Thursday, October 01, 2009

Goldstone Report: Did The Commission Even Read Their Own Report?

It seems that the Goldstone Commission did not check out all of their facts--or even notice how one section of the report makes a claim diametrically opposed to what Commission actually did.

Take a look at the Initial Response to Report of the Fact Finding Mission on Gaza (PDF here)

Under the category Selection of Incidents:

A troubling insight into the approach of the Mission in selecting the incidents it wished to address was provided in response by Justice Goldstone to an enquiry asking why the Mission had ignored requests to invite witnesses such as Colonel Richard Kemp, the former commander of British forces in Afghanistan and an adviser to the UK cabinet, and a recognized expert in the field of warfare in conditions similar to that in Gaza[8]. In an open response dated 21 September 2009 explaining the refusal to invite Colonel Kemp to testify, Goldstone admitted that the Mission had deliberately selected incidents so as to evade the complex dilemmas of confronting threats in civilian areas:
"[t]here 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". We avoided having to do so in the incidents we decided to investigate."[emphasis added]
Footnote 8 suggests another reason why Col. Kemp's may have been omitted:
An alternative explanation for the Mission's refusal to invite Colonel Kemp to give evidence may be his reported comments on the BBC on January 9, 2009:
"There has never been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and death, than the IDF is doing today in Gaza."
But the excuse provided by the Goldstone Commission is problematic on its face. Again, the reason given was:
[t]here 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".
But second-guessing the decisions by officers is exactly what they did!

Israel's critique of the Goldstone Report notes:
22. The Report pays lip service to the established international law principle that the legality of military action must be assessed based on the information available to a “reasonable military commander” at the time of each individual targeting decision, and not based on hindsight. But the Report nonetheless repeatedly reaches sweeping conclusions about “war crimes” without ever examining such real-time information. The Report does not examine what information was available to the commanders in the field, how they might have perceived the immediate threats to themselves and their soldiers, what weapons were available at that moment on the ground, and what information was available about potential risks to civilians. Instead, time and time again, the Report substitutes its own hindsight judgment. For example:
* Second-guessing choice of weapons and tactics without knowledge of available resources. The Report concludes that with respect to one particular incident, Israeli forces should have used different weapons to further limit the risk to civilians in the area, and is untroubled by the fact that it has no information regarding the available troops, weapons or intelligence. The Report observes that forces had 50 minutes in which to respond to a significant threat (the time used by the force to accurately identify the source of fire), and opines that given this time, “it is difficult to believe that mortars were the most accurate weapons available” (¶ 696). Displaying a troubling disconnect from the reality of urban fighting on many simultaneous fronts, it suggests that the forces in the field should used "helicopters and fighter jets", assuming that these are readily available to commanders in the field.[14]

(in footnote 14, Israel notes that:The United Nations Headquarters Board of Inquiry, which investigated the same incident, refrained from making such naïve and blasé assertions, concluding that: "it was not in a position to assess whether such a means was available to the IDF at the time and, if it was not, the length and consequences of any delay until it might have been.")

* Second-guessing what commanders should have anticipated. The Report concludes with respect to another incident that Israeli forces should not have been surprised that they were faced with anti-tank missile fire in the vicinity of a UNRWA installation, and therefore should have taken different steps to respond to this hostile fire, other than applying the commonly used technique of smoke screening (¶ 588). Again, the Report seeks to substitute its judgment for that of the commanders in the field, without any of the information necessary to conduct a proper analysis under the applicable law.

* The Report also ignores Israel's extensive efforts, even in the midst of fighting, to maintain humanitarian standards and protect civilians. It makes no mention, for example, of IDF precautions such as cross-verification of intelligence prior to targeting or the numerous incidents in which operations were aborted due to concerns about disproportionate civilian harm[See The Operation in Gaza--Factual and Legal Aspects para 249-283]. And while the Report does, reluctantly, acknowledge Israel's "significant efforts" to issue warnings before attacks, it dismisses these as not having been effective (¶ 1717(2)).
So the Commission said it would not try to make assumptions about how a war is fought--before it went ahead and tried to second guess what the commanding officers were thinking and doing.
Is their excuse for excluding the testimony of Col. Kemp really that hollow?
Or did the Commission really feel they are competent on ruling on military operations--something totally outside their area of expertise.

There are other kinds of flaws in the Report as well.

See also: Goldstone Report: Errors of Fact
See also: Goldstone Report: Getting the Law Wrong
See also: Goldstone Report: Making It Up As It Goes Along
See also: Goldstone Report Doubts That Israel Will Carry Out Investigations Already Under Way
See also:
Goldstone Report: More Under-Handed Than Even-Handed

Crossposted on Soccer Dad

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Iron Chef Kosher! said...

What's even more amazing is that even B'Tselem is disputing the findings (You know it's got to be indisputably bad if that group is forced to say so!!)

Daled Amos said...

True, but I think a later they did backtrack a little bit.