Elder Of Ziyon - Israel News

Thursday, September 17, 2009

Must read: Richard Landes fisking Goldstone's NYT piece

Professor Richard Landes does a superlative job fisking Judge Richard Goldstone's op-ed in the New York Times today. And while I have been spending what time I have on the minutae of the large Goldstone Report, Landes' post goes to the very heart of the topic, and shows exactly what is problematic about the entire enterprise. It casts great doubt on Goldstone's honesty, at least with regards to this topic.

It is a must-read, as are the links Landes uses to support his arguments.

Islamic Jihad also has a "political wing"

Jihad organizations rarely have a purely military focus. They always have used charities and created Islamist schools to recruit new members, and those "wings" require their own procedures and people. Similarly, the larger ones also need to speak to the media and negotiate with other groups, and those people become the "political wings" of the organizations.

The critical point is that the political and social-service wings are not separate - their entire existence is to support the terrorist goals of the organization. They are subservient to the military goals, not independent of them.

For example, here are some pictures from Palestine Today showing a leader of the "political wing" of Islamic Jihad, Sheikh Nafez Azzam, greeting the backbone of the terror organization:

He reiterated that armed "resistance" is the only way to "defend" their people.

Hamas' non-military wings have grown the same way; out of a necessity to do some non-military tasks as necessary to continue the major focus, which remains jihad. For example, Hamas leader Nizar Rayyan's role was to bridge the military and non-military wings of Hamas - a purely practical role that indicates the primacy of jihad in Hamas.

Westerners stricken with a particularly extreme case of wishful thinking disease like to seize on these different "wings" as evidence that there is a huge separation of duties and goals between them. In Hamas' case. the fact that separate "security forces" report to the same "ministry" indicates that the separation is practical, not doctrinal. Add this to the fact that a majority of Palestinian Arab police killed in Gaza also belonged to Hamas' armed wing and it is clear that no real distinction can be made between the two, just as no practical distinction can be made between the fighters and the people who procure weapons within the Al Aqsa Brigades who are not directly involved.

Bostrom expands blood libel against Israel

Donald Bostrom, the "journalist" who wrote the infamous blood libel for Swedish magazine Aftonbladet claiming that Israel kills Palestinian Arabs for their organs, expanded his charges in a press conference in Algeria held by invitation of the National Federation of Algerian Journalists. They awarded him with an "Excellence in Journalism" award; it does not appear to be in th "fiction" category.

Palestine Press Agency reports that Bostrom has gone way beyond his initial feverish fantasies of Jewish evil and fills in the lies with additional details:

* The organ thefts started in 1960.
* Israel didn't only steal Palestinian Arab organs but also those of "martyrs of other nationalities."
* More than a thousand bodies were harvested.

Bostrom also called for "serious international action by competent international bodies to consider these inhumane practices against a defenseless people."

As far as I can tell, he provided not an iota of evidence for these additional charges, as he didn't for the initial ones (outside pointing to stitches on a body.)

PalPress goes on to say that Bostrom met with major Algerian ministers and a representative of the Algerian president, who praised him for his courage in the face of the all-powerful Zionist lobby.

UPDATE: English report here. And Al Arabiya reports that Bostrom's award included a payment of $5000.

Egypt sends aid through Rafah!!!!

Palestine Today reports that Egypt sent humanitarian aid through the Rafah crossing on Wednesday. 11 trucks filled with 135 tons of aid were sent through.

It is very nice that Egyptians have decided to help their Palestinian Arab brethren, and it deserves to be reported.

Lesser known is that Israel sends through ten to twenty times those amounts of aid every weekday. For example, last week Israel sent though 563 truckloads -14,562 tons -of humanitarian aid.

All of a sudden, 135 tons sent as a one-off doesn't sound quite as impressive. Yet for some reason, when the people who Gazans consider to be their enemies give huge amounts of aid, Palestine Today doesn't mention it. Perhaps Jews helping Arabs is a dog-bites-man story while Arabs helping PalArabs is a bit more unusual.

Or there is a more likely explanation for PalToday's omission....

PalArabs: Zionist Pigs now protected by Israelis

Palestine Today has another article about the hordes of wild boars that sometimes descend on PalArab villages, We have already seen many of these articles, where villagers invariably accuse Israeli settlers of raising these boars and letting them loose to devour, exclusively, Palestinian Arab-own crops.

This story adds an interesting twist, though. According to "experts" interviewed, Israel introduced a new law to fine and imprison any Palestinian Arab who kills these animals, with a prison sentence of 1.5 years. (Of course we also have the PalArab fears of catching swine flu from the boars.)

How evil the Israelis are! Imagine, a fine and a prison sentence! The only thing that could make the Israelis look worse would be if the story had a shred of truth!

Never a dull moment open thread

I will be on the web only intermittently between now and Rosh Hashanah, so that means it's time for everyone's favorite game show: Open Thread!

To start things going, I need to mention this amazing article at Arutz-7 that says that Judge Goldstone fell asleep during a video presentation on Sderot rockets.

Goldstone report inaccuracies part 9: Gaza Police

The Goldstone report spends a lot of space (paragraphs 414-421) trying to justify its contention that the Hamas police force was a civilian force, and that Israel was not justified in attacking it. I believe that this analysis is flawed and that the conflicting evidence is weighted with a clear bias towards declaring the policemen to be civilian.

410. In order to shed some light on where the truth might lie between these two conflicting descriptions of the police, the Mission finds it necessary to examine the development of the security forces linked to Hamas after its election victory in January 2006. When Mr. Said Seyam, a senior Hamas representative,269 took office as the Palestinian Authority’s Minister of Interior in April 2006, he found that he had little or no control over the Palestinian Authority’s security forces, which were put under the control of the President of the Palestinian Authority and of officials loyal to him.270 On 20 April 2006, he announced the formation of a new security force
reporting directly to him. This was the Security Forces Support Unit, also known as the Executive Force (al-Quwwa al-Tanfiziyya). The new security force appears to have had a double function as both a law-enforcement agency and, at least potentially, a military force. It was officially charged with enforcing public security and protecting property. At the same time, he appointed Mr. Jamal Abu Samhadana, commander of the Popular Resistance Committees, as the head of the Executive Force271 and announced that it would be composed of 3,000 new recruits from various Palestinian armed groups, including al-Qassam Brigades.272 The newly appointed commander reportedly declared: “[The Executive Force] will be the nucleus of the future Palestinian army. The resistance must continue. We have only one enemy. … I will continue to carry the rifle and pull the trigger whenever required to defend my people. We are also a force against corruption. We are against thieves, corrupt officials and law breakers.” 273

This paragraph seems to set the tone that, at least originally, Hamas did not distinguish between civil and military functions for its Executive Force.

411. In August 2007, following the June 2007 Hamas seizure of full control over Gaza, the current Director of the Gaza authorities’ civil police, then head of the Executive Force, Gen. Abu Obeidah, described the planned reorganization of the security services in Gaza. Executive Force members were to be integrated into the civil police. He reportedly stated that Hamas was “working hard to retrain Executive Force members to perform police duties” and that the “Force will be in charge of chasing drug dealers and lawless residents”. At the same time, he stated that
“members of the Force are religious, and are resistance fighters.”274

At this point, when Hamas took over Gaza, it was obvious to all that Hamas would need to take over the police duties. Fatah clearly was not going to be tolerated in that role. The question is, did Hamas intend that the police would be a purely civil police force, or simply that they had to fulfill that role in order to maintain law and order but they would still be considered resistance fighters (and moonlight as such)? At this point, as of 2007, the answer seems to be the latter, according to Goldstone's evidence.

412. In October 2007, the security services operating in Gaza were reorganized. The previous Palestinian Authority’s police agencies in Gaza were merged with the Executive Force.275 The security forces under the control of the Ministry of Interior emerging from this reorganization comprise the Civil Police, the Civil Defence, the Internal Security (an intelligence agency) and the National Security. Their mandates, according to the Gaza authorities’ Ministry of Interior’s website,276 are differentiated.

413. The National Security force is given specific military tasks, such as “the protection of the State from any foreign aggression” and “responsibility for the defence of the Palestinian homeland in the face of external and internal threats”. It is thus plainly a military force whose members are, under international humanitarian law, combatants.277 The functions of the police have been outlined above.

The website shows that there are six security services under the Interior Ministry: Police, Civil Defense, Security and Protection, Homeland Security, National Security Forces and Military Medical Services. Keep in mind that they all report to the same ministry, meaning that they are much closer related than traditional military and police duties are in most nations.

I maintain that there is essentially no distinction between these groups.

To give an example, the "Security and Protection" group lists 12 "martyrs" from the Gaza war on its website. It is not the police division; it seems to be mostly serving a function of bodyguards. However, of the 12 killed, PCHR listed 2 of them as "militants" and 9 of them as "police." (One I could not find.) Of the 9 "police," 6 of them were listed as Al Qassam Brigades members on the Al Qassam website itself, and two were listed as Al Qassam Brigades members in other sources.

414. On 1 January 2009, during the Israeli military operations in Gaza, the police
spokesperson, Mr. Islam Shahwan, informed the media that the police commanders had managed to hold three meetings at secret locations since the beginning of the armed operations. He added that “an action plan has been put forward, and we have conducted an assessment of the situation and a general alert has been declared by the police and among the security forces in case of any emergency or a ground invasion. Police officers received clear orders from the leadership to face the enemy, if the Gaza Strip were to be invaded.”278 Confirming to the Mission that he had been correctly quoted, Mr. Shahwan stated that the instructions given at that meeting were to the effect that in the event of a ground invasion, and particularly if the Israeli armed forces were to enter urban settlements in Gaza, the police was to continue its work of ensuring that basic food stuffs reached the population, of directing the population to safe places, and of upholding public order in the face of the invasion. Mr. Shahwan further stated that not a single policeman had been killed in combat during the armed operations, proving that the instructions had been strictly obeyed by the policemen.

This is a critical paragraph, and it highlights Goldstone's credulity. There is a clear statement from the police spokesman saying that the police were instructed to face the enemy, which is not a very ambiguous statement. Months later, when he is reached by commission members to explain this problematic statement, he seizes the opportunity to "clarify" that he only meant that they should be doing normal police duties.

And Goldstone believes him.

Not only that, his "proof" is an absurd statement that no policemen were killed in combat (presumably during the ground invasion.) This is a lie. According to PCHR and my research, 16 policemen were killed from January 4th and on, 34 policemen were killed, and my research indicates that at least 16 of them were members of terror organizations.

Here is a most obvious case where Goldstone's members are willing to believe what they are told by Hamas without any followup.

415. The Mission notes that there are no allegations that the police as an organized force took
part in combat during the armed operations. On the basis of the information provided by the
Gaza authorities and of the above-mentioned study of the Orient Research Group Ltd., it would
appear that 75 per cent of its members killed in the course of the military operations died as a
result of the air strikes carried out during the first minutes of the Israeli attack. These men had
not engaged in combat with the Israeli armed forces.279

If one assumes that the commission is accurate in defining the police as a separate, purely civil institution, this would seem to be the case. If one believes that it is a facade to make human rights organizations happy, then it is a bit less clear.

416. The Mission also notes that while the then commander of the Executive Forces and now
Director of Police did reportedly say in August 2007 that members of the Executive Force were
“resistance fighters”, he stressed in the same interview the authorities’ intention to develop it into
a law enforcement force. The Mission notes that a situation in which a recently constituted
civilian police force integrates former members of armed groups would not be unique to Gaza.
That prior membership in itself would not be sufficient to establish that the police in Gaza is a
part of al-Qassam Brigades or other armed groups.

Nor does it disprove it. However, other evidence might cause one to tilt that way. For example, if the vast majority of Gaza's police force were also members of terror organizations, wouldn't that indicate that Hamas is quite happy with freely mixing the civil and militant duties of its members?

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”,280 appears to be an overstatement that has
led to prejudicial presumptions against the nature of the police force that may not be justified.

While we have established that Goldstone believes, without reservation, the assertions of the Hamas police spokesman, it gives no such credit to the IDF. Where does it gain its skepticism from? Skipping a little...

420. The Mission further notes that the study conducted by the Orient Research Group Ltd.
names policemen killed during the attack, whom it identifies as members of Hamas, al-Qassam
Brigades, other armed Palestinian groups or “terror operatives” whose affiliation is not known.
In 78 out of 178 cases the policemen are alleged to be members of al-Qassam Brigades on the
sole basis that they were allegedly Hamas members.

I do not know the methodology of the Halevi report referenced here, but my research (using similar methods) has determined that at least 206 of the 242 policemen killed in Gaza were members of terrorist organizations or "military" groups. That is about 74%.

At least 83 of them were explicitly listed as members on the official Al Qassam Brigades website. Many others were listed as "militants" by Al Mezan, in Al Qassam Brigades forums, and in PFLP and Islamic Jihad websites. And ten of them were recognized as militants by the PCHR.

(About 15 of my count came from ICT and I have not corroborated yet on any militant website. Even so, it still leaves a vast majority of Palestinian Arab police as being actively affiliated with terror groups.

This is the key fact: a police force that (at the very least) tolerates its members as also being terrorists loses its status as being worthy of protection. Perhaps not according to a strict interpretation of international law, but for all practical purposes the fact that the police also did traffic duties does not make them any less militant, any more than an army doing police duties would be immune from attack.

Goldstone however copies an argument against this logic from the Al Mezan Center:

421. Furthermore, it appears from the response to the Mission from the Orient Research Group
Ltd. describing its methodology that its information on police members’ alleged affiliation with
armed groups was based to a large extent on the websites of the armed groups. In this respect,
the Mission is mindful of a recent report by a Palestinian human rights NGO drawing attention to
the “issue of the ‘adoption’ of killed persons by resistance groups; i.e. declaration by a political
or armed group that the person killed was one of their members. Often, when persons, including
children, are killed by actions of the Israeli armed forces , political and/or armed groups ‘adopt’
them as ‘martyrs’ placing their photographs on their websites and commending their contribution
to resisting occupation. This does not mean that those persons killed were involved in resistance
activities in any way. The families accept this ‘adoption’ of deceased family members for
various reasons including the willingness of resistance groups to provide financial support to the
families and pay for funeral costs of the persons killed.” As the NGO concludes, “these cases
require in-depth investigation on a case-by-case basis in order to determine every person’s status
according to his actual affiliation”.283

It is true that some websites use the word "martyrs" when referring to women and children. However, my group's original research was careful to ignore any sources that did this practice. I did not see a single women or child (less than 16 years old) being mentioned as a member of any armed group. Moreover, we were careful not to count people listed only as "shahids" and made sure that those we counted were called "mujahid" or similar terms, if not explicitly members of specific brigades.

In other words, Goldstone accepted the poor argument of Al Mezan without checking it against the specific entries mentioned. It also ignored my email to the Commission that listed my data and methodology. Its logic of throwing out any evidence that proved the police to be a sham front for terrorists, and accepting any evidence that claimed otherwise, is problematic indeed.

Gazans smuggle a Volkswagen through a tunnel

Palestine Press Agency reports that a 2009 Volkswagen was smuggled through a Rafah tunnel into Gaza. It was divided into four pieces and is being welded together on the Gaza side.

Unfortunately, no photos yet.

Goldstone Commission problems, part 8

This is not an inaccuracy per se, but it is more than troubling.

One of the major sources that the Goldstone Commission heavily relied on in testimonies was TAWTHEQ. TAWTHEQ is quoted in the context of the Gaza war more often than HRW and seems to be mentioned in the report body about as often as PCHR (although PCHR is mentioned more in footnotes.) In other words, it seems that Goldstone put a lot of emphasis on TAWTHEQ's direct testimony to the Commission.

Who is TAWTHEQ? It is not an NGO - it is Hamas!

The organization is an Arabic acronym for the "Central Commission for Documentation and Pursuit of Israeli War Criminals." The possible objectivity of such an organization seems remote. Its webpage describes it as

TAWTHEQ " The Central Commission for documentation and pursuit of Israeli war criminals" is an independent governmental organization dedicated to monitoring and documenting the Israeli aggression crimes that targeted individuals, buildings, private and public property by the Israeli occupation forces, and particularly crimes that occurred during the last aggression on the Gaza Strip on 27 / 12/2008 until 19/1/2009 and pursuit war criminals and follow-up submitting lawsuits against them via the national and the international courts without any political affiliation to any party.

TWATHEQ [sic] is considered the only official commission to deal with the files of documenting aggressions and criminal acts of the Israeli aggression on Gaza, and follow-up submitting lawsuits against the Israeli officials.

It was established by the Gaza Ministry of Justice, which is Hamas.

While there are serious problems with relying on biased NGOs like PCHR (who refuses to call the Israeli army the IDF, instead using the term IOF consistently,) TAWTHEQ is single-mindedly created by Hamas not to be objective at all. Its mandate isn't to determine the existence of war crimes - it is to maximize the number of such "crimes."

So, for example, Goldstone quotes TAWTHEQ as saying that "341 of those killed were children. " It also quotes the PCHR and B'Tselem (314 and 320, respectively.) It is probable that TAWTHEQ (as well as DCI) is including children who were combatants in their list of victims.

The entire purpose of TAWTHEQ is to accuse Israel of war crimes and provide "evidence" to credulous NGOs. The fact that Goldstone gave it as much weight as it did seems to be a reflection of Goldstone's general bias towards those who testified in person, something that appears to be consistent throughout the report. As in the case of Addameer, Goldstone seems far less likely to question Gazan facts and figures than Israel's, even when the Arab organizations themselves have an explicitly anti-Israel mandate.

Goldstone report inaccuracies part 7

493. The reports received by the Mission suggest that it is likely that the Palestinian armed
groups did not at all times adequately distinguish themselves from the civilian population among
whom the hostilities were being conducted. Their failure to distinguish themselves from the
civilian population by distinctive signs is not a violation of international law in itself, but would
have denied them some of the legal privileges afforded to combatants. What international law
demands, however, is that those engaged in combat take all feasible precautions to protect
civilians in the conduct of their hostilities. The Mission found no evidence that members of
Palestinian armed groups engaged in combat in civilian dress. It can, therefore, not find a
violation of the obligation not to endanger the civilian population in this respect.

I already dealt with some of the claim that they found no evidence of Hamas and PIJ masquerading as civilians, and there is more where that came from. But it is curious that Goldstone says that disguising themselves as civilians is not a violation of international law.

Geneva protocol I article 37 paragraph 1 states:

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy: (a) the feigning of an intent to negotiate under a flag of truce or of a surrender; (b) the feigning of an incapacitation by wounds or sickness; (c) the feigning of civilian, non-combatant status; and (d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict.

Unless I'm misreading it, it sounds like the very act of a combatant pretending to be a civilian is prohibited under international law.

Goldstone report inaccuracies part 6

495. Although the situations investigated by the Mission did not establish the use of mosques
for military purposes or to shield military activities, the Mission cannot exclude that this might
have occurred in other cases. As far as hospitals and United Nations facilities are concerned, the
Mission found that it could not exclude that Palestinian armed groups engaged in combat
activities in the vicinity of these protected sites. The Mission wishes to emphasize that the
launching of attacks from or in the vicinity of civilian buildings and protected areas are serious
violations of the obligation on the armed groups to take constant care to protect civilians from
the inherent dangers created by military operations.

496. The Mission asked the Gaza authorities to provide information on the sites from where
the Palestinian armed groups had launched attacks against Israel and against the Israeli armed
forces in Gaza. The Mission similarly asked whether, to their knowledge, civilian buildings and
mosques had been used to store weapons. In their response, the Gaza authorities stated that they
had no information on the activities of the Palestinian armed groups or about the storage of
weapons in mosques and civilian buildings. The Mission does not find this response to be
entirely plausible. The Mission notes, more importantly, that, whether the answer reflects the
reality or not, the Gaza authorities are obliged under international law to control the activities of
armed groups operating on the territory under their control.346 If they failed to take the necessary
measures to prevent the Palestinian armed groups from endangering the civilian population by
conducting hostilities in a manner incompatible with international humanitarian law, they would
bear responsibility for the damage done to the civilians living in Gaza.

The basic assumption that somehow the Gaza "authorities" are not exactly the same as the "armed groups" is bizarre. It is almost like the UN needs to hold onto the fiction that Hamas is somehow a respected civilian authority in order to jam their ideas of human rights into a neat category and ignore the reality.

At any rate, the idea that Goldstone could find no "proof" that mosques were used for weapons is ridiculous. This seems like proof to me:

And so does this, unless Korans have particularly flammable qualities:

Goldstone report inaccuracies part 5

493. The reports received by the Mission suggest that it is likely that the Palestinian armed
groups did not at all times adequately distinguish themselves from the civilian population among
whom the hostilities were being conducted. Their failure to distinguish themselves from the
civilian population by distinctive signs is not a violation of international law in itself, but would
have denied them some of the legal privileges afforded to combatants. What international law
demands, however, is that those engaged in combat take all feasible precautions to protect
civilians in the conduct of their hostilities. The Mission found no evidence that members of
Palestinian armed groups engaged in combat in civilian dress. It can, therefore, not find a
violation of the obligation not to endanger the civilian population in this respect.

This video, showing Palestinian Arab militants disguised as civilians shooting a 120mm mortar from a street in Jabalya, shows otherwise. it is astonishing to think that the Commission couldn't find it.

Beyond that, Islamic Jihad bragged about its hiding among civilians:

There is no visibility of the men of the resistance in the streets of the [Gaza] strip. No one sees their means of transportation, and even light weapons can no longer be seen with people publicly in the Gaza Strip. The resistance completely disappeared. Anti-aircraft artillery fires on the aircraft without them knowing the location. The whereabouts of rockets launched from the heart of the strip cannot be seen or known.

According to medical sources, the number of martyrs and wounded of the elements of the Palestinian resistance are few in comparison to the number of civilian martyrs who were killed since the start of the Israeli war on Gaza, except for the large number of Palestinian policemen who were martyred on the first day of the war in Gaza.

Abu Mohammed - one of the field commanders in the Jerusalem Brigades, the military wing of Islamic Jihad Movement in Palestine - said: "The goal is to take the "energy of concealment," to mislead the occupation aircraft and its agents [collaborators.]

And here's a link to a video from German TV that clearly shows Palestinian Arabs hiding weapons under civilian clothing in a crowded Gaza street.

How could the Goldstone Commission not have known about these?

Goldstone report inaccuracies part 4

273. The legal framework applicable to situations of occupation includes provisions contained
in the Hague Regulations (especially articles 42–56), the Fourth Geneva Convention (especially
articles 47–78) and Additional Protocol I, and customary international law. The successive steps
in the development of that legal framework represent attempts by the international community to
protect human beings better from the effects of war while giving due account to military
necessity.

274. Article 42 of the Hague Regulations, regarded as customary international law,158
prescribes that “territory is considered occupied when it is actually placed under the authority of
the hostile army”. The occupying authority so established shall take all measures in its power “to
restore, and ensure, as far as possible, public order and safety” in the occupied area (art. 43).
These provisions call for an examination of whether there was exercise of authority by Israel in
the Gaza Strip during the period under investigation.

276. Israel has without doubt at all times relevant to the mandate of the Mission exercised
effective control over the Gaza Strip. The Mission is of the view that the circumstances of this
control establish that the Gaza Strip remains occupied by Israel. The provisions of the Fourth
Geneva Convention therefore apply at all relevant times with regard to the obligations of Israel
towards the population of the Gaza Strip.

277. Despite Israel’s declared intention to relinquish its position as an occupying Power by
evacuating troops and settlers from the Gaza Strip during its 2005 “disengagement”,162 the
international community continues to regard it as the occupying Power.163

278. Given the specific geopolitical configuration of the Gaza Strip, the powers that Israel
exercises from the borders enable it to determine the conditions of life within the Gaza Strip.
Israel controls the border crossings (including to a significant degree the Rafah crossing to
Egypt, under the terms of the Agreement on Movement and Access164) and decides what and
who gets in or out of the Gaza Strip....

279. The ultimate authority over the Occupied Palestinian Territory still lies with Israel. Under
the law and practice of occupation, the establishment by the occupying Power of a temporary
administration over an occupied territory is not an essential requirement for occupation, although
it could be one element among others that indicates the existence of such occupation.165 In fact,
as shown in the case of Denmark during the Second World War, the occupier can leave in place
an existing local administration or allow a new one to be installed for as long as it preserves for
itself the ultimate authority.

Goldstone spends a bit of time trying to justify Gaza's status as being legally occupied. The report doesn't address the many arguments that show otherwise, and uses an expansive definition of "occupation" that goes beyond any other. The Denmark precedent is a perfect example: during World War II, the Danish government cooperated with Germany and allowed Nazi troops in its territory, and while most citizens weren't thrilled with it, they accepted it, which made this occupation much easier. When the situation became untenable and the Danes more restless, Germany dissolved the Danish government - a move that proves that Germany did have effective authority of Denmark, far beyond what Israel has with Gaza.

As we have seen in the past, the UN's legal justification for calling Gaza "occupied" is a stretch at best, a lie at worst. Goldstone does not address the main legal issues that many respected law experts have as to whether Gaza is occupied, even though they are readily available. For example:

there is no legal basis for maintaining that Gaza is occupied territory. The Fourth Geneva Convention refers to territory as occupied where the territory is of another "High Contracting Party" (i.e., a state party to the convention) and the occupier "exercises the functions of government" in the occupied territory. The Gaza Strip is not territory of another state party to the convention and Israel does not exercise the functions of government-or, indeed, any significant functions-in the territory. It is clear to all that the elected Hamas government is the de facto sovereign of the Gaza Strip and does not take direction from Israel, or from any other state.
Some have argued that states can be considered occupiers even of areas where they do not declare themselves in control so long as the putative occupiers have effective control. For instance, in 2005, the International Court of Justice opined that Uganda could be considered the occupier of Congolese territory over which it had "substituted [its] own authority for that of the Congolese Government" even in the absence of a formal military administration. Some have argued that this shows that occupation may occur even in the absence of a full-scale military presence and claimed that this renders Israel an occupier under the Fourth Geneva Convention. However, these claims are clearly without merit. First, Israel does not otherwise fulfill the conditions of being an occupier; in particular, Israel does not exercise the functions of government in Gaza, and it has not substituted its authority for the de facto Hamas government. Second, Israel cannot project effective control in Gaza. Indeed, Israelis and Palestinians well know that projecting such control would require an extensive military operation amounting to the armed conquest of Gaza. Military superiority over a neighbor, and the ability to conquer a neighbor in an extensive military operation, does not itself constitute occupation. If it did, the United States would have to be considered the occupier of Mexico, Egypt the occupier of Libya and Gaza, and China the occupier of North Korea.

Moreover, it is difficult to avoid the conclusion that foes of Israel claiming that Israel has legal duties as the "occupier" of Gaza are insincere in their legal analysis. If Israel were indeed properly considered an occupier, under Article 43 of the regulations attached to the Fourth Hague Convention of 1907, it would be required to take "all the measures in [its] power to restore, and ensure, as far as possible, public order and safety." Thus, those who contend that Israel is in legal occupation of Gaza must also support and even demand Israeli military operations in order to disarm Palestinian terror groups and militias. Additionally, claims of occupation necessarily rely upon a belief that the occupying power is not the true sovereign of the occupied territory. For that reason, those who claim that Israel occupies Gaza must believe that the border between Israel and Gaza is an international border between separate sovereignties. Yet, many of those claiming that Gaza is occupied, like John Dugard, also simultaneously and inconsistently claim that Israel is legally obliged to open the borders between Israel and Gaza. No state is required to leave its international borders open.

The Goldstone Commission is making a flawed legal argument, and in fact extending the definition of "occupied" way beyond the Hague and Geneva definitions, in ways that are a mockery of law. It appears that Goldstone, along with the previous ICJ ruling it also relies on, has a "gut feeling" that Gaza is occupied and will find whatever flimsy legal justifications they can find to support it after the fact.

Goldstone report inaccuracies part 3

264. On 22 December 2008, a 24-hour ceasefire was declared at Egypt’s request. Three rockets and one mortar were launched from Gaza that day. Israel opened the border to allow a limited amount of humanitarian aid to enter Gaza.149

265. By 23 December 2008, rocket and mortar fire was again increasing significantly; 30 rockets and 30 mortars were fired into Israel on 24 December 2008. 150 The Israeli armed forces continued to conduct air strikes on positions inside Gaza and the crossings into Israel remained closed. On 26 December 2008, a rocket launched from Gaza fell short and hit a house in northern Gaza killing two girls, aged 5 and 12.151

266. The intensified closure regime on the Gaza crossings which began in November continued in December, with imports restricted to very basic food items and limited amounts of fuel, animal feed and medical supplies. According to OCHA, many basic food items were no longer available and negligible amounts of fuel were allowed to enter Gaza. This resulted in the health sector in Gaza deteriorating further into a critical condition, with hospitals continuing to face problems as a result of power cuts, low stocks of fuel to operate back-up generators, lack of spare parts for medical equipment and shortages of consumables and medical supplies.152 On 18 December 2008, UNRWA once again suspended its food distribution programme for the rest of the month, owing to shortages.153

267. On 27 December 2008, Israel started its military operations in Gaza.154

The report goes into great detail on everything that happened between the beginning of the truce and Israel's response, but it skips an important fact: that the Hamas al-Qassam Brigades declared "Operation Oil Stain" on December 24th concurrent with their huge increase of rocket attacks. The Brigades continued to boast about this operation until well after Israel's response. In a very real sense, they declared the war. Also, Goldstone spends much space on the humanitarian situation in Gaza at that time. From reading the report one would get the impression that Gazans were to the point of starvation. Yet as this video shows, they didn't seem to be in such bad shape:

Although my version is satirical, the video is real, and was taken during this exact time period of December 2008. It isn't a place one might choose to live but it is a far cry from many places - including much poorer areas of Egypt right across the border.

Goldstone report inaccuracies part 2

227. The first incident relevant to the ceasefire reportedly took place on 23 June 2008, when a 67-year-old Palestinian civilian was injured when the Israeli military stationed at the border north-west of Beit Lahia opened fire on a group of Palestinians trying to collect fire wood near the border. Also on 23 June, two mortar shells were reportedly fired from central Gaza. One landed near the Nahal Oz crossing and the other in the Negev desert; no injuries were reported. YNet reports a mortar shot "early Monday morning" while Ma'an reports that the Palestinian Arab man was injured on Monday afternoon. So which was the first incident? Apparently, the Goldstone Commission can't figure that out. Interestingly, when Islamic Jihad shot three rockets to Israel on June 24th, they didn't claim it was in reaction to any Israeli actions in Gaza, rather for something the IDF did in Nablus. So it is entirely possible that the report of the 67-year old man is less than accurate.