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The segment of Trevor Norwitz's open letter to Goldstone dealing with its flaws where testimony is concerned.
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Your Procedurally Flawed Investigation
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In my earlier letter to you, I made three points:
(i)            I implored you not to hold the Israeli government’s refusal to cooperate with your investigation against Israel or allow that to be a source of injustice,
(ii)          I begged you to try to find out the relevant facts regarding the activities and actions of Hamas and other terrorist groups operating in Gaza and Israel’s efforts to avoid civilian casualties, notwithstanding the refusal of the Israeli government to assist you, and
(iii)Â Â Â Â Â Â Â Â Â I urged you to put your findings in their proper context. You said you would take these things into account but unfortunately I now see my worst fears realized.
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Passing judgment based on one-sided (and tainted) evidence. Your Mission took Israel’s refusal to cooperate as an invitation (or perhaps as an excuse) to allow the scales of justice to weigh with only one pan being filled. Time and time again, you made findings of fact based solely on evidence provided by the Palestinian side of the conflict (even though your Report expressly acknowledges that the testimony you received from witnesses in Gaza was tainted by duress (8), not to mention obvious, if understandable, bias). Almost every one of your “findings of factâ€was arrived at using the formula: the direct evidence the Mission collected said X; no evidence to the contrary has been provided; therefore “onthe information available to it9, the Mission findsâ€X.
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And you did this in the full knowledge that you had heard only half the story. I understand that you and your fellow Commissioners were outraged by Israel’s decision to snub you (as is evident in the numerous references to their refusal to cooperate throughout your Report – I stopped counting at forty) but if your investigation was truly seeking to uncover the truth, you quite simply could not have reached conclusions and made such momentous and awful accusations based on one-sided evidence. In your October 19 article in the Jerusalem Post, you state: “Our mission obviously could only consider and report on what it saw, heard and read. If the government of Israel failed to bring facts and analyses to our attention, we cannot fairly be blamed for the consequences.†I strongly disagree. As one entrusted to find the facts, you had a moral if not legal obligation to seek the truth, and if you were not able to do so, you should have said just that, rather than pretending that you have established the truth (“based on information providedâ€) when you knew that was not so and that you had only heard one side of the story.
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Failure to Investigate Critical Facts.
Moreover, your Report shows virtually no effort to look beyond the evidence presented to you (overwhelmingly from the Palestinian side) to find out what really happened in Gaza and – most crucially – why: why Israel launched the (unfortunately named) “Operation Cast Lead†and why individual officers and soldiers took the actions they did in the heat of battle. [p. 3]
To cite one important example, it was widely reported that the Hamas high command was camped out in the Al-Shifa Hospital, which would of course constitute a war crime and would probably have justified Israel attacking that hospital notwithstanding the civilian presence there. Fortunately for any actual civilians in the hospital, the Israel Defense Forces (IDF) refrained (although neither that nor any other act of restraint by the IDF – and there is much evidence that the IDF pulled back from many attacks against legitimate military targets because of the presence of civilians – was deemed worthy of a mention in your Report). You note those reports about the Al-Shifa Hospital but simply state (at 466): “The Mission did not investigate the case of the Al-Shifa Hospital and is not in a position to make any finding with regard to these allegations.†You then immediately go on – astoundingly – to make a formal finding of fact (at 467) that â€[o] n thebasis of the investigations it hasconducted, the Mission did not find any evidence to support the allegations made by the Israeli government [that Hamas used medical facilities for cover].â€
A second example of your Mission’s inappropriate wholesale reliance on one-sided evidence relates to your findings that Israel’s attacks on the Legislative Council building (in which you note there were no casualties) and Gaza main prison (in which a prison guard was killed) were war crimes. In your standard formulation, you conclude: “There is an absence of evidence or, indeed, any allegation from the Israeli Government and armed forces that the Legislative Council building, the Ministry of Justice or the Gaza main prison ‘made an effective contribution to military action.’ On the informationavailable to it, the Mission finds that the attacks on these buildings constituted deliberate attacks on civilian objects in violation of the rule of customary international humanitarian law . . .â€
It is notable that this finding follows your observation (paragraph 367, footnote 235) that there was evidence that of the approximately 300 prisoners in custody in the prison at the time it was struck there were “roughly 115 alleged collaborators with Israel [and] about 70 Fatah supporters held on various charges . . .†Even without Israel’s having to spell it out for you, you might easily have discerned several potential military advantages to be obtained from attacking this prison (which based on evidence your Mission uncovered does not appear to be a facility dedicated solely to civilian activities of the Gaza authorities) and facilitating the escape of its inmates. Your rejection of Israel’s determination to attack the “command and control†infrastructure of Hamas is rooted in the distinction which you insist on drawing between Hamas and its military wing, and your insistence on the legitimacy and sanctity of the former. These highly dubious premises that underlie many of your “war crime†findings fly in the face of the broad recognition of Hamas as a terrorist organization.
Use of Hearsay and Anonymous Accusations as Evidence.
Another serious procedural flaw in your Report is your reliance on hearsay and accusations made anonymously to “corroborate†your allegations. One clear example of this is the anonymous report by a group called Breaking the Silence entitled “Soldiers’ Testimony from Operation Cast Lead, Gaza 2009†which is cited dozens of times in your Report as providing “strong corroboration,†and the validity and veracity of which you accept without question. Indeed you criticize Israel’s efforts to lobby countries that funded this anonymous report as “contrary to the spirit of the Declaration [on Human Rights Defenders]â€. As a judge, you must obviously appreciate that such anonymous accusations, particularly to the extent they merely recite what the anonymous speaker heard from some other source and are thus pure hearsay, would not be admissible as evidence in a court, precisely because the prejudicial impact of those allegations is far outweighed by any probative value they [p. 4] may have. I expect that your response may be that your investigation was not a court of law and therefore not subject to the same evidentiary rules. But I would argue that in this situation, where the prejudicial impact on Israel and the Jewish people in general of your accusations of “war crimes†and “crimes against humanity†was obviously going to be so devastating, it behooved you and your fellow commissioners to, at a minimum, adhere to basic principles of evidence and procedural fairness.
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More Prejudice than Proof.
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Indeed this failure to strike an appropriate balance between what is probative and what is prejudicial is a central feature of your investigation and your Report. There are innumerable examples of offhand remarks and references in your Report to terrible things that Israel and Israelis are alleged to have done, without any justification or evidence offered. Sometimes these are stated as naked allegations (for example you refer to “concerns of torture and other ill-treatment†of Palestinian detainees) (209), while on many other occasions they are simply stated as facts even though they are not facts.
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To cite just one example, at 642 you state: “On 5 February 2003, for instance, Israeli snipers shot and killed two staff nurses who were on duty inside the hospital.†These unsubstantiated and often false allegations reflect a bias and a flagrant disregard for the basic principles of due process and all norms of fairness and justice.
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One last – and more serious – example of this disregard for the balance between probative and prejudicial is your decision to televise the interviews with Palestinian witnesses. You state (at 166):
“The purpose of the public hearings, which were broadcast live, was to enable victims, witnesses and experts from all sides to the conflict to speak directly to as many people as possible in the region as well as in the international community. The Mission is of the view that no written word can replace the voice of victims.â€10
It hardly bears mentioning that any probative value of these interviews (particularly when they only tell one side of the story and, as you acknowledge, were tainted by duress) does not justify the inflammatory effects of televising them before the report is issued. The fact that you chose to publicize these hearings is a further indication that your Report was designed to play into a trial in the “court of public opinion,†rather than to be a true finding of facts.
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Procedural Flaws 
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