Saturday, January 30, 2010

Israel's Goldstone Response

You can read the 52 page response here. It's not intended to be a comprehensive response to the Goldstone report, though it does address several allegations made in detail. More useful, I think, is its overview of the investigation procedures Israel takes in response to criminal allegations. If these procedures are sound, there is not grounds for international appeal even if a judge reviewing de novo might have reached different conclusions.


N. Friedman said...


If you have not already done so, you might want to read Professor Dershowitz's report on the Goldstone report.

Dershowitz's report is worth the time. It is sober and effectively shows that the report can not be taken at face value.

Also, interesting, is that Dershowitz refers to Goldstone as lying. Here are the passages:

[Page 5] Finally, the South African member, Richard Goldstone, insisted that the hearings in Gaza be televised, thereby assuring that all witnesses had to tow the Hamas party line or risk certain death. Goldstone also lied about the role Hamas played in escorting and presenting evidence to the Mission. Here is what Goldstone wrote about being escorted by Hamas: “I must, however, categorically deny the allegation that Hamas officials accompanied Members of the Fact Finding Mission at all, let alone ‘at every stage of their visit to Gaza.’ Reports to that effect are denial of truth, as I have already publically stated. I would have found this to be quite unacceptable.”15 The actual truth is quite different. According to an Associated Press article published on June 9, 2009, “Hamas security often accompanied his [Goldstone’s] team during their five-day trip to Gaza last week, raising questions about the ability of witnesses to freely describe the militant group’s actions.”16

Continued on next post.

N. Friedman said...


[Page 23 - 24] Goldstone acknowledged that the omission was deliberate and tried to explain it away:

“[T]was no reliance on Col. Kemp mainly because in our Report we did not deal with the issues he raised regarding the problems of conducting military operations in civilian areas and second-guessing decisions made by soldiers and their commanding officers ‘in the fog of war.’”96


That is a willful lie. The report dealt specifically with precisely that issue. Everything the Israeli Army did was done in the course of a difficult military operation designed to stop rockets fired from civilian areas from targeting a million Israeli children, women and other civilians. The basic flaw of the Goldstone Report is that, without a scintilla of evidence, the biased commissioners concluded that the Israeli military action in Gaza was motivated not by the defense of its citizens but rather by desire to murder Palestinian civilians. Based on that unproven, untrue and biased conclusion, the commission was then able to ignore massive evidence, much of it self-proving and easily available on the internet, that the Israeli Army took considerable steps to reduce civilian casualties, while engaged in military action designed to prevent the murder of its own civilians. Had it considered and credited Colonel Kemp’s conclusion that “the IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare,” it could not come to the mendacious conclusion it reached, namely that it was the explicit policy of the IDF to target Palestinian civilians and to maximize civilian deaths. A nation’s armed forces cannot at the same time do more to safeguard civilians than any army in history, while it is targeting them for death. There is a simpler and more sinister reason why the report chose to ignore the expert testimony of Colonel Kemp: it totally undercut the central conclusion of the report regarding Israel’s policy, intentions and actions. The very idea that the report “did not deal with the issues” raised so powerfully by Colonel Kemp, as Goldstone has claimed, speaks volumes about the bias of its authors.

N. Friedman said...

The most interesting point raised by Dershowitz is that the Goldstone report applies a different evidentiary approach to dealing with evidence related to Hamas and Israel.

[Page 44 - 45] Since intentionality, or lack thereof, was so important to the report’s conclusions, it would seem essential that the report would apply the same evidentiary standards, rules and criteria in determining the intent of Israel and in determining the intent of Hamas. Yet a careful review of the report makes it crystal clear that its writers applied totally different standards, rules and criteria in evaluating the intent of the parties to the conflict.

The report resolved doubts against Israel in concluding that its leaders intended to kill civilians, while resolving doubts in favor of Hamas in concluding that it did not intend to use Palestinian civilians as human shields. Moreover, when it had precisely the same sort of evidence in relation to both sides—for example, statements by leaders prior to the commencement of the operation—it attributed significant weight to the Israeli statements, while entirely discounting comparable Hamas statements. This sort of evidentiary bias, though subtle, and perhaps not readily apparent to the non-legal reader, permeates the entire report.

Continued on next post:

N. Friedman said...

In addition to the statements of leaders, which are treated so differently, the report takes a completely different view regarding the inferring of intent from actions. When it comes to Israel, the report repeatedly looks to results and infers from the results that they must have been intended. But when it comes to Hamas, it refuses to draw inferences regarding intent from results. For example, it acknowledges that some combatants wore civilian clothes, and it offers no reasonable explanation for why this would be so other than to mingle indistinguishably from civilians. Yet it refuses to infer intent from these actions. This is crucial because the violation of international humanitarian law known as human shield use requires specific intent.207 For Hamas to be guilty of using human shields, militants not only needed to know that when they fired rockets from civilian areas, Israel was deterred from responding, but it must have been their purpose in shooting the rockets from civilian areas to deter Israel from responding or to cause Israel to kill civilians. Although the Mission, as discussed above, half-heartedly concludes that militants fired rockets from civilian areas, they refuse to believe that this was done with the purpose of rendering such areas immune from attack. Here are the report’s words: “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 counterattacks by the Israeli armed forces.”208 Notice the use of the words direct evidence. As discussed in section I above, the report used five categories of evidence to conclude Israel had a policy of intentionally killing civilians: military leader statements, political leader statements, circumstance (Israel’s use of advanced weaponry ), result (the sheer number of civilian deaths), and alleged related actions (destruction of infrastructure). None of these categories constitute direct evidence of intent. The report does not explain why it requires direct evidence to infer Hamas intent but is content to rely on extremely weak circumstantial evidence to infer Israeli intent.

Enough said.