Wednesday, October 07, 2009

From the Forward:
Goldstone’s findings themselves have, meanwhile, been left largely unexamined. The 36 specific incidents he focuses on in his report paint a disturbing picture of an Israeli army purposefully targeting unarmed civilians. But the facts of the report are built mostly on testimonies of Palestinian eyewitnesses, which have received little scrutiny or verification. Critics also call attention to parts of the commission’s work that they say was sloppily done, without sufficient cross-examination and double checking of information. Alternative interpretations of the incidents described are not considered, let alone fully explored.

Tellingly, in an interview with the Forward on October 2, Goldstone himself acknowledged the tentative nature of his findings.

“Ours wasn’t an investigation, it was a fact-finding mission,” he said, sitting in his Midtown Manhattan office at Fordham University Law School, where he is currently visiting faculty. “We made that clear.”

Goldstone defended the report’s reliance on eyewitness accounts, noting his mission had cross-checked those accounts against each other and sought corroboration from photos, satellite photos, contemporaneous reports, forensic evidence and the mission’s own inspections of the sites in question.

For all that gathered information, though, he said, “We had to do the best we could with the material we had. If this was a court of law, there would have been nothing proven.”

Goldstone emphasized that his conclusion that war crimes had been committed was always intended as conditional.

Nevertheless, 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 this rush to judgment based on what critics believe to be unsubstantiated allegations that has angered some who have delved into the details.
When speaking to a Jewish newspaper, Goldstone is claiming that the report does not any legal validity. Yet the report itself has many sections entitled "Legal Findings" that have flat statements like this one:

810. In reviewing the above incidents the Mission found in every case that the Israeli armed forces had carried out direct intentional strikes against civilians. The only exception is theshelling o f the Abu Halima family home, where the Mission does not have sufficient information on the military situation prevailing at the time to reach a conclusion.
As far as I could tell, nowhere in the report itself does it say that these "legal findings" are not meant to be interpreted as anything other than legal findings. And one can be sure that regular readers of the report are not making these fine distinctions that Goldstone now claims were clear.

Similarly, Goldstone says to the Forward that "Ours wasn’t an investigation, it was a fact-finding mission." Yet the report itself does refer to its own gathering of facts as an "investigation:"

21. The Mission conducted field visits, including investigations of incident sites, in the Gaza Strip. This allowed the Mission to observe first-hand the situation on the ground, and speak to many witnesses and other relevant persons.
36. On the basis of its own investigations and the statements by United Nations officials, the Mission excludes that Palestinian armed groups engaged in combat activities from United Nations facilities that were used as shelters during the military operations.
48. Based on its investigation of incidents involving the use of certain weapons such as white phosphorous and flechette missiles, the Mission, while accepting that white phosphorous is not at this stage proscribed under international law, finds that the Israeli armed forces were systematically reckless in determining its use in built-up areas.
And even though the mission was officially termed "fact-finding," the mandate itself calls it an investigation:

131. On 3 April 2009, the President of the Human Rights Council established the United Nations Fact Finding Mission on the Gaza Conflict with the mandate “to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after.”

A legal scholar must be very attuned to the exact meaning of his words. The report, and the mandate, specifically refers to its own mission as an "investigation" numerous times. Saying that it really isn't weeks afterwards is meaningless and more than a little deceptive.


The Forward article also gives me my 15 nanoseconds of fame, unfortunately without a link:
But critics have also questioned whether the clear cut version of the attack that appears in the report is the whole story. According to Halevi’s research, as well as the investigative work of an anonymous blogger called “Elder of Ziyon” — both of whom crosschecked websites for Islamic Jihad and Hamas — among the 15 dead were six men who they contend were members of the Al Qassam Brigades, Hamas’s paramilitary wing.
If you want to know what I told the reporter, see here. Last night I also sent him more info on my research into terrorists that the PCHR categorized as civilians.)

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