<?xml version="1.0" encoding="UTF-8" standalone="yes"?><oembed><version><![CDATA[1.0]]></version><provider_name><![CDATA[Occupied Palestine | فلسطين]]></provider_name><provider_url><![CDATA[https://occupiedpalestine.wordpress.com]]></provider_url><author_name><![CDATA[occupiedpalestine]]></author_name><author_url><![CDATA[https://occupiedpalestine.wordpress.com/author/hajarhajar/]]></author_url><title><![CDATA[What the Goldstone op-ed doesn’t&nbsp;say]]></title><type><![CDATA[link]]></type><html><![CDATA[<p class="headline_meta">by <span class="author vcard fn">Yaniv Reich</span> on <abbr class="published" title="2011-04-02">April 2, 2011 | Mondoweiss</abbr></p>
<p class="headline_meta">&nbsp;</p>
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<p>Israel is “vindicated”, <a href="http://www.haaretz.com/news/diplomacy-defense/lieberman-lauds-new-goldstone-conclusions-about-gaza-war-1.353677?localLinksEnabled=false">claims FM Lieberman</a> about Richard <a href="http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html?hpid=z3">Goldstone’s latest op-ed</a> in  the Washington Post, adding that “we knew the truth and we had no doubt  it would eventually come out.”  Netanyahu has gone so far as to <a href="http://www.haaretz.com/news/diplomacy-defense/netanyahu-to-un-retract-gaza-war-report-in-wake-of-goldstone-s-comments-1.353696?localLinksEnabled=false">demand the Goldstone report be retracted from the UN</a>.   Among all the celebrations and self-congratulatory pats on the back, it  is worth pausing for a moment to ask: what exactly does Goldstone’s  latest essay vindicate?</p>
<p>The answer seems much less clear than Israel’s unconditional  supporters want to argue.  The most charitable portions of his piece (to  Israel) suggest that “if I [Goldstone] had known then what I know now,  the Goldstone Report would have been a different document.”  This  statement is so patently obvious as to be meaningless, particularly  given Israel’s steadfast non-cooperation at the time of the  investigation, but let’s assume Goldstone means this in a substantive  way.  He did publish this piece under a headline of “reconsidering the  Goldstone report” after all.</p>
<p>What else is there in this op-ed that suggests a change from the  original Goldstone report?  The op-ed focuses on a very select group of  three themes.  The first point relates to the ongoing investigations  into allegations of war crimes.  Goldstone refers to the UN committee of  independent experts’ report to support this argument, and he quotes  that report to the effect that “Israel has dedicated significant  resources to investigate over 400 allegations of operational misconduct  in Gaza” while “the de facto authorities (i.e., Hamas) have not  conducted any investigations into the launching of rocket and mortar  attacks against Israel.”  The second key claim in Goldstone’s op-ed is  confusing, but suggests that the ongoing investigations have proven that  Israel did not attack civilians as a matter of intentional policy.  How  these conclusions have been reached before the investigations, which  the Goldstone report called for as its primary recommendation, have been  concluded is unclear.  The third theme is that Hamas has not done any  of the good things Israel has done: Hamas did deliberately target  civilians, Hamas didn’t investigate anything, Hamas continues to be  guilty of war crimes by firing rockets into civilian areas, and  Goldstone admits he was maybe “unrealistic” and “mistaken” to believe  Hamas would investigate itself.</p>
<p>I want to first highlight several general observations about what  this op-ed does and doesn’t say.  Then I will address these three themes  in detail.</p>
<p><span id="more-40050"> </span></p>
<h2>What the Goldstone Op-Ed Doesn’t Say</h2>
<h4>Limited to one of seven categories of possible war crimes</h4>
<p>The Goldstone commission’s findings on deliberate attacks on  civilians is one of at least seven broad findings (which comprise  hundreds of specific incidents) that raise issues about Israel’s  conduct.  These other key findings include: (1) Israel’s illegal siege  on Gaza, which constitutes a form of collective punishment and so  violates the Fourth Geneva Conventions; (2) The political institutions  and buildings of Gaza cannot be lawfully considered part of the “Hamas  terrorist infrastructure” and so Israel’s attacks on them are unlawful;  (3) Israel taking insufficient measures to protect the Palestinian  civilian population; (4) “indiscriminate” attacks (as distinct from  “deliberate” attacks) killed many civilians without any credible  military rationale for those actions; (5) Israeli use of weapons, such  as white phosphorous and flechette missiles, which, although not banned  under current international law, were used in ways that do violate the  laws of war; and (6) Israel’s deliberate destruction of civilian  infrastructure, including industrial plants, food production facilities,  sewage treatment plants, and water installations; this destruction has  no military justification (for example, Israel’s “wanton destruction” of  Mr. Sameh Sawafeary’s chicken coops, killing all 31,000 chickens inside  despite there being no military activity in the area) and could  constitute a crime against humanity.</p>
<p>Goldstone’s op-ed pointedly excludes discussion of all of these very  serious charges of possible war crimes and possible crimes against  humanity, so it’s odd that FM Lieberman and his hasbara “excreta” (his  word, not mine) think Israel is somehow absolved of all responsibility.   One cannot avoid the impression that Israel’s unconditional  supporters stillhaven’t actually read the report.</p>
<h4>Overlooks key impacts of the report</h4>
<p>One of the strangest omissions in the op-ed was the recognition that,  assuming Israel is conducting investigations in good faith (again, more  on that terrible assumption below), it was the Goldstone report that  caused Israel to conduct these investigations.  The best evidence this  is the case was Israel’s absolute refusal to investigate anything except  the credit card theft case, until, that is, it got worried that Israeli  leaders might end up in the International Criminal Court.  More  evidence to support this argument can be found in Israel’s response to a  conflict without a Goldstone kick in the rear: the 2006 Lebanon war.   In that case, Israel constituted the whitewashing Winograd Commission,  which didn’t even pretend to investigate the “the government policies  and military strategies that failed to discriminate between the Lebanese  civilian population and Hizbullah combatants and between civilian  property and infrastructure and military targets”, as <a href="http://www.amnesty.org/en/for-media/press-releases/israel-winograd-commission-disregards-israeli-war-crimes-20080131">Amnesty International</a> and  other human rights organizations observed.  Thus, without the Goldstone  report, there is absolutely no reason to believe Israel would be  conducting the investigations for which Goldstone is largely praising  now.</p>
<p>Another important impact, which was a direct result of the report’s  recommendations, was the policy changes, such as “new Israel Defense  Forces procedures for protecting civilians in cases of urban warfare and  limiting the use of white phosphorus in civilian areas.”  I have argued  elsewhere that these policy changes acknowledge implicitly that Israel  had not been minimizing civilian casualties, as it argues so  vociferously, or else there wouldn’t be any possible policy changes that  could further minimize civilian harm.  Either civilian casualties were  being minimized before, in which case the policy changes are  meaningless, or are minimized now (hypothetically, of course), in which  case Israel wasn’t doing its utmost to protect civilians from harm  before.  It certainly can’t be both.  Either way, these policy changes  are directly related to the report, a point Goldstone’s op-ed also  makes.</p>
<h2>Validity of Specific Claims Made in Goldstone’s Op-Ed</h2>
<h4>The credibility of Israel’s investigations</h4>
<p>Goldstone’s op-ed gives the strong impression that, despite the  length of Israel’s military investigations being “frustrating”, Israel  has “appropriate processes” in place.  It is difficult to understand  where this belief comes from, because it certainly does not appear in  this form in McGowan Davis report he cites (McGowan Davis chairs the UN  committee of independent experts monitoring implementation of the  Goldstone report recommendations).  That report paints are far less  appealing picture of Israeli’s military investigations, noting, for  example, that:</p>
<blockquote>
<ol>
<li>“That Israel’s military justice system provides for mechanisms  to ensure its independence”, but “the Committee further noted that  notwithstanding the built-in structural guarantees to ensure the MAG’s  [Military Advocate General&#8217;s] independence, his dual responsibilities as  legal advisor to the Chief of Staff and other military authorities, and  his role as supervisor of criminal investigations within the military,  raise concerns in the present context given allegations in the FFM  report that those who designed, planned, ordered, and oversaw the  operation in Gaza were complicit in international humanitarian law and  international human rights law violations.”</li>
<li>“The Committee does not have sufficient information to establish  the current status of the on-going criminal investigations into the  killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni  house and the shooting of Iyad Samouni.. . . As of 24 October 2010,  according to media reports, no decision had been made as to whether or  not the officer would stand trial.”  This case is of course cited  directly by Goldstone, yet his arguments are incompatible with the  actual McGowan Davis report.</li>
<li>“The Committee has discovered no information relating to four  incidents referred to in the FFM [Goldstone] report: incident AD/02,  incident AD/06, the attack on the Al-Quds hospital, and the attack on  the Al-Wafa hospital.  Nor has the Committee uncovered updated  information concerning the status of the criminal investigations into  the death of Mohammed Hajji and the shooting of Shahd Hajji and Ola  Masood Arafat, and the shooting of Ibrahim Juha. Accordingly, the  Committee remains unable to determine whether any investigation has been  carried out in relation to those incidents.”</li>
<li>“It is notable that the MAG himself, in his testimony to the  Turkel Commission, pointed out that the military investigations system  he heads is not a viable mechanism to investigate and assess high-level  policy decisions. When questioned by commission members about his “dual  hat” and whether his position at the apex of legal advisory and  prosecutorial power can present a conflict of interest under certain  circumstances, he stated that “the mechanism is calibrated for the  inspection of individual incidents, complaints of war crimes in  individual incidents (…). This is not a mechanism for policy. True, it  is not suitable for this.” “</li>
<li>“The Committee expressed strong reservations as to whether  Israel’s investigations into allegations of misconduct were sufficiently  prompt. In particular, the Committee expressed concern about the fact  that unnecessary delays in carrying out such investigations may have  resulted in evidence being lost or compromised, or have led to the type  of conflicting testimony that characterizes the investigations into the  killings of Majda and Raayya Hajaj, and the inconclusive findings  reported with respect to the tragic deaths of Souad and Amal Abd Rabbo  and the grave wounding of Samar Abd Rabbo and their grandmother Souad.”</li>
<li>“The promptness of an investigation is closely linked to the  notion of effectiveness. An effective investigation is one in which all  the relevant evidence is identified and collected, is analyzed, and  leads to conclusions establishing the cause of the alleged violation and  identifying those responsible. In that respect, the Committee is  concerned about the fact that the duration of the ongoing investigations  into the allegations contained in the FFM report – over two years since  the end of the Gaza operation – may seriously impair their  effectiveness and, therefore, the prospects of achieving accountability  and justice.”</li>
</ol>
</blockquote>
<p>These conclusions of the McGowan Davis report give a very different  impression of mechanisms for accountability in Israel’s military justice  system than one would understand from a casual reading of Goldstone’s  latest op-ed.  For additional, excellent analysis of these points, Adam  Horowitz’s piece at Mondoweiss is <a href="http://mondoweiss.net/2011/04/goldstone-op-ed-praises-israeli-investigation-of-gaza-war-crimes-but-un-committee-paints-a-different-picture.html">a must-read</a>.</p>
<h4>Was it a deliberate policy of targeting Palestinian civilians?</h4>
<p>If this op-ed “vindicates” anything, it seems to be about Israel  deliberately targeting civilians as a matter of policy.  The Goldstone  report investigated 11 specific cases, which were concerning because  civilians were killed “under circumstances in which the Israeli forces  were in control of the area and had previously entered into contact with  or at least observed the persons they subsequently attacked, so that  they must have been aware of their civilian status.”  After reviewing  the details of these cases, which included not only the attack on the  Samouni family (discussed in the op-ed) but also attacks on a mosque at  prayer time and the shootings of civilians waving white flags, the  report concludes:</p>
<blockquote><p>“From the facts ascertained in the above cases, the Mission finds  that the conduct of the Israeli armed forces constitute grave breaches  of the Fourth Geneva Convention in respect of willful killings and  willfully causing great suffering to protected persons and as such give  rise to individual criminal responsibility.” (Goldstone report, pp. 16)</p></blockquote>
<p>This finding, of course, is precisely why the report recommends that  Israel launch credible investigations into possible wrongdoing, which  Goldstone claims Israel is now doing (more on this later).  In that  sense, Israel’s investigations confirm many of the key findings of the  Goldstone report, <a href="http://www.hybridstates.com/2010/07/new-israeli-report-on-operation-cast-lead-confirm-goldstone-reports-main-findings/">a point I’ve raised previously</a>.</p>
<p>The conclusion above, which is easily the strongest charge in the  entire Goldstone report, has very little to do with Goldstone’s latest  statement that “civilians were not intentionally targeted as a matter of  policy.”  The Goldstone commission and other human rights  investigations have never said the IDF maintains a policy of  deliberately targeting civilians.  This is a red-herring; nobody  seriously believes there is a high-level policy to murder civilians.   The actual issue is that “these incidents indicate that the instructions  given to the Israeli forces moving into Gaza provided for a low  threshold for the use of lethal fire against the civilian population”  (Goldstone report, pp. 16).  This low threshold was an intentional  policy, as has been confirmed by dozens of soldiers’ and officers’  statements.  For example, many people have commented before about how <a href="http://www.hybridstates.com/2010/02/idf-rules-of-engagement-in-gaza-allowed-killing-those-without-means-or-intentions-to-do-harm/">the IDF “rewrote the rules of war for Gaza”</a>,  in particular by getting rid of “the longstanding principle of military  conduct known as ‘means and intentions’—whereby a targeted suspect must  have a weapon and show signs of intending to use it before being fired  upon—as being applicable before calling in fire from drones and  helicopters in Gaza last winter.”  The intentional, deliberate policy  was one of “literally zero risk to the soldiers”, an order that is  inescapably related to the high civilian casualties among the  Palestinians.  For these reasons the main argument in Goldstone’s latest  op-ed, which FM Lieberman erroneously believes “vindicates” Israel, is  entirely besides the point.</p>
<h4>Condemning Hamas</h4>
<p>Hamas certainly, and unlawfully, does deliberately target civilians.   This is not only grotesque but illegal, and Hamas military leaders  should be referred to the International Criminal Court for this since  Hamas’ political leadership has refused to investigate the matter  themselves and hold those responsible for war crimes to account.  But,  of course, this was already well known by anybody who read the Goldstone  report, which wrote:</p>
<blockquote><p>“The Mission has further determined that these [8000 rocket] attacks  [since 2001] constitute indiscriminate attacks upon the civilian  population of southern Israel and that where there is no intended  military target and the rockets and mortars are launched into a civilian  population, they constitute a deliberate attack against a civilian  population.  These acts would constitute war crimes and may amount to  crimes against humanity.”</p></blockquote>
<p>One could have also reached the same level of awareness by reading any of <a href="http://www.haaretz.com/news/hamas-amnesty-report-accusing-us-of-war-crimes-is-unfair-1.279250">Amnesty International</a>, <a href="http://www.hrw.org/en/news/2010/01/28/gaza-hamas-report-whitewashes-war-crimes">Human Rights Watch</a> or <a href="http://www.jpost.com/MiddleEast/Article.aspx?id=65353">other human rights organizations</a>‘  press releases and  reports.  In this sense, there is absolutely  nothing new about Hamas in Goldstone’s latest op-ed, yet some Israelis  and Jewish groups seem surprised (see, e.g., AIPAC’s one of many <a href="http://twitter.com/#%21/AIPAC/status/54183869485821952">tweets</a> on the matter).</p>
<h2>A Sad, Integrity-Damaging Turn</h2>
<p>The first time I saw Judge Goldstone speak in person he was striking  in his equanimity and unshakeable commitment to international law.  Even  in the face of hate-filled attacks by Jews in the audience, who  compared his report to the Protocols of the Elders of Zion, he handled  himself with a level of firm principle that I imagined to be unmovable.   The second time I saw him speak in public a year later, he seemed tired  and worn down by the relentless attacks against him by those who chose  to attack the messenger instead of deal with the message.  It was  nothing concrete that he said, but there was a withered tone in his  voice and a sort of quiet resignation that his best intentions had been  so vehemently manipulated—and misunderstood.</p>
<p>Goldstone’s latest op-ed is something else altogether.  It does not  challenge a single concrete finding in the entire report, and he has not  conceded absolutely anything to his critics in that way.  In fact, his  findings under severe constraints have held up remarkably well with  time.  But the tone and timing of this current piece suggest that  somehow the report should be “reconsidered”, that it was somehow wrong.   Moreover, his comments seem to intentionally mislead about the content  of the UN independent committee’s findings on due process in Israel.   This is nothing more than a bone to Israel’s apologists, which is deeply  misleading for all the reasons discussed here.  I am afraid this is a  sad, integrity-damaging turn for a man who had singlehandedly done so  much to protect people from war crimes in Israel, Palestine, and  elsewhere.</p>
<p>And he should have known better, that is, he should have known that  this craven gesture to Israel would not allow his enemies to forgive him  and welcome him back to the broader Jewish community.  Already the  enemies, sensing weakness, attack for the final kill attempt.  Jeffrey  Goldberg, with the tone of the intellectual gatekeeper he fashions for  himself, makes it clear this doesn’t change the “<a href="http://www.theatlantic.com/international/archive/2011/04/judge-richard-goldstone-never-mind/73366/">blood libel</a>.”  The editor-in-chief of the Jerusalem Post, David Horovitz, tells Goldstone “<a href="http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?ID=214866&amp;R=R1">an apology is not good enough</a>“.  We can expect much, much more of such attacks.</p>
<p>Goldstone has done neither international law and accountability for  war crimes—nor himself—any favors with this latest, depressing op-ed.</p>
<p><em>This post originally appeard on Yaniv Reich&#8217;s blog </em><a href="http://www.hybridstates.com/"><em>Hybrid States</em></a><em>.</em></p>
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<p><a href="http://mondoweiss.net/2011/04/what-the-goldstone-op-ed-doesn%e2%80%99t-say.html">Source</a></p>
<h3>Related</h3>
<ul>
<li><strong>SPECIAL TOPIC : <a href="https://occupiedpalestine.wordpress.com/2011/04/04/israels-next-whitewash-of-another-zionist-massacre/">WHITE WASH WATCH | Goldstone’s Reconciderations on the Gaza Cast Lead Report</a></strong></li>
</ul>
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