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Sunday, October 25, 2009

Daily Goldstone 10/25b

"Trevor Norwitz has written an impressive and extensive response to the Goldstone report. According to information received from reliable sources Trevor grew up in Cape Town where he attended SACS and UCT before going on to Oxford as a Rhodes Scholar. He is now a successful attorney in a leading corporate practice in New York."

Here is part of the lengthy letter, which can be read as a PDF file here.
Your Selection of Incidents to Investigate
A closely related point is your Mission's selection of which matters to investigate and which to ignore. Your Mission investigated 36 incidents in Gaza and stated that it "considers that the report is illustrative of the main patterns of violations." (17) Since virtually all of these incidents were cases involving Israeli actions and Palestinian casualties or damage, it is clear that the "pattern of violations" that interested you most were those where Israel could be condemned. As discussed above, the efforts you made to find the relevant facts underlying the operation left much to be desired. Very little effort was made to investigate the behavior of Hamas and the other "Palestinian armed groups": did they direct attacks at civilian targets? Did they use
civilians as human shields? Did they hide weapons in civilian buildings like mosques, schools and hospitals? You do not even raise as a possibility the question of whether Hamas and the other "Palestinian armed groups" intentionally drew fire towards civilian objects to score public relations victories (I do not believe in their wildest dreams they ever expected the PR and strategic windfall that you have awarded them), although this appears to be a central element of their moqawamma ("resistance") strategy. I understand that seeking those facts was difficult ­ the people you were talking to would not talk about that (because of both bias and intimidation)
and the people who would talk about it (the Israelis) refused to talk to you ­ but that should not relieve honest fact-finders of their obligation to try find the facts. Reviews by others of the video clips of interviews with Palestinian witnesses posted on your website suggest that you did not even press witnesses for answers to these questions19. Instead you simply relied on the absence of countervailing evidence to validate the "facts" reported to you by those biased and intimidated witnesses.

On a few occasions, you accepted the "possibility" that there might be another side to the story that you "could not entirely discount," that is, that there may have been inappropriate actions on the Palestinian side. For example: "The Mission finally notes that it cannot entirely discount the possibility that Palestinian civilians may have been killed as a result of fire by Palestinian armed groups in encounters with the Israeli armed forces, as argued in a submission to the Mission, although it has not encountered any information suggesting that this was the case." (361) "[W]hile the Mission would not rule out the possibility that there might be individuals in the police force who retain their links to the armed groups, it believes . . ." (417) "[T]he Mission accepted, on the basis of information in the reports it had seen, the possibility of mortar attacks from Palestinian combatants in the vicinity of the school." (444) The Mission cannot discount the possibility that Palestinian armed groups were active in the vicinity of such [United Nations] facilities." (483)

However these matters were never investigated to the point of ascertaining whether they amounted to war crimes or whether they justified the Israeli actions under investigation. For the most part, you were satisfied simply to state that you were unable to make any determination regarding these matters: "The Mission is unable to make any determination on the general allegation that Palestinian armed groups used mosques for military purposes." (484) "On the basis of the investigations it has conducted, the Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities . . ." (485) "On the basis of the information it gathered, the Mission found no indication that the civilian population was forced by Hamas or Palestinian armed groups to remain in areas under attack from the Israeli armed forces." (486)

On other occasions, where the evidence of bad behavior on the Palestinian side was so clear you could not deny it or profess ignorance, you proceed ­ astonishingly ­ to justify it or explain it away.

Example: Firing rockets from civilian areas: "[T]he Mission finds that there are indications that Palestinian armed groups launched rockets from urban areas . . . Palestinian armed groups do not appear to have given Gaza residents sufficient warning of their intention to launch rockets from their neighbourhoods to allow them to leave and protect themselves against Israeli strikes at the rocket launching sites . . . Given the densely populated character of the northern half of the Gaza Strip, once Israeli forces gained control of the more open or outlying areas during the first days of the ground invasion, most ­ if not all ­ locations still accessible to Palestinian armed groups were in urban areas." (480) In other words, you explain and even seek to justify Hamas' actions endangering civilians because it would have been dangerous for it to fight Israel otherwise.

Another example: Booby trapping houses: "From the information it gathered, the Mission does not discount the use of booby traps by the Palestinian armed groups. The Mission has no basis to conclude that civilian lives were put at risk, since none of the reports records the presence of civilians in or near the houses that were allegedly booby-trapped." (482) Your willingness to accept a "no-harm-no-foul" defence for booby trapping civilian houses is as telling as your reluctance to find improper intentions on the Palestinian side.

These few examples (of the many more that could be cited) should suffice to demonstrate that your Mission chose only to investigate one side of the conflict (Israel), and made its findings based on evidence presented by only one side one the conflict (the Palestinians).


Fundamental but Dubious Assumptions
Without denying that there are matters raised in your report that deserve further investigation and explanation by Israel, it appears that your wholesale condemnations of Israel and accusations of "war crimes" rest in large part on certain fundamental premises or a "world view" shared by you and your fellow Commissioners. These premises reflect assumptions that underlie much of your
Report, but their validity is not incontrovertible. Indeed they are highly contentious and to the degree these assumptions are wrong, your Report's conclusions are invalid.

Legitimizing Hamas. One of these fundamental assumptions that permeates your entire analysis is that Hamas is a nonviolent political organization distinct from its military wing. This characterization of Hamas is entirely implausible. It requires more than naiveté to reach that conclusion, in light of all the readily available evidence, including that organization's refusal to renounce the use of violence or even to recognize the existence of the State of Israel (which together torpedoed the peace process and damned Gaza to its present state of destitution), the express statements of Hamas' own leadership regarding the use of violence and terrorist tactics, and the fact that the Hamas charter calls for the destruction of Israel and genocide against the Jewish people (which remarkably does not merit a mention in your Report).

Because it openly embraces terrorist tactics, Hamas is widely condemned as a terrorist organization. In light of all the readily available evidence, the suggestion that Hamas can be neatly separated from its military wing is spurious.

Earlier I stated that your Report not only legitimizes but whitewashes Hamas. Although the press has chosen not to highlight this, a close review of every reference to Hamas throughout your Report will reveal that, while there are some perfunctory condemnations of "armed Palestinian groups" (which include Hamas' Al-Qassam Brigades) and some measured criticism of the "Gaza Authorities" regarding things they could have done better (sins of omission rather than commission), Hamas itself gets off virtually scot-free in your Report and even emerges looking like an innocent victim. My point here is not to refute as a substantive matter that highly troubling aspect of your Report ­ I shall leave that to others ­ but simply to observe that a critical assumption underlying many of your claims of "war crimes" is that Hamas should be considered independent of its infamous military wing. To the extent that this assumption is flawed, the conclusions on which it is based are invalid. But the very fact that you approached your fact-finding mission with this as a basic assumption indicates a perspective that calls the conclusions drawn by your Mission into question.

Gaza Still Occupied? A second fundamental assumption, discussed above, is the notion that Gaza remains occupied by Israel notwithstanding its complete unilateral withdrawal four years ago which, in your view26, has "`done nothing' to alter the character of Israel as an occupying Power." 27 Again, I will leave it to others to debunk this dubious legal conclusion, noting simply that it is one of the foundations on which you build your case for the prosecution. The implications of your position are dramatic. For example, although Israel facilitated the supply of significant humanitarian aid to Gaza and even your Report acknowledges "that the supply of
humanitarian goods, particularly foodstuffs, allowed into Gaza by Israel temporarily increased during the military operations" (72), you nevertheless condemn Israel as violating the Fourth Geneva Convention for not doing enough "as Occupying Power" to provide such supplies. In other words, your report twists Israel's humanitarian efforts (done from its perspective out of kindness rather than legal obligation) into a war crime because you reached a different legal conclusion on the status of Gaza. If you are wrong in your conclusion that Gaza remains occupied, then rather than being condemned as war criminals, Israel should be commended for its humanitarian efforts to support the Palestinian civilian population even while that it was in the midst of a bloody war to root out the terrorists who had converted their homes into rocket launching sites.

Placing Blame. Perhaps the most fundamental and flawed assumption underlying your Report is the position that the tragic situation of the Palestinian people, and especially those in Gaza, is all Israel's fault. That your Mission is of this view is clear from the way you characterize (or rather mischaracterize) the history of the region; it is clear from your use of language throughout your Report; it is clear from your failure to seek to understand why actions were taken ­ why Israel shut border crossings? Why Israel built the security barrier? Why Israel felt the need to
undertake the Gaza operation at all? And it is clear from your refusal to acknowledge what Hamas and its charter say unequivocally that Hamas exists to destroy the Jewish State. Your perspective is also clear from specific statements, including the curious analysis you offer in one of your concluding paragraphs where you say: "After decades of sustained conflict, the level of threat to which both Palestinians and Israelis are subjected has not abated, but if anything increased . . . The State of Israel is therefore also failing to protect its own citizens by refusing to acknowledge the futility of resorting to violent means and military power." (1711) It is telling
that it is Israel you criticize in this regard, and it is unclear what you expect Israel to do in the context of a foe that refuses to negotiate but only wants to fight.28

There are other elements of the "world view" with which you and your fellow Commissioners approached your assignment and which impacted your Report ­ assumptions regarding Israel's right to exist as a Jewish state at all, for example, or regarding the legitimacy of a separation barrier to protect Israeli civilians from terrorist attacks, or whether Israel is a decent country (for example at 132 you state: "The Mission is also of the view that the Israeli system presents inherently discriminatory features that have proven to make the pursuit of justice for Palestinian victims very difficult.") This is not the place to debate these interesting topics; I mention them solely to make the point that there are perspectives and prejudices that underlie your investigation that cannot but influence your findings.