be to toe the anti-Zionist party line.

As it turned out, the Goldstone Report was everything the authors of the Human Rights Council resolution wanted and then some.  The anti-Israel material piled into the Report was enough to warm the heart of the most ardent anti-Zionist.

So, in practice, for the Goldstone Mission, the dilemma of choosing between the Presidential and Council mandates did not arise.  The nature of the Report meant that a confrontation with the Council through a rejection of the Council mandate was avoided.  Nonetheless, one has to wonder, to what extent was this avoidance influenced by the Council mandate and past reaction to the Lebanon quartet mission report which was lurking in the background behind the Presidential mandate?

I have my own view - that the influence was considerable.  But what was the view of the Mission itself?  We are left to guess.

2) The bias of Christine Chinkin

a) The problem

There is also nothing in the Report about the claim of bias against one of the four Mission members Christine Chinkin.  Ms. Chinkin had co-signed a letter to the Sunday Times printed in its January 11, 2009 edition which states, under the heading "Israel's bombardment of Gaza is not self‑defence - it's a war crime":

"ISRAEL has sought to justify its military attacks on Gaza by stating that it amounts to an act of 'self‑defence' as recognised by Article 51, United Nations Charter. We categorically reject this contention.

The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self‑defence. Under international law self‑defence is an act of last resort and is subject to the customary rules of proportionality and necessity.

The killing of almost 800 Palestinians, mostly civilians, and more than 3,000 injuries, accompanied by the destruction of schools, mosques, houses, UN compounds and government buildings, which Israel has a responsibility to protect under the Fourth Geneva Convention, is not commensurate to the deaths caused by Hamas rocket fire.

For 18 months Israel had imposed an unlawful blockade on the coastal strip that brought Gazan society to the brink of collapse. In the three years after Israel's redeployment from Gaza, 11 Israelis were killed by rocket fire. And yet in 2005‑8, according to the UN, the Israeli army killed about 1,250 Palestinians in Gaza, including 222 children. Throughout this time the Gaza Strip remained occupied territory under international law because Israel maintained effective control over it.

Israel's actions amount to aggression, not self‑defence, not least because its assault on Gaza was unnecessary. Israel could have agreed to renew the truce with Hamas. Instead it killed 225 Palestinians on the first day of its attack. As things stand, its invasion and bombardment of Gaza amounts to collective punishment of Gaza's 1.5m inhabitants contrary to international humanitarian and human rights law. In addition, the blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel, are prima facie war crimes.

We condemn the firing of rockets by Hamas into Israel and suicide bombings which are also contrary to international humanitarian law and are war crimes. Israel has a right to take reasonable and proportionate means to protect its civilian population from such attacks. However, the manner and scale of its operations in Gaza amount to an act of aggression and is contrary to international law, notwithstanding the rocket attacks by Hamas."

This letter is almost a flash forward executive summary of the Goldstone Report.  The Report dwells in great detail on the charges of blockade, occupation, disproportionality, and destruction of infrastructure which the letter telegraphs.

b) The answer

UN Watch sent a detailed petition to the Goldstone Mission on Christine Chinkin, asking that she be disqualified.  The Goldstone Mission replied with this August 25, 2009 statement:

"The allegation by UN Watch that Professor Christine Chinkin is disqualified from being a member of the UN Fact Finding Mission is based solely on the contents of a public letter published on 11 January 2009 in the London Sunday Times. The letter condemns in clear terms the firing of rockets by Hamas and suicide bombings. It also states that the military attacks by Israel were unlawful and contrary to the provisions of international law and, in particular, the Charter of the United Nations. More specifically, the signatories to the letter state that the response by Israel was not commensurate with the deaths caused by the Hamas rocket fire. A copy of the letter is attached.

Whether the Israeli military response was justified is not an issue that falls within the mandate of the Fact Finding Mission. The investigation by the Mission has related solely to the commission of violations of international humanitarian law and international human rights law. More specifically, it has investigated whether Israel, Hamas or the Palestinian Authority have committed violations of those laws and by so doing unnecessarily caused death or injury to innocent civilians. In other words, it is specific acts of armed conflict that fall within the Mission's mandate. On those issues the letter co‑signed by Professor Chinkin expressed no view at all.

The so‑called petition of UN Watch is based on legal precedents that apply to judicial proceedings. The Fact Finding Mission cannot in any way be considered a judicial or even a quasi‑judicial proceeding. In all the circumstances, the members of the Fact Finding Mission consider the attack by UN Watch to be misplaced and it is rejected by them."

c) The Report

Why did not this statement or some variation of it or at least some reference to it not appear in the Mission Report itself?  One answer is that it became out of date.  It is impossible to say, in light of the Report, that the letter dealt with one subject matter and the Report dealt with an entirely different subject matter.  There was plainly a substantial overlap.

Where does that leave the Report?  The only answer left, once we remove the answer of different subject matter, is that bias does not matter, because the Mission was not a judicial proceeding.

This, it must be noted, is not an answer of no bias.  It is rather an acknowledgement of bias, or at the very least an acknowledgment that there is no answer to the charge of bias, only a statement of the irrelevancy of bias.

Well, my view is that bias does matter. It matters to me.  It should matter to the UN, inside or outside of court.

Moreover, outside of the Goldstone Mission, to the UN bias does matter.  The Code of Conduct for Special Procedures Mandate‑holders states:

"Mandate‑holders are independent United Nations experts. While discharging their mandate, they shall:

(a) Act in an independent capacity, and exercise their functions in accordance with their mandate, through a professional, impartial assessment of facts..."^[7]

Christine Chinkin was not engaged in an impartial assessment of the facts when she had stated her views on the facts before she even became part of the Goldstone Mission.

Something similar, it must be noted, happened with the International Court of Justice Advisory Opinion on the Israel security barrier.  Shortly before he was appointed to the Court, Judge Elaraby of Egypt had expressed his personal view in a newspaper interview that the presence of Israel in the West Bank and Gaza was an occupation in violation of international law.  He further decried what he called Israel's policy of "establishing new facts" a criticism that was subsequently levied against the fence.  Israel asked the Court to remove the judge from the case, but the Court, with only one dissent, Judge Buergenthal, refused^[8].

So we are left, in the Goldstone Report, with a bias by one of its members.  It is reasonable to conclude, in these circumstances, that the Goldstone Mission Report was not a conclusion based on facts, but rather the marshalling of facts to sustain a conclusion formed before the facts were considered.

3) The Hamas Covenant

The Goldstone Report gives no sense of what Hamas is - an organization committed to genocide of the Jewish people.  The Report is replete with reference to statement of Israel political and military figures in order to attempt to show that the mental element for war crimes and crimes against humanity exist. Yet, there is not so much as one quote or citation or reference to the Hamas Covenant.

Hamas is an Arabic acronym for Islamic Resistance Movement.  It is also an Arabic word meaning "zeal".  The organization was founded in 1987 as an overtly antisemitic organization.  Its founding covenant charges Jews with an international conspiracy to gain control of the world.  Its covenant says that "Islam will obliterate" Israel. Hamas has been engaged in suicide bombings in Israel since 1994.

Let me point out to you some elements of the Covenant which the Goldstone Report so studiously ignored:

"Our struggle against the Jews is very great and very serious".

"The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him. Only the Gharkad tree, (evidently a certain kind of tree) would not do that because it is one of the trees of the Jews."

"In face of the Jews' usurpation of Palestine, it is compulsory that the banner of Jihad be raised."

"In their Nazi treatment, the Jews made no exception for women or children."

"We should not forget to remind every Moslem that when the Jews conquered the Holy City in 1967, they stood on the threshold of the Aqsa Mosque and proclaimed that 'Mohammed is dead, and his descendants are all women.'  Israel, Judaism and Jews challenge Islam and the Moslem people. 'May the cowards never sleep.'"

"Arab and Islamic Peoples should augment by further steps on their part; Islamic groupings all over the Arab world should also do the same, since all of these are the best‑equipped for the future role in the fight with the warmongering Jews."

"The Moslem woman has a role no less important than that of the moslem man in the battle of liberation. She is the maker of men. Her role in guiding and educating the new generations is great. The enemies have realised the importance of her role. They consider that if they are able to direct and bring her up they way they wish, far from Islam, they would have won the battle. That is why you find them giving these attempts constant attention through information campaigns, films, and the school curriculum, using for that purpose their lackeys who are infiltrated through Zionist organizations under various names and shapes, such as Freemasons, Rotary Clubs, espionage groups and others, which are all nothing more than cells of subversion and saboteurs. These organizations have ample resources that enable them to play their role in societies for the purpose of achieving the Zionist targets and to deepen the concepts that would serve the enemy. These organizations operate in the absence of Islam and its estrangement among its people. The Islamic peoples should perform their role in confronting the conspiracies of these saboteurs. The day Islam is in control of guiding the affairs of life, these organizations, hostile to humanity and Islam, will be obliterated."

"For a long time, the enemies have been planning, skilfully and with precision, for the achievement of what they have attained. They took into consideration the causes affecting the current of events. They strived to amass great and substantive material wealth which they devoted to the realisation of their dream. With their money, they took control of the world media, news agencies, the press, publishing houses, broadcasting stations, and others. With their money they stirred revolutions in various parts of the world with the purpose of achieving their interests and reaping the fruit therein. They were behind the French Revolution, the Communist revolution and most of the revolutions we heard and hear about, here and there. With their money they formed secret societies, such as Freemasons, Rotary Clubs, the Lions and others in different parts of the world for the purpose of sabotaging societies and achieving Zionist interests. With their money they were able to control imperialistic countries and instigate them to colonize many countries in order to enable them to exploit their resources and spread corruption there.

You may speak as much as you want about regional and world wars. They were behind World War I, when they were able to destroy the Islamic Caliphate, making financial gains and controlling resources. They obtained the Balfour Declaration, formed the League of Nations through which they could rule the world. They were behind World War II, through which they made huge financial gains by trading in armaments, and paved the way for the establishment of their state. It was they who instigated the replacement of the League of Nations with the United Nations and the Security Council to enable them to rule the world through them. There is no war going on anywhere, without having their finger in it."

"The Zionist invasion is a vicious invasion. It does not refrain from resorting to all methods, using all evil and contemptible ways to achieve its end. It relies greatly in its infiltration and espionage operations on the secret organizations it gave rise to, such as the Freemasons, The Rotary and Lions clubs, and other sabotage groups. All these organizations, whether secret or open, work in the interest of Zionism and according to its instructions. They aim at undermining societies, destroying values, corrupting consciences, deteriorating character and annihilating Islam. It is behind the drug trade and alcoholism in all its kinds so as to facilitate its control and expansion."

"Writers, intellectuals, media people, orators, educators and teachers, and all the various sectors in the Arab and Islamic world ‑ all of them are called upon to perform their role, and to fulfil their duty, because of the ferocity of the Zionist offensive and the Zionist influence in many countries exercised through financial and media control, as well as the consequences that all this lead to in the greater part of the world.

Jihad is not confined to the carrying of arms and the confrontation of the enemy. The effective word, the good article, the useful book, support and solidarity ‑ together with the presence of sincere purpose for the hoisting of Allah's banner higher and higher ‑ all these are elements of the Jihad for Allah's sake."

"The Zionist Nazi activities against our people will not last for long."

"World Zionism, together with imperialistic powers, try through a studied plan and an intelligent strategy to remove one Arab state after another from the circle of struggle against Zionism, in order to have it finally face the Palestinian people only. Egypt was, to a great extent, removed from the circle of the struggle, through the treacherous Camp David Agreement. They are trying to draw other Arab countries into similar agreements and to bring them outside the circle of struggle.

The Islamic Resistance Movement calls on Arab and Islamic nations to take up the line of serious and persevering action to prevent the success of this horrendous plan, to warn the people of the danger emanating from leaving the circle of struggle against Zionism. Today it is Palestine, tomorrow it will be one country or another. The Zionist plan is limitless. After Palestine, the Zionists aspire to expand from the Nile to the Euphrates. When they will have digested the region they overtook, they will aspire to further expansion, and so on. Their plan is embodied in the 'Protocols of the Elders of Zion', and their present conduct is the best proof of what we are saying.

Leaving the circle of struggle with Zionism is high treason, and cursed be he who does that. "for whoso shall turn his back unto them on that day, unless he turneth aside to fight, or retreateth to another party of the faithful, shall draw on himself the indignation of Allah, and his abode shall be hell; an ill journey shall it be thither." (The Spoils ‑ verse 16). There is no way out except by concentrating all powers and energies to face this Nazi, vicious Tatar invasion."

"Israel will exist and will continue to exist until Islam will obliterate it, just as it obliterated others before it."

The intent of Hamas is relevant not just to determine whether they have committed crimes by their own activity.  It is also relevant in determining what is an appropriate response to Hamas crimes.

If you come across someone who has broken into your house and the burglar tells you that he is starving and has come to steal food, your reaction is bound to be different than if he tells you that he is a psychopath killer escaped from a mental institution come to kill you and your family.  Moreover, the difference in reaction would be justifiable.

Yet, the Goldstone Mission assessees the appropriateness of Israeli reaction to the shooting by Hamas of rockets into Israel without any reference whatsoever to the reason for the shooting of those rockets, the intent of Hamas to commit genocide against the Jewish people.  It is hard to take seriously a Report which engages in such a glaring omission.

4) Terminology

The Goldstone Mission Report is not so much an exercise in judgment as an exercise in labelling.  Anti-Zionists attempt to delegitimize Israel through demonization.  Their tactic of demonization of choice is claimed violations of international law.  The line of argument they attempt to push is that Israel does not deserve to exist because it is a criminal state.   The Goldstone Mission Report was another instalment in this serialized demonization.

The Goldstone Report finds Israel guilty of a wide variety of international law offences including blockade, collective punishment, reprisals, and wanton destruction.  The Report just slaps these labels on Israel by way of assumption, without consideration of analysis.  Here are two examples - blockade and collective punishment.

a) Blockade

The Goldstone Mission accuses Israel of imposing a blockade on the Gaza strip.  Technically, the Mission Report uses the term "blockade" in a legally inappropriate way.  A blockade at international law is a form of inter-state coercion applied to ports and coasts^[9].

Israel has imposed a blockade on the Gaza coast.  But the Goldstone report is not referring just to that when it uses the term "blockade".  Rather it is referring to restrictions on entry of goods and services to Gaza by land, sea or air.

The Report uses its own definition of "blockade" rather than the international law definition.  The Report defines the blockade as "the process of economic and political isolation imposed by Israel on the Gaza Strip".^[10]

A true, maritime, international law blockade, unless done in self defense, is a form of aggression^[11].  The Goldstone Mission does not get into the issue whether the Israeli imposed maritime blockade was or was not aggression.  The Mission focuses on the laws in war, rather than the laws of war, how the war was conducted rather than whether or not Israel was justified in going to war.

In substance, and to use the correct terminology, the Mission considered Israeli export controls on goods and services to Gaza, focussing on land transit from Israel to Gaza.  The use of the inappropriate and invidious terminology of blockade rather than the correct terminology of export controls appears chosen to make Israel look bad.

Export controls are within the sovereign control of the exporting state.  Export controls must not prevent the movement of humanitarian aid - food and medical supplies^[12].  But beyond that they are perfectly proper.

A blockade, in contrast, is considered a violation of international law, as such, unless it is set up in self defense.  Applying the concept of blockade to land borders means rejecting the sovereignty of states over their borders.

The Report does not source its definition of blockade from anywhere, but just says, about Israeli export controls, that the process is "generally referred to as a blockade".  Who are those people who "generally" refer to Israel export controls as a blockade?  The Report does not say.

It is not the Israeli government itself.  The announcement of the policy decision of the Israeli government which generated the export controls from Israel to Gaza, dated September 19, 2007, in its entirety, is this:

"Prime Minister Ehud Olmert today (Wednesday), 19 September 2007, convened the Security Cabinet, in continuation of its September 5 meeting, in order to discuss possibilities for taking action in light of both the continued Kassam rocket fire from the Gaza Strip at Sderot and other communities near the Gaza Strip and the continued terrorism in the Strip.

In today's unanimous decision, it was determined:

Hamas is a terrorist organization that has taken control of the Gaza Strip and turned it into hostile territory. This organization engages in hostile activity against the State of Israel and its citizens and bears responsibility for this activity.

In light of the foregoing, it has been decided to adopt the recommendations that have been presented by the security establishment, including the continuation of military and counter‑terrorist operations against the terrorist organizations. Additional sanctions will be placed on the Hamas regime in order to restrict the passage of various goods to the Gaza Strip and reduce the supply of fuel and electricity. Restrictions will also be placed on the movement of people to and from the Gaza Strip. The sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis."

Note the reference to legal and humanitarian standards and the absence of any reference to a blockade.

If the Mission had presented a legal definition of the concept of blockade and argued that this concept, in substance, applied to what Israel was doing, one could agree or disagree with that analysis.  But the Report has no analysis, just the gratuitous application of an invidious label sourced from anti-Zionist chatter.

On the issue of the blockade, the Report does not start with either the law or the facts.  Its starting point rather is an anti-Zionist insult.  The issue for the Report is not whether there is a blockade but rather, on the assumption that there is a blockade, whether the blockade is wrong.  That sort of question has the answer already built into its assumption.

b) Collective punishment

This application of invidious labels is not restricted to the misuse of the concept of blockade.  It permeates the Report.  Take another example, the label of collective punishment.   The Mission Report states, baldly and unequivocally, that Israel has a policy of collective punishment.

The Report states:

"The Mission has considered the question of military security. As serious as the situation  that arises when rockets and mortars are fired on or near border crossings may be, the Mission considers that it does not justify a policy of collective punishment of the civilian population of the Gaza Strip."^[13]

Now, the Mission is entitled to state its conclusions.  But it is not entitled to state what is the official policy of the Government of Israel.  That is the prerogative of the Government of Israel.

Where in the Report is a quotation or citation of a Government of Israel policy of collective punishment?   There is not one.

Is there an Israel government policy of collective punishment, stated as such?  Well, no.

So what the Mission is doing here is making up for Israel a policy which does not exist, which is not Israeli policy, and then goes about condemning this fantasy, invented policy.  Again here what we have is the recirculation of anti-Zionist propaganda, but not a true consideration and analysis of the facts.

5) The blockade and Egypt

As well, the accusation against Israel by the Mission Report of blockade is made without reference to Egypt.  The Gaza Strip has Israel on its east and Egypt on its west.  If the concept of blockade did apply to land borders, then a blockage would have to be imposed by both Israel and Egypt together to be effective to impose blockage.  Otherwise, any good or service blocked from the east could enter from the west.

The Report is replete with references to an Israeli blockade, but is silent about an Egyptian blockade.  The Mission entered Gaza through Egypt, with the cooperation of Egypt.  The Goldstone Report states:

"In view of the refusal of cooperation from the Government of Israel, in order to be able to fulfil the mandate entrusted by the Human Rights Council within the aforementioned time frame,the Mission sought and obtained the assistance of the Government of Egypt to enable it to enter the Gaza Strip through the Rafah crossing."^[14]

This is not just a statement that the Mission entered through the Rafah crossing, but that this entry happened because of the assistance of the Government of Egypt.  Moreover, it happened even though the Government of Israel was not in agreement and was not prepared to cooperate.

The Report stated elsewhere

"Israel controls the border crossings (including to a significant degree the Rafah crossing to Egypt, under the terms of the Agreement on Movement and Access) and decides what and who gets in or out of the Gaza Strip."^[15]

The Agreement to which this statement refers was the Agreement of November 2005 between the Government of Israel and the Palestinian Authority.  It was no longer in effect at the time of the Gaza war because of Hamas expulsion of the Palestinian Authority from the Gaza strip.

The content of the agreement is misleadingly described since the Palestinian Authority and Egypt together ran the Rafah crossing under the monitoring of the European Union Border Assistance Mission Rafah (EUBAM).  The EU withdrew after the Hamas takeover.

To say that there is a disconnect between the Mission statement that Egypt allowed the Mission into Gaza and the silence about Egyptian participation in a blockade would be overly generous to the Mission.  In context, the Mission silence about Egyptian complicity in blockage has to be deliberate, not just an oversight.  This silence is an eloquent statement that the name of the game the Mission was playing was "Blame Israel".

6) Standard of proof

The Report does not say what standard of proof it is using and uses a wide variety of standards of proof. The Report states:

"In many cases it has found that acts entailing individual criminal responsibility have been committed....The findings do not attempt to identify the individuals responsible for the commission of offences nor do they pretend to reach the standard of proof applicable in criminal trials."^[16]

The Report states what standard of proof it is not using, the standard of proof applicable in criminal trials.  However, that is not a statement of  the standard of proof the Mission is using.

At one point the Mission relies on the standard of proof of distinct probability.  The Report states:

"As a distinct probability, the Mission finds that the policemen killed there were neither engaged in any military activity at the time of the attacks nor carrying out preparations for combat."^[17]

At other points, the Report refers to the standard of proof of possibility.  The Report states:

"the Mission did not make any findings with respect to the possible presence of Palestinian combatants in the surroundings of the hospital."^[18]

"While it is not possible to say that no attempts were ever made by any armed groups to use ambulances during the military operations, the Mission has substantial material from the investigations it conducted and the enquiries it made to convince it that, if any ambulances were used by Palestinian armed groups, it would have been the exception, not the rule."^[19]

"The Mission considers it possible in analyzing the information available that the missile in question may have been a modified high‑explosive anti‑tank missile, sometimes referred to as either augmented high‑explosive antitank (AHEAT) or high‑explosive dual‑purpose (HEDP)."^[20]

"In the absence of information necessary to determine the precise circumstances of the incident, the Mission can make no findings on possible violations of international humanitarian law or international criminal law."^[21]

"In view of the gravity of the violations of international human rights and humanitarian law and possible war crimes and crimes against humanity that it has Reported, the Mission recommends that the United Nations Human Rights Council request the United Nations Secretary‑General to bring this Report to the attention of the United Nations Security Council under Art. 99 of the Charter of the United Nations so that the Security Council may consider action according to the relevant Mission's recommendations below."^[22]

"Statements by Israeli leaders to the effect that the destruction of civilian objects would be justified as a response to rocket attacks ('destroy 100 homes for every rocket fired'), indicate the possibility of resort to reprisals."^[23]

The Report also at times uses the standard of proof of likelihood.  The Report states:

"The Mission considers it unlikely that a target the size of the Namar Wells could have been hit by multiple strikes in error."^[24]

"The third location visited by the Mission was near the north gate of the police headquarters where a projectile, most likely a missile, killed police chief Tawfiq Jabr."^[25]

"The Mission conducted extensive interviews with al‑Quds hospital staff and others who were in the area at the time of the attack and concluded that it was unlikely that there was any armed presence in any of the hospital buildings at that time."^[26]

"The Mission, having carried out over eight hours of interviews with senior and junior staff, and having sought to verify the matter with others, including journalists who were in the area at that time, has concluded that it is unlikely there was any armed presence in any of the hospital buildings at the time of the attack.^[27]

"Local witnesses have Reported that a small missile did appear to strike an elderly man in the neighbourhood about 10 minutes before the al‑Daya house was destroyed but the Mission is not in a position to say whether this is likely to have been an errant warning shot."^[28]

"The Mission considers it unlikely that a target the size of the Namar wells could have been hit by multiple strikes in error, given the nature of the deployment systems and the distance between the wells and any neighbouring buildings."^[29]

"The question of whether incidents involving the Israeli armed forces that occurred between 27 December 2008 and 18 January 2009 are likely to be the result of error, the activities of rogue elements or a deliberate policy or planning depends on a number of factors, including the degree and level of planning involved, the degree of discretion field commanders have in operations, the technical sophistication and specification of weaponry, and the degree of control commanders have over their subordinates."^[30]

"Satellite imagery also gives strong indications that tanks and/or heavy vehicles were likely to have been responsible for most of the damage."^[31]

At still other times, the Report used the standard of proof of high likelihood.  The Report states:

"It is highly unlikely that Palestinian armed groups could have taken up positions in or around the lagoon after the initial occupation of the area by Israeli armed forces: any such groups would have been exposed in the open area."^[32]

"Taking into account all of the foregoing factors, the Mission, therefore, concludes that Israel had the means necessary to plan the December‑January military operations in detail. Given  both the means at Israel's disposal and the apparent degree of training, including training in international humanitarian law, and legal advice received, the Mission considers it highly unlikely that actions were taken, at least in the aerial phase of the operations, that had not been the subject of planning and deliberation."^[33]

So what is the standard of proof the Mission used in coming to its conclusions?  Was it high likelihood, likelihood, distinct probability or possibility?  It is impossible, from reading the Report, to guess.

Indeed, as one can see, there is no consistency in the use of a standard of proof.  A finding of a mere possibility of the commission of a criminal offense is a good deal less compelling that a finding of a high likelihood of a commission of a criminal offense.

Is the Goldstone Report saying only that there is a mere possibility that criminal offenses were committed?   The absence of any explicit adoption of a standard of proof makes that conclusion reasonable.  It also makes the Report far from compelling.

Whatever standard of proof was used, the Goldstone Mission came to conclusions.  The Report states:

"In many cases it has found that acts entailing individual criminal responsibility have been committed. In all of these cases the Mission has found that there is sufficient information to establish the objective elements of the crimes in question. In almost all of the cases the Mission has also been able to determine whether or not it appears that the acts in question were done deliberately or recklessly or in the knowledge that the consequence that resulted would result in the ordinary course of events. The Mission has thus referred in many cases to the relevant fault element (mens rea)."^[34]

One has to remember that Israel decided not to participate in the Goldstone Mission, not to provide any evidence and not to make any submissions.  In my view, those decisions were appropriate.  When faced with an invitation to be tried before a kangaroo court, the prudent course is to decline.

For all practical purposes, the Mission hearings were ex parte, hearing one side only.  In that situation, the appropriate determination should have been that a prima facie case either was or was not made out.  To come to a final conclusion on the issues addressed, whatever the standard of proof, violates a basic principle of justice, audi alteram partem, that both sides be heard

7) The distinction between disproportionate and indiscriminate response

a) The omission

Although the Mission is titled a "fact finding" Mission, the mandate consisted of more than just finding facts. The mandate to investigate violations of law which might have been committed was a mandate to determine whether or not violations have been committed.  In order to determine whether or not violations of law have been committed, there had to be a determination of the applicable law.

A  striking legal omission is the failure to distinguish between the standard of a disproportionate and indiscriminate response.  Under the laws in war, a disproportionate response is legal and an indiscriminate response is illegal.  The Goldstone Report, by failing to make that distinction and blending the two standards, criminalizes what is legal.

If one thinks of this issue outside of the context of anti-Zionist propaganda, the point I am making would seem obvious.  Look at Colin Powell's doctrine of overwhelming force, articulated when he was Chair of the United States Joint Chiefs of Staff (1989-1993).  According to this doctrine, force, when used, should be overwhelming and disproportionate to the force used by the enemy^[35].  Who has said that this doctrine is a statement of intent to violate international law?

Or to take an older example, look at the battle of Agincourt 1415 between France and England as portrayed by William Shakespeare in the play Henry V.  According to Shakespeare, the French lost 10,000 souls, the English a mere 29, surely a disproportionate result^[36].  Was that an English war crime by today's standards? Surely not.

Protocol I to the Geneva Conventions on the Laws of War prohibits indiscriminate attacks^[37].    One of the forms of attack the Protocol indicates would be indiscriminate is an attack which may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated^[38].   Where the attack is launched with knowledge that it will cause excessive loss of life, injury to civilians or damage to civilian objects, it is a grave breach of the Protocol which results in individual criminal responsibility^[39].

It is this standard which the Goldstone Report applies when condemning Israel for disproportionality.  Yet, it is wrong to call this Protocol standard a proportionality standard.  There are at least fourteen differences between a proportionality standard and the indiscriminate attack standard set out in Protocol I.

b) The differences

1. Conceptually there is a difference between an indiscriminate attack and a disproportionate attack.  Disproportionality suggests more on one side than another.  Israel is often accused of disproportionate attacks because Israel suffers fewer casualties than it inflicts.

Determining whether an attack is indiscriminate makes no comparison between the casualties on the two sides of a conflict.  The determination of whether an attack is indiscriminate compares military and civilian casualties on one and the same side and not casualties on one side with casualties on the other.

Of course, ideally, no civilian should be killed.  But the law of indiscriminate attacks contemplates such killings.  The issue, in context, becomes how many.

The language of proportionality is misleading because it suggests that a mere imbalance in response can violate the laws in war.  However, even the most extreme imbalanced response can respect the laws in war.

Indeed, the balance between attack and response, in assessing compliance with the laws in war, is an irrelevancy.  What is relevant is the balance between anticipated military advantage in the response and anticipated civilian casualties.

2.  "Disproportionate" suggests too much.  But that is not the standard.  The standard is "excessive", that is to say, way too much.  A response can be disproportionate without being excessive.

3. Both proportionality analysis and excessive response analysis involve examination of individual incidents.  However, because the proportionality is a good deal finer standard than the excessive response standard, proportionality analysis involves a much closer examination of what was done than excessive response analysis would be.

The microscopic examination of every Israeli effort in self defence might well happen whatever language is used.  But using the language of proportionality makes this microscopic examination easier.

Relying on the language of proportionality rather than on the language of excessive response is an invitation to reweigh every move Israel makes.   Proportionality critics are back seat drivers, arm chair quarterbacks, waiting to see what is done and then harping on the minutae about what, instead, should have been done.

Proportionality analysts do more than just weigh the global response against the attack which prompted it.  They pore over every single incident, condemning this or that particular bombing, demanding justification for every single bullet shot or bomb dropped.

4. In general, the onus lies on an accuser.  That principle applies as much to the accusation of indiscriminate attacks as any other accusation.  A state charged with excessive response to an attack does not have to prove that its response was not excessive.  Rather, it is the accuser who has to establish that the response was excessive.

Yet, when accusations of disproportionality are made against Israel, the onus is placed on Israel to disprove these accusations.  Failure to offer the disproof which satisfies the critics is then turned into proof that Israel is guilty of disproportionality^[40].

5. Israel is not a party to the First Protocol to the Geneva Conventions on the Law of War and not bound by it.  The Protocol I principle prohibiting excessive response, arguably, exists in customary international law.  Even if that is so, customary international law sets out standards binding states, not criminal prohibitions binding individuals.

No Israeli could be prosecuted at international law for breach of a treaty by which Israeli itself is not bound.  It would be unjust to prosecute anyone for an act which is forbidden only by customary international law, and not set out either nationally by statute or internationally by a binding treaty.

6. Excessive response analysis requires consideration of the concrete and direct military advantage anticipated.  So, anyone engaging in excessive response analysis must first of all ask, what is anticipated at the time the response was launched?  Assessment whether an attack is indiscriminate requires examination not of what happened but what was anticipated to happen before the response was engaged.

It regrettably occurs all too often in war that what was anticipated and what actually happened diverge considerably.  The charges of disproportionality are all ex post facto judgments, looking at what happened, comparing what Israel did with what its attackers did.  But an assessment whether attacks are indiscriminate requires looking forward from a point in time when the response was launched.

7.  If the military advantage of a response is minor, civilian losses will almost always be excessive.  Even where the military advantage is substantial, civilian losses are regrettable.  But they may not amount to a violation of the laws in war.   In order to determine whether an attack is indiscriminate there has to be consideration of expected military advantage.

We should ask those who launched the attack, what did they see as the military advantage?  The test of excessive response refers to anticipation.  The anticipation is that of the attackers.  So we should know what the attackers anticipated.

8.  Military attackers, for reasons of military security, may not wish to disclose what they saw as the military advantage anticipated.  Alternatively, their claims of anticipation may be farfetched, out of touch with reality.  Outside advice from independent military experts can tell us what military advantage from the contested operation might reasonably be anticipated in the circumstances.

Indiscriminate attack analysis requires asking the military responders first.  Where there is an answer from them, it needs to be assessed by reference to outside military expert advice.

9. An assessment of excessive response requires consideration of the alternatives available.  Once there is a choice, and either option leads to the same military advantage, the option with the fewest civilian casualties should be chosen.

If there is no choice offering the same military advantage as the option chosen, the matter is different.  In that situation, it should be more difficult to establish that a violation of the laws in war has been committed^[41]. Again, the concept of proportionality ignores this.

10. Part of the determination whether there is an indiscriminate attack is consideration by the use by the other side of the civilian population as a shield.  The Protocol to the Geneva Convention which prohibits indiscriminate attacks also prohibits the use of civilian populations as shields.  The Protocol states that the presence of a civilian populations "shall not be used to render certain points or areas immune from military operations."^[42]

That Protocol also states that the use by one side of the civilian population as shields does not release the other side from the obligation to take precautionary measures to minimize or avoid civilian casualties^[43].  Yet, the use of civilians as shields is relevant to a determination whether civilian loss consequent on an attack on a military target is excessive.  Otherwise the prohibition against use of civilians as shields would be meaningless.  So a question that has to be answered in determining whether a response is excessive is the extent to which the other side has used civilians as shields.

Again, the concept of disproportionality ignores this.  By weighing what one side does against what the other side does instead of weighing anticipated military advantage against anticipated, avoidable civilian loss, the use of civilians as shields is removed from the equation.

11.  The use by the attackers of child soldiers plays out differently for proportionality and excessive response analysis.  The Convention on the Rights of the Child provides:

"States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities."^[44]

The Optional Protocol to this Convention on the involvement of children in armed conflict raises the age to eighteen^[45].

An attacker who conscripts or even allows children to take part in hostilities bears full responsibility for violation of these standards. The side responding to the attack is innocent.  The age of the attacker engages the responsibility of the attacker, not the responsibility of the responder.

In the Gaza war, critics of the Israeli war effort have produced lists of names of civilian casualties in support of their charge of disproportionality.  We can compare those names with Hamas lists of names of their own identified combatants.  One can see children on both lists^[46].  So it is impossible to assume, just on the basis of age, that a victim is not a combatant in light of the use by terrorists of children for terrorist activities.  The charge of disproportionality shifts the blame for child combatants from the attacker, Hamas, where it truly belongs, to the responder, Israel, who is innocent.

12. The same is true for the principle of distinction.  Violation of this principle also is different for proportionality and excessive response analysis.

Protocol I to the Geneva Conventions provides:

"In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."^[47]

This provision sets out a dual obligation.  The first is that the attacker must distinguish between its own combatants and its own civilian populations.  The responder must then direct its operations only against combatants and not civilians.

However, when terrorists do not distinguish between their own combatants and the civilians in their midst it becomes difficult and sometimes impossible for the responder to direct its operations only against combatants and avoid civilians.

One has to remember that excessive response analysis is anticipatory.  Where civilians and combatants are clearly demarcated, it is easier to determine in advance likely civilian casualties and balance those off against anticipated military advantage.  Conversely, where the attacker makes no distinction between its own combatants and civilians then an anticipatory determination whether a response is likely to be excessive becomes more difficult.

Consequently, when assessing the appropriateness of the response to an attack from terrorists who do not respect the principle of distinction, we have to grant to the responder a greater margin of appreciation.  Where the attacker fails to respect the duty to distinguish between its combatants and the civilians in its midst, the likely number of civilian casualties would have to be greater to violate the excessive response standard than when the attacker complies with the duty to distinguish.

As well, as previously noted, proportionality analysis occurs after the fact. This sort of analysis considers only the fact that a civilian was a victim without regard to the difficulty the responder had to determine in advance whether the person was an attacker.  Yet that difficulty is real in situations where the attacking side fails to respect the principle of distinction.

When Hamas uses children, women, the elderly as suicide bombers, how are the Israeli defense forces to know in advance whether any particular child or woman or senior is or is not a terrorist? One can find out after the fact, after the response.  But after the fact is too late both practically and for the purpose of excessive response analysis.

13. The principle of distinction applies to structures as well as individuals.  The attacker is obliged to attack from a military structure, not a civilian structure.  The responder in turn is obliged to direct its response to the enemy's military structures and not its civilian structures.

When a terrorist launches military attacks from civilian structures, from schools or hospitals or mosques, it becomes unrealistic to expect the responder to avoid these civilian structures in its response.   Again here, the fault for the lack of distinction lies with the attacker, not the responder.

The First Protocol provides:

"In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used."^[48]

This presumption is rebuttable.  Regrettably, Hamas in all too many cases has, by its own actions, rebutted the presumption.  If Hamas launches a terrorist attack from a hospital, school or mosque, then the civilian structure is being used to make an effective contribution to military action.

14. The holding of hostages is relevant to excessive response analysis and abused for proportionality analysis.  If attackers hold civilians hostage, then again it becomes more difficult for responders to avoid civilian casualties.  What becomes excessive in this context is greater than in a context where there are no hostages.

Hamas, Fatah, the Arab League, the Organization of Islamic Conference all oppose the resettlement of Palestinian refugees.  Insofar as it is in their power, Palestinian terrorist factions deny Palestinians refugees escape and threaten with terror anyone who would help them escape.

Canadian Prime Minister Jean Chrétien in April 2000 and his Foreign Affairs Minister John Manley in January 2001 offered to resettle Palestinian refugees in Canada.  PLO spokesman Ahmed Abdel Rahman rejected the Prime Minister's offer.  He said: "We reject any kind of settlement of refugees in Arab countries, or in Canada."^[49]

John Manley, in response to his offer, was burned in effigy near the West Bank city of Nablus^[50].  Hussum Khader, head of the largest Palestinian Fatah militia in Nablus, "If Canada is serious about resettlement you could expect military attacks in Ottawa or Montreal".^[51]

The Office of the United Nations High Commissioner for Refugees actively promotes resettlement of refugees.  But the United Nations Relief and Works Agency (UNRWA) does not.  The Refugee Convention tells the High Commissioner for Refugees to stay away from Palestinian refugees^[52].

Richard Falk, in a March 2009 Report, criticizes Israel, and Israel alone, for the fact that refugees can not flee Gaza^[53].  The obvious country of proximate refugee for Palestinians in Gaza is Egypt.  Yet  Falk does not mention Egypt in his Report, not even once.

The suggestion that Israel alone should be the country of refugee for Palestinians has echoes of the claimed but non-existent Palestinian right of return^[54].  And the effect would be the same, the demographic destruction of Israel as a Jewish state and the denial of the right to self determination of the Jewish people by introducing into the country a huge foreign population which shares neither its majority language, nor its majority religion nor its majority culture.

c) The blending

The Goldstone Report consistently blends the disproportionality and indiscriminate response standards.  Here are some examples:

"A concept known as the Dahiya doctrine emerged then, involving the application of disproportionate force and the causing of great damage and destruction to civilian property and infrastructure, and suffering to civilian populations. The Mission concludes from a review of the facts on the ground that it witnessed for itself that what was prescribed as the best strategy appears to have been precisely what was put into practice."^[55]

"Statements by Israeli political and military leaders prior to and during the military operations in Gaza indicate that the Israeli military conception of what was necessary in a war with Hamas viewed disproportionate destruction and creating the maximum disruption in the lives of many people as a legitimate means to achieve not only military but also political goals."^[56]

"The Mission believes that the movement and access restrictions to which West Bank Palestinians are subject are disproportionate to any military objective served,in general, and more so in relation to the increased restrictions during and to some extent after the military operation in Gaza."^[57]

"From the facts available to it, the Mission finds that the deliberate killing of 99 members of the police at the police headquarters and three police stations during the first minutes of the military operations, while they were engaged in civilian tasks inside civilian police facilities, constitutes an attack which failed to strike an acceptable balance between the direct military advantage anticipated (i.e. the killing of those policemen who may have been members of Palestinian armed groups) and the loss of civilian life (i.e. the other policemen killed and members of the public who would inevitably have been present or in the vicinity). The attacks on the Arafat City police headquarters and the Abbas Street police station, al‑Tuffah police station and the Deir al‑Balah investigative police station constituted disproportionate attacks in violation of customary international humanitarian law."^[58]

"The Mission refers to chapter XVII, where it found that the systematic destruction of food production, water services and construction industries was related to the overall policy of disproportionate destruction of a significant part of Gaza's infrastructure."^[59]

"In its operations in southern Lebanon in 2006, there emerged from Israeli military thinking a concept known as the Dahiya doctrine, as a result of the approach taken to the Beirut  neighbourhood of that name. Major General Gadi Eisenkot, the Israeli Northern Command chief, expressed the premise of the doctrine:

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 standpoint, these are not civilian villages, they are military bases. - This is not a recommendation. This is a plan. And it has been approved.^[60]"

"These thoughts, published in October 2008 were preceded by one month by the reflections of Col. (Ret.) Gabriel Siboni: 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."^[61]

"The Mission has referred elsewhere in this Report to the 'day after' doctrine, as explained in the testimonies of Israeli soldiers, which can fit in with the general approach of massively disproportionate destruction without much difficulty."^[62]

"The Israeli military conception of what was necessary in a future war with Hamas seems to have been developed from at least the time of the 2006 conflict in southern Lebanon. It finds its origin in a military doctrine that views disproportionate destruction and creating maximum disruption in the lives of many people as a legitimate means to achieve military and political goals."^[63]

"Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy."^[64]

"From the facts ascertained by or available to it, the Mission believes that the movement and access restrictions to which West Bank Palestinians are subject are disproportionate to any military objective served, in general, particularly in light of the increased restrictions during and to some extent since the military operations in Gaza."^[65]

"The operations were carefully planned in all their phases. Legal opinions and advice were given throughout the planning stages and at certain operational levels during the campaign. There were almost no mistakes made according to the Government of Israel. It is in these circumstances that the Mission concludes that what occurred in just over three weeks at the end of 2008 and the beginning of 2009 was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and  vulnerability." ^[66]

"The Mission has noted with concern public statements by Israeli officials, including senior military officials, to the effect that the use of disproportionate force, attacks on civilian population and destruction of civilian property are legitimate means to achieve Israel's military and political objectives. The Mission believes that such statements not only undermine the entire regime of international law, they are inconsistent with the spirit of the United Nations Charter and, therefore, deserve to be categorically denounced."^[67]

There is no attempt to distinguish between disproportionate and indiscriminate response.  The impression these statements leave is that disproportionality is always wrong.

Particularly telling is the statement:

"The Mission has noted with concern public statements by Israeli officials... to the effect that the use of disproportionate force [is a] legitimate means to achieve Israel's military and political objectives."

So the Mission has taken a standard military doctrine, the use of disproportionate force, and claimed, without analysis or foundation, that it is illegal.

8) Sources

B'nai Brith International made a submission to the Goldstone Mission setting out the distinction set out here between the charge of disproportionate and indiscriminate response.  I also made a personal submission to the same effect.  These submissions are listed in the Report but nowhere considered.  Other than listing the submissions, there is no reference to them.  Their content, the issue raised here, is not addressed.

In general, the Mission relied heavily on NGO submissions.  Though the Mission is billed as a fact finding Mission, it acknowledges that it relied mostly, for a key element of its Report, on findings made by others.  The Report states:

"In this chapter, the Mission examines allegations that the conduct of the Palestinian armed groups placed the civilian population of Gaza and civilian objects at risk of attack.

In its efforts to gather more direct information on the subject, during its investigations in Gaza and in interviews with victims and witnesses of incidents and other informed individuals, the Mission raised questions regarding the conduct of Palestinian armed groups during the hostilities in Gaza. The Mission notes that those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups. Whatever the reasons for their reluctance, the Mission does not discount that the interviewees' reluctance may have stemmed from a fear of reprisals.

The Mission also addressed questions regarding the tactics used by Palestinian armed groups to the Gaza authorities. They responded that they had nothing to do, directly or indirectly, with al‑Qassam Brigades or other armed groups and had no knowledge of their tactics. To gather first‑hand information on the matter, the Mission requested a meeting with representatives of armed groups. However, the groups were not agreeable to such a meeting. The Mission, consequently, had little option but to rely upon indirect sources to a greater extent than for other parts of its investigation.

In forming an opinion on the subject, the Mission did use information it had gathered in the course of investigating certain incidents during the December‑January military operations. However, the Mission mostly reviewed the allegations made in Reports by the Government of Israel, by private individuals and organizations, and by NGOs."^[68]

A determination of the extent to which the conduct of the Palestinian armed groups placed the civilian population of Gaza and civilian objects at risk of attack is central to an analysis whether the Israeli response to Hamas terrorist attacks was excessive.  Yet, the Goldstone Report relied mostly on indirect sources.  There is plenty of analysis done by others which I will not repeat here to show that much of this "indirect" material on which the Goldstone Report relied was factually inaccurate, self serving anti-Zionist propaganda^[69].

One can see the consequences of the absence of first hand information in the conclusions of the Mission on this subject.  The Report states:

"On the basis of the information it gathered, the Mission finds that there are indications that Palestinian armed groups launched rockets from urban areas. The Mission has not been able to obtain any direct evidence that this was done with the specific intent of shielding the rocket launchers from counterstrokes by the Israeli armed forces...

The Mission finds that the presence of Palestinian armed fighters in urban residential areas during the military operations is established. On the basis of the information it gathered, the Mission is unable to form an opinion on the exact nature or the intensity of their combat activities in urban residential areas that would have placed the civilian population and civilian  objects at risk of attack. While Reports reviewed by the Mission credibly indicate that members of Palestinian armed groups were not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack.

From the information it gathered, the Mission does not discount the use of booby traps by the Palestinian armed groups. The Mission has no basis to conclude that civilian lives were put at risk, since none of the Reports records the presence of civilians in or near the houses that were allegedly booby‑trapped.

On the basis of its own investigations and statements by United Nations officials, the Mission excludes that Palestinian armed groups engaged in combat activities from United Nations facilities that were used as shelters during the military operations. The Mission cannot discount the possibility that Palestinian armed groups were active in the vicinity of such facilities.

The Mission is unable to make any determination on the general allegation that Palestinian armed groups used mosques for military purposes....

On the basis of the investigations it has conducted, the Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities and that ambulances were used to transport combatants or for other military purposes.

On the basis of the information it gathered, the Mission found no indication that the civilian population was forced by Hamas or Palestinian armed groups to remain in areas under attack from the Israeli armed forces."^[70]

It is hardly surprising, when the Mission could not gather evidence itself and was relying on reports from people and organizations with an anti-Zionist agenda, that it could find no evidence on many matters relevant to its inquiry.   Reliance of the Mission on inaccurate politicized secondary sources is troubling enough.  When that is combined with a failure to address submissions which go contrary to this propaganda, the reliability of the Report is undermined.

9) Military expertise

Hamas sends rockets into Israel.  Israel responds.  Is the attack excessive in relation to the concrete and direct military advantage anticipated?  To answer that question, one has to know, what was the anticipated military advantage?

As I previously noted, Israel did not cooperate the Goldstone Mission.   This lack of participation meant that there was no first hand evidence to the Mission from those who directed the attacks about what they anticipated.

Even if Israel had participated in the Mission, its military, for reasons of security, may not have wished to disclose what they saw as the military advantage anticipated.   Outside advice from independent military experts could have told the Goldstone Mission what military advantage from the contested operation might reasonably have been anticipated in the circumstances.

Yet there was no such advice.  A glaring omission from the Goldstone Report is an absence of military expert witness testimony.  One of the Mission members was a military man Colonel Desmond Travers, a former Officer in Ireland's Defence Forces.  Whatever his background, his presence is no substitute for military expert evidence.

Mission members are appointed to assess the evidence, not give evidence.  If there had been conflicting military evidence, the presence of Colonel Travers on the Mission would have been valuable.  But there was no conflicting military evidence on the military advantage reasonably to be anticipated by the Israeli response to Hamas attacks.  On the contrary, on this point, there was no evidence at all.

The Report refers to military expertise only once.  This is the reference:

"Analysis of the shells used in the strikes that hit the UNRWA compound indicates clearly that at least seven shells were white phosphorous shells, three of which were complete and four of which were very substantial components of the shells. Military experts indicate that in all probability these shells were fired from a 155 mm Howitzer.

Three other missiles were determined clearly by UNRWA military experts to have been high explosive missiles."^[71]

The Report at several points concludes that Israel violated the excessive response standard.  How could the Mission possibly know what was the military advantage reasonably anticipated without asking any knowledgeable military person?  Their conclusion that Israel violated the excessive response standard appears drawn from thin air, without any military expert evidence of the military advantage anticipated from the attack considered excessive.

The only military expert advice of which I am aware falls on the other side, indicating that the Israeli response to Hamas terrorist attacks was not excessive in relation to the concrete and direct military advantage anticipated and indeed was exemplary.  That was the view of Colonel Richard Kemp, a retired commander of British forces in Afghanistan.  This is what he said on October 16, 2009 to the UN Human Rights Council in response to the Goldstone Report:

"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 Defence 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 Hizballah, 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."

10) The wings of Hamas

You would not know it from reading the Goldstone report, but there is an active debate in anti-terrorist circles about whether it makes sense to hive off the military wing of Hamas and label only that wing terrorist, or whether the whole of Hamas should be considered a terrorist organization.  Australia has opted for the former, listing only the military wing of Hamas, the Izz ad‑Din al‑Qassam Brigades.  The United States, Canada, Japan, and the European Union have opted for the latter, listing all of Hamas as a terrorist organization.

At one time, the Government of Canada split the organization in two, listing the military wing of the organization as terrorist and not the rest.   That meant that Hamas could raise money in Canada and transfer it out of Canada to do its "political" or "social welfare" work in Israel, the West Bank and Gaza.

Canada has no control over the transfer of Hamas funds from its political wing to its military wing once the funds left Canada.  The Government of Canada has no right or opportunity to see the books of the Hamas operations in the West Bank and Gaza.  Money could have left Canada under the name of the Hamas political wing and been transferred abroad to the Hamas military wing and Canada would have been none the wiser.

A Canadian order in council of December 14, 2001 abandoned the split between the military and political/social welfare wings of Hamas.  Instead of just listing  "Hamas-Izz al-Din al-Qassem", the Government of Canada listed Hamas as a whole as a terorist organization.  The accompanying regulatory impact analysis statement said

"The change has been made on the basis of the deterioration of the situation in the Middle East.  There are reasonable grounds to believe the Hamas organization as a whole is involved in or associated with terrorist activities."

The political and social welfare wings of Hamas preach terrorism; the military wing practices it.  The political and social welfare wings indoctrinate and incite to hate; the military wing channels that hatred into suicide bombings and rocket attacks.

A suicide bombing operation or rocket attack requires more than weapons and targets.  It requires a steady stream of willing suicide bombers and rocket attackers.  It is the political and social welfare arms of Hamas, through the incitement to hatred in the schools, youth clubs and mosques it finances in the West Bank and Gaza, that provided these suicide bombers and rocket attackers.  The Anti-Defamation League of B'nai Brith reports:

"Through systematic indoctrination, social pressure and the promise of paradise, Hamas religious and military leaders recruit young, poor men for suicide missions and other attacks."

Hamas is a social service organization in the West Bank and Gaza. In addition to schools, mosques and youth groups, it funds day care centre, athletic clubs, and medical clinics.   But it is a social service organization with a twist.  The Anti-Defamation League further reports:

"the boundaries between Hamas' political/social and its military activities are blurred, particularly since Hamas leaders use mosques, kindergartens, and youth clubs as forums for spewing anti-Israel propaganda and mobilizing support for violence against Israel."

Incitement to hatred is a violation of international human rights standards, prohibited in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and the United Nations Convention on the Elimination of All Forms of Racial Discrimination.  It is no comfort and no answer that it is only the military wing of Hamas which sends the suicide bombers and rocket attackers to their deadly tasks.  Hamas supporters can not be heard to say that once the money goes to schools, mosques and youth clubs, what they teach and preach in those places is their own business.  Nor does the good that Hamas does in the West Bank and Gaza cancel out or justify the gross violations of human rights it incites against Jews.

It was the political wing of Hamas, not its military wing, which sent an appeal on Organization of Islamic Conference meeting in Qatar on December 10th, 2001 asking for support for its suicide operations.  Their appeal said "The martyrdom operations come as part of the war of attrition waged by our people..."  Hamas urged the conference to differentiate between suicide attacks on Israelis and those carrying out terrorist acts.

It is the political/social welfare wing of Hamas, not its military wing, that gives money to surviving families of suicide bombers.  This money provides an incentive for new suicidal killers to volunteer.

It is naive to think that we can separate incitement to terrorism and terrorism itself.  Without the hate propaganda of the sort that the political/social welfare wing of Hamas foments against Israel, Israelis and Jews, the suicide bombings and rocket attacks would never occur.

The Goldstone Report pretends that this debate does not exist.  It takes one side in this debate, that one part of Hamas is terrorist and the other is not.  As a consequence, it goes through contortions attempting to determine on what side of the split the police fall.  But the existence of this dispute and the reasons the Goldstone Mission has for taking the side it does are completely absent from the Report.

The Report states

"In assessing the Israeli strikes against the Legislative Council building and the main prison, the Mission first of all notes that Hamas is an organization with distinct political, military and social welfare components".^[72]

This statement has a footnote with this elaboration:

"This situation is recognized also by Governments which have listed Hamas' military component as "terrorist". The Australian Government's listing of al‑Qassam Brigades as a terrorist organization (last updated 14 September 2007), for instance, explains:

'The functions of the Hamas organization, which has distinct civilian and military wings, include legitimate political and social activities. Its welfare and mosque networks act as a base for its recruitment and propaganda activities. Its terrorist operations are conducted by its military wing, the Izz ad‑Din al‑Qassam Brigades.'"^[73]

Note the use of the word "Governments" in the sentence "This situation is recognized also by Governments which have listed Hamas' military component as 'terrorist'."  If one did not know independently, it would be impossible to learn from the Goldstone Report that Australia is an exception in having listed only the military component as terrorist and that most governments have listed all of Hamas as terrorist.

Indeed, the impression an uninformed reader would have would be the opposite, that the reference to "Governments" is a reference to all governments, not just Australia.  Given the fact that the EU, the US, Japan and Canada have listed the whole organization as terrorist, describing the more limited listing of Australia as what "Governments" have done is positively misleading.

The Report oozes intellectual dishonesty.  It is hard to imagine a more crucial distinction than this one for the analysis in which the Report engages.  Determining whether the Israeli targets are part and parcel of a terrorist or civilian entity is essential for determining whether the targets are legitimate or not.  Yet, the Report glosses over this distinction with an ambiguous and misleading footnote.

C. Conclusions

The Report labels Israeli attempts to use border controls to prevent terrorism as a criminal activity.  The seemingly disparate charges amount in substance to different ways of saying the say thing, that Israel overreacted in responding to the Hamas terrorist threat.  None of these charges could have been levied if the Mission concluded that the Israel response to Hamas terrorism fit within the parameters of an acceptable response.

Would the Mission have come to the same conclusions if it had not been guilty of all the omissions set out here?  If the Mission had got the law on disproportionality right, if the Mission had obtained first hand the facts on which its conclusions on disproportionality are based instead of relying mostly on indirect sources, if the Mission had had an unbiassed mandate and composition, if the Mission had paid attention to the Hamas covenant, if the Mission had consulted military experts, if the Mission had got its terminology right, if the Mission had considered the responsibility of Egypt for access to Gaza, if the Mission had not glossed over the question whether all of Hamas and not just its military wing was terrorist, the conclusions of the Report might have been far different.

One can speculate what this Mission, or, better still, an independent unbiased investigation, might have done with first hand facts and accurate law.  One can say right now that this Mission, with its biased composition and mandate, with the wrong law and missing facts, has produced a report which is not reliable.

Is the Goldstone Report stone or gold?  My verdict is stone.  Like stone, the report is thick, heavy, dense and worthless.  It is useful as a piece of anti-Zionist propaganda.  But for those not inclined to engage in that propaganda, it is not much use at all.  Anti-Zionists will want to keep it afloat.  For others,  it deserves to sink like a stone, without a trace.

^[1] Earlier versions of this paper were presented to the Executive Council of Australian Jewry Annual Meeting 29 November 2009, Sydney Australia and the University of Sussex, Brighton, England, 8 December 2009.

^[2] For a further elaboration of this point, see "Chapter Four:  The accusation of occupation" in Aftershock: Anti-Zionism and antisemitism, Dundurn Press 2005.

^[3] "Saving Lives: Israel's Anti-Terrorist Fence - Answers to Questions" January 1, 2004, Israel Ministry of Foreign Affairs,

^[4] Paragraph 25.

^[5] Paragraph 21.

^[6] Paragraph 131.

^[7] Human Rights Council resolution 5/2, article 3(a)

^[8] Order of January 30, 2004.

^[9] Boleslaw Adam Boczek International Law: A Dictionary Scarecrow Press, 2005, page 392 paragraph 326.

^[10] Paragraph 27.

^[11] United Nations General Assembly resolution 3314, Article 3(c).

^[12] Article 55, Fourth Geneva Convention on the Protection of Civilians in Time of War.

^[13] Parargraph 1305.

^[14] Paragraph 144.

^[15] Paragraph 278

^[16] Paragraph 172

^[17] Paragraph 427.

^[18] Paragraph 465.

^[19] Paragraph 472.

^[20] Footnote 464

^[21] Paragraph 858.

^[22] Paragraph 1764

^[23] Footnote 64

^[24] Paragraph 52.

^[25] Paragraph 399

^[26] Paragraph 465.

^[27] Paragraph 616.

^[28] Paragraph 853.

^[29] Paragraph 982

^[30] Paragraph 1175.

^[31] Paragraph 1235.

^[32] Paragraph 971.

^[33] Paragraph 1183.

^[34] Paragraph 172

^[35] Doug DuBrin "The Powell Doctrine"

^[36] Act IV Scene 8.

^[37] Article 51(4).

^[38] Article 51(5)(b).

^[39] . Article 85(3).

^[40] See for example Report of the Commission of Inquiry on Lebanon, A/HRC/3/2, November 23, 2006 paragraph 331.

^[41] . See Protocol I to the Geneva Conventions, Article 57(3).

^[42] . Protocol I to the Geneva Conventions Article 51(7).

^[43] . Article 51(8).

^[44] Article 38(2).

^[45] Article 1.

^[46] Ethan Bronner "Grim testimony on Israeli Assault" International Herald Tribune March 20, 2009

^[47] Article 48

^[48] Article 52(3).

^[49] Robert Fife, "Policy chaos as PM stumbles again", National Post, April 13, 2000.

^[50] Mike Trickey "Angry at a reported offer of a home, Palestinians burn Manley in effigy" Ottawa Citizen, January 19, 2001.

^[51] "Canadians might understand now" Canadian Jewish News, February 22, 2001.

^[52] Article 1D.

^[53] Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk UN Document A/HRC/10/20, 17 March 2009

^[54] David Matas Aftershock: Anti-Zionism and Antisemitism Dundurn Press 2005, Chapter Seven: "The claimed Palestinian right of return"

^[55] Paragraph 62

^[56] Paragraph 63.

^[57] Paragraph 96.

^[58] Paragraph 435.

^[59] Paragraph 1023.

^[60] Paragraph 1191.

^[61] Paragraph 1193.

^[62] Paragraph 1203.

^[63] Paragraph 1209.

^[64] Paragraph 1211.

^[65] Paragraph 1580.

^[66] Paragraph 1690.

^[67] Paragraph 1691.

^[68] Paragraph 437 to 440.

^[69] See the websites of Eye on the UN, UN Watch and NGO Monitor.

^[70] Paragraphs 480 to 486.

^[71] Paragraphs 568 and 569.

^[72] Paragraph 380

^[73] Paragraph 246