Israel Matzav

Video: Richard Richard Goldstone misstates the law

I will have more comments about this later - I just want to get it up because it will take you all a while to watch and I have to run out for one last chore left over from the weekend.

Richard Richard Goldstone was interviewed by PBS' Bill Moyers this week. The interview was a significant one. For those who want to see it in writing or who have trouble with videos, you can find the entire transcript here.

But yes, after a lot of effort, I downloaded it. It's in two parts totaling about 48 minutes. After the second video, I have comments from Professor Avi Bell, Professor of Law at Bar Ilan University and the University of San Diego School Law School, and later I hope to have more comments myself.

Let's go to the videotape of Part 1.



Let's go to the videotape of Part 2.



Comments from Professor Avi Bell, Professor of Law at Bar Ilan University and University of San Diego.

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?”

This is not an isolated misstatement by Goldstone. Throughout the interview, he keeps giving examples of judging after the fact. For example, he says: “We spoke to the owner of a home in Gaza City. He said he looked out of his window and he saw some militants, whether Hamas or other Palestinian groups, setting up their mortar launchers in his yard. He ran out and said, "Get out of here. I don't want you doing this here. You're going to endanger my family, because they going to bomb. Get out." And in fact, they left. Whether that was typical or atypical, I don't know, we didn't, obviously, cover the field. But assuming they had disobeyed them, assuming they had launched the rockets from over the objections of the household owner, and his family, they launched the rockets and disappeared. It would be a war crime, as I understand it, for Israel to have bombed the home of that innocent household, who didn't want this to happen.” Goldstone again, is wrong. Even if the facts were as Goldstone stated them, and the owner was absolutely innocent, the launching point of rockets would still be a legitimate target, and it would be permissible to attack it if the collateral damage were proportionate to anticipated military advantage, notwithstanding the damage to an innocent owner.

Here’s another example. Moyer prompts “so there was intention,” meaning Israel deliberately violated the rule of distinction. Goldstone responds: “Well, certainly. You know, one thing one can't say about the Israel Defense Forces is that they make too many mistakes. They're very, a sophisticated army. And if they attack a mosque or attack a factory, and over 200 factories were bombed, there's just no basis to ascribe that to error. That must be intentional.” Goldstone again is arguing that he can determine whether there was a crime by looking after the fact at what was destroyed, without any evidence of what the commander thought was the military advantage in attacking the site and what the commander thought would be the collateral damage. In Goldstone’s favor, here he at least tries to provide an excuse for his misstatement of the law: his preposterous assumption of Israeli omniscience.

c. Goldstone falsely states that the only legal way to fight in an urban area is with commando actions. Moyer asks him: “But when the terrorists, the militants, whatever one wants to call them, are known to be embedded in, as you say, those tight, complex, concentrated areas, what's the other army to do?” Goldstone says: “It's for example, to launch commando actions, to get at the militants and not the innocent civilians.” This is clearly not in line with the practice of any other state in the world.

3. Goldstone says that NATO fighting in Yugoslavia was basically legal (Goldstone’s comment: “Take the United States fighting wars in Kosovo and Iraq and Afghanistan. They have certainly at a high level, gone to extremes to protect innocent civilians. Where they've made mistakes, and mistakes have been made, in Kosovo, in Iraq, in Afghanistan, apologies have followed. The United States, in general, has accepted and tried its best, with the assistance of military lawyers, has tried its best to avoid violating international humanitarian law.”). But Israel’s government specifically said, and the report noted that “The Israeli Government states that this expression of its objectives is no broader than those expressed by NATO in 1998 during its campaign in the Federal Republic of Yugoslavia” (paragraph 1201). And the report responded by intimating that Israel’s objectives were therefore illegal (paragraph 1202 – “The Mission makes no comment on the legality or otherwise of NATO actions there”), before then saying explicitly that Israel’s objectives were illegal.

4. It’s interesting to see what Goldstone calls a good investigation. He dismisses the more than 100 Israeli investigations now ongoing because, he says, “it's now, what, seven months since the end of the war. There's only been one successful prosecution against a soldier, who stole a credit card, which is really almost fodder for cartoonists, in the plethora of alleged war crimes.” In other words, Israeli investigations will only be credible if they find Israelis guilty. The other reason he advances for attacking the Israeli investigations is “in those military investigations, as far as I've read, in only one cases have the military even approached the victims in Gaza. And obviously, to have a full investigation, one needs, as you say, to hear both sides.” This is rich, considering that Goldstone never spoke to any of the persons he accuses of committing crimes. Goldstone adds that Israeli investigations shouldn’t be trusted because they are done in “…secrecy? And, you know, I always quote Justice Brandeis, who said, "The best disinfectant is sunlight." And this is happening in the dark. And even with the best good faith in the world on the part of the military investigators, the victims are not going to accept decisions that are taken in the dark, and don't involve them.” But Goldstone is still refusing to refuse the evidence (written submissions, etc.) on the basis of which the report was written.

5. Goldstone states of Israel, “It's got a wonderful legal system, its got a great judicial system, its got retired judges who certainly, in my book, would earn the respect of the overwhelming number of people around the world, including the Arab world, who, if they held open, good faith inquiries, would put an end to this.” It’s worth reciting this in relation to Goldstone’s claims of the inadequacy of Israeli investigations. As paragraph 1803 of the report admits, the Israeli investigatory system ends at the High Court of Justice. Anyone who is disappointed with a decision not to investigate an incident or bring charges against an individual, or failure of a military court to convict may appeal to the High Court of Justice. This includes non-citizens, like alleged Palestinian victims, and interested observers like Goldstone himself. And the High Court of Justice has no standing requirement, so anyone may bring suit, even if they are not directly harmed. If Goldstone really cares to have new investigations, and has any real evidence to show that crimes were committed aside from the conclusory statements in the report, why doesn’t he file a petition with the Israeli High Court of Justice? Why doesn’t he suggest it to any of the alleged Palestinian victims? Is he afraid to put his alleged evidence to the test of a court?

Check back here later for more.

UPDATE 12:27 PM

I wanted to make a few more points. First, note that Goldstone continues to pretend his mandate was something other than what came out of the 'Human Rights Council' in January. You can't change the mandate post-facto - the only time it could have been changed was before he started investigating and even then it would have had to be changed by the 'Human Rights Council,' which had the power to (and did) set it in the first place.

Second, it should be noted that the Commission has refused to release the submissions that were made to it. So in effect, it is trying and convicting the IDF based on evidence that will never see the light of day. And then urging other countries to arrest IDF personnel based on 'universal jurisdiction' theories to boot. The following is a response that one of the other people working on the Goldstone web site - Maurice Ostroff - received from someone at the Commission - Francesca Marotta - to his request to release the original testimony before the Commission:

Francesca Marotta

Dear Mr. Ostroff,

Justice Goldstone forwarded to me your 'open letter'. Before addressing your query, I must clarify in the interest of accuracy that I did not receive either an email or a telephone call or message from you, contrary to what you state.

In relation to your query as to whether the submissions made to the United Nations Fact Finding Mission on the Gaza Conflict in response to the Mission's call of 8 June 2009 would be posted on the UNFFMGC webpage, after further reviewing the material, we have concluded that it would not be appropriate to post them. The reason is that some of the submissions include names of individuals who are indicated as sources of some of the information provided, without indication of their consent to be named publicly. In doubt, and out of respect for those individuals, it would not be possible to make such information public. In the circumstances, doing otherwise would be contrary to established practice with regard to source protection. Rather than being selective in posting information, we have preferred to adopt one standard and all submissions will be retained in the Mission's archives, together with all other documentation received by the Mission.

It goes without saying that it remains the prerogative of the authors of the submissions that do not present such problems to publicize them as they consider most appropriate. We have already indicated so to those submitting organizations who have inquired about the same matter.

...

With kind regards.

In other words, they're protecting Hamas and the NGO's who support it.

By the way, you will note in the interview that Goldstone uses an 'example' of 'civilians' asking Hamas to leave in which Hamas actually left. But Lorenzo Cremonesi, one of the first foreign reporters to enter Gaza, reported in Il Corriere della Sera on January 21, 2009 that Hamas terrorists did not leave and used the civilians - sometimes willing and sometimes unwilling - as human shields. There's an English translation of Cremonesi's article here.

But for all of that the guerrillas didn’t listen to anyone. “Traitors, collaborators with Israel, spies of Fatah, cowards! The soldiers of the holy war will punish you. And in any case you will all die, like us. Fighting the Zionist Jews we are all destined for paradise. Do you not wish to die with us?” This is what they yelled furiously as they broke down doors and windows, hiding themselves on high floors, gardens, using ambulances and barricading themselves near the hospitals, schools and buildings of the UN.

In extreme cases the [Hamas militants] shot those who sought to block them from their streets and houses to save their own families, or they beat them savagely. “The Hamas Militants looked for good places to provoke the Israelis. They were usually youths, 16 or 17 years old, armed with submachine guns. They couldn’t do anything against a tank or jet. They knew they were much weaker. But they wanted the [Israelis] to shoot at the [the civilians’] houses so they could accuse them of more war crimes” asserted Abu Issa, 42, resident of the Tel Awa neighborhood.

“Practically all of the tallest buildings in Gaza that were hit by Israeli bombs, like the Dogmoush, Andalous, Jawarah, Siussi, and many others, had rocket launching pads on their roofs, or were observation decks for the Hamas. They had also put them near the big UN warehouse, which went up in flames. The same goes for the villages in the valley along the border who were more devastated by the mad fury and punishment of the Zionist,” echoes his cousin Um Abdallah, 48. They use family nicknames, but they provide important circumstantial details. It was difficult to get these testimonials. In general, fear of Hamas prevails and the ideological alimentary taboos reign in this century of wars with the “Zionist enemy.”

Gee, that would explain why Israel hit all those things Goldstone calls civilian targets, wouldn't it?

Read the whole thing.

posted by Carl in Jerusalem @ 10:21 AM