Daily Goldstone 10/14

Alan Dershowitz notices what I noticed:

With so much (though not all) of the civilized world justly condemning (or ignoring) the Goldstone report for its distortion of the facts and its one-sided condemnation of Israel, Richard Goldstone himself now seems to be backing away from the report’s conclusions—at least when he speaks to his Jewish audiences.

In an interview with Jewish Forward, Goldstone denied that his group had conducted “an investigation.” Instead, it was what he called a “fact-finding mission” based largely on the limited “material we had.” Since this “material” was cherry-picked by Hamas guides and spokesmen, Goldstone acknowledged that “if this was a court of law, there would have been nothing proven.” He emphasized to the Forward that the report was no more than “a road map” for real investigators and that it contained no actual “evidence,” of wrongdoing by Israel.

“Nothing proven!” No “evidence!” Only “a road map!” You wouldn’t know any of that, of course, by reading the report itself or its accompanying media release. In the text of the report itself, Goldstone neither sought to clarify nor explain what he now claims is the limited scope and legal implications of the report. The language of the report reads like a judicial decision, making findings of fact (nearly all wrong), stating conclusions of law (nearly all questionable) and making specific recommendations (nearly all one-sided). According to the Forward:

“…the report itself is replete with bold and declarative legal conclusions seemingly at odds with the cautious and conditional explanations of its author. The report repeatedly refers, without qualification, to specific violations of the Fourth Geneva Convention committed by Israel and other breaches of international law. Citing particular cases, the report determines unequivocally that Israel “violated the prohibition under customary international law” against targeting civilians. These violations, it declares, ‘constitute a grave breach’ of the convention.”

It is as if there were two entirely different “Goldstone Reports.” The first submitted to the United Nations and the second to the Jewish community. In speaking so differently to different “audiences,” Goldstone is reminiscent of Yassir Arafat, who perfected the art of double-speak, by using bellicose language when addressing Arab audiences and more accommodating language when addressing western audiences.

Goldstone apparently lacked the courage to stand up to the other members and staffers of his commission and to insist that his clarifying language be included in the report itself. Nor did he have the courage to file a dissenting or concurring statement. Instead, he spoke out of both sides of his mouth, sending one message to those who read the actual report and a very different message to those who read his words in the Jewish Forward (and the New York Times for whom he wrote a more ameliorative op-ed on the day after the release of the Report). In doing so, he is trying to have it both ways.

Goldstone went so far as to tell the Forward that he himself “wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved.” This is total nonsense. Goldstone has put his imprimatur—and his reputation—behind the reports’ conclusions. The only reason anyone is paying any attention to yet another of the serial condemnatory reports by the United Nations Human Rights Council is because Richard Goldstone—a “distinguished” Jew—allegedly wrote it and signed on to its conclusions. If he really doesn’t stand by its conclusions—if he doesn’t care one way or another whether they are true or false, proven or unproven—then no extra weight should be given to its findings or conclusions because of the “distinguished” reputation of its Jewish chairman.

But weight is being given by some to its “unproven” and uninvestigated allegations which Goldstone admits may be wrong. There have been calls for boycotts, divestments, war crime prosecutions and other forms of condemnation based on the conclusions reached (or not reached, depending on which side of Goldstone’s mouth one is listening to) by the Report.

If Goldstone stands behind what he told the Forward, then he must come forward and condemn those who are treating his report as if the allegations were based on “evidence” and “proven.” Don’t hold your breath, because such a statement would be heard by both of Goldstone’s audiences at the same time.

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Daily Goldstone 9/6

A doubleheader.

Moshe Arens:

While the Goldstone report is being eagerly read in Israel and in capitals around the world, it is also being intensively studied by terrorists bent on destroying the State of Israel - and they must be breathing a sigh of relief.

This is not only because the Hamas terrorists in Gaza are in effect getting off scot-free in the report - they, in any case, did not have to be concerned about being brought before the International Court of Justice.

They can also interpret the report as international approbation for carrying out military operations from civilian population centers - schools, hospitals, refugee camps, etc. - as they did in the years when they were launching rockets into Israeli towns and villages in the south of Israel, and as they continued to do during the Israeli military operation in the Gaza Strip.

The report is in effect a license to kill - for Hamas, for Hezbollah, and for terrorists all over the world. No less.

And Ami Isseroff:

Beyond all its irregularities, the Goldstone report made one claim that cannot be refuted: That Israeli policy and war tactics were deliberately designed to kill civilians. It can't be refuted because it is not logical or based on any facts. Like medieval accusations of well poisoning or the blood libel, it is obvious that the persons making the accusation already have all the information needed to refute it, and simply ignore it because of malevolent mendaciousness. The man claims your sister is a lady of easy virtue. But you have no sister, and he knows it!

Goldstone's report claimed:

1211. Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy.593

In a real report, one might expect that reference 593 would include the statements by political and military leaders that left no doubt etc. Instead, the footnote (like much of the Goldstone report) simply references a report by an anti-Israel NGO:

Highlighting the pattern of military actions targeting civilian shelters and shelter seekers, the Habitat International Coalition concludes: “The official statements that accompany these actions […] seem to reflect a presumption that any source of brutality against the indigenous inhabitants would convert the victims into agents of the attackers’ preferred outcome: defeat of resistance” (submission, cited, p. 40).

One unsupported conclusion is used to support another and the Hamas terrorists, who seized power illegally, are elevated to the dignity of "resistance."

The Goldstone report further states:

The operations were carefully planned in all their phases. Legal opinions and advice were given throughout the planning stages and at certain operational levels during the campaign...[T]he Mission concludes that what occurred in just over three weeks at the end of 2008 and the beginning of 2009 was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.

Goldstone's "proof" is that the operation was planned. Planning and asking of legal opinions in any military operation are evidently valid evidence that civilian casualties resulting from that operation must have been planned. Goldstone evidently believes that nothing can even go wrong in any military operation and everything always occurs exactly according to plan. Presumably, legal advice was asked before soldiers left obnoxious graffiti and vandalized Palestinian property. Before each little girl was killed, the lawyers were called in to certify that killing the little girl was not against international law.

The death of Israeli soldiers by friendly fire was also presumably part of the plan according to Goldstone, , also approved by IDF legal counsel, as was the constant rain of rockets on Israeli towns and cities - civilian targets - by the Hamas "resistance." One wonders what book of military history Judge Goldstone and his fellow committee members read.

...The claim that the IDF or the Israeli government had a deliberate policy of harming civilians is therefore malicious nonsense. There are no additional facts that any Israeli investigation or any other investigation could unearth that would "disprove" it, because the claim doesn't depend on any facts. In the same way, those who made the blood libel accusation knew that Jews are forbidden to consume any sort of blood and especially human blood. They knew the accusation had to be false, and Goldstone knows this accusation is false. Those who believe this claim do so because they are evil and uninterested in truth. Proving that this or that incident described by the Goldstone mission did or did not occur, or that this or that officer was or was not guilty of war crimes, could never erase the terrible false accusation that Israel deliberately set out to kill civilians.

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Daily Goldstone 10/25

Israel Matzav shows a Bill Moyers interview with Richard Goldstone, and then quotes an Israeli legal expert demolishing his claims. For example:

1. The Goldstone report draws its conclusions on the basis of 36 incidents it says it investigated. The report says that incidents are illustrative and therefore justify the broader conclusions made by the report. But Goldstone admits that the report lied in saying that the incidents are “illustrative” and in saying that the Mission worked according to its self-described neutral mandate rather than the official biased one. Goldstone says “We chose those 36 because they seemed to be, to represent the most serious, the highest death toll, the highest injury toll. And they appear to represent situations where there was little or no military justification for what happened.” In other words, the Mission chose incidents that were seen as NOT ILLUSTRATIVE, and, rather, most likely to support a finding of war crimes.

2. Goldstone repeatedly misstates the law in the interview.

a. Goldstone implicitly misstates the rule of distinction. Goldstone rightly says that the rule of distinction requires combatants to distinguish between “combatants and innocent civilians.” But then, he “proves” that Israel violated the rule of distinction by saying “We found evidence in statements made by present and former political and military leaders, who said, quite openly, that there's going to be a disproportionate attack. They said that if rockets are going to continue, we're going to hit back disproportionately.” Stating that a counter-attack will be disproportionate to the attack isn’t a violation of the rule of distinction. The rule of distinction requires that Israel not aim its fire at civilians as such. It has nothing to do with how much fire Israel can aim at legitimate targets.

b. Regarding the rules of distinction and proportionality, Moyers asks Goldstone, “Who is to say that? Who is to make that distinction?” Goldstone answers, “Well, that distinction must be made after the event.” That is absolutely, positively, not the law. The law is that commanders must make judgments on the basis of knowledge they have at the time, not that one second-guesses them after the event and judges them guilty on the basis of knowledge they may not have had. Thus, for example, Newton testified “In order to properly assess a real proportionality assessment therefore, the relevant question is what did the commander know? What information was available to him?”

Read the whole thing.

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Daily Goldstone 11/12

Jonathan Dahoah Halevi looks at an episode detailed in Goldstone that I had looked at as well:

The Goldstone Report about Operation Cast Lead accuses Israel of an air strike on the mosque on January 3, 2009, which caused the deaths of “at least 15 Palestinians” who were in it at the time. During the confrontation with Dr. Gold, Goldstone claimed that 21 Palestinians had been killed, and he presented the attack as a salient example of Israel’s policy of deliberately targeting innocent civilians. However, Israel issued official documents stating that its Air Force did not attack the mosque and that the dead had been killed in fighting the IDF.

What really happened at the Ibrahim al-Maqadmah mosque, named for one of the heads of Hamas’ military-terrorist wing? The Goldstone Committee version is problematic because of its many essential failures and weak spots. The committee members relied exclusively on reports from “eyewitnesses” who did not see what was happening outside, especially at the entrance where the missile hit. Moreover, the committee was aware that all the Palestinian witnesses deliberately did not give any information about the activities of the terrorist organizations, because they were afraid of Hamas.

Therefore it is logically impossible to determine unequivocally that the Palestinian statements were “credible and reliable.” Another source of wonder is the dubious methodology used by the Committee in examining the circumstances of the event. The recorded statements of the Palestinian “eyewitnesses” posted on the UN website reveal that Committee members did not ask the Palestinians even one question about armed men or weapons in the mosque, or about what was happening in the open space in front of it.

The fundamental position of the Goldstone Committee was based on fallacious hypotheses. The Committee claimed that it found no evidence that the mosque was used for military purposes, and claimed that Israel presented a “false position” when it issued a Foreign Ministry report denying an attack on the mosque. However, in the same report read by the Committee members, there is unequivocal information supported by photographs of IDF forces seizing weapons in the Salah a-Din mosque in Gaza City during Operation Cast Lead.

The photos appended to the Foreign Ministry report clearly show various types of weapons and ammunition, including EFPs for attacking armored vehicles and a machinegun used to attack Israeli aircraft. The Committee did not explain why it chose to disregard the information completely, and its version becomes more entangled and incomprehensible in light of its admission elsewhere in the Report that it only visited two mosques in the Gaza Strip, because they were the two places the de facto Hamas administration permitted the committee to visit, since it wanted to exhibit the damage caused by the Israeli attacks.

The Goldstone Committee also failed by thoroughly examining the data. If Committee members had examined the names of the Palestinians killed at the Maqadmah mosque, they would have discovered that their identities and the membership of many of them in terrorist organizations contradicted the “eyewitness” claims that there were no terrorist operatives in the area, and contradicted as well the conclusions of the Report in that respect.

Seven of the 15 Palestinians killed at the mosque were members of terrorist organizations who had participated in fighting the IDF, most of them members of the Izz al-Din al-Qassam Brigades, Hamas’ military-terrorist wing, and a few of the Palestinian Islamic Jihad. Regarding one of them (Ahmed Abu Ita of the Izz al-Din al-Qassam Brigades), it was reported that he had gone to the Maqadmah mosque to meet “friends,” i.e., other armed terrorist operatives.


In light of the foregoing information, there is another scenario which can explain the circumstances of the attack on the mosque and bridge the gap between the positions of the IDF and the Goldstone Committee: Israeli intelligence discovered the intention of Izz al-Din al-Qassam Brigades operative Ahmed Abu Ita to go to the Maqadmah mosque to meet other terrorist operatives there or nearby. The Israeli Air Force drone located him as he and the others arrived, but did not spot the civilians because they were inside the mosque praying.

During the narrow window of time the decision was made to attack the groups of armed terrorists near the mosque entrance. The missile launched hit them, killing some outright and damaging the mosque wall, killing Palestinians inside.

The Goldstone Committee, which did not accuse Hamas of war crimes (rather, it mentioned “Palestinian armed groups”) and rocket attacks, also did not examine the aforementioned scenario , which can easily be found in open sources, and did not even try to ask Palestinians witnesses if such a possibility could exist. Based on partial, biased information and without making an attempt to reach the truth, the Committee accused Israel of the deliberate murder of Palestinian civilians.

Israel made the mistake of not presenting the facts and sources to the public, within the limits of security, to dispel the accusation of war crimes raised by the Goldstone Report.

Halevi also looks at the many times mosques were used for storing bombs and weapons, for recruiting terrorists, and for breeding suicide bombers.

(h/t t34zakat)

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Daily Goldstone 10/15

Some good stuff out there, as the UNHRC convenes to yet again condemn Israel (and ignore Hamas, directly ignoring the parts of the Goldstone report that are inconvenient.)

Warren Goldstein in the Jerusalem Post attacks Goldstone on legal and procedural grounds:

The Mission's findings were based on accepting the allegations of only one party to the conflict. The Mission did not try to cross-examine or challenge the witnesses in any real way. There is a lengthy, fascinating article by Jonathan HaLevi of the Jerusalem Center for Public Affairs in which he analyses in detail the methodology employed by the Mission in respect of witnesses. He demonstrates that there was a lack of adequate cross-examination of the testimony of the witnesses. Unproven allegations of Hamas officials were accepted as established facts. Even the most basic questions were not asked; when, for example, allegations were made of Israel's bombing civilian installations, witnesses were not asked whether there were Hamas fighters or weaponry in the vicinity, or whether any attacks had been launched from the area.

[Another] procedural injustice which undermines the integrity and credibility of Judge Goldstone and the three other members of the Mission: There simply was not enough time to do the job properly.

Any lawyer with even limited experience knows that there was just not sufficient time for the Mission to have properly considered and prepared its report. One murder trial often takes many months of evidence and argument to enable a judge to make a decision with integrity. To assess even one day of battle in Gaza with the factual complexities involved would have required a substantial period of intensive examination. According to the Mission's Report, the Mission convened for a total of 12 days.

The Forward notes the contradictions that Richard Goldstone states in his interview published last week:

“We had to do the best we could with the material we had,” he said during the interview. “If this was a court of law, there would have been nothing proven.”

And: “I wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved.”

Nothing proven? Allegations? The air of tentativeness that hung over Goldstone’s remarks that day was surely missing from the stark and disturbing legal conclusions in the report, in which Israel was told flat out that it had violated international law by targeting civilians — “the people of Gaza as a whole.”

Nor is there anything tentative about Goldstone’s words in a New York Times opinion article published after the report was released, in which he wrote, “Repeatedly, the Israel Defense Forces failed to adequately distinguish between combatants and civilians, as the laws of war strictly require.”

It is difficult to know what to make of these contradictory statements, except that it’s obvious Goldstone is trying to climb down from the dangerous perch he had built.

Finally, Yaacov Lozowick publishes an email exchange he had with an Amnesty International press officer, and in the thread Yaacov explains in a personal way why the Goldstone report is so fundamentally offensive to Israelis as well as why it is fundamentally flawed:

The findings as they were announced by the members of the mission, before anyone had had a chance to read them, were ridiculous. I apologize for being so blunt, but I see no softer way to say it. Their methodology was, a-priori, never tenable. The moment they allowed themselves to make statements about Israel's intentions, as against Israel's actions, they demonstrated their biases and intellectual shoddiness. The only way to know about Israel's intentions is by researching those intentions: the decision-making process, the plans drawn up, the orders given and so on. These things can't be inferred from the results, they can't be learnt from talking to Palestinians, and they certainly can't be deduced from ruins of homes which could have been knocked down by all sorts of things including Hamas weapons.

If the Israelis won't give you access, you can't say what they were thinking, not unless you have access. Sad, perhaps, unfair, perhaps, but true. Someday, 50 years from now, historians will be able to pore over the documents whether the authorities like it or not, because we're a democracy. At the moment, however, if the Israelis refuse to talk and to cooperate, there's no way to say what they were thinking.

Since Goldstone and his colleagues made clear from the moment of publication that they had found Israel had intentionally targeted the Palestinian population, at that moment their intellectual credibility was destroyed. The Israelis then followed up by reading the report and demolishing its findings, but the rejection didn't have to wait.

I suggest, Neil, that you stop and think about this before simply writing me off. I'm being very serious here, and I'm telling you something very fundamental, and that is that Israel did not have the intention of hurting the civilian population of Gaza, You don't know me, you certainly don't know my sources of information, but I assure you the reading of the Goldstone commission (which I'm slowly reading - it's ghastly) is factually wrong. It's not true. You can wave the report from now till doomsday; you can take comfort in the large numbers of people around you who agree with you; you can talk about international law and human rights to your heart's content - none of this can change the reality, which is that the basic finding of the Goldstone fact finding mission is a blatant lie. Since it was clearly stated up front, it's no wonder that the official Israeli responders, who do know the facts, sharply rejected it.

Remember: Israeli intentions are about Israelis. The Israelis had them, the Israelis decided upon them, the Israelis know what they were. Take a deep breath and count to ten before you tell us what we were thinking - as the Goldstone team so foolishly did.

[W]hen our government takes steps most of us thought it should take, that's us who is responsible. And it's we, too. Not to mention that when you talk of the IDF, that's us and we in the most simple meaning: it was I when I was young, it's my son right now (and in Gaza last January), and I guess it will be my grandsons in the wars we'll still be waging 30 years from now.

Finally, here's a thought for you. Over the years prior to the Gaza campaign, as the Palestinians shot more than 10,000 projectiles at Israeli citizens in the Sderot region,we did our best to look away. It was far from the large cities; doing something about it would have inevitably have included hurting Palestinian civilians because Hamas uses them as shields; doing something would have brought the rage of Amnesty and HRW and the UN and the BBC on our heads... so we dithered. Year in and year out we refrained from action. Eventually, we began to admit to ourselves, this callousness of ours was eating away at who we are, at those Kol Yisrael statements I told you about. It became harder and harder to look ourselves in the eyes, knowing that we were preferring the suffering of the few to the trouble to all.

Eventually, our patience broke, and we acted. WE acted. In OUR name. So far as WE can tell, most of the actions WE took were moral, legal, and justified; if there were minor exceptions, WE'll deal with them. At the moment, close to a year later, it even seems to have worked, and no-one, not Israelis nor Palestinians, are getting killed. And we're whole again.

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Goldstone report inaccuracies, part 14

One of the most-exaggerated events of the Gaza war was the accusation that Israel had bombed an UNRWA school, killing some 46 people according to some reports.

As time went on, it became clear that the school itself was not hit except from shrapnel, and that the numbers claimed to have been killed were vastly exaggerated.

The Goldstone report, however, claims that 24 were killed near the school - in multiple paragraphs:

41. The Mission examined the mortar shelling of al-Fakhura junction in Jabalya next to a UNRWA school which at the time was used as a shelter housing more than 1,300 people (Chapter X). The Israeli forces launched at least four mortar shells. One landed in the courtyard of a family home, killing eleven people assembled there. Three other shells landed on al-Fakhura Street, killing at least a further 24 people and injuring as many as 40.

687. Three other shells landed on al-Fakhura Street, which was busy at the time, killing at least a further 24 people and injuring as many as 40.

In a few other paragraphs it refers to at least 35 people killed both near the Fakhoura school and the al-Deeb family (which indeed appears to have been a tragic accident.)

The question is, how did Goldstone get the idea that 24 were killed on al-Fakhoura Street?

The answer is here:

661. The three other shells that the Mission could identify as having landed at different places on al-Fakhura Street killed at least 24 people. The witnesses estimate that up to another 40 were injured by the blasts. The Mission has not been able to verify those figures, but having inspected the site and viewed the footage, it does not consider these numbers to be exaggerated.

In other words, the Goldstone Commission did not even attempt to enumerate the people allegedly killed on al-Fakhoura street, taking Palestinian Arab witnesses at their word!

How could the esteemed Commission have verified these numbers? Well, for one thing, they could have simply looked at the PCHR report of those killed in Gaza and counted the number of people said to have been killed near the al-Fakoura school.

PCHR uses two different characterizations of those killed in the area. The al-Deeb family is invariably described as living "Opposite to al-Fakhoura School/ Jabalia Refugee Camp/ Northern Gaza" and of being killed simply in "Jabalia Refugee Camp/ Northern
Gaza." The others seem to always be described as either having lived or having been killed "Near al-Fakhoura School/ Jabalia Refugee Camp/Northern Gaza."

There are only 12 people who are described that way.

They include:

#783 Belal Hamza Ali ‘Ubeid (17 years old) Member of al-Qassam Brigades
#771 ‘Ateya Hassan Mustafa al-Madhoun DFLP National Resistance Brigades
#773 Zeyad ‘Ateya Hassan al-Madhoun DFLP National Resistance Brigades

It is possible that PCHR was not consistent in its definitions, but this maps with the number of victims that the IDF claimed to have been killed outside the school.

The IDF and the JCPA list different victims for the school than PCHR does, and it is possible that there were more victims. However, it seems to be unlikely to be too many more. The Goldstone Commission claims that there were three mortars in the area, and generally mortars do not kill that many people.

JCPA says that other terrorist victims include:

Khaled Mohammed Fuoad Abu Askar (Abu al-‘Izz), an Izz al-Din al-Qassam Brigades operative, was born on December 12, 1989, in Jabaliya. At the age of 15 he joined the Muslim Brotherhood and was active in the Hamas student organization, which serves as a recruiting agency for the Izz al-Din al-Qassam Brigades. In 2006 he was accepted into fighting groups posted in front-line positions. He underwent an advanced military training course and was posted to a special unit of the north Gaza battalion where he participated in dozens of ambushes and fought against IDF forces. He served as a military instructor in the Imad Aqel battalion and supervised the ambush and suicide unit.

Raafat Abu Askar, a military-terrorist operative in the security services with the rank of warrant officer, killed in the attack near the Al-Fakhura school.

Osama Jemal Obeid, an Izz al-Din al-Qassam Brigades operative, killed in the attack near the Al-Fakhura school.¹⁷

Iyad Jaber Aman, an Izz al-Din al-Qassam Brigades operative, killed in the attack near the Al-Fakhura school.¹⁸

Abd Muhammad Abd Qudas, a Fatah operative active in Palestinian Military Intelligence, killed in the attack near the Al-Fakhura school.¹⁹

Atia Hassan al-Madhoun and his son, Ziyad al-Madhoun, operatives in the Brigades of National Resistance, the military-terrorist wing of the Democratic Front for the Liberation of Palestine. Atia was regional commander for Jabaliya. The two were the father and brother of Hassan al-Madhoun, one of the senior commanders of Fatah's Al-Aqsa Martyrs Brigades, who was lynched by Hamas in the summer of 2006. The two were killed in the attack near the Al-Fakhura school.²⁰

If we accept the PCHR placement of victims, then 3 out of 12 victims were terrorists. If we accept JCPA's list, then some 10 terrorists out of (let's use Goldstone's) 24 people were killed. Either way, the number of terrorists killed is not consistent with the characterization that Goldstone gives; in fact Goldstone does not admit that any terrorists were killed in the incident at all.

Goldstone admits that there were some reports that there was mortar firing from Gaza militants, bringing two news reports from AP and British Channel 4 in footnotes (391), and also mentions that nine witnesses deny any firing from the area (para. 672.) Goldstone does not use this inconsistency to indicate that witnesses may be unreliable; instead the report says "the Mission accepts, for the purposes of this report, that some firing may have occurred that gave rise to the Israeli armed forces’ response."

Godlstone spends a bit of time pointing out inconsistencies between the initial Israeli reaction to the attack and subsequent reports. In fact, Goldstone uses these inconsistencies as proof that the Israeli version of events is not reliable. There indeed were inconsistencies between israel's initial reaction to the flawed reports of up to 50 victims in the school and the final report issued months later. However, there were also inconsistencies between how the UN initially characterized the attacks (saying over 40 were killed and that the school itself was attacked) and how it changed its tune afterwards, yet Goldstone does not question the UN witnesses' veracity in the face of these inconsistencies.

Even worse, one of the witnesses that Goldstone relies on heavily is Muhammed Fouad Abu Askar, whom it admits is a Hamas member in the footnotes (para 652) and whose son was a member of the al-Qassam Brigades (PCHR #782.)

Another relevant fact that Goldstone ignores was mentioned in the IDF report, footnote 263:

The IDF internal investigation provided important context for this incident. It revealed that Hamas often used 120mm mortars to attack Israeli towns and villages near the border of Gaza. Hamas terrorists had acquired significant expertise with these weapons and improved the accuracy of their technique; this tactic was central to Hamas‘ method of fighting the IDF in urban areas. Hamas‘ use of 120mm mortars posed a serious threat to IDF ground forces. Only a day before the incident in question, Hamas mortar fire had injured 30 IDF soldiers.

Goldstone describes the legal issues this way:

42. In drawing its legal conclusions on the attack against al-Fakhura junction, the Mission recognizes that for all armies proportionality decisions, weighing the military advantage to be gained against the risk of killing civilians, will present very genuine dilemmas in certain cases. The Mission does not consider this to be such a case. The firing of at least four mortar shells to attempt to kill a small number of specified individuals in a setting where large numbers of civilians were going about their daily business and 1,368 people were sheltering nearby cannot meet the test of what a reasonable commander would have determined to be an acceptable loss of civilian life for the military advantage sought. The Mission considers thus the attack to have been indiscriminate in violation of international law, and to have violated the right to life of the Palestinian civilians killed in these incidents.

In either of the two possible scenarios I mention, where either 3 out of 12 or 10 out of 24 killed were terrorists, it is far from clear that Goldstone's analysis holds water.

Given the facts that al-Qassam and DFLP terrorists were in the area, that mortar fire was coming from that area (according to reporters who interviewed witnesses), that the IDF responded without hitting the school itself, and that IDF return fire did indeed kill a number of terrorists far out of proportion to the report's characterization of a busy street with 150 civilians randomly scattered about (para. 698, using the Hamas witness again as their primary source,) it seems that Goldstone's legal analysis as to the military advantage of IDF returning fire is incorrect.

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Daily Goldstone 11/17

An open letter to Justice Goldstone, at CAMERA. Excerpts:

Dear Justice Goldstone,

You've frequently accused critics of presenting ad hominem arguments against you instead of dealing with the substance of the Report prepared by the United Nations Fact Finding Mission on the Gaza Conflict which you headed. I have several specific questions about the substance of the report arising from statements made there and from your own subsequent comments on November 5^th at Brandeis University. I hope that you will clarify these points and address my concerns.

The Mission concluded that Israel may be guilty of war crimes based on the assumption that the country's military forces and leaders deliberately targeted civilians. In order to reach this conclusion, the Mission ignored or discounted available evidence that contradicted that assumption while ignoring the weaknesses in testimony and evidence that imputed to Israel the motive of targeting civilians. This gives rise to the following questions.

1) Questions regarding the al Bader flour mill and denying sustenance to civilians

At the debate, you mentioned the damage to a flour mill in Gaza (the al Bader flour mill) as one of the incidents that convinced you that civilians were intentionally targeted. The Report is more specific, stating that the mill was attacked "for the purposes of denying sustenance to the civilian population" – which it charges may constitute "a war crime."

A) How can you reconcile this imputed motive with Israel's act of transferring 14,208 tons of flour into Gaza during the war – an average of 618 tons/day which is not only significantly more flour than the 220 metric tons the Al Bader mill could have produced in a day; but well over the 450 tons/day that the UN and the World Food Programme says Gaza needs?

Clearly if Israel's intention was to deny flour to Palestinian civilians, it would not have facilitated the import of almost triple the amount produced by the mill that was damaged.

B) And more broadly, how can you reconcile the imputed motive of purposefully denying sustenance to the civilian population with Israel's implementation of a daily humanitarian recess during the war in order to facilitate the transfer of humanitarian supplies?

C) Why did the mission fail to investigate or mention the fact that Hamas repeatedly seized shipments of humanitarian goods that were sent into Gaza from Israel and interfered with their distribution to the point where UN Secretary General Ban Ki Moon issued a demand to Hamas to release the goods? Why did the Mission avoid charging Hamas with "denying sustenance to the cvilian population"? (See, for example, "Hamas raids aid trucks, sells supplies" and "Statement by UN Secretary-General Demanding Immediate Release of Humanitarian Goods Seized by Hamas" )

The Report states (in Paragraph 933) that "the aim of the strike, if not military, could only have been "to destroy the local capacity to produce flour." But given that this local capacity is dependent, in any case, on the importation of wheat, it would have been unnecessary for Israel to carry out a military air strike for that purpose. Had Israel's intention been to deny Gazans the "local capacity to produce flour," it could have permanently suspended the transfer of grain – something which it did not do. On the contrary, it facilitated the transfer of both grain and flour into Gaza.

D) Given the above and given the Report's observation (in Paragraph 929) that "the building was one of the tallest in the area and would have offered extensive views...", wouldn't it be more logical to conclude that the strike was against enemy fire and/or surveillance? Why did the Mission dismiss the possibility that the air strike was against a source of Hamas fire and/or surveillance?

If the Mission dismissed this real possibility solely on the basis of the mill owner's testimony, shouldn't they have taken into consideration the real possibility that the witness might have tried to cover up for Hamas operatives fearing retribution lest he incriminate them in his testimony?

Much of the letter refers to the more comprehensive, and recently updated, CAMERA critique of the Goldstone report.

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Daily Goldstone 11/2

As I mentioned this morning, Richard Goldstone wrote a letter to Howard Berman and the other sponsor of US HR Res 867 saying that the resolution has what he perceived as some mistakes.

Berman has written his own response to the response. Interestingly, his response seems to be to the letter that may have been written by Morton Halperin, advisor for J Street. Here's only a small part of his response, which is really a fisking:

[Goldstone:] “9. Paragraph 13:This is the first suggestion that I have come across to the effect that we should have investigated the provenance of the rockets. It was simply not 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.”

Response: As noted, Justice Goldstone’s Report went beyond its mandate in several respects; looking at the roles of Iran and Syria in assisting Hamas certainly would have provided critical context to the Report. Iran and Syria enable Hamas’ terrorism. The assistance Hamas receives from outside actors allows the Hamas terrorist organization to attack Israel incessantly, certain in the knowledge that its arsenals will be replenished.

Hamas’ support by state actors makes it a formidable foe. The report should have considered that geopolitical context.

[Goldstone:] “10. Paragraph 14: 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.”

Response: The Report uncritically attributes numerous statements to “Gaza Authorities” (meaning, Hamas), while often casting doubt on information derived from the international and Israeli press and from non-government-affiliated Israelis.

For example, the Report criticizes the fact that an Israeli Government web-post cites a Newsweek article reporting on Hamas depredations against its own population and casts doubt on the accuracy of the article. According to the Report, the citing of the Newsweek article, far from being an effort to invoke a neutral source, is merely evidence that Israel itself finds the Newsweek report unconvincing, since Israel does not adduce evidence from its own internal sources (p.143 paragraphs 612-614). This is an odd criticism, since intelligence information, no matter how compelling, is only rarely disclosed to the public.

Perhaps most tellingly, the Report appears only to cite Israeli statements when it finds such statements a useful basis for criticizing Israel. For example:

Section 41 – “The Mission examined the mortar shelling of al-Fakhura junction in Jabaliyah next to a UNRWA school, which, at the time, was sheltering more than 1,300 people (chap. X). The Israeli armed forces launched at least four mortar shells. One landed in the courtyard of a family home, killing 11 people assembled there. Three other shells landed on al-Fakhura Street, killing at least a further 24 people and injuring as many as 40. The Mission examined in detail statements by Israeli Government representatives alleging that the attack was launched in response to a mortar attack from an armed Palestinian group. While the Mission does not exclude that this may have been the case, it considers the credibility of Israel’s position damaged by the series of inconsistencies, contradictions and factual inaccuracies in the statements justifying the attack.”

Section 702 – “The Mission views as being unreliable the versions given by the Israeli authorities. The confusion as to what was hit, the erroneous allegations of who was specifically hit and where the armed groups were firing from, the indication that Israeli surveillance watched the scene but nonetheless could not detect where the strikes occurred, all combine to give the impression of either profound confusion or obfuscation.”

By contrast, the Report is far more forgiving when discussing contradictions in Palestinian evidence:

Section 1092 – “There are some minor inconsistencies, which are not, in the opinion of the Mission, sufficiently weighty to cast doubt on the general reliability of Majdi Abd Rabbo. There are also, not surprisingly, some elements of the long account which appear in some versions and not in others. The Mission finds that these inconsistencies do not undermine the credibility of Majdi Abd Rabbo’s account.”

Read the whole thing.

(h./t Israel Matzav)

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Daily Goldstone 11/15

From the Washington Post:

IN ORDER to eliminate the Taliban leader Baitullah Mehsud, the United States launched at least 15 missile strikes in Pakistan this year and killed, besides Mr. Mehsud, somewhere between 200 and 300 people, according to a study by the New America Foundation. At least a quarter of those who died were civilians.

Was that toll "disproportionate" to the threat posed by a single terrorist and therefore a war crime? How about the recent NATO bombing of hijacked fuel tankers in northern Afghanistan, in which a mix of 80 to 120 Taliban militants and civilians died? Justified strike, accident or war crime?

This is the sort of fraught question that the United Nations and its Human Rights Council, in theory, ought to be focused on. Asymmetrical wars, in which terrorists and insurgents deliberately mix among civilians, are the story of the 21st century so far -- and there are no clear norms for managing the moral dilemmas they pose. Can a drone's targeter knowingly expose civilians to injury if a terrorist leader is in range? How should a civilized army respond when its soldiers are mortared, or its own civilians exposed to rocket fire, from a position inside a schoolyard?

A commission appointed by the Human Rights Council to investigate Israel's war with Hamas in Gaza last winter could have set an example of serious treatment of such issues. Headed by the respected South African jurist Richard Goldstone, the panel altered the one-sided mandate it received, so as to examine abuses by both Israel and Hamas during the three-week conflict.

But Israel refused to cooperate -- and the Goldstone commission proceeded to make a mockery of impartiality with its judgment of facts. It concluded, on scant evidence, that "disproportionate destruction and violence against civilians were part of a deliberate policy" by Israel. At the same time it pronounced itself unable to confirm that Hamas hid its fighters among civilians, used human shields, fired mortars and rockets from outside schools, stored weapons in mosques, and used a hospital for its headquarters, despite abundant available evidence.

By pretending it did not know whether Hamas employed such tactics and by claiming that Israel's actions were driven by a motivation to kill civilians on purpose, rather than to defeat Hamas, the panel dodged the hard issues it should have tackled. It did not seriously attempt to balance civilian deaths against the threats Israel was targeting or to understand the real motivations for the destruction in areas from which rockets were launched at Israeli cities.

As it happens, Israel is ahead of most other nations in managing these issues. In Gaza its forces used thousands of e-mails, phone calls and even non-lethal explosives to warn civilians away from airstrike targets. Its army's criminal division is investigating 45 complaints of abuses.

A broader, government-sanctioned independent investigation is called for: a number of specific allegations in the Goldstone report, one-sided though they are, deserve a full answer. Not just Israel but the United States and many other nations ought to face more pressure to justify the means they use to fight insurgents and terrorists. Sadly, the only thing proved by the Goldstone commission is that the United Nations is incapable of performing that service.

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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.

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Daily Goldstone 11/4

Richard Landes at Augean Stables takes a deeper look at the "36 incidents" that Richard Goldstone has alternatively characterized as "illustrative" and as to "appear to represent situations where there was little or no military justification for what happened." Those two characterizations are contradictory, to say the least.

What’s missing here, of course, is any investigation into the extensive evidence that Hamas used the civilian population as a shield, that they deliberately fired from the midst of civilian neighborhoods in order to provoke attacks, that they dressed as civilians, commandeered ambulances, stole food supplied by Israel to the Gazan population… in short that they did everything they could to maximize their own civilians’ casualties. All these matters are, of course, critical to assessing the behavior of Israeli troops. And yet, Goldstone explicitly refused to look into this material....

We didn’t want to investigate situations where we would be called upon to second-guess decisions made by Israeli Defense Force leaders or soldiers, in what’s called the “fog of battle”. It’s really unfair to do that, especially without hearing the other side. So we tried to concentrate on issues which seem to be less likely to be justifiable by applying those standards.

In other words, we didn’t look specifically into incidents of Hamas using human shields, didn’t listen to witnesses who, taking that information into account, found the IDF took remarkable risks to avoid hitting civilians. Instead, they chose 36 incidents to investigate which “appear to represent situations where there was little or no military justification for what happened,” and nonethess, found Israel guilty of targeting civilians. ...

Indeed, the FFM, even as it only tangentially considered evidence of Hamas’ military strategy of human shields, consistently dismissed any evidence to the contrary. The trope “The Mission found no evidence… did not find any evidence… for illegitimate behavior by Hamas and other Palestinian combatants runs through the report like a scarlet thread...

If you seek not, how will you find?

Read the whole thing.

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Daily Goldstone 10/18

Yaacov Lozowick picks up on another of those really reliable Gaza eyewitnesses:

On page 200 of the Goldstone Report we find this sentence:

706. The Israeli ground offensive from the east reached al-Samouni neighbourhood around 4 a.m. on 4 January 2009. In addition to the ground forces moving in from the east, there were, in all likelihood, heliborne398 troops that landed on the roofs of several houses in the area.

Should you wonder what that means, heliborne troops (and how would the Commission members have known?), you can follow footnote 398:

One witness told the Mission that on 5 January 2009, walking on Salah ad-Din Street towards Gaza, he saw by the roadside parachutes Israeli troops had used to land in the area.

Israel has not used parachutes in battle since 1956. I've never heard of parachutists in any army jumping from helicopters, because the two methods contradict one another. Parachutists jump from mid-altitude airplanes, and aim at large areas since they cannot be guided to precise points. Helicopters land troops on precise points; the troops jump out from a height of a foot, or three.

I haven't heard of Israeli troops being flown by helicopter into battle in Gaza, but who knows? Maybe it happened. If so, eyewitnesses would be able to tell about it in one, very clear case: if they saw the helicopters coming in, effectively landing, and then leaving troops behind them. It's that simple.

The story told by the witness is straight from some Arabian tall tale. I am totally at loss for an explanation as to why the fact finders would have wished to cast themselves as giving the time of day to such fabulists, but I'm at loss for an explanation about lots of things in their report. Keep in mind, however, that one of the four members was chosen for being a military man, and some of their staff were hired for their military expertize, so it's not that they didn't know better.

h/t Tzvi

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Daily Goldstone 11/11

Yaacov Lozowick finally puts his thoughts on paper after spending weeks reading Goldstone. His full article is 12 pages long. Here's a small part:

These representative examples – they are representative, not cherry-picked – show that the authors approached their investigation with a one-sided and tendentious understanding of the conflict, eager to embrace bogus depictions of facts which could have been easily checked, and with an image of Israeli society unrecognizable to most Israelis. This is crucial, as the single most important finding in the Report is that Israel purposefully targeted the population of Gaza. Even before reading the descriptions of events, it is reasonable to wonder "what Israel" it is the investigators were investigating; it certainly isn't the one its citizens recognize.

Even more baffling than the willingness of the investigators to invent Israeli motives, which at least is not denied, is their refusal to seek evidence of the actions and intentions of the defenders. They made a few feeble enquiries of what they call the Gaza Authorities about the fighters, were rebuffed with the odd response that these authorities had no knowledge of what the fighters of their own side might have been doing, and that was all. Yet in dozens of cases described in their report, the question demands to be answered: if the IDF was firing in this direction, what do the Hamas commanders have to tell about their forces? Had they booby trapped the building? Were they firing from here? Had they laid mines in this field? Were they congregating in this mosque, and for what purpose? Was this farm intended as a line of defense, or that zoo as a trap for advancing IDF troops? In many cases the investigators asked local civilians, but they never asked the fighters or their leaders.

Bizarre as it may sound – and it is truly bizarre – the investigators came to what had been the scene of a war, and tried to piece the events together without talking to either of the warring sides. They asked the Israelis, and the Israelis refused to talk. They didn't ask Hamas, so Hamas never even had to refuse. Yet they had the arrogance to tell what had happened.

Read the whole thing.

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Daily Goldstone 10/5

CAMERA finds many problems with the Goldstone Report.

REPORT:	There is no evidence of Palestinian fighters using civilian clothes.
FACT:	Journalists and eyewitnesses repeatedly noted the use of civilian clothes by Hamas fighters.
REPORT:	There is no evidence of armed groups directing civilians to areas where attacks were being launched or forcing them to remain in the vicinity of attacks.
FACT:	Palestinian witnesses and video evidence reveal that fighters did direct civilians to areas where attacks were being launched.
REPORT:	There is no evidence that hospitals or ambulances were used for military activities.
FACT:	Eyewitnesses describe Palestinian firing from hospitals and use of ambulances.
REPORT:	The mission could not determine whether mosques were used for military purposes.
FACT:	There is video evidence of weaponry stored in a mosque, and of secondary explosions of mosques consistent with the storage of explosives.
REPORT:	The amount of aid allowed into Gaza by Israel decreased after the end of the fighting.
FACT:	If not false, the assertion is at best disingenuous. The average weekly number of humanitarian shipments increased in the months after the war ended.
TESTIMONY:	The Zeitoun area is pacifist and had no militant groups or rocket fire.
REPORT:	This witness is credible and reliable, and there is no reason to doubt his testimony.
FACT:	There are many documented cases of Palestinian militants being killed in armed clashes in the neighborhood.
TESTIMONY:	The al Fakhoura area was not used to fire at Israel, and no combatants were killed in the Fakhoura incident.
REPORT:	The Report was based in part on three interviews with the Hamas official who made the above claim, and did not cast doubt on his testimony.
FACT:	Palestinian eyewitnesses and Israel note that the area was used to fire at Israel, and that combatants were killed in the Israeli strike.

Lots more, check it out.

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Daily Goldstone 12/24

From the University of Pittsburgh Law School website:

The Goldstone Commission Report on the January 2009 Israel-Palestinian conflict in Gaza — which comes before the United Nations today, November 4, 2009 — has been accused of failure on various levels. Many commentators argue that the Report fails the Israeli-Palestinian peace process. Some say it reflects a failure to understand the deeper historical realities of the Israeli-Palestinian conflict. Still others say it fails the originally conceived purpose of the United Nations Human Rights Council and fails the search for objective truth. Its most glaring failure, though, has gone unnoticed. The Report fails the law.

It does so by striking out in applying the law in three key areas. Strike One: the Report incorrectly claims Israel disproportionately attacked civilians. Strike Two: the Report unjustly accuses Israel of a disproportionate response to Hamas's attacks. Strike Three: the Report treats Israel and Hamas disproportionately by holding them to different standards.

Strike One

Jus in bello is the law governing conduct during war. One of its key principles is proportionality, which requires military personnel to take precautions in targeting the enemy to ensure that the expected civilian losses are not excessive compared to the anticipated military advantage. The commander's perspective at the time of the attack is the central focus. The law assesses whether his actions were reasonable given the information he had access to, taking into account the "fog of war." Proportionality is not measured after the fact by looking at actual civilian casualties or actual military advantages. If it were, no military could ever engage in any operations.

The Report turns proportionality's bedrock premise on its head. It relies substantively on information gathered after the fact and discounts contemporaneous Israeli intentions or actions and the surrounding circumstances. The Report also undermines its own legitimacy by automatically verifying one side's statements and impugning the other's. Israel's real-time information consists of mere "allegations," but retrospective information collected months later in Gaza consists of definitive "statements." Israel admittedly did not cooperate (given the commission's biased conception), but that cannot justify reliance on the wrong information.

Strike Two

Jus ad bellum is the law governing decisions to go to war. Article 2(4) of the U.N. Charter forbids the use of force without Security Council enforcement (Article 2(7)). One exception: Article 51 preserves the right to use force in self-defense. Jus ad bellum mandates that any act in self-defense constitute a proportionate response, meaning a necessary and reasonable means to counter the attack and eliminate future threats.

The Report confuses jus in bello proportionality (as explained above) with this jus ad bellum requirement of a proportionate response. Israel acted legitimately in self-defense to destroy Hamas's tunnels and rocket launchers. Hamas indiscriminately fired thousands of rockets at Israeli civilians for eight years. And yet, the Report does not even mention Article 51. More egregiously, it uses the incorrect assessment that particular Israeli attacks violated jus in bello proportionality to unfairly package Operation Cast Lead as disproportionate overall, a clear misapplication of jus in bello principles in a jus ad bellum framework.

Strike Three

The Report's (unfounded) legal conclusions disproportionately hold Israel and Hamas to different standards. It states unequivocally (but without factual substantiation) that Israeli forces committed grave breaches of the Geneva Conventions, such as willful killing and torture.

Article 85 of Additional Protocol I states that "making the civilian population or individual civilians the object of attack" and launching indiscriminate attacks—the very crimes Hamas committed, according to the Report—are indeed grave breaches. But the Report never considers that Palestinian armed groups committed grave breaches. Accusing Israel of "grave breaches" while failing to similarly identify Hamas' violations exposes the commission's bias to the core.

This uneven treatment pervades the entire report. For example, Hamas and Israel both had obligations to protect civilians in Gaza. The Report's single-minded focus on Israel, however, leads to absurd statements regarding Hamas's breach of those obligations when it used civilian buildings as command centers, munitions storage and rocket launch sites. While quick to condemn Israel flat out for violations, the Report merely suggests that Hamas's actions "would constitute" legal violations.

Reading the Report in an uncritical vacuum suggests that Israel abrogated its obligations under the laws of war. In reality, the main failure lies in the Report itself. The Report fails the law. Why does this matter? Because in maintaining a delicate balance between destruction of enemy capabilities and protection of innocent civilians, the law reinforces our basic dignity and humanity in the face of the horrors of war. We cannot afford to abandon it.


Laurie R. Blank is the Acting Director of Emory Law's International Humanitarian Law Clinic. Gregory S. Gordon is an assistant professor at the University of North Dakota School of Law and Director of the UND Center for Human Rights and Genocide Studies.

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02/04 Links Pt1: Abbas' Fatah promotes rocket attacks; U.S. Seen in M.E. as Ally of Terrorists

From Ian:

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Khaled Abu Toameh: U.S. Seen in Middle East as Ally of Terrorists

Many Egyptians and moderate Arabs and Muslims were shocked to hear that the U.S. State Department recently hosted a Muslim Brotherhood delegation. They were equally shocked when an EU court decided to remove Hamas from the bloc's list of terror groups.
"Just two days after the controversial visit, the Brotherhood called for a war against their fellow Egyptians." — Linda S. Heard, Middle East Expert, Gulf News.
"The Muslim Brotherhood is seeking to return to the political arena through the American door and terrorist attacks. The U.S. policy appears to be devious and unreliable." — Ezzat Ibrahim, columnist, Al Ahram.
"[Ousted Egyptian President] Mohamed Morsi, before his election, described these Jews as descendants of apes and pigs. In English, the Muslim Brotherhood says one thing and in Arabic something completely different." — Mohamed Salmawi, Egyptian columnist

Abbas' Fatah promotes rocket attacks

Abbas' Fatah movement has once again demonstrated its support for terror and violence, as Palestinian Media Watch keeps exposing. The above picture showing masked Fatah fighters launching rockets at Israel was posted on Fatah's official Facebook page with a quote from the Quran, indicating that according to Fatah, even Allah sanctions the use of terror attacks:
"If Allah should aid you, no one can overcome you."
(Quran, Sura 3:160, translation Sahih International)
[Facebook, "Fatah - The Main Page", Jan. 27, 2015]
The text on the flag is Islam's declaration of faith: “There is no god but Allah, and Muhammad is the messenger of Allah."
Another recent Fatah post also showed the rifle as an integral part of the Fatah movement and the way it wants to "resist" Israel.

JPost Editorial: Schabas shalom

Schabas’s resignation seals the fate of the misguided UNHRC’s panel of inquiry and its report, slated to be produced at the end of March. By stepping down, Schabas is effectively admitting his own bias, which renders the results of his inquiry inadmissible to any court of justice.
The Schabas controversy would be farcical if it were not tragic. The world is in desperate need of a body with international backing and clout to investigate human rights abuses and bring criminals to justice. The UNHRC was supposed to be precisely this body, but it has failed miserably.
As a result, a double injustice has been performed. Not only has Israel, a country that is not perfect but that strives to protect human rights, been singled out for wildly disproportionate censure, but other countries – Sudan, Syria, Saudi Arabia to name just a few – are allowed to carry on violating basic rights indiscriminately.
It is a small consolation to bid Schabas a hearty “shalom” and witness the trashing of his biased report on purported Israeli war crimes and human rights abuses. Yet while Schabas wasted his time with his “inquiry,” human rights were being abused around the world. The cries for help from Nigeria, Ukraine, and China, however, were met by the UNHRC in Geneva with silence.

UN Watch: UN rights council: Schabas’ resignation “preserves integrity of the process”

Their Gaza probe was run for half a year by a law professor who did paid work for the PLO, but the UN is insisting that Schabas’ sudden resignation under a cloud of bias “preserves the integrity of the process.”
The truth is that Schabas made clear in his resignation letter that he “devoted several months of work” to the project.
As the top expert on the issues, Schabas in those several months of work would have played a leading role in conceiving of the entire project: the scope, framework, methodology, selection of incidents to examine, choice of witnesses, and legal standards to apply.
Schabas would also have had a say in the influential choice of staffers, who do a lion’s share of the work. Finally, Schabas chaired all of the hearings where testimony was delivered and impacted the entire process. He ran the game until the 9th inning.
This is a mistrial. And if Schabas is tainted — because of his ties to the PLO and because of his long record of biased statements and actions — then the taint attaches to the entire commission and report.

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Hamas admits what we all knew - "policemen" were terrorists

From Ha'aretz:

Hamas confirmed for the first time on Monday that between 200 and 300 members of the organization's military wing were killed during Israel's offensive in the Gaza Strip at the end of 2008, Israel Radio reported.

Israel launched Operation Cast Lead in December 2008 in efforts to curb missile fire from the Palestinian territory into Israel's southern communities. Immediately following the operation, Hamas reported that less than 50 of its men had been killed.

Hamas' Interior Minister Fathi Hamad, who was confirmed the figures in an interview with the London-based Arabic language daily Al-Hayat, said that the so-called "police officers" who were killed during the first day of the operation were actually 250 Hamas fighters, and that 150 additional "security personnel" were also killed.

Israel Radio indicated that these figures were consistent with the numbers initially reported by the Israel Defense Forces Spokesperson's Unit immediately following the operation, which Hamas denied.

Ha'aretz' headline is slightly misleading, because Hamas is admitting that 250 of its members were killed on the initial day of Cast Lead (Israel's response to Hamas' own Operation Oil Stain) - but the total number of Hamas militants killed during the war was much higher.

Hamas' al-Qassam website has been steadily listing these hundreds of "policemen" as Qassam Brigades "martyrs" and we have been documented that since April, 2009.

The intriguing part is that we have only documented 210 policemen (defined by the PCHR) as terrorists - so we may have undercounted. As it is, we already have proven that 75% of the "policemen" killed during the fighting were, in fact, Hamas militants and that there Hamas never distinguished between the al-Qassam Brigades and its police force.

If indeed some 250 of the policemen that were killed in only the initial day were al Qassam members, that would indicate that far more than 75% of the policemen were terrorists - because PCHR only documented 282 total policemen killed during the entire operation, plus two policewomen.

Now would be a good time to re-visit the Goldstone Report, which said:

417. Except for the statements of the police spokesperson, the Israel Government has presented no other basis on which a presumption can be made against the overall civilian nature of the police in Gaza. It is true that the police and the security forces created by Hamas in Gaza may have their origins in the Executive Force. However, while 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 that the assertion on the part of the Government of Israel that “an overwhelming majority of the police forces were also members of the Hamas military wing or activists of Hamas or other terrorist organizations” appears to be an overstatement that has led to prejudicial presumptions against the nature of the police force that may not be justified.

Israel was right. Goldstone was wrong. And Goldstone believed Hamas' lies about the police without reservation while being skeptical of the accurate Israeli side.

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Daily Goldstone 10/16

Testifying on behalf of UN Watch in Geneva at the special session called to condemn Israel, Col. Richard Kemp says

I am the former commander of the British forces in Afghanistan. I served with NATO and the United Nations; commanded troops in Northern Ireland, Bosnia and Macedonia; and participated in the Gulf War. I spent considerable time in Iraq since the 2003 invasion, and worked on international terrorism for the UK Government’s Joint Intelligence Committee.

Mr. President, based on my knowledge and experience, I can say this: During Operation Cast Lead, the Israeli Defence Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.

Israel did so while facing an enemy that deliberately positioned its military capability behind the human shield of the civilian population.


Hamas, like Hizballah, are expert at driving the media agenda. Both will always have people ready to give interviews condemning Israeli forces for war crimes. They are adept at staging and distorting incidents.

The IDF faces a challenge that we British do not have to face to the same extent. It is the automatic, Pavlovian presumption by many in the international media, and international human rights groups, that the IDF are in the wrong, that they are abusing human rights.

The truth is that the IDF took extraordinary measures to give Gaza civilians notice of targeted areas, dropping over 2 million leaflets, and making over 100,000 phone calls. Many missions that could have taken out Hamas military capability were aborted to prevent civilian casualties. During the conflict, the IDF allowed huge amounts of humanitarian aid into Gaza. To deliver aid virtually into your enemy's hands is, to the military tactician, normally quite unthinkable. But the IDF took on those risks.

Despite all of this, of course innocent civilians were killed. War is chaos and full of mistakes. There have been mistakes by the British, American and other forces in Afghanistan and in Iraq, many of which can be put down to human error. But mistakes are not war crimes.

More than anything, the civilian casualties were a consequence of Hamas’ way of fighting. Hamas deliberately tried to sacrifice their own civilians.

Mr. President, Israel had no choice apart from defending its people, to stop Hamas from attacking them with rockets.

And I say this again: the IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.

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Friday links

From Ian:

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Latma: The left's comeback strategy



West Bank: What the West is Funding by Khaled Abu Toameh

"Many Palestinian writers and journalists in the West Bank today live in fear of being harassed by the Palestinian Authority because of their views and writings. Some practice self-censorship, while others are writing under different names or have found themselves new and less dangerous professions.
There is no reason why those who are pouring millions of dollars on the Palestinian Authority should not demand an end to suppression of freedom of expression and the growing clampdown on writers and journalists in the West Bank.
Failing to hold the Palestinian Authority accountable for its actions will only drive more Palestinians into the arms of Hamas and the other radical forces."

Daily Telegraph runs shameful anti-Israel propaganda piece

The point about propaganda is that is has to be convincing. Nabeel Shaath's piece is total rubbish from beginning to end
"Cutting through the obfuscations, the diversions, and the errors, deliberate or otherwise, the underlying meaning of Shaath's words is clear: the Jews have no place being in the Middle East at all, except perhaps as the kind of second class citizens they were in the Arab states prior to Israel's establishment. As for a legitimate and secure Jewish state living side by side with its neighbours? Forget it.
Oh, and by the way. I forgot to mention that the Telegraph's writer is a Palestinian "moderate". God help Israel if they ever bump into any Palestinian extremists. Oh, wait..."

Palestine – Falk’s Failed Philosophy Guarantees Continuing Conflict by David Singer

"One would expect a Professor of Law to be precise and accurate in his choice of language and attention to factual detail. Professor Falk fails on both counts.
Professor Falk is certainly entitled to espouse the views he does.
However his entitlement to continue in his role as a Special Rapporteur must surely be questioned when he seeks to ignore a whole body of settled international law created before 1948 – whilst continuing to act in this highly sensitive position.
A new appointment to replace Professor Falk should be a priority. His use by date has surely been reached."

NGO Monitor: NGO Monitor Urges UNHRC to Comply with Fact-Finding Standards

“Already, contrary to principles of impartiality, the Mission’s mandate presumes guilt on Israel’s part, while failing to address the wider context, including the systematic terror campaign against Israeli civilians,” said Anne Herzberg, NGO Monitor’s Legal Advisor. “Our submission reminds the fact-finding mission of its obligation to comply with standards of transparency, impartiality, and independence in conducting its work. Otherwise, this Mission risks being discredited like the infamous fact-finding mission to Gaza, which produced the ‘Goldstone Report.’”

At memorial service for Toulouse victims, Netanyahu sings ‘Israel is alive’
Prime minister praises French president’s ‘firm’ stance against anti-Semitism; Hollande pledges to protect France’s Jews

Christian Arab youth come under fire over desire to enlist in IDF

"Arab media and Arab MKs are waging a vicious smear campaign against a small group of Christian Arab youth interested in military or national service • Christian Orthodox priest excommunicated for "cooperating with the enemy." (posted by sophie44)"

Tearful UK Jewish academic tells court his trade union has crossed the line into anti-Semitism

"In a potentially landmark case against the University and College Union (UCU), which is being heard at an employment tribunal in central London, Fraser is claiming that the union created a hostile environment for him as a Jew by repeatedly crossing the line from anti-Zionism into anti-Semitism. His case revolves, amongst other matters, around repeated motions to implement an academic boycott of Israel."

Arab tweeps should stop gloating over Sandy disaster: Saudi Grand Mufti

The Grand Mufti of Saudi Arabia, home to Islam’s holliest sites, has condemned the gloating by radical “tweeps” in the Arab world over the Sandy storm disaster, which left more than 100 people dead in the U.S. East Coast, as “illegitimate.”

British Muslims Celebrate Hurricane Sandy, 9/11 and The Holocaust

MEMRI: Saudi Cleric Muhammad Al-Munajid: Hurricane Sandy Allah's Punishment for Afghanistan and Iraq

Arab TV Report Exposes Lax Security At U.S. Consulate In Benghazi
Prior To Ambassador Stevens' Arrival And Security Breach Prior To Attack – Revealed By Documents Gathered At Consulate Following Attack

PMW: Official PA daily: PMW "incites" against the PA
Following PMW's reports that terrorist prisoners receive PA salaries, PA Min. Karake defends the prisoners as "lawful freedom fighters"

Honest Reporting: More Twisting the Truth: Ha’aretz and IDF Experiments on Soldiers

Israel Daily Picture: The Balfour Declaration Was Issued 95 Years Ago
In 1925 Balfour Arrived to See the Jewish State in Formation

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Also:

UKIP Euro-MP slams EU funding for ‘terror-linked’ NGOs

Burying Rachel’s Tomb

A would-be new leader of Israel’s Arabs urges full integration with Israel

Tunisia: Salafist Extremist Attack Alcohol Sellers

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