Friday, October 02, 2009

Goldstone Report: Making It Up As It Goes Along

It becomes more and more evident that the Goldstone Commission did not check out all of their facts--and is not even clear on the application of the International Law that it repeatedly praises.

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

Under the category Legal and Pseudo-legal findings:
Justice Goldstone, as Head of the Mission, repeatedly insisted that the Mission was not a judicial inquiry and so "could not reach judicial conclusions."[18 'Indeed it was on this basis that Goldstone excused the inclusion of the clearly partisan Mission member Professor Christine Chinkin, admitting that: “[I]f it had been a judicial inquiry, that letter [Chinkin] signed would have been a ground for disqualification” (Interview to BusinessDay, 4 August 2009)] The Report, however, is highly judicial in nature, reaching conclusive judicial determinations of guilt, and including 'detailed legal findings' even in the absence of essential information, including sensitive intelligence information which Israel did not feel able to provide. These determinations are made notwithstanding the Report's admission that it does not "pretend to reach the standard of proof applicable in criminal trials"(¶ 27).
The Report is rife with purported legal analysis and findings that Israeli forces committed “grave breaches” of international law and “war crimes”, without any recognition that that such findings can only be based on affirmative evidence of intention to target civilians (as opposed to military objectives). In other words, there must have been intent to cause harm to civilians, as distinct from the knowledge that civilians may be harmed as an unintended consequence of pursuing a military goal.[19]
Please keep in mind that footnote 19 provides the sources to back up Israel's understanding of how International Law applies here:

As stated by a recognized treatise on the subject, “[t]he prerequisite for a grave breach is intent; the attack must be intentionally directed at the civilian population or individual civilians, and the intent must embrace physical consequences.” (Rüdiger Wolfrum & Dieter Fleck, Enforcement of International Humanitarian Law, in The Handbook of International Humanitarian Law 675, 697 (Dieter Fleck ed., 2d ed. 2008)). Indeed, according to the International Criminal Tribunal for the former Yugoslavia, to constitute a war crime “must have been conducted intentionally in the knowledge, or when it was impossible not to know, that civilians or civilian property were being targeted.” (Prosecutor v. Galić, Case No. IT-98-29-T, Judgment and Opinion, ¶ 42 (5 December 2003) quoting Prosecutor v. Blaškic; Case No. IT-95-14-T, Trial Judgment, ¶ 180 (3 March 2000)).

Israel's analysis continues:
In applying the intentionality requirement, the Report commits the following egregious errors:
o Inferring the commander’s state of mind from circumstantial evidence. The Report states that “In almost all of the cases the Mission has … been able to determine whether or not it appears that the acts in question were done deliberately.” (¶ 25) In fact, the Report reaches a finding that Israeli forces intentionally targeted civilians or U.N. facilities by simply inferring this because the Mission lacked information to the contrary. (¶ 809) This approach is fundamentally flawed, as it reverses the burden of proof under international law, which requires that intentionality be established by evidence, rather than assumed in the absence of evidence to the contrary. In dealing with Hamas, by contrast. the Report rejects the existence of specific intent to shielding its operatives from counter-attack by acting from civilian facilities, since "the Mission has not been able to obtain any direct evidence on this question" (¶ 450).

o Highly implausible and unjustifiable assumptions regarding malicious intent of Israeli forces. In the case of the bombing of a flour mill, the Report states that Israeli forces attacked the mill “for the purposes of denying sustenance to the civilian population.” (¶ 50) No evidence is presented to show the existence of such a nefarious motive, and there is no attempt to reconcile this conclusion with Israel’s humanitarian efforts, including enforced pauses in fighting to allow for the crossing into Gaza of food and other basic goods[20]. Instead, the malicious intent is simply presumed.
According to footnote 20:

During the conflict a total of 1,511 trucks carrying 37,162 tons of supplies from Strip including 525 trucks carrying 14,208 tons of flour entered the Gaza Strip from Israel through the Keren Shalom Crossing. See: The Operation in Gaza--Factual and Legal Aspects, para 271.
o Suggestion that intentional firing of a weapon satisfies the willfulness requirement for responsibility under international law. The Report states that Israeli fire was “intentionally directed” at civilians in numerous incidents in which it is obvious that the civilians were not the object of attack, but rather its unintended victims. (¶ 810) Moreover, in one example where a civilian home was struck due to operational error of Israeli forces, the Report makes the following incredible assertion: “The firing of the projectile was a deliberate act in so far as it was planned.... The fact that target selection had gone wrong at the planning stage does not strip the act of its deliberate character.” (¶ 861) Of course, aside from the rare case in which a weapon fires due to a malfunction, any firing can always be said to have been “planned.” This does not make every firing of a weapon that happens to injure civilians an intentional violation of international law.

o Adverse inferences on intent from the extensive Israeli efforts to protect civilians. The Report considers that Israel’s extensive system of training, operational planning and supervision to ensure compliance with international law is relevant only insofar as it establishes that Israel’s violations were deliberate (¶ 61). Furthermore, rather than applaud Israel’s use of precision weapons, the Report highlights such use only to assist it in finding intentionality of striking civilian targets (¶¶ 1186-1188). Finally, instead of recognizing Israel’s massive efforts to implement a system of warnings to protect the civilian population as evidence of intent to avoid civilian casualties, the Report uses Israel’s continued efforts to improve the warning system as evidence of its inadequacy (¶¶ 522-523).
Whatever you may think of Israel, the fact remains that there is a sloppiness and lack of professionalism in the Goldstone Commission Report that cannot be covered up with the already well-worn mantra that Goldstone is a respected judge who is Jewish and a Zionist. At some point Goldstone's defenders need to address the fact that there is credible and well-researched evidence of a deeply flawed document here.

And continued claims that this is nothing more than an ad hominen attack are just not going to cut it.

See also: Goldstone Report: Errors of Fact
See also: Goldstone Report: Getting the Law Wrong
See also: Goldstone Report: Did The Commission Even Read Their Own Report?
See also: Goldstone Report: Doubts That Israel Will Carry Out Investigations Already Under Way
See also:
Goldstone Report: More Under-Handed Than Even-Handed

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