UNDERSTANDING
THE GOLDSTONE REPORT

Trevor Norwitz on the double standards used by the Mission in both assessing evidence/testimony and passing judgments (almost exclusively negative ones on Israel).

Double Standard in Assessment of Credibility of Evidence and Intentions.

One of the most surprising elements of your Report is the ease with which you made findings of fact regarding the subjective intentions of the Israeli government and individual Israeli solders to strike at civilian targets and to murder civilians. In fact, you assert that you were able to determine the presence of the subjective fault element (mens rea)required for criminal liability “[i]n almost all of the cases [you examined]”. (25) Your accusations that Israel willfully and intentionally attacked civilians could not be more stark. To quote just one of very many examples: “In reviewing the above incidents the Mission found in every case that the Israeli armed forces had carried out direct intentional strikes against civilians.” (808) And you purported to be able to make these determinations without once speaking to the Israelis whom you accuse of such horrific actions and intentions.

In contrast, you were virtually never able to ascertain any improper intention on the part of the Palestinian parties to this dispute even where the intention behind their actions would seem to be fairly obvious and even though you “enjoyed” their full support and cooperation.

Example: Firing rockets from civilian areas: “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 toobtain any direct evidence that this was done with the specific intent of shielding the rocket launchers fromcounterstrokes by the Israeli armed forces.” (480)

Another example: Hamas fighters mingling with civilians: “The Mission finds that the presence of Palestinian armed fighters in urban residential areas during the military operations is established. . . 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 thecivilian population with the intention of shielding themselves from attack.”(481)12

The evidence on which you base your conclusions that Israel consistently and as a matter of policy attacked civilians and civilian objects consisted of the fact of Israel’s technological superiority and on statements by a handful of Israeli leaders.13 The section on Israel’s strategy in your Report concludes (at 1211): “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.”

Aside from the inadequacy of using this sort of circumstantial evidence to determine subjective intentions, and the fact that you have a tendency to take these quotes out of context,14 it is striking how unhesitatingly and how fully you attribute probative value to public statements by Israeli leaders (even if they appear to have been made in a political context and could easily be understood to be mere “puffery”).

On the other hand, your Report does not include any quotes from Hamas leaders regarding their intentions to attack Israeli civilians – or the Hamas charter which calls for the destruction of Israel and killing of Jews – and even when Hamas does admit [p. 6] that it uses human shields or that policemen killed by Israeli strikes were its operatives, you cast doubt on that admission and suggest that it is mere puffery.15 Even in case of “Palestinian armed groups” firing rockets at Sderot in Israel where their intentions are quite obvious, you are unwilling to attribute any subjective intent but merely find that “there is significant evidence to suggest that one of the primary purposes of the rocket and mortar attacks is to spread terror amongst the Israeli civilian population. . .”

This double standard in your treatment of witnesses is also evident throughout your report where you accord full credibility to virtually all Palestinian witness and praise their objectivity (even though you acknowledge the presence of duress) but almost invariably cast doubt upon Israeli accounts you received. The Israeli government cannot even acknowledge an error without your Report casting doubt on it,16 while the only times you seem to doubt the credibility of Palestinian witnesses is when so doing would be exculpatory.17

I could go on and on with examples but the point is clear: your Mission simply took the accusations made by obviously interested parties18 and (by your own admission) coerced witnesses, in some cases “corroborated” by anonymous reports, and repackaged them into “findings of fact” and the most horrific of allegations. Virtually no effort was made to uncover the truth or to get behind the accusations and ask why particular actions were taken, beyond asking Israel to explain and drawing a negative inference from their refusal, on principle, to respond. You may disagree with Israel’s decision to ignore your Mission, but when that becomes the fundamental linchpin on which you reach your conclusions, that is not fact-finding.

It is politics. I myself was unsure of the Israeli government’s decision not to cooperate with your investigation, but it becomes hard to argue with those who say that your Report validates the view that the deck was so stacked against Israel that it was not worth playing the game.

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Law-Making Rather than Fact-Finding.

A second manner in which you extended the scope of your fact-finding mission was in your decision to go beyond fact-finding and to express legal opinions on which you then based your accusations of war crimes. For example, the question of [p. 9] whether Gaza should still be considered “occupied” following Israel’s unilateral and complete withdrawal is a legal question and a highly contentious one. Certainly Israel maintains that Gaza is no longer occupied and there are strong arguments in that regard. That substantive question is beyond the scope of this letter23, but the point is that you chose to reach a legal conclusion in the context of a fact-finding mission, based very grave accusations on that legal position, and did so with no due process and no opportunity for debate on the merits of the legal issue.

A second instance of law making is your holding “that the Israeli system of investigation does not comply” with the “standards of impartiality, independence, promptness and effectiveness” required by International law. I will leave it to others better placed than I am to address the substance of your holding and note only that it is my understanding that the Israeli standards for investigating the actions of its own military are not very different from those followed by the United States, Britain and other modern countries with active and honorable militaries. Similarly (although probably a matter of mixed fact and law) is your finding that that the Gaza police force was a civilian police force entitled to protection under international humanitarian law.

To be sure you did some fact-finding. You unearthed the details regarding the IDF’s attack on the Gaza police-stations at the outbreak of the operation. You also established that, after Hamas seized control of Gaza in July 2007, it “merged the Gaza police with the ‘Executive Force’ it had created after its election victory,” and that “a great number of the Gaza policemen were recruited among Hamas supporters or members of Palestinian armed groups”. You noted that you had been provided with information on Gaza police members’ alleged affiliation with armed groups that purported to be “based to a large extent on the websites of the armed groups” themselves24, and you accepted (in your usual noncommittal way regarding allegations against Palestinians that you preferred not to investigate) “that there may be individual members of the Gaza police that were at the same time members of Palestinian armed groups and thus combatants”. You nevertheless concluded: “[F] rom the facts gathered by it, the Mission finds that there is insufficient information toconclude that the Gaza police as a whole had been ‘incorporated’ into the armed forces of the Gaza authorities” and that the Gaza police were a “civilian law-enforcement agency.” Clearly Israel had a different view on this issue but again you were happy to reach this conclusion – and the resulting verdict of guilty of “war crimes” – without their input.

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Fundamental but Dubious Assumptions

Without denying that there are matters raised in your report that deserve further investigation and explanation by Israel, it appears that your wholesale condemnations of Israel and accusations of war crimes” rest in large part on certain fundamental premises or a “world view” shared by you and your fellow Commissioners. These premises reflect assumptions that underlie much of your Report, but their validity is not incontrovertible. Indeed they are highly contentious and to the degree these assumptions are wrong, your Report’s conclusions are invalid.

Legitimizing Hamas.

One of these fundamental assumptions that permeates your entire analysis is that Hamas is a nonviolent political organization distinct from its military wing. This characterization of Hamas is entirely implausible. It requires more than naiveté to reach that conclusion, in light of all the readily available evidence, including that organization’s refusal to renounce the use of violence or even to recognize the existence of the State of Israel (which together torpedoed the peace process and damned Gaza to its present state of destitution), the express statements of Hamas’ own leadership regarding the use of violence and terrorist tactics, and the fact that the Hamas charter calls for the destruction of Israel and genocide against the Jewish people (which remarkably does not merit a mention in your Report). Because it openly embraces terrorist tactics, Hamas is widely condemned as a terrorist organization. In light of all the readily available evidence, the suggestion that Hamas can be neatly separated from its military wing is spurious.

Earlier I stated that your Report not only legitimizes but whitewashes Hamas. Although the press has chosen not to highlight this, a close review of every reference to Hamas throughout your Report will reveal that, while there are some perfunctory condemnations of “armed Palestinian groups” (which include Hamas’ Al-Qassam Brigades) and some measured criticism of the “Gaza Authorities” regarding things they could have done better (sins of omission rather than commission), Hamas itself gets off virtually scot-free in your Report and even emerges looking like an innocent victim. My point here is not to refute as a substantive matter that highly [p. 11] troubling aspect of your Report – I shall leave that to others – but simply to observe that a critical assumption underlying many of your claims of “war crimes” is that Hamas should be considered independent of its infamous military wing. To the extent that this assumption is flawed, the conclusions on which it is based are invalid. But the very fact that you approached your fact-finding mission with this as a basic assumption indicates a perspective that calls the conclusions drawn by your Mission into question.

Gaza Still Occupied?

A second fundamental assumption, discussed above, is the notion that Gaza remains occupied by Israel notwithstanding its complete unilateral withdrawal four years ago which, in your view26, has “‘done nothing’ to alter the character of Israel as an occupying Power.” 27 Again, I will leave it to others to debunk this dubious legal conclusion, noting simply that it is one of the foundations on which you build your case for the prosecution. The implications of your position are dramatic. For example, although Israel facilitated the supply of significant humanitarian aid to Gaza and even your Report acknowledges “that the supply of humanitarian goods, particularly foodstuffs, allowed into Gaza by Israel temporarily increased during the military operations” (72), you nevertheless condemn Israel as violating the Fourth Geneva Convention for not doing enough “as Occupying Power” to provide such supplies. In other words, your report twists Israel’s humanitarian efforts (done from its perspective out of kindness rather than legal obligation) into a war crime because you reached a different legal conclusion on the status of Gaza. If you are wrong in your conclusion that Gaza remains occupied, then rather than being condemned as war criminals, Israel should be commended for its humanitarian efforts to support the Palestinian civilian population even while that it was in the midst of a bloody war to root out the terrorists who had converted their homes into rocket launching sites.

Placing Blame.

Perhaps the most fundamental and flawed assumption underlying your Report is the position that the tragic situation of the Palestinian people, and especially those in Gaza, is all Israel’s fault. That your Mission is of this view is clear from the way you characterize (or rather mischaracterize) the history of the region; it is clear from your use of language throughout your Report; it is clear from your failure to seek to understand why actions were taken – why Israel shut border crossings? Why Israel built the security barrier? Why Israel felt the need to undertake the Gaza operation at all? And it is clear from your refusal to acknowledge what Hamas and its charter say unequivocally that Hamas exists to destroy the Jewish State. Your perspective is also clear from specific statements, including the curious analysis you offer in one of your concluding paragraphs where you say: “After decades of sustained conflict, the level of threat to which both Palestinians and Israelis are subjected has not abated, but if anything increased . . . The State of Israel is therefore also failing to protect its own citizens by refusing to acknowledge the futility of resorting to violent means and military power.” (1711) It is telling that it is Israel you criticize in this regard, and it is unclear what you expect Israel to do in the context of a foe that refuses to negotiate but only wants to fight.28

There are other elements of the “world view” with which you and your fellow Commissioners approached your assignment and which impacted your Report – assumptions regarding Israel’s right to exist as a Jewish state at all, for example, or regarding the legitimacy of a separation barrier to protect Israeli civilians from terrorist attacks, or whether Israel is a decent country (for example at 132 you state: “The Mission is also of the view that the Israeli system presents [p. 12] inherently discriminatory features that have proven to make the pursuit of justice for Palestinian victims very difficult.”) This is not the place to debate these interesting topics; I mention them solely to make the point that there are perspectives and prejudices that underlie your investigation that cannot but influence your findings.