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Sunday, October 04, 2009

Daily Goldstone

A press conference by Israel's Foreign Affairs ministry a few days ago did a nice job encapsulating the problems with the Goldstone report. The entire thing is worth reading, but here is the core part by Deputy Legal Adviser Daniel Taub:

There are at least a dozen reports that I'm aware of that have been prepared about events in Gaza at the beginning of this year, and yet, of all the reports, it's this report, the Goldstone Report, that has generated the strongest response amongst the Israeli public, amongst the Israeli leadership and amongst supporters of Israel. And I think if we ask ourselves why that is, there are three main reasons.

The first one is the narrative that lies at the heart of this report. This is a report which says that Israel's operation in Gaza had nothing to do with 12,000 Hamas missiles on Sderot, it had nothing to do with self-defense, it had nothing to do with the smuggling of weaponry under the Egypt-Gaza border into Gaza. In fact, in the 500-plus pages of the report, there is not a single mention of the right of self-defense or the smuggling of weapons. It is a report that says that Israel's operation in Gaza was a deliberate disproportionate massive attack directed against civilians. And that is something that no one who knows Israel can really countenance.

This morning I read an article by the head of Betzelem who was saying that this is a conclusion which is simply not supported by the evidence in the Goldstone Report. And it's true; in order to come to this conclusion the report really does have to play fast and loose with the evidence. First, there's a tremendous amount of selectivity in choosing the incidents that it actually investigates. So, for example, the report admits that there have been allegations that Hamas placed its headquarters or one of its headquarters in the bases of the Shifa Hospital, but we can't address these because that wasn't one of the incidents that we chose to investigate. Or we can't confirm or deny allegations that Hamas used mosques for terrorist activity, because they only investigated one case that had to do with a mosque and found no evidence in that particular case. In fact, in parentheses I say "in that particular case, according to Palestinian websites," five of the people that were killed were actually terrorist activists, members of the Al-Qassam Brigades.

They play fast and loose with their sources, relying on almost every conceivable source that supports evidence against Israel and rejecting almost any evidence that is supportive of Israel or is detrimental to Hamas. And sometimes actually the same source is regarded as being reliable as far as its accusations against Israel is concerned but regarded as being unreliable when it points to, for example, Israel's humanitarian efforts or Hamas abuse of civilians, and so on.

And we have prepared an initial response to the report, some 20 pages, which highlights some of the most obvious legal and factual errors: There's reliance on Israeli laws that have been off the books for years; there's misquotations of United Nations Security Council Resolutions, and so on.

The reason that this narrative is so troubling is that it really leaves no room for genuine debate about how to engage in a conflict of this nature. You know, we generally don't think and the military doesn't think that we have all the right answers. But we are, by and large, asking the right questions. And asking ourselves whether an attack or an operation could have been more humane, more effective, is a genuine debate that we need to engage in with the international community as well. But with a body that says that your fundamental goal was to cause massive punishment on the civilian population, there is no room for any debate of that nature.

So that's the first reason. The second reason why I think this report has generated such a strong response is that it represents a full frontal attack on the Israeli legal system. And this is something that should worry not just Israel but also most Western and democratic countries that have very, very similar systems for actually investigating and checking their conduct in the course of military operations.

Israel, as I'm sure you know, has a multi-layered system for investigating allegations of wrongdoing; that consists of field investigations, criminal investigations, supervision by the Military Advocate General, upon that, supervision of our Supreme Court, and so on. In this particular case, in additional to all of those systems, following the operation, five large-scale command investigations were opened into general questions of principle arising in the conflict, things like incidents in which there was injury caused to medical facilities, caused to UN facilities when there are large numbers of civilians casualties, and so on.

In the course of those five command investigations, there were 30 specific incidents that came under investigation, and they're currently on the desk of the Military Advocate General who has to decide whether to open criminal investigations. And because of the sensitivity, the Attorney General has said that he will also review the decision of the Military Advocate General.

In addition to those command investigations and the specific investigations that came out of them, there are an additional 70 to 80 specific investigations that were opened up as a result of complaints received by human rights organizations, like Betzelem and Addala, direct complaints by individuals to the Military Advocate General or to the Attorney General.

Out of all of those complaints so far, 23 criminal investigations have already been opened and are in various stages. From the information that I received this morning, at least 11 of them have already proceeded to the stage of taking evidence from the Palestinian complainants and the others are at various stages.
Correlating those with the 36 incidents that the Goldstone Report chose to investigate, 12 of the incidents in the Goldstone Report are at various stages, either already of criminal investigations or investigations that may lead to criminal investigations.

I should mention that 12 of the incidents that are referred to out of the 36 incidents in the Goldstone Report were not known to the Israeli authorities until the publication of the report. Those are mainly dealing with damage to property and so on. And that means that no complaint had been received by the Israeli authorities. They were raised for the first time in the Goldstone Report, and those have been referred to the authorities for examination and investigation at the moment.

I'll just finish the legal aspect by saying that obviously all of the decisions along the way, whether it's the decision of the Military Advocate General or the Attorney General whether to open criminal proceedings or not open criminal proceedings, are all subject to review by our Supreme Court, which, as you know, can be petitioned for judicial review by Israelis, Palestinians, human rights organizations.

So, really, the dismissive attitude of the report for this entire system is very, very troubling, very troubling for Israel, very troubling for other countries that have similar systems, and troubling for other countries that often rely on the jurisprudence of our Supreme Court. I actually just received through my e-mail today, a decision of a Canadian Court, a Superior Court in Montreal, which last week relied on the jurisprudence of the Supreme Court. And so the attack on the legitimacy of this report is troubling from a legal point of view.

And, finally, I think the third reason why it's such a troubling report is its recommendations. Its recommendations, I think, are unprecedented, both in terms of their scope and in terms of their one-sidedness. There is an attempt in the recommendations of this report to harness not just the Human Rights Council but the Security Council, the General Assembly, the International Criminal Court, the domestic legal systems of almost every country – every country in the world, in fact – as part of a political campaign against Israel, and in a really blatantly one-sided manner.

We're talking about a recommendation that there be a moratorium on the use of certain weapons by Israel, but no restriction on the use of weapons by Hamas. We're talking about the establishment of an escrow fund it's called, a fund for supporting victims, but the victims are all Palestinians, and the only party required to pay into this fund, of course, is Israel. We're talking about the use of what's called universal jurisdiction, putting Israelis on trial abroad. But it's clear from the report the intention is only to put Israelis on trial abroad and not to put any other violators of human rights and so on. So, very, very damaging, very one-sided, very non-credible recommendations.

So I think those are the three main reasons why there's been such a strong response to the report. And I'll just finish with one final personal comment as a legal advisor within the government, within the system. And I think the role of any legal advisor, governmental or military legal advisor, is to be two-faced. Maybe all lawyers are two-faced, but by "two-faced" I mean spending part of our time being advocates of governmental policies to the world, but also turning round and doing the other half of our job, which is to be advocates of compliance of international law within the system, to our political leaders and to the military.

And a report of this nature, a report which pretends to represent international law but really perverts international law, really undermines the advocates of international law within the system because it really says that there is no lawful response to the charges of terrorism. And that's simply not true. It's not a workable proposition, and ultimately it's going to undermine respect for international law both in our region and probably elsewhere across the world. Thank you.

Also check out this piece by Soccer Dad.