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Yesterday, the UN has issued a report on the Gaza war. It accuses both Israel and Hamas of war crimes.

Here's an article about the report (from the British 'Guardian'):

http://www.guardian.co.uk/world/2009/sep/15/un-gaza-war-israel-hamas

The report itself:

http://image.guardian.co.uk/sys-files/Guardian/documents/2009/09/15...

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Opinions welcome!

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Please read UN's human rights agenda hijacked which is at http://www.theaustralian.news.com.au/story/0,,26169002-7583,00.html

Highlight: The UN is mandated with the moral authority to adjudicate on matters of international concern, yet an alarming number of its agencies are headed by countries whose human rights records range from questionable to appalling, including Libya, Zimbabwe, Algeria, Sudan, Iran, Saudi Arabia and Burma. The Human Rights Council has studiously avoided condemning the brutalities in Darfur, Chechnya and Sri Lanka, but has directed 26 out of 32 resolutions condemning human rights violations against Israel.
... The institution of the UN is vital. The extent to which it has been hijacked has reached crisis point, however. The imperative to tackle human rights issues is thus subsumed by anti-democratic agendas. It falls to the democracies among us to haul this once-august body back on track
There is allways the other side of the coin ;)

Shooting the messenger.

http://www.hrw.org/en/news/2009/10/01/why-no-justice-gaza-israel-di...

Goldstone: ‘If This Was a Court Of Law, There Would Have Been Nothing Proven.’

By Gal BECKERMAN
The Forward October 07, 2009, issue of October 16, 2009

http://www.forward.com/articles/116269/

At Odds: Richard Goldstone, in his New York office, says his report on Gaza presents only tentative findings. But the document makes bold allegations that haven’t been scrutinized.

The incident detailed in paragraphs 713 through 716 of the Goldstone Report, if accurate, was a moment of indiscriminate terror.

A hundred members of the extended al-Samouni family are gathered together in one house, ordered there by Israeli soldiers patrolling their Gaza neighborhood of Zeytoun as part of Operation Cast Lead. Five men step out of the house to collect firewood. Suddenly, out of nowhere, a missile strikes them, fired, possibly, from an Apache helicopter. Two or three more missiles follow, this time aimed directly at the house. In all, 21 family members are killed, among them many women and small children. When the surviving al-Samounis attempt to leave and make their way to Gaza City, they are told by an Israeli soldier to return to the house, to “go back to death.”

A few pages later, in paragraphs 822 through 826, there’s another scene of seemingly unprovoked violence. In a mosque on the outskirts of Jabilyah, somewhere between 200 and 300 men and women are gathered for the evening prayer. An explosion rips the front door off its hinges and flings it all the way across the room. A missile has struck the mosque’s entrance, killing 15 people, some kneeling mid-prayer. A boy sitting by the door has his leg blown off.

The details are hard to turn away from, but they have, in fact, been largely ignored. Instead, the heated conversation about the Goldstone Report, the United Nations fact-finding mission led by Richard Goldstone, an internationally respected jurist and a South African Jew, has revolved mostly around political questions — charges of imbalance, lack of context and a history of anti-Israel bias on the part of the U.N. Human Rights Council, which gave Goldstone his charge.

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.

Israel’s decision to refuse to cooperate with the Goldstone Commission as it was doing its work—a decision questioned even by some critics of the report—doubtless played a role in this. 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. He still hopes that independent investigations carried out by Israel and the Palestinians will use the allegations as, he said, “a useful road map.”

He recalled his work as chief prosecutor for the international war crimes tribunal in Yugoslavia in 1994. When he began working, Goldstone was presented with a report commissioned by the U.N. Security Council based on what he said was a fact-finding mission similar to his own in Gaza.

“We couldn’t use that report as evidence at all,” Goldstone said. “But it was a useful roadmap for our investigators, for me as chief prosecutor, to decide where we should investigate. And that’s the purpose of this sort of report. If there was an independent investigation in Israel, then I think the facts and allegations referred to in our report would be a useful road map.”

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.

“If the accusations are true they are very serious,” said Avi Bell, a law professor at Bar-Ilan University. “But they are still just accusations. That doesn’t make them true in and of themselves. That’s where the fact-finding should begin, not where it should end.”

Goldstone said he believed Israel did have a “responsibility” to respond in some way to the incessant Hamas missiles from Gaza. It was the form this response took that, he said, “amounted to reprisals and collective punishment, and constitute war crimes.”

The report’s brief against Israel can be broken down into two broad categories. For the first, it uses satellite maps, eyewitness accounts and on-the-ground inspection to illustrate many instances in which large civilian infrastructure sites in Gaza were targeted and destroyed—food storage centers, water supply sources, agricultural land, sewage plants, as well as police stations and the legislative building in Gaza City. The only explanation for this kind of targeting, said Goldstone, is to collectively punish the population. Indeed, most legal experts agree that targeting such non-military sites is a war crime. But in its own published report on Cast Lead, issued in July, Israel openly acknowledges hitting these non-military targets, characterizing them instead as part of the “Hamas terrorist infrastructure,” and therefore legitimate objects for attack.

It is the second category of charges in the report that many Israelis condemn furiously as a kind of blood libel, contesting not only Goldstone’s legal conclusions about what happened, but also that the events in question happened at all.

Goldstone asserts that the Israeli army, in a few detailed instances, specifically targeted unarmed, non-combatants on the ground in conditions where no fighting was taking place. If true, these would be serious breaches of Israel’s own “Law of Armed Conflict.” Unlike the destruction of infrastructure, Israel has repeatedly emphasized in public that under no circumstances does it condone shooting of civilians. While not disclosing details, the Israeli army has said that it is looking into 100 complaints related to the Gaza operation and is currently conducting 13 criminal investigations.

In a section entitled, “Deliberate Attacks Against the Civilian Population,” Goldstone’s report examines 11 incidents, including the al-Samouni family deaths and the strike against the al-Maqadmah mosque in Jabaliyah. Both have also been cited repeatedly by Goldstone in his public comments as particularly egregious examples of what he termed Israel’s criminal conduct during the war.

In the al-Samouni case, the report lists its sources of information. Five members of the family were interviewed, as well as a few neighbors. The mission also interviewed Palestinian Red Crescent personnel who said they sought but were denied permission by the Israeli Army to come to the aid of those wounded. Mission members visited the site of the house that was hit in the attack. Goldstone described sitting with the family among the debris of their destroyed house. Material from other NGOS—it doesn’t distinguish which ones—were also reviewed. The mission also examined photos that appeared to verify the deaths of the 21 men, women and children the witnesses said died.

But for the most part, the actual details of the events that took place on the morning of January 5, 2009, resulting in the 21 deaths, were pieced together from eyewitness testimony.

Israel responded dismissively to initial reports of the Army’s attack on the home of Wa’el al-Samouni. On January 9, Israeli Army spokesman Jacob Dallal denied that the army gathered any large group of people into the house or that any attack had taken place on any house in the neighborhood at all. It is a statement the army has never amended.

Despite this declaration, the Goldstone report shows photos of Wa’el al-Samouni’s home, taken on January 18, when the surviving family members were finally able to return. The photos “show feet and legs sticking out from under the rubble and sand, and rescuers pulling out the bodies of women, men and children,” the report notes. The house, and most other houses in the neighborhood had been demolished, the report adds.

Some have challenged the report’s version. These critics raise questions as to whether the Samounis’ neighborhood was fully pacified when the Israeli Army shelled the house, as the report contends. Jonathan Halevi, a retired lieutenant colonel in the Israel army, submitted material to the commission citing accounts of combat by Palestinian armed groups that he argued disproved many assertions made in the report.

The Goldstone report made use of Halevi’s material, finding that they actually supported Goldstone’s own findings. But Halevi faulted Goldstone for failing to look into similar material freely available elsewhere on-line.

In the material Halevi sent to the commission about the Samouni incident, he focused exclusively on the military activity of Hamas in the area at the time in question. He found there was none and Goldstone cited this in the report as evidence that fighting had ended. But Halevi said that other information—specifically, the Web sites of other militant groups—would have made it clear that another militia, Islamic Jihad, was operating in the area on the morning in question.

“From the report you can get the impression that Israel operated in the Gaza Strip in a vacuum, which means there was almost no resistance,” said Halevi, who was an adviser to the Policy Planning Division of the Israel Ministry of Foreign Affairs and is currently a researcher at the Jerusalem Center for Public Affairs.

Halevi has studied the names of those killed in the incursion and matched them with lists of Hamas and Islamic Jihad militants listed on websites for the two groups. He contends that not only was fighting ongoing near the al-Samouni’s house, but that some of the men in the al-Samouni family were actually connected with Islamic Jihad and that the attack might not have been as unprovoked and indiscriminate as presented in the report. If the Palestinian witnesses had been cross-examined to establish their credibility, Halevi said, a more complex picture might have emerged.

Others have raised more general concerns about the reliance on eyewitness testimony.

“People don’t see what they think they see,” said Bell, the Bar Ilan law professor. “They don’t remember what they think they remember. That’s in the best of circumstances when they are trying to give you accurate information. In this case, what you have are witnesses that, for the most part, are living under a totalitarian government and subject to systematic intimidation. And also, they are living in a long time war zone where they have extreme hostility to the other side.”

Goldstone has referred to the mosque incident as a case where there is no other possible interpretation for what could have occurred other than a deliberate targeting of civilians. Besides the eyewitness accounts, the mission visited the mosque and conducted a forensic investigation. In his talk with the Forward, Goldstone emphasized what set apart this attack as a war crime.

“Assuming that weapons were stored in the mosque, it would not be a war crime to bomb it at night,” Goldstone said. “It would be a war crime to bomb it during the day when 350 people are praying.”

As with the al-Samouni house, Israel denied at the time that an attack on the mosque had taken place at all.

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.

Because the blast hit just outside the mosque, Halevi posits that it was perhaps a drone attack aimed at a group of militants meeting nearby. Because the mosque had unexpectedly combined its sunset and evening prayers that day, as the report itself describes, the Israelis might have come to the false conclusion that the mosque itself was empty, he speculated.

The report does not entertain such other possibilities or address the coincidence that so many of the dead were, according to Halevi, militants, by Hamas’ own listing. At the end of the section on the mosque attack, the report arrives at its conclusion: Based on accounts “from multiple witnesses” as well as viewing the site, Israel violated international law, the Fourth Geneva Convention, and the International Covenant on Civil and Political Rights.

Goldstone maintains that the burden is now on Israel to counter these findings through its own probe.

“If I was advising Israel, I would say have open investigations,” he told the Forward. “In that way, you can put an end to this. It’s in the interest of all the people of Israel that if any of our allegations are established and if they’re criminal, there should be prosecutions. And if they’re false, that should be established. And I wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved.”

Goldstone rejected the credibility of the army’s secret investigation of itself. He noted that none of the Palestinian witnesses he had met reported having been contacted by the army to hear their account. Instead, he offered the example of the Israeli investigation into the Sabra and Shatilla massacres, commissioned by Menachem Begin, as a model to emulate.

The United States has so far blocked action against Israel in the United Nations regarding the Goldstone Report — even convincing Palestinians to drop their push in the U.N. Human Rights Council to reach a Security Council resolution. The matter has been postponed until March of next year. But lately, the United States has also been publicly urging Israel to conduct an independent and open investigation.

As a democracy, said State Department spokesman Ian Kelly on October 5, “Israel ha[s] the kind of institutions that could address these allegations. And, of course, we urged Israel to address these very serious allegations.”

Contact Gal Beckerman at beckerman@forward.com

[Comment: An insightful response to incitement and pseudo-justice by Warren GOLDSTEIN who has a PhD. in Human Rights Law and is the chief rabbi of South Africa. PmR]
It looks like law, but it's just politics
by Warren GOLDSTEIN
Jerusalem Post
Oct. 14, 2009

http://www.jpost.com /servlet/Satellite?cid=1255450652253&pagename=JPArticle%2FShowFull

Much has been written and said about the inaccuracies, shortcomings and the moral inversion of the United Nations Human Rights Council's Mission presided over by Judge Richard Goldstone and his three fellow members. Most critics have understandably addressed the political and military issues involved. It is important, however, also to deconstruct the Goldstone Mission's Report from a legal point of view.

This is so because the report uses the veneer of respectability that comes with legal methodology, and with the presence of an internationally respected judge, to gain credibility. Law is a very powerful weapon to give respectability to contemptible actions and opinions. The South African Apartheid Government was very legalistic in its approach to racial oppression, and was punctilious about promulgating proper laws, and about maintaining a fully functioning judiciary to give the façade of respectability to its repugnant policies.

The United Nations, through its various organs, but particularly through its Human Rights Commission, uses the superficial veneer of law and legal methodology to give credence and credibility to its anti-Israel agenda. The Goldstone Mission is a case in point. Careful analysis reveals that the legalities utilized are merely a cover for a political strategy of deligitimizing Israel. Judge Goldstone claims that the Mission "is not a judicial enquiry [but is] a fact-finding mission."

This is a distinction without a difference. The Mission's Report makes numerous factual findings, and some legal, just as if it were a judicial body.

The Report could have salvaged some measure of integrity had it stated that its findings, both legal and factual, were only prima facie. It did not do so.

Judges make factual and legal findings which have practical implications. There are very real consequences for Israel resulting from the findings of the Mission. Apart from holding Israel liable in international law to pay war reparations, Judge Goldstone refers the findings to the highest authorities of international law, including the United Nation's General Assembly and the Security Council, and he recommends the commencement of criminal investigations in the national courts of the state signatories to the Geneva Convention of 1949. Of course, the Report also inflicts very great and real harm to Israel's reputation in the court of world opinion. This has serious political, economic and military implications for Israel's future, and for its very survival.

Any civilized legal system requires that justice be done on two levels: procedural and substantive. The Goldstone Mission is replete with procedural and substantive injustices. From a procedural point of view, there are four main areas of injustice.

FIRSTLY, THE Human Rights Council's Resolution S-9/1 establishing the Mission expressly states that it "[s]trongly condemns the ongoing Israeli military operation [in Gaza] which has resulted in massive violations of the human rights of the Palestinian people," and in so doing pre-judges the guilt of Israel. The Resolution refers many times to Israel's guilt in a very lengthy document which is phrased in wide, undisciplined and aggressive language. Furthermore, it calls upon the Mission to investigate Israel's conduct and not that of Hamas. Although Goldstone and the President of the Human Rights Council purported to extend the ambit of the mandate, the legal basis for their doing so without the express authority of the Council is not clear.

The second procedural injustice is that the members of the Mission publicly expressed beforehand their opinions on this conflict. The most explicit in this regard, Professor Christine Chinkin, was one of the signatories to a letter published in the Sunday Timesof London which stated that "Israel's actions amount to aggression, not self-defense, not least because its assault on Gaza was unnecessary." The letter is published under the heading "Israel's bombardment of Gaza is not self-defense - it's a war crime."

The other three members, Judge Richard Goldstone, Hina Jilani and Desmond Travers, all signed a letter initiated by Amnesty International stating: "Events in Gaza have shocked us to the core." Thus, all four members of the Mission, including Goldstone himself, expressed public opinions concerning the Gaza conflict before they began their work.

Thirdly, the Goldstone Mission violated another basic principle of justice, audi alteram partem - let the other side be heard. At least due to the procedural injustices already referred to, the State of Israel correctly refused to cooperate with the Mission. Once it had done so the Mission ought, if it were objective and fair, to have accepted Israel's right to remain silent and then ought to have desisted from making findings whether factual or legal. But it did not do so, and as any lawyer knows unanswered allegations often prove unreliable and in almost all conflict situations there are serious disputes of fact, and often of law as well.

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.

There is a fourth 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.

They say that they considered a huge volume of written and visual material running into thousands of pages; they conducted three field trips; there were only four days of public hearings; and yet in a relatively short space of time the members of the Mission agreed to about 500 pages of detailed material and findings with not one dissenting opinion throughout.

They made no less than 69 findings, mostly of fact, but some of law and within those 69 there were often numerous sub-findings.

All of this was quite simply physically impossible if the job had been done with integrity and care.

The fourth procedural injustice also demonstrates the total sham of this process.

THE SUBSTANTIVE injustices of the Goldstone Mission's Report are too numerous to mention in this article, but one illustrates how far the Mission was prepared to go, and that relates to the very important legal element of intent. Goldstone and his Mission impute the worst of intentions to the actions of the State of Israel, finding that Israel's conduct was motivated by a desire to repress and oppress, and to inflict suffering upon the Palestinian people, and not primarily for the purpose of self-defense. It does this without any evidence and then, without any supporting evidence, asserts that many of Israel's military operations such as that of Lebanon were motivated by the same goal.

The Mission fails to mention a modern leading military expert, Colonel Richard Kemp (the former commander of British forces in Afghanistan), who said, "From my knowledge of the IDF and from the extent to which I have been following the current operation, I do not think there has ever been a time in the history of warfare when an army has made more efforts to reduce civil casualties and deaths of innocent people than the IDF is doing today in Gaza."

By contrast, on the Palestinian side, there is very clear evidence as to Hamas's intentions - the Hamas Charter openly calls for the destruction of Israel, irrespective of borders. It also calls for the murder of all Jews worldwide. Hamas's clear intention was to murder as many Israeli civilians as possible and to use its own civilian population as human shields. But not a word of Hamas's expressly stated intentions appear in the report.

One aspect of the evidence, presented to but not accepted by the Goldstone Mission, was that of Hamas leader Fathi Hammad, who said: "This is why we have formed human shields of the women, the children, the elderly and the mujahideen, in order to challenge the Zionist bombing machine. It is as if we are saying to the Zionist enemy: We desire death while you desire life."

These procedural and substantive injustices demonstrate the complete lack of integrity and fairness of the process. It looks like law, but it is not. It is just politics.

The Goldstone Mission is a disgrace to the most basic notions of justice, equality and the rule of law. And it is dangerous. Injustice will only lead to more death and destruction.

The Talmud says "The world stands on three things: truth, justice and peace." These three values are linked. There can never be peace without justice and truth.

The Goldstone Mission is unjust and wanting in truth. It has, therefore, harmed the prospects for peace in the Middle East.

The writer, who has a PhD. in Human Rights Law, is the chief rabbi of South Africa
A very detailed conceptual critique of the deliberately one sided commission all members of which were known to have condemned Israel BEFORE they were appointed commissioners:

== A recipe for justice? Demonstrably: of course not!
== A recipe for bigoted politics? Demonstrably:of course!
Main issues in Gaza report. Make investigation. If nothing to hide, why shooting verbally all directions ?

And human rights council is on right track when it doesn't count in what hamas has done. Morally this is wrong absolutely, but there is one tiny little thing which makes that very, very difficult. Anyone wanna make guess what it is ?
"If nothing to hide, why shooting verbally all directions ?"

Indeed.

Some people live quite comfortably with the assumption that Goldstone and his team are biased and have always been biased. Those people always remind us how illegitimate this HRC is. Those people pretend that Israel doesn't need any interference from outside just because they assume that almost everyone in almost every country is per se 'anti-Israeli' and a latent antisemit.

Those people live happily with the results of an internal Israeli investigation of Op Cast Lead albeit this investigation lasted only a couple of days.

Israel's retaliation against Hamas was necessary. No question. Israel's breaches of IHL need to be dealt with. Again - no question.
Not quite Oliver. Why?

Have many more blatant violators of Human Rights, and people and States even more obviously guilty of War Crimes and more substantial Crimes Against Humanity been so blessed by UN commission? Especially one whose members were on public record with their preconceptions?

At best Oliver, this is just a blatant example of another double-standard applied to the Palestinians whose "victimhood-in-perpetuity" is just a convenient political football for way too many people.
Hi Mika,

Your hollow platitudes are wonderful!

In investigate by all means PROVIDING the investigators are clearly unbiased. The members of this UN commission were ONLY people were on public record with their preconceptions.

I think that Goldstone is honest but politically naive. The other members and the staff of his commission and those who set up the commission were demonstrably NOT!

Would you have self-proclaimed paedophiles investigate another possible paedophile? No ethical person or organisation would. And that is what your implicit approval is telling me Mika.
Goldstone staff ? They have worked also in other conflicts, have they been accused being biased then ?

What "politically naive" has to do with this ? Goldstone group investicated possible human rights violations in gaza conflict, not political nuance it might have.

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