UNDERSTANDING
THE GOLDSTONE REPORT

• Legal Reasoning

The report repeatedly cites international law to make “legal findings,” but its version of international law is very selective, and highly contestable. The Report, for example, ignores international law governing terrorist groups even though Hamas is widely classified as a terrorist group by legal authorities (with reason: it openly admits that it targets civilians). In some cases, the Report explicitly rejects clear legal precedent without explanation. For instance, the Report ignored "customary law," and refused to consider Israel’s arguments that its fighting methods were explicitly based on methods used by NATO, methods legally approved Goldstone himself as Prosecutor to the International Criminal Tribunal on the Former Yugoslavia. In other cases, the Report simply ignored relevant customs of international law established by fighting in Iraq, Afghanistan, Yugoslavia and elsewhere. Why did the Goldstone Report apply a legal standard to Israel harsher that any that has been used against any other country at any time in history?

Another source of legal contention concerns the role of the laws of war in combat against terrorist groups in urban settings. Most of the modern laws of war, such as those described in the Geneva Conventions, were developed in terms of conventional armies fighting on battlefields. Do the traditional rules apply at all when one side of the war is fought by a terrorist group that has no interest in following any of the laws of war and uses its own civilian population as a shield? Some would say that the law of war cannot be flatly applied to asymmetric urban warfare, and certainly not the harsh version of international law invented by the Goldstone Report. Are critics right to claim that the Goldstone Report will backfire?  How should the laws of war develop in the era of international terrorism and new international tribunals like the International Criminal Court?

• Testimony

One of the fundamental issues that permeates the Goldstone report and. we contend, vitiates its findings repeatedly, concerns the conditions under the judges heard and evaluated testimony: how the witnesses were found and brought before the tribunal, the impact of intimidation on suppressing evidence, the (lack of) examination of testimony for inconsistencies, the criteria for choosing to hear or to dismiss witnesses and testimony.  This section concerns general arguments and reflection.  For more detailed analysis, see Case Studies.

• Concealed Evidence

According to annex III of the Goldstone Report, the Fact-finding Mission (FFM) received 31 submissions from members of the public and NGO's, including a number who's evidence supported Israeli claims: a group of fifteen Australian lawyers,  Take-a-Pen, Yvonne Green , NGO Monitor, Elihu Richter, Ian Lacey, Maurice Ostroff, Bnai Brith and  Jerusalem Center for Public Affairs among others. 

Despite the fact that the Mission did not have the cooperation of the Israeli government, the Goldstone Report failed to address most of the highly relevant and credible information contained in these memoranda. We feel that in the absence of an opportunity to examine this important evidence, it is impossible for the public, as well as the UNHRC to whom the Mission was reporting, to properly evaluate it. 

As a result Maurice Ostroff, who submitted five memos, requested, in an email to Judge Goldstone as long ago as last August, that all submissions received by the Fact-finding Mission be made available on the Mission's web site for the benefit of the public and more importantly for members of the UNHRC, the Security Council and the General Assembly.  Judge Goldstone firmly agreed to support this request in an email to Ostroff:

(NB: The UK parliamentary Select Committees make a practice of archiving for public view, all memoranda received from the public.)

After significant delays, Ostroff again wrote the Secretariat asking for action in this matter.  He received the following reply on October 24, 2009.

In relation to your query as to whether the submissions made to the United Nations Fact Finding Mission on the Gaza Conflict in response to the Mission's call of 8 June 2009 would be posted on the UNFFMGC webpage, after further reviewing the material, we have concluded that it would not be appropriate to post them. The reason is that some of the submissions include names of individuals who are indicated as sources of some of the information provided, without indication of their consent to be named publicly.  In doubt, and out of respect for those individuals, it would not be possible to make such information public. In the circumstances, doing otherwise would be contrary to established practice with regard to source protection.  Rather than being selective in posting information, we have preferred to adopt one standard and all submissions will be retained in the Mission's archives, together with all other documentation received by the Mission.  It goes without saying that it remains the prerogative of the authors of the submissions that do not present such problems to publicize them as they consider most appropriate. We have already indicated so to those submitting organizations who have inquired about the same matter".

The reason given by the secretariat directly conflicts with the spirit of the FFM's initial call for submissions which states unambiguously "Unless otherwise indicated by the author, the Mission will assume that submissions can be made public." And given the way in which the Mission ignored the content of these submissions, it seems like this decision, whatever the stated reasons, continues the policy of dismissal by further concealing this evidence.

In the circumstances we have decided to make the Understanding Goldstone site available for publication of submissions to the FFM by all authors who are willing that we do so. We invite such submissions from all, including those whose views are unfavorable to Israel. We do not expect the Mission's site to link to us the way we link to them.

• (In)Credulity

• "Goldstone Standard"