Rebutting Judge Goldstone's Ghostwriter

On October 23rd a non-binding resolution--House Resolution 867--was proposed, condemning the Goldstone Report

Calling on the President and the Secretary of State to oppose unequivocally any endorsement or further consideration of the `Report of the United Nations Fact Finding Mission on the Gaza Conflict' in multilateral fora.

Shortly thereafter, a rebuttal of the resolution was received:

J Street Adviser Morton Halperin Goes to Work for Goldstone

THE WEEKLY STANDARD has obtained a document authored by Judge Richard Goldstone that is now being circulated on Capitol Hill. The document was written in response to HR 867 -- the resolution sponsored by Ileana Ros-Lehtinen and Howard Berman condemning Goldstone's report on Israeli war crimes in Operation Cast Lead. Goldstone explains in the document that he sends his "comments on this resolution in an effort to correct factual errors."

...Upon further inspection of the Goldstone letter, the actual author seems to be Morton H. Halperin, who serves on the J Street advisory council and is a senior adviser at George Soros's Open Society Institute. The original document can be downloaded here. (A check of the file's "properties" reveals the author as Morton H. Halperin.)

Sure enough, even though the top of this document reads:

MEMORANDUM

FROM: RICHARD GOLDSTONE
TO: INTERESTED PERSONS
RE: HR 867

When you look at the properties of the Word document, the author is given as Morton H. Halperin. It is not clear whether he authored the memorandum himself or wrote it out for Judge Goldstone.

To make matters more confusing, the text of the memorandum do not match the text of the letter appearing on JTA in an article by Ron Kampeas--an article in which Kampeas conveniently matches up the "Goldstone critique" with the paragraphs of the resolution being questioned.

In either case, this letter itself is full of the kinds of misleading comments it claims RH 867 is guilty of.

Utilizing Kampeas' format, let's take a look at the relevant resolution paragraphs, with the Goldstone rebuttal and its refutation. The resolution is in italics, Goldstone's rebuttal is in plain text, and my response is in bold:

The Honorable Howard Berman
Chairman, House Committee on Foreign Affairs
The Honorable Ileana Ros-Lehtinen
Ranking Member, House Committee on Foreign Affairs

October 29, 2009

Dear Chairman Berman and Ranking Member Ros-Lehtinen,

It has come to my attention that a resolution has been introduced in the Unites States House of Representatives regarding the United Nations Fact Finding Mission on the Gaza Conflict, which I led earlier this year.

I fully respect the right of the US Congress to examine and judge my mission and the resulting report, as well as to make its recommendations to the US Executive branch of government.

However, I have strong reservations about the text of the resolution in question – text that includes serious factual inaccuracies and instances where information and statements are taken grossly out of context.

I undertook this fact-finding mission in good faith, just as I undertook my responsibilities vis à vis the South African Standing Commission of Inquiry Regarding Public Violence and Intimidation, the International War Crimes Tribunal on the former Yugoslavia, the International Criminal Tribunal for Rwanda, The International Panel of the Commission of Enquiry into the Activities of Nazism in Argentina, the Independent International Commission on Kosovo, and the Volker Committee investigation into the UN’s Iraq oil-for-food program in 2004/5.

I hope that you, in similar good faith, will take the time to consider my comments about the resolution and, as a result of that consideration, make the necessary corrections.

Whereas clause #2: “Whereas, on January 12, 2009, the United Nations Human Rights Council passed Resolution A/HRC/S-9/L.1, which authorized a `fact-finding mission' regarding Israel's conduct of Operation Cast Lead against violent militants in the Gaza Strip between December 27, 2008, and January 18, 2009;”

This whereas clause ignores the fact that I and others refused this original mandate, precisely because it only called for an investigation into violations committed by Israel. The mandate given to and accepted by me and under which we worked and reported reads as follows:

". . .to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of themilitary operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after".

According to Goldstone, a newly revised mandate was created. If so:
o Where is it written
o Was this renewed mandate put to a vote as was the original resolution
o If not, what force does it actually have.
o In that case, the question returns: why did Goldstone take the position?

Whereas clause #2: “Whereas the resolution pre-judged the outcome of its investigation, by onesidedly mandating the `fact-finding mission' to `investigate all violations of international human rights law and International Humanitarian Law by . . . Israel, against the Palestinian people . . . particularly in the occupied Gaza Strip, due to the current aggression'”

This whereas clause ignores the fact that the expanded mandate that I demanded and received clearly included rocket and mortar attacks on Israel and as the report makes clear was so interpreted and implemented. It was the report carried out under this broadened mandate – not the original, rejected mandate – that was adopted by the Human Rights Council and that included the serious findings made against Hamas and other militant Palestinian groups.

Not true.

According to the alleged updated resolution, the mandate was merely made more vague, ie "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after".

There is still no mention of Hamas or Gaza in this 'updated mandate'. The fact that this mission was still interpreted as directed solely at Israel is supported by the fact that when the UNHRC endorsed the report, only Israel was mentioned.


Whereas clause #3: “Whereas the mandate of the `fact-finding mission' makes no mention of the relentless rocket and mortar attacks, which numbered in the thousands and spanned a period of eight years, by Hamas and other violent militant groups in Gaza against civilian targets in Israel, that necessitated Israel's defensive measures;”

This whereas clause is factually incorrect. As noted above, the expanded mandate clearly included the rocket and mortar attacks. Moreover, Chapter XXIV of the Report considers in detail the relentless rocket attacks from Gaza on Israel and the terror they caused to the people living within their range. The resulting finding made in the report is that these attacks constituted serious war crimes and possibly crimes against humanity.

The reference is clearly to the original mandate, and the same criticism as in the previous note applies here too.

Chapter XXIV--being part of the report and not the mandate in the original resolution--is irrelevant, although it is interesting to note that it is brought down in the Report not in the context of Hamas but rather in the section of the Report dedicated to Israel, oddly enough.

Also, the issue of years of bombardment by Hamas is put together with the charge of Israeli repression of dissent among its citizens--an odd way of addressing the cause of the entire war itself and indicative of where the Commissions emphasis lies.

Whereas clause #4: “Whereas the 'fact-finding mission' included a member who, before joining the mission, had already declared Israel guilty of committing atrocities in Operation Cast Lead by signing a public letter on January 11, 2009, published in the Sunday Times, that called Israel's actions `war crimes';”

This whereas clause is misleading. It overlooks, or neglects to mention, that the member concerned, Professor Christine Chinkin of the London School of Economics, in the same letter, together with other leading international lawyers, also condemned as war crimes the Hamas rockets fired into Israel.

Thankfully, Judge Goldstone does not fall back on his earlier excuse, ie that the mission was not a 'judicial inquiry' and that he thinks Chinkin is open-minded. But instead, he writes that she condemned Hamas rocket attacks also as war crimes. So now we are supposed to think that bias against both sides makes her objective?

More to the point, in the Times article the mention of Hamas is relegated to the very last paragraph of the article, again with a swipe at Israel--while in the second paragraph it states: The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence.

Furthermore, the references to Israel are clearly the focus of the article: calling the operation in Gaza "an act of aggression" and that the "invasion and bombardment of Gaza amounts to collective punishment of Gaza’s 1.5m inhabitants contrary to international humanitarian and human rights law." and that "the blockade of humanitarian relief, the destruction of civilian infrastructure, and preventing access to basic necessities such as food and fuel, are prima facie war crimes".

Obviously the bias of the Times letter and of Chinkin herself--which Goldstone here acknowledges--is clearly focused more strongly on Israel.


Whereas clause 5: “Whereas the mission's flawed and biased mandate gave serious concern to many United Nations Human Rights Council Member States which refused to support it, including Bosnia and Herzegovina, Cameroon, Canada, France, Germany, Italy, Japan, the Netherlands, the Republic of Korea, Slovakia, Slovenia, Switzerland, Ukraine, and the United Kingdom of Great Britain and Northern Ireland;”

This whereas clause is factually incorrect. The mandate that was given to theMission was certainly not opposed by all or even a majority of the States to which reference is made. I am happy to provide further details if necessary.

True, but the clause said 'many', not 'all' nor a 'majority'.

Whereas clause #6: “Whereas the mission's flawed and biased mandate troubled many distinguished individuals who refused invitations to head the mission;”

This whereas clause is factually incorrect. The initial mandate that was rejected by others who were invited to head the mission was the same one that I rejected. The mandate I accepted was expanded by the President of the Human Rights Council as a result of conditions I made.

This was touched upon above. Again the question remains whether the fact that the president of the HRC expands the mandate independent of the actual resolution has any binding authority.

Whereas clause #8: “Whereas the report repeatedly made sweeping and unsubstantiated determinations that the Israeli military had deliberately attacked civilians during Operation Cast Lead;”

This whereas clause is factually incorrect. The findings included in the report are neither "sweeping” nor “unsubstantiated” and in effect reflect 188 individual interviews, review of more than 300 reports, 30 videos and 1200 photographs. Additionally, the body of the report contains a plethora of references to the information upon which the Commission relied for our findings.

The issue of 'sweeping' is subjective and open to interpretation. The charge of being unsubstantiated, whether accurate or not, is certainly not rebutted by blindly reciting the numbers of interviews etc.

More to the point, CAMERA has 2 separate articles on the issue of contradictory Palestinian testimony in the Rabbo case--one focusing on the inconsistencies in Abed Rabbo's story as reported in media outlets and another on the inconsistencies between the Goldstone findings on the Abed Rabbo story versus earlier NGO investigations.


Whereas clause #9: “Whereas the authors of the report, in the body of the report itself, admit that `we did not deal with the issues . . . 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.';”

This whereas clause is misleading. The words quoted relate to the decision we made that it would have been unfair to investigate and make finding on situations where decisions had been made by Israeli soldiers "in the fog of battle". This was a decision made in favor of, and not against, the interests of Israel.

The fact is that the Goldstone Report did not hesitate to "make finding on situations where decisions had been made by Israeli soldiers "in the fog of battle"

In its critique of the content of the Goldstone Report--one of those critiques that Judge Goldstone continually denies exists--CAMERA points out that the Goldstone Report does not hesitate to double-guess what was going through the mind of the IDF:

Motive was freely and falsely attributed to Israel in order to charge them with war crimes. Paragraph 74 (74) of the Report asserts:

The conditions of life in Gaza, resulting from deliberate actions of the Israeli forces and the declared policies of the Government of Israel – as they were presented by its authorized and legitimate representatives – with regard to the Gaza Strip before, during and after the military operation, cumulatively indicate the intention to inflict collective punishment on the people of the Gaza Strip in violation of international humanitarian law.

And in paragraph 1331 (1325):

The facts ascertained by the Mission, the conditions resulting from the deliberate actions of the Israeli armed forces and the declared policies of the Israeli Government – as they were presented by its authorized representatives – with regard to the Gaza Strip before, during and after the military operation, cumulatively indicate the intention to inflict collective punishment on the people of the Gaza Strip. The Mission, therefore, finds a violation of the provisions of article 33 of the Fourth Geneva Convention.

Israel's analysis of the Goldstone Report--the existence of which Goldstone also denies--also notes among the faults of the Report:

o 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]

o 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.

One would almost think that Judge Goldstone did not read his own report--something he readily ascribes to his critics.


Whereas clause #10: ‘Whereas in the October 16th edition of the Jewish Daily Forward, Richard Goldstone, the head of the `United Nations Fact Finding Mission on the Gaza Conflict', is quoted as saying, with respect to the mission's evidence-collection methods, `If this was a court of law, there would have been nothing proven.'”

The remark as quoted is both inaccurate and taken completely out of context. What I had explained to The Forward was that the Report itself would not constitute evidence admissible in court of law. It is my view, as jurist, that investigators would have to investigate which allegations they considered relevant. That, too, was why we recommended domestic investigations into the allegations.

The complete quote is: “We had to do the best we could with the material we had. If this was a court of law, there would have been nothing proven.” If what Goldstone says is true, they why are recommendations included in the report?

Whereas clause #11: “Whereas the report, in effect, denied the State of Israel the right to self defense, and never noted the fact that Israel had the right to defend its citizens from the repeated violent attacks committed against civilian targets in southern Israel by Hamas and other Foreign Terrorist Organizations operating from Gaza;”

It is factually incorrect to state that the Report denied Israel the right of self-defense. The report examined how that right was implemented by the standards of international law. What is commonly called ius ad bellum, the right to use military force was not considered to fall within our mandate. Israel’s right to use military force was not questioned.

Actually, the clause says "in effect" and is not referring to any statement in the report but rather the overall effect of it. And don't forget, Christine Chinkin signed on to a letter which said that "the rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence."

Whereas clause #12: “Whereas the report largely ignored the culpability of the Government of Iran and the Government of Syria, both of whom sponsor Hamas and other Foreign Terrorist Organizations;”

This whereas clause is misleading. Nowhere that I know of has it ever been suggested that the Mission should have investigated the provenance of the rockets. Such an investigation was never on the agenda, and in any event, we would not have had the facilities or capability of investigating these allegations. If the Government of Israel has requested us to investigate that issue I have no doubt that we have done our best to do so.

No, the clause is not misleading--you just don't agree that Iran needed to be mentioned. There's a difference.

Whereas clause #14: “Whereas, notwithstanding a great body of evidence that Hamas and other violent Islamist groups committed war crimes by using civilians and civilian institutions, such as mosques, schools, and hospitals, as shields, the report repeatedly downplayed or cast doubt upon that claim;”

This is a sweeping and unfair characterization of the Report. I hope that the Report will be read by those tasked with considering the resolution.

I note that the House resolution fails to mention that notwithstanding my repeated personal pleas to the Government of Israel, Israel refused all cooperation with the Mission. Among other things, I requested the views of Israel with regard to the implementation of the mandate and details of any issues that the Government of Israel might wish us to investigate.

This refusal meant that Israel did not offer any information or evidence it may have collected regarding actions by Hamas or other Palestinian groups in Gaza. Any omission of such information and evidence in the report is regrettable, but is theresult of Israel’s decision not to cooperate with the Fact-Finding mission, not a decision by the mission to downplay or cast doubt on such information and evidence.

If the reference was solely to evidence that Israel alone had, Judge Goldstone may have a point. However, there is evidence on YouTube that support the charge. Yet the report says that no such evidence exists.

Whereas clause #15: “Whereas in one notable instance, the report stated that it did not consider the admission of a Hamas official that Hamas often `created a human shield of women, children, the elderly and the mujahideen, against [theIsraeli military]' specifically to `constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack.';”

This whereas clause is misleading, since the quotation is taken out of context. The quotation is part of a section of the report dealing with the very narrow allegation that Hamas compelled civilians, against their will, to act as human shields. The statement by the Hamas official is repugnant and demonstrates an apparent disregard for the safety of civilians, but it is not evidence that Hamas forced civilians to remain in their homes in order to act as human shields. Indeed, while the Government of Israel has alleged publicly that Hamas used Palestinian civilians as human shields, it has not identified any cases where it claims that civilians were doing so under threat of force by Hamas or any other party.

And yet the report states that "the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack". Odd that the damaging quote from the Palestinian leader is quoted in the report in the context of homes where it is not applicable--and rejected as a proof--and not in the context of mixing with the civilian population, where the quote is both relevant and damaging.

Whereas clause #16: “Whereas Hamas was able to significantly shape the findings of the investigation mission's report by selecting and prescreening some of the witnesses and intimidating others, as the report acknowledges when it notes that `those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups . . . from a fear of reprisals';”

The allegation that Hamas was able to shape the findings of my report or that it pre-screened the witnesses is devoid of truth. I challenge anyone to produce evidence in support of it.

Does Judge Goldstone honestly believe that the Palestinian Arabs he interviewed did not have reason to fear the Hamas government? Would he deny that such fear would indeed shape the findings?

Take a look at the full text of the Goldstone Report being discussed:

440. In its efforts to gather more direct information on the subject, during its investigations in Gaza and in interviews with victims and witnesses of incidents and other informed individuals, the Mission raised questions regarding the conduct of Palestinian armed groups during the hostilities in Gaza. The Mission notes that those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups. Whatever the reasons for their reluctance, the Mission does not discount that the interviewees’ reluctance may have stemmed from a fear of reprisals.

Take a look also at Der Spiegel:

One of his neighbors weighs in: "Many people are now against Hamas but that won't change anything," he says. "Because anyone who stands up to them is killed." Since they took power Hamas has used brutal force against any dissenters in the Gaza Strip. There were news agency reports that during the war they allegedly executed suspected collaborators with Israel. The reign of terror will go on for some time, says the neighbor who doesn't want to give his name. "There will never be a rebellion against Hamas. It would be suicide."

Is Judge Goldstone seriously suggesting that fear of being killed by Hamas did not "shape the findings" of his report?



Sincerely,
Justice Richard J. Goldstone

The arguments made by Goldstone's ghostwriter as well as the selection of Christine Chinkin on his commission prove the truth of the old saying: good help is hard to find.

Technorati Tag: Goldstone Commission Report.