Thursday, October 29, 2009

Israel's Response to the Goldstone Report: Exposing a Politically Motivated Fraud

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By Barry Rubin

If you've been following the Goldstone Report controversy, you might be interested in the response done by Israel to specific points raised by the report. 

The Goldstone report bashes Israel regarding the Gaza war for alleged crimes and misdeeds based solely on the unchallenged testimony of almost totally pro-Hamas and universally anti-Israel Palestinians who live under an Islamist dictatorial regime. On close examination, a very large number of the accusations dissolve into nothingness.

Judge Goldstone keeps repeating in interviews--and the media lets him get away with it--that nobody has challenged the substance of his report. This is blatantly untrue as this response shows. He and the commission have not even attempted to respond to any part of these critiques.

Equally, much of the Western media has not reported on any of these detailed critiques, for example the demolition of the number of civilian casualties claimed, achieved by reclassifying Hamas gunmen as civilians.

Meanwhile, the report passed the UN Human Rights Council and is now being discussed in general debate. At some point, the UN will try to pass some sort of anti-Israel resolution--with or without material sanctions--and the United States and Europeans will have to decide how to vote or veto. The report will also be used in the coming years repeatedly to portray Israel as an evil and illegitimate state that should not be allowed to exist.

There are also broader implications, as the response shows. If the concepts used in the report are adopted, democratic countries facing terrorist attacks will be unable to respond without international political and perhaps legal condemnation. For example, the U.S. attack into Afghanistan after September 11 would be subjected to war crimes' charges.

Here's a sample from part of the response:

Selection of Incidents

Like the prescreened and selected witnesses permitted to appear in the Mission's public hearings, the incidents covered in the Report appear to have been carefully cherry-picked for political effect. For example:

Despite Israeli and independent sources confirming that the Southern Command Center of Ismail Haniyeh had been located in the Shifa Hospital in Gaza, the Report states that it did "not investigate the case of Al-Shifa hospital and is not in a position to make any finding with regard to these allegations"[¶ 466].

Similarly, despite widespread reports of the use of mosques to hide weaponry and terrorist activity, the Mission examined only one incident involving a mosque and found no evidence that this mosque was used for the storage of weapons or any military activity by Palestinian armed groups[7]. The Mission then absolves itself of any responsibility to examine allegations of the abuse of mosques elsewhere in any other instance:

"As far as this mosque is concerned, therefore, the Mission found no basis for such an allegation. However, the Mission is unable to make a determination regarding the allegation in general nor with respect to any other mosque" [¶ 463].

A troubling insight into the approach of the Mission in selecting the incidents it wished to address was provided in response by Justice Goldstone to an enquiry asking why the Mission had ignored requests to invite witnesses such as Colonel Richard Kemp, the former commander of British forces in Afghanistan and an adviser to the UK cabinet, and a recognized expert in the field of warfare in conditions similar to that in Gaza[8]. In an open response dated 21 September 2009 explaining the refusal to invite Colonel Kemp to testify, Goldstone admitted that the Mission had deliberately selected incidents so as to evade the complex dilemmas of confronting threats in civilian areas:

"[t]here was no reliance on Col. Kemp mainly because in our Report we did not deal with the issues he raised regarding the problems of conducting military operations in civilian areas and second-guessing decisions made by soldiers and their commanding officers "in the fog of war". We avoided having to do so in the incidents we decided to investigate."[emphasis added]

Evidentiary double-standards

Hamas launched thousands of rocket and mortar attacks on Israel and admitted embedding itself within the civilian population of Gaza. But the Report strives mightily to avoid finding that Hamas bears any responsibility for deaths and destruction in the Gaza Strip. In contrast, the Report is quick to blame Israel, presuming guilt absent compelling evidence to the contrary. Throughout, the Report deems statements of Israeli officials inherently untrustworthy, except where it misuses them to support its ordained conclusions. By contrast, the Report regularly credits statements by the “Gaza authorities” - i.e., the Hamas terrorist organization - as legitimate evidence, except where such statements admit wrongdoing or justify Israeli actions. Moreover, despite overwhelming evidence that Hamas and other terrorist groups operated from densely populated areas and from within hospitals and mosques, booby-trapped civilian areas, and sought to blend in with Palestinian non-combatants, the Report fails to investigate the most egregious and publicly known examples of such conduct, and even goes so far as to raise doubts regarding the intentionality of Hamas’ tactics.

Presumption that Israeli military sources are untrustworthy. Routinely treating Israeli statements as inherently unreliable, the Mission discounts even the veracity of photographic and satellite image data supplied by the IDF, on no more basis than the fact that the Mission did not have a means to verify the data independently. (¶ 449) The Report also points to Israel’s reliance on newspaper reports rather than its own intelligence to explain its conduct of the operation as an admission that IDF sources are unreliable (¶ 612), failing to recognize that, in many circumstances, intelligence information -- no matter how compelling -- simply cannot be disclosed to the public. Perhaps most tellingly, the only circumstance in which the Report appears to accept and emphasize Israeli statements is where it finds such statements useful to condemn Israel.[9]

Refusal to accept even the most direct admissions by Hamas as evidence of guilt. The Report cites the admission[10] of a Hamas official that Hamas “created a human shield of women, children, the elderly and the mujahideen, against the Zionist bombing machines.” (¶ 475) The Report then states, incredibly, that it does not consider this confession “to constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack. ( ¶ 476) The Report cites the admission of a fighter for Islamic Jihad that “the most important thing is achieving our military goals. We stay away from the houses if we can, but that’s often impossible.” (¶ 451) The Report then states, incredibly, that this admission of using civilian homes where needed for military objectives, “suggests the absence of intent.” (¶ 451)

'Reinterpretation' of Hamas statements. In seeking to support its assertion that the Hamas police were not involved in terrorist activity, the Report prefers to gloss over has to deal with the admission of police spokesperson Islam Shahwan who that the police had been given orders "to face the [Israeli] enemy". The Mission unquestioningly accepted his explanation that the intention was that in the event of a ground invasion the police would continue ensuring the movement of foodstuffs and upholding public order(¶ 414). The Mission is similarly accepting of an interpretation given by the director of the Police that by "resistance fighters" his intention was that they would develop into a law enforcement force (¶ 416). At the same time, the Report dismisses posters and photographs of policemen praising their involvement as members of the terrorist groups, arguing that this does not mean that these individuals "were involved in resistance in any away" and suggesting that they had been "adopted" post-mortem by terrorist groups(¶ 421). Beyond these reinterpretations of the evidence, the Report claims that no other evidence has been presented against "the civilian nature of the police in Gaza" (¶ 417), quite simply ignoring numerous explicit statements in Israel's report: The Operation in Gaza – Factual and Legal Aspects, which it quotes on many other matters. Among the many statements cited, ignored by the Report, is the admission by Hamas police chief Jamal al-Jarrah that "the police took part in the fighting alongside the resistance".

Picking and choosing its sources for political effect. At times even the same source is regarded by the Report as reliable insofar as its criticism of Israel is concerned but is discounted to the extent that it indicates wrongdoings by Hamas. The group of Israeli soldiers, "Breaking the Silence", for example, is quoted authoritatively throughout the report for its criticisms of Israel (¶ 457, 725, 800, 949, 996, 1022, 1088 – this last paragraph admitting "the soldier does not appear to have been a direct witness to the incident, but rather heard it from others ", 1089, 1183 and footnotes 362, 558), and yet the statements of the group are given no weight when they confirm that Hamas booby trapped civilian buildings[11]. (¶ 460)

Selective quotations regarding goals of the operation. The Report relies on uncited quotations in an NGO report as questionable support for its assertion that “[s]tatements 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.” (¶ 1211) Yet the Report ignores repeated statements of Israel's leaders emphasizing that, to the contrary, Israel's aim was to spare no effort to avoid or minimize civilian casualties.[12]

Misrepresentations of fact and law

Beyond the adoption of evidentiary double-standards, and the creative interpretation of inconvenient evidence, the Report frequently presents explicit misstatements of both facts and law. For example:

Misstatements of fact:

The Report accuses Israel of discriminating against its non-Jewish citizens by not providing shelters to protect Arab towns and villages from the rocket attacks. (¶ 1709, 1711(1)). In fact, the relevant decision[13] of the Government of Israel made no such discrimination, and provided all municipalities up to seven kilometers from the fence with a budget to cover the building of shelters. Municipalities located further away from the fence, which included non-Jewish villages as well as the Jewish cities of Be'er Sheva and Ashqelon, did not qualify for this funding.

The Report repeatedly misrepresents historical facts, particularly in the context of 'explaining' Israel military operations. It states that Operation "Hot Winter" was launched by Israel in February 2008 following a rocket attack towards the city of Ashkelon that caused 'light injuries' (¶ 196). In fact, Roni Yihye, aged 47, a student at Sapir College, was killed after sustaining massive wounds to his chest. Similarly it states that Operation "Days of Penitence" was launched in September-October of 2004, in retaliation for the firing of rockets against the town of Sderot and Israeli settlements, but fails to mention the deaths of Yuval Abebeh (aged 4) and Dorit (Masarat) Benisian (aged 2) of Sderot, killed by a Kassam rocket fired into Gaza while playing in the street. In both cases Hamas claimed responsibility for the attacks.

Misstatements of law:

The description of Israel's military courts system (¶1599-1600) contains numerous errors and inaccuracies. For example, its description of the appeals process relies on provisions which were amended in 2004 and are no longer in force today.

In support of its assertion that the Gaza Strip is to be regarded as occupied territory, even following the withdrawal of all Israeli forces and all 9000 Israeli civilians in the Disengagement Initiative in 2005, the Report cites as authority UN Security Council Resolution 1860 (footnote 163 to ¶277). But this resolution makes no such assertion. In fact, in the negotiations prior to the adoption of this resolution, a Libyan draft which sought to insist that Gaza was still occupied was specifically not adopted by the members of the Security Council.

Simplistic approaches to complex military challenges

The Report fails to consider the realities of the conflict and in particular the mode of operation of terrorist organizations which deliberately endanger civilians and make urban areas their battlefield of choice. It makes no reference to the recruitment and exploitation of children by Hamas and the smuggling of weapons and ammunition through tunnels, and ignores clear evidence of the abuse of mosques and hospitals. At the same time, it makes unfounded assumptions regarding military options and so places unrealistic and unworkable demands on any State seeking to protect its civilians from terrorist attacks.

The Report pays lip service to the established international law principle that the legality of military action must be assessed based on the information available to a “reasonable military commander” at the time of each individual targeting decision, and not based on hindsight. But the Report nonetheless repeatedly reaches sweeping conclusions about “war crimes” without ever examining such real-time information. The Report does not examine what information was available to the commanders in the field, how they might have perceived the immediate threats to themselves and their soldiers, what weapons were available at that moment on the ground, and what information was available about potential risks to civilians. Instead, time and time again, the Report substitutes its own hindsight judgment. For example:

Second-guessing choice of weapons and tactics without knowledge of available resources. The Report concludes that with respect to one particular incident, Israeli forces should have used different weapons to further limit the risk to civilians in the area, and is untroubled by the fact that it has no information regarding the available troops, weapons or intelligence. The Report observes that forces had 50 minutes in which to respond to a significant threat (the time used by the force to accurately identify the source of fire), and opines that given this time, “it is difficult to believe that mortars were the most accurate weapons available” (¶ 696). Displaying a troubling disconnect from the reality of urban fighting on many simultaneous fronts, it suggests that the forces in the field should used "helicopters and fighter jets", assuming that these are readily available to commanders in the field.[14]

Second-guessing what commanders should have anticipated. The Report concludes with respect to another incident that Israeli forces should not have been surprised that they were faced with anti-tank missile fire in the vicinity of a UNRWA installation, and therefore should have taken different steps to respond to this hostile fire, other than applying the commonly used technique of smoke screening (¶ 588). Again, the Report seeks to substitute its judgment for that of the commanders in the field, without any of the information necessary to conduct a proper analysis under the applicable law.

The Report also ignores Israel's extensive efforts, even in the midst of fighting, to maintain humanitarian standards and protect civilians. It makes no mention, for example, of IDF precautions such as cross-verification of intelligence prior to targeting or the numerous incidents in which operations were aborted due to concerns about disproportionate civilian harm[15]. And while the Report does, reluctantly, acknowledge Israel's "significant efforts" to issue warnings before attacks, it dismisses these as not having been effective (¶ 1717(2)).

Minimizing terrorist threats – and vindicating terrorist tactics

21. The Report adopts an approach that encourages armed terrorist groups worldwide to adopt the strategy of hiding behind civilians and civilian infrastructure. The Report strongly condemns as unlawful Israel’s attacks on terrorists - even those actively engaged in combat - when the latter were in the vicinity of civilians. Under the Report’s view of appropriate rules of engagement, any State would be virtually powerless to target a terrorist group that operates in densely populated areas and seeks to blend in with the civilian population. The Report also suggests that the members and infrastructure of a terrorist organization enjoy protected status under international law so long as the organization exercises de facto control over a civilian population. Presumably, the Taliban in Afghanistan and Pakistan, the FARC in Colombia, and other armed groups unlawfully controlling territory in any part of the world would enjoy similar protections under the Report authors’ worldview, which differs materially from the established principles of international law.

The following are examples of the Report’s logic:

Justification for terrorism. The Report supports the so-called "right" of Hamas to use force against Israel in the name of self-determination (¶ 269), while ignoring the consistent approach of Hamas – as evident in its Charter and the statements of its leaders - which not only rejects the peace process agreed by Israel and the PLO but explicitly calls for the destruction of Israel. The Report describes the rocket attacks from Gaza, including those which immediately followed Israel's withdrawal of all forces and civilians from the area, as “reprisals” (¶109, ¶1662-1665(2)), in clear contradiction to the decisive position of the international community that terrorist acts are "in any circumstances unjustifiable".[16] At the same time, the Report fails to acknowledge that stopping the rocket attacks was a valid objective and discusses the rocket attacks almost as an afterthought. (¶1212).

Minimizing the impact of terrorist attacks on Israel. The Report seeks to limit the scope of a State's response to terrorist threats by downplaying and minimizing the effects of such attacks. For example, describing rocket and mortar attacks on the Israeli town of Ashdod, the Report describes the impact as "a brief interruption to [its] economy brought about by the temporary displacement of some of their residents"(¶ 107), simply ignoring the death and injury to Ashdod's residents caused by missile attacks.

Finding that use of force against terrorists operating in proximity to civilians is unlawful.
The Report effectively suggests that Israel was not permitted to fire upon terrorists located in proximity to civilians (¶ 42, ¶ 520, and ¶ 698). In reaching this conclusion, the Report effectively validates the terrorist tactic of hiding behind the civilian population. Moreover, the Mission acknowledges that Hamas fighters mingled with the population (¶ 35), but then, disregarding the explicit admission of a Hamas officials of the use of human shields, and the overwhelming corroborative evidence, the Report concludes that the Mission “found no evidence to suggest that Palestinian armed groups either directed to civilians to areas where attacks were being launched or forced civilians to remain within the vicinity of attacks.” (¶ 492)

Legitimization of Hamas based on its de facto control over civilian activities in the Gaza Strip. The Report scarcely acknowledges that Hamas is a terrorist organization and instead refers to its leaders as “Gaza authorities” (e.g. ¶ 380-90)[17]. The Report states, that even if military components of Hamas are terrorist, the organization has “distinct political, military and social welfare components.” disregarding the determinations of the European Union and other countries drawing no such distinction. With regard to the targeting of Hamas infrastructure, the Report fails to investigate the multitude of military uses to which Hamas has put ostensibly civilian targets (¶ 384-389). Furthermore, the Report has refused to give any weight to the fact that the targeting of infrastructure by Israeli forces has been consistent with a number of engagements, such as those by NATO forces in Yugoslavia, that have been found to be lawful in the past. (¶¶ 1197-98).

Here's another detailed assessment done by Camera.

Barry Rubin is director of the Global Research in International Affairs (GLORIA) Center and editor of the Middle East Review of International Affairs (MERIA) Journal. His latest books are The Israel-Arab Reader (seventh edition), The Long War for Freedom: The Arab Struggle for Democracy in the Middle East (Wiley), and The Truth About Syria (Palgrave-Macmillan). To read and subscribe to MERIA, GLORIA articles, or to order books. To see or subscribe to his blog, Rubin Reports.

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