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    Legitimating bigotry: The legacy of Richard Goldstone by Alan Dershowitz

    Richard Goldstone, author of the notorious Goldstone report, did not become a South African judge in the post-Apartheid Mandela Era, as The New York Times and other media have erroneously reported. He accepted a judgeship during the worst days of Apartheid and helped legitimate one of the most racist regimes in the world by granting the imprimatur of the rule of law to some of the most undemocratic and discriminatory decrees.

    Goldstone was - quite literally - a hanging judge. He imposed and affirmed death sentences for more than two dozen blacks under circumstances where whites would almost certainly have escaped the noose. And he affirmed sentences of physical torture - euphemistically called "flogging" - for other blacks. He also enforced miscegenation and other racist laws with nary a word of criticism or dissent. He was an important part of the machinery of death, torture and racial subjugation that characterized Apartheid South Africa. His robe and gavel lent an air of legitimacy to an entirely illegitimate and barbaric regime. 

    It is no surprise that Goldstone kept this part of his life secret from academic colleagues, friends and the general public. I recall him at the lunch and dinner tables in Cambridge describing himself as a heroic part of the struggle against Apartheid. Now it turns out he was the ugly face of Apartheid, covering its sins and crimes with a judicial robe. How differently we would have looked at him if we knew that he had climbed the judicial ladder on whipped backs and hanged bodies. 

    Now that his dirty secret has been exposed to the world, he has invoked the defense raised by German judges at Nuremberg: "I was just following the law." This cowardly defense was rejected at Nuremberg and by the international law that Goldstone claimed to be applying against Israel in the Goldstone report. It should be resoundingly rejected by the court of public opinion. Goldstone's friend and former judicial colleague, Arthur Chaskalson, has rushed to the defense of his fellow South African judge, saying that it was "better to have an honest judge on the bench than another kind." Putting aside the issue of whether Goldstone was an honest judge - the Goldstone report strongly suggests he is "another kind" - the German judges offered precisely that argument at Nuremberg. "I did it to help the Jews."

    In the film Judgment at Nuremberg, based on a real case, the judge argued that by unjustly sentencing one Jew to death, others might be helped. He also said he had no choice but to apply unjust laws. He was convicted. Goldstone may have persuaded himself and other judges who served the Apartheid regime that by hanging and torturing some blacks, they would be helping other blacks, but the only ones that were helped were the racists who ran the Apartheid regime and Goldstone himself, who used his Apartheid judgeship as a stepping stone and career booster. 

    It is interesting that Goldstone made a similar argument to friends as to why he accepted the chairmanship of the investigative commission offered to him by the United Nations Human Rights Council. He acknowledged that the Council was biased against Israel. Indeed, it treats Israel much the way Apartheid courts used to treat Black Africans: Just as there was special justice (really injustice) for blacks, so too there is special justice (really injustice) for Israel. Goldstone claims he took the job "to help Israel," just as he took his previous job to help blacks. In both cases he cynically hurt those he said he wanted to help, while helping only himself. In both cases he was selected to legitimate bigotry. In both cases, better people than him refused to lend their credibility to an illegitimate enterprise. But Goldstone accepted, because it was good for his career.

    Goldstone is an ambitious opportunist who lacks the courage of his convictions - if he ever had any. He has always put personal advancement over principle. He is a master of rationalization and self justification. This time he has run out of excuses. He's been exposed as a poseur who will sell his integrity for a careerist opportunity. Fortunately he now has little integrity left to sell.


    The Goldstone Report-A Study in Duplicity

    By Camera Staff


    Much has been written about the 575-page*anti-Israel polemic known as the Goldstone Report (formally known as the report of the United Nations Fact Finding Mission on the Gaza Conflict), which charges that Israel intentionally targeted Palestinian civilians and likely committed "crimes against humanity."

    The UN investigation has been widely faulted for its lack of objectivity, duplicitous methodology and biased mandate predetermining its conclusions. (Following the article are links to an accumulating body of material on the subject.)

    Below we briefly summarize, in list form, some of the many examples of factual errors and double standards in the report. Following the summary is a more detailed discussion of each point, which can be accessed by clicking the link in the list item, or by scrolling down.

    * Our original analysis, posted on October 2, addressed the 575-page advance edited version of the report, dated September 15.  Since then, the Goldstone Mission released the final version of the report, dated September 25 and comprising 452 pages.  While the paragraph numbers may have changed, the substance of the report and its falsehoods, errors and double standards still remain.  Below we reference the new paragraph numbers, followed by the original ones noted in red.

    Falsehood List

    The Report often exonerates Palestinian terror groups by claiming that "The Mission found no evidence" supporting particular allegations about their misconduct. In many cases, where there is indeed clear evidence supporting the allegations, such claims by the Goldstone Commission are simply not credible. 

    Also highly significant are false assertions in Palestnian testimony given to the commissioners, much of which was anecdotal evidence by residents of the Gaza Strip. The Commission's determination that such evidence was "credible and reliable" is actually the reverse of the case;  the testimony was often clearly unreliable.

    The Report also acknowledged that "those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups," possibly due to "fear of reprisals." (Perhaps the Mission should have explicitly asked the witnesses whether they feared Hamas might use their testimony against them. One Palestinian told Der Spiegel during a discussion about the war that "anyone who stands up to [Hamas] is killed.") The Report's acknowledgment that Palestinian testimony might be influenced by fear did not, however, prevent Goldstone from accepting most of the testimony as fact.


    REPORT: There is no evidence of Palestinian fighters using civilian clothes.
    FACT: Journalists and eyewitnesses repeatedly noted the use of civilian clothes by Hamas fighters.
    REPORT: There is no evidence of armed groups directing civilians to areas where attacks were being launched or forcing them to remain in the vicinity of attacks.
    FACT: Palestinian witnesses and video evidence reveal that fighters did direct civilians to areas where attacks were being launched.
    REPORT: There is no evidence that hospitals or ambulances were used for military activities.
    FACT: Eyewitnesses describe Palestinian firing from hospitals and using ambulances.
    REPORT: The mission could not determine whether mosques were used for military purposes.
    FACT: There is video evidence of weaponry stored in a mosque, and of secondary explosions of mosques consistent with the storage of explosives.
    REPORT: The amount of aid allowed into Gaza by Israel decreased after the end of the fighting.
    FACT: If not false, the assertion is at best disingenuous. The average weekly number of humanitarian shipments increased in the months after the war ended.
    REPORT: The "international community" regards the Gaza Strip as occupied even after Israel's 2005 withdrawal.  Two UN documents are cited to substantiate this assertion.
    FACT: Not only does the Report dismiss the international law and scholars who argue against this view, but the cited UN documents do not demonstrate such a position by the "international community."
    REPORT: Israel retains significant control over the Rafah crossing.
    FACT: The Rafah crossing is presently under Palestinian and Egyptian control, both de jure and de facto.

    The Zeitoun area is pacifist and had no militant groups or rocket fire.


    This witness is credible and reliable, and there is no reason to doubt his testimony.


    There are many documented cases of Palestinian militants being killed in armed clashes in the neighborhood.

    TESTIMONY: The al Fakhoura area was not used to fire at Israel, and no combatants were killed in the Fakhoura incident.
    REPORT: The Report was based in part on three interviews with the Hamas official who made the above claim, and did not cast doubt on his testimony.
    FACT: Palestinian eyewitnesses and Israel note that the area was used to fire at Israel, and that combatants were killed in the Israeli strike.


    Double Standards List

    Even more so than its factual problems, it is the Report's double standards that contributed to a distorted and one-sided document.  

    Acceptance of Evidence: The Report tends to base its acceptance of evidence less on the source of that evidence, and more on its target. That is, evidence damning Israel is normally deemed credible, where as evidence exonerating Israel or damning Palestinians is explicitly or quietly dismissed.

    • When an NGO asserted that one Palestinian fighter denied using human shields and others admitted to it, the Report in effect dismissed the admission and accepted the denial.

    • Similarly, information by other NGOs are given weight when they suggest Israeli culpability, but are ignored or minimized when they suggest Palestinian guilt.

    • Purported contradictions and falsehoods by Israel were deemed a blow to Israeli credibility, while the same by Palestinian and pro-Palestinian sources were dismissed or ignored. 

    • Assertions by Palestinian political leaders are said not to constitute evidence, whereas statements by Israeli political leaders are considered to constitute evidence.

    Photographic Evidence: Closely related to the above is the Report's clear double standard with regard to its consideration specifically of photographic evidence. Although the Goldstone Commission purported to review 1,200 photographs, it dismisses only Israeli photographs, claiming that "it is not reasonably possible to determine whether those photographs show what is alleged." On the other hand, no doubt is cast on photographs provided by Palestinians.

    Motive: While the Goldstone Commission falsely attributes nefarious motives to Israeli actions in order to indict the state with war crimes, they do precisely the opposite regarding misdeeds by Hamas and Palestinian groups, attributing a lack of negative motive to Palestinian fighters in order to avoid charging them with war crimes.

    Discrimination Against Women: The Report levels the extremely dubious charge that Israel violated the Convention on the Elimination of All Forms of Discrimination against Women because it struck elements of Gaza's food and water infrastructure. Based on the Report's own loose criteria, it should have also charged the Palestinians with violating the convention. It did not.



    Falsehood Details

    Falsehood: No Civilian Clothes

    REPORT: Paragraphs 495 (493) and 1953 (1750) assert:

    The Mission ... found no evidence that members of Palestinian armed groups engaged in combat in civilian dress.

    FACT: Numerous journalists in Gaza and Palestinian eyewitnesses described seeing Palestinian fighters in civilian dress. This information was relayed by some of the world's largest media organizations (emphasis added throughout):

    New York Times, "Warnings Not Enough for Gaza Families," 1/6/09:

    Hamada Al-Samouni, 28, who was lightly wounded by the Israeli rocket and was clearly still in shock, said this was all happening ''because of the rockets'' fired by Hamas.


    He said he had seen the bodies of eight Hamas fighters dressed in civilian clothing lying in the streets around Zeitoun.

    New York Times, "A Gaza War Full of Traps And Trickery," 1/11/09:

    Unwilling to take Israel's bait and come into the open, Hamas militants are fighting in civilian clothes; even the police have been ordered to take off their uniforms.



    Times (London), "Gaza's tunnels, traps and martyrs: the Hamas strategy to defeat Israel," 1/12/09:

    [Hamas figher Muhammed] said the fighters constantly changed their locations and tactics. They never attacked from the same place twice. They had secret means of communication, and spread disinformation to confuse the Israelis when speaking on their radios. They wore civilian clothes, concealed their weapons, and no longer walked around in groups.

    Los Angeles Times, "Battered by Israel, Hamas faces tough choices," 1/12/09:


    As the Israeli incursion rumbles into a 17th day, witnesses in Gaza and analysts portray the Islamic militant group as battered but defiant. Its walkie-talkie networks bleep and scratch through alleys, and its fighters, many in civilian clothes, move with the stealth of urban guerrillas, booby-trapping neighborhoods, communicating through e-mails, text messages and whispers in marketplaces.

    Associated Press, "Hamas fighters seek to restore order in Gaza Strip," 1/20/09:

    The high visibility of uniformed Hamas police [after the war] stood in contrast to the furtive movements of Hamas fighters in civilian clothing who confronted or tried to evade the Israeli onslaught that began Dec. 27.

    ^ Return to list


    Falsehood: No Civilians Kept in Vicinity of Attacks

    REPORT: Paragraphs 35 (35), 494 (492) and 1953 (1750) assert (with slightly varying language):

    The Mission found no evidence to suggest that Palestinian armed groups either directed civilians to areas where attacks were being launched or that they forced civilians to remain within the vicinity of the attacks.

    FACT: A witness quoted in the New York Times and videos recorded by Israel reveal that Palestinians militants did indeed direct civilians to areas from which attacks were being launched. One report in the New York Times noted that 

    A young witness from Jabaliya, Ibrahim Amen, 16, said a man had come to the mosque Tuesday and asked for volunteers to pile sand around the camp [near the Fakhura school] "to help protect the fighters." Ibrahim went to help with his brother, Iyad, 20, who was wounded by the Israeli mortar fire.

    Ibrahim said that a commander of the military wing of Hamas, Abu Khaled Abu Asker, was in the area at the time and had been killed on the spot. ("Israeli mortars kill 40 Palestinian refugees," 1/6/09)

    Witnesses quoted by the New York Times, Associated Press and the British Channel 4 television channel note that Palestinians were firing at the time from the area to which the Amen brothers were called. The Times noted:

    Witnesses, including Hanan Abu Khajib, 39, said that Hamas fired just outside the school compound, probably from the secluded courtyard of a house across the street, 25 yards from the school. Israeli return fire, some minutes later, also landed outside the school, along the southwest wall, killing two Hamas fighters. ("Weighing Crimes and Ethics in the Fog of Urban Warfare," 1/17/09)

    AP reported:

    An Israeli military statement said it received intelligence that the dead at the girls school included Hamas operatives, among them members of a rocket-launching squad. It identified two of them as Imad Abu Askar and Hassan Abu Askar. Two residents who spoke to an AP reporter by phone said the two brothers were known to be low-level Hamas militants. They said a group of militants -- one of them said four -- were firing mortar shells from near the school. (AP, "Gaza truce proposed after Israeli shell kills 30," 1/7/09)

    And Channel 4 reporter Jonathan Miller stated on Feb. 5, "Local residents in the street told me that militants had been firing rockets — as the IDF claimed — and having been targeted in retaliatory fire by the IDF, they ran down the street past the school."

    Indeed, the Goldstone Report itself hesitantly accepts the possibility that "some firing may have occurred that gave rise to the Israeli armed forces' response."

    Additionally, video evidence shows children being beckoned to shield a Palestinian who had just fired a rocket at Israel, and a fighter entering a home full of civilians after planting an improvised explosive device:


    After firing a rocket from the roof of a civilian house, children are brought to the house to serve as human shields for the attacker.

    A fighter plants an IED near a civilian house before entering the house and hiding among the inhabitants.

    Falsehood: No Hospitals Used by Fighters

    REPORT: Paragraph 487 (485) asserts:

    On the basis of the investigations it has conducted, the Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities and that ambulances were used to transport combatants or for other military purposes.

    FACT: Although the Report acknowledges that Talal Safadi, a Palestinian who lives near the hospital, told Newsweek that "resistance fighters were firing from positions all around the [al Quds] hospital," the commission dismisses this testimony, saying that it does not necessarily show that fighters were inside the hospital. What the report does not mention — and appears to actively conceal — is that another news report does indicate Hamas fighters misused the hospital and ambulances. Palestinian witness Magah al Rachmah asserted that

    The men of Hamas took refuge mainly in the building that houses the administrative offices of al Quds. They used the ambulances and forced ambulance drivers and nurses to take off their uniforms with the paramedic symbols, so they could blend in better and elude Israeli snipers. (Corriere della Sera, "Così i ragazzini di Hamas ci hanno utilizzato come bersagli," 1/21/09, qtd. in The Operation in Gaza: Factual and Legal Aspects)

    Remarkably, the Mission also admits that it did not even bother looking into whether Hamas leaders and fighters used Gaza's al Shifa hospital as a base, despite thedetermination by Israeli intelligence that this had happened. Nor did the Mission draw any relevant conclusions from testimony it received about "seemingly extrajudicial or summary executions" of escaped Palestinian political prisoners "seeking medical assistance in hospitals,"  or testimony by more than one Palestinian that "members of the security services" in Shifa Hospital prevented various patients from receiving treatment.

    Falsehood: Unclear if Mosques Used for Military Purposes

    REPORT: Paragraph 486 (484) asserts that "The Mission is unable to make any determination on the general allegation that Palestinian armed groups used mosques for military purposes."

    FACT: Video evidence and testimony points to the use of mosques for military purposes. Although the Report acknowledges the existence of a video of Israeli troops finding weaponry in a mosque (see below, left), it apparently did not deem it relevant to its conclusion. The report also acknowledges, and similarly seems to dismiss the relevance of, assertions by Israeli graduates of the Rabin Pre-Military Academy who fought in Gaza that they were "under fire from Palestinian combatants positioned in a mosque." (By contrast, when this same group of soldiers made statements that might reflect poorly on Israel, the Report did not hesitate to draw firm conclusions from the statements, citing them as "strong corroboration" for its conclusions that Israel misbehaved.)

    The report did not mention the freely available videos of secondary explosions from mosques struck by Israeli aircraft, nor did any of the commissioners ask military experts who testified about the significance of such secondary explosions. (Secondary explosions are seen as indicating that explosives on-site were set off by the initial attack.)

    Israeli troops find weaponry in basement of a mosque on Jan. 13, 2009

    A Jan. 1, 2009 strike on a Gaza mosque causes a secondary explosion, which suggests the mosque was used to store explosives.

    Falsehood: Gaza Aid Decreased

    REPORT: Paragraph 72 (72) asserts:

    The Mission acknowledges that the supply of humanitarian goods, particularly foodstuffs, allowed into Gaza by Israel temporarily increased during the military operations. The level of goods allowed into Gaza ... has again decreased after the end of the military operations.

    FACT: If not false, the assertion is at best disingenuous. A recently published document by the Israeli Ministry of Foreign Affairs, Supporting Palestinian Capacity Building: Israel's Efforts in Supporting the Palestinian Economy, Civil Affairs and Security Reforms, tabulates the volume of supplies provided by Israel in the past year. The document notes that the weekly number of humanitarian aid shipments has increased from 104 during the spike in Hamas rocket fire in November and December 2008 to 501 during Operation Cast Lead to 638 in the 25 weeks after the fighting ended on Jan. 18, 2009.


    The Palestinian organization PalTrade reveals similar data. Its July 7, 2009 report entitled "Gaza Strip – Two years after siege" includes the following summary:

    War Period, starting from December 27, 2009 to January 18, 2009, The restrictions on trade activities did not change during the 23 -day war in Gaza. An average of 90 truckloads a day were imported, about 70% of the imports were humanitarian goods, and 30% were commercial cargos deemed essential to avoid a humanitarian crisis. The Rafah crossing was also used during the war for the imports of humanitarian supplies.

    Post War Period, from January 19 to June 2009, no improvements were witnessed on the crossings performance, where statistics illustrate that an average of daily 95 truckloads of commercial goods (mostly food) and humanitarian aids enters into Gaza, export were still banned for the exception of the minimal exports of 14 truckloads of carnation flowers.

    Subsequent data in PalTrade's July and August monthly reports do suggest that, during these months, somewhat less than their claimed wartime average of 90 trucks/day passed into Gaza. However, PalTrade's August numbers still reflect an increase over Israel's count of 501 shipments/week during the fighting.

    In short, it is hardly clear that the level of goods decreased during the overall postwar period, and it is agreed that the level actually increased in the four-plus months after the war.


    Falsehood: The International Community Views Israel as Still Occupying the Gaza Strip

    REPORT: Underlying the entire document is the rejection of the idea that Israel's 2005 disengagement from the Gaza Strip ended its military occupation there, with the adoption of the Palestinian claim that Israel is still a military occupying force in Gaza. Paragraph 277 of the Report adds that despite Israel's 2005 withdrawal, "the international community continues to regard it as the occupying Power." The footnote to this passage cites "Security Council resolution 1860 (2009) and Human Rights Council resolution S-9/1."

    FACT: The Hague Convention (1907) and Fourth Geneva Convention, Article 6 (1949) which constitute the laws of occupation both stipulate that occupation is defined by the occupying power's governance of the territory.  The Hague Convention, Article 42  states:

    Territory is considered occupied when it is actually placed under the authority of the hostile army.

    The occupation extends only to the territory where such authority has been established and can be exercised.

    Article 6 of the  Fourth Geneva Convention, similarly states that "the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory " While Palestinians argue that Israel still retains effective control over Gaza and therefore occupies it, jurists — for example International Law Professor Yuval Shany,  David B. Rivkin Jr. and Lee A. Casey, former members of the U.N. Subcommission on the Promotion and Protection of Human Rights, Professor Avi Bell and Dore Gold, as well as Israel's Supreme Court — have argued that based on the legal criteria for military occupation Israel cannot be considered an occupier of the Gaza Strip. No Israeli military government exercises authority, carries out any of  "the functions of government" or retains "effective control" there. Since Israel's withdrawal from Gaza, Hamas is the governing power in the territory. In fact, throughout the Report the Goldstone Commission repeatedly acknowledges Hamas as the governing power in Gaza, even while holding Israel as the "occupying force" there. The Report in paragraph 34 describes Hamas as having taken "complete control" of the territory in 2007. 


    Falsehood: Israeli Control Over the Rafah Crossing






































    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 Access) and decides what and who gets in or out of the Gaza Strip.





































    A footnote to the paragraph notes of the Agreement on Movement and Access:

    This Agreement of November 2005 represents the commitments of the Government of Israel and the Palestinian Authority. Its implementation and further elaboration will be assisted by the Quartet Special Envoy for Disengagement and his staff and/or the United States Security Coordinator and his staff.

    FACT: The Rafah crossing is presently under Palestinian and Egyptian control, both de jure and de facto. International agreements adopted in 2005 explicitly name these parties as the operators of the crossing point; and although upheaval in the Gaza Strip has disrupted implementation of the agreements, the occasional bilateral opening of the crossing by Egypt and Hamas shows that these powers nonetheless exercise control of this passage into and out of the Gaza Strip.

    Contrary to the Goldstone Report's claim, the terms of the Agreement on Movement and Access (AMA) do not give Israel control over Rafah. At any rate, the agreement is currently irrelevant since in practice the AMA, and the related Agreed Principles for Rafah Crossing, were shelved once Hamas violently seized control of the Gaza Strip.

    The AMA gives no details about the functioning of the Rafah crossing. Instead, it indicates that Israel and the Palestinian Authority have agreed to an "attached statement of principles" about the functioning of the crossing. That statement, the Agreed Principles for Rafah Crossing (APRC), explicitly notes that the crossing "will be operated by the Palestinian Authority on its side, and Egypt on its side, according to international standards, in accordance with Palestinian law and subject to the terms of this agreement." It also asserts that European Union observers would be on site to monitor implementation of the agreement and provide assistance to the Palestinians.

    Although the APRC allows Israel to raise concerns over who passes through and works at the crossing point, the final decision on these matters is left to the Palestinians. This meant that the border was no longer controlled by Israel. In the words of US Secretary of State Condoleeza Rice at a Nov. 15, 2005 press conference marking the finalization of the agreement, "for the first time since 1967, Palestinians will gain control over entry and exit from their territory. ... [T]he Rafah crossing ... is an international crossing, the Palestinians on one side, Egyptians on the other, with third-party help." Added EU High Representative Javier Solana: "This is the first time that a border is opened and not controlled by the Israelis." Palestinian official Saeb Erekat similarly asserted that "this is the first time in history we will run an international passage by ourselves, and it's the first time Israel does not have a veto over our ability to do so."

    In the summer of 2007, as a result of the Gaza battles between Hamas and Fatah, the Rafah terminal was shut down, and on June 15, 2007, the European Union observers who according to the agreements needed to be on site for the terminal to function announced a "temporary suspension" of operations. The observers noted on their Web site that operations were suspended "due to the Hamas takeover of the Gaza Strip. The EU has a policy of no contact with Hamas."

    The Hamas victory over Fatah, coupled with the EU decision to suspend operations, left Egypt and Hamas in charge of the crossing. Although Egypt tends to keep the crossing closed, it occasionally opens it in coordination with Hamas, leaving Israel powerless to do anything about it other than express its concerns. (For a more detailed discussion of the Rafah crossing, see here.)


    The Commissioners should know as well as anybody that Egypt controls the Rafah crossing, as they essentially admit in paragraphs 8 and 144 of the Report:


    8. The Mission repeatedly sought to obtain the cooperation of the Government of Israel. After numerous attempts had failed, the Mission sought and obtained the assistance of the Government of Egypt to enable it to enter the Gaza Strip through the Rafah crossing. [...]
    144.  In a letter dated 20 May 2009, the Mission attempted again to obtain the cooperation of the Israeli Government, especially in view of its planned visit to the Gaza Strip. In view of the refusal of cooperation from the Government of Israel, in order to be able to fulfil the mandate entrusted by the Human Rights Council within the aforementioned time frame, the Mission sought and obtained the assistance of the Government of Egypt to enable it to enter Gaza through the Rafah crossing.

    Yet this experience did not prevent the Mission from falsely casting Israel as being in control of the crossing.

    Testimonial Falsehood: No Militants in Zeitoun

    TESTIMONY: In the June 28 afternoon session of the Mission's public hearings, Wa'el el-Samouni testifies that

    The Al-Zaytoun area is a pacifist area. It's a farmland area. We didn't have any Islamic Jihad or Qassams or anything. We didn't have any, uh, resistance operators whatsoever. We didn't have any resistance.

    REPORT: Paragraph 723 (721) of the report asserts about testimony by the el-Samouni's that "The Mission found the foregoing witnesses to be credible and reliable. It has no reason to doubt their testimony."

    FACT: There are many documented cases of militants being killed in armed clashes in the neighborhood. The Palestinian Center for Human Rights, which hasunderstated the number of Palestinian militant casualties, acknowledges a number of examples, as relayed in the excerpts below.

    PCHR Weekly Report No. 01/2009 asserts:

    Also at approximately 21:00 [on Jan. 6, 2009], Mo'een Akram Selmi, 35, and Mahmoud Ahmed Fattouh, 24, were killed in another armed clash with IOF east of al-Zaytoun neighborhood.

    At approximately 16:10 [on Jan. 7, 2009], during an armed clash with IOF in east Zaytoun, three resistance fighters were killed: Ahmed Mousa, 20; 'Azmi Zaid, 20; and Ahmed Lubbad, 22.

    PCHR Weekly Report No. 02/2009 asserts:

    At approximately 22:30 [on Jan. 8, 2009], IOF bombed al-Zaytoun neighborhood, killing two members of the Palestinian resistance...

    At approximately 08:30 [on Jan. 12, 2009], Ayman Faraj Shaldan, 35, was killed in armed clashes with IOF in al-Zaytoun neighborhood in the east of Gaza City.

    At approximately 13:00 [on Jan. 12, 2009], two members of the Palestinian resistance were killed in IOF air strikes:

    1. 'Abdullah Mazen al-Gharra, 30, who was killed in al-Zaytoun neighborhood in the east of Gaza City.

    At approximately 17:00 [on Jan. 12, 2009], an IOF drone fired a missile at Ussama Abu al-Seifi, 20, a member of the Palestinian resistance, in the east of al-Zaytoun neighborhood. Al-Seifi was killed.

    At approximately 20:00 [on Jan. 12, 2009], an IOF warplane fired a missile at two members of the Palestinian resistance in the east of al-Zaytoun neighborhood:

    1. Raji Rushdi Dalloul, 24

    2. Ihsan Fawzi al-Nadim, 31

    At approximately 10:00 [on Jan. 13, 2009], an OF warplane fired a missile at Mohammed Maher Mohammed Harazallah, 23, a member of the Palestinian resistance, whilst in the east of al-Zaytoun neighborhood.

    At approximately 19:00 [on Jan. 13, 2009], an IOF warplane fired a missile at a Palestinian resistance activist in al-Zayotoun neighborhood in the east of Gaza City, killing him. He was identified as Ibrahim Rafeeq Abu al-Khair, 25.

    And PCHR Weekly Report No. 03/2009 asserts:

    At approximately 17:00 [on Jan. 16, 2009], the IOF artillery fired at a number of Palestinians, including a resistance activist, in the east of al-Zaytoun neighborhood. As a result, a civilian and a resistance activist were killed:

    ... 2. Nasser al-Saifi, 38, a resistance activist


    Testimonial Falsehood: No Militant Activity or Militants Killed in Fakhura (UN School) Incident 

    TESTIMONY: In the June 28 morning session of the Mission's public hearings, Hamas official Muhammed Abu Askar claimed:

    Whoever visits Al Fakhoura neighborhood has no doubt whatsoever that this place could not be used to launch rockets, and that for several reasons. Firstly it's a public street, a street where there are a lot of circula-, traffic. You cannot uh, put a platform there to launch a rocket. It is also an open area that can be seen by the enemy's aircraft. Also it is an overcrowded area, and those from the Beit Lahiya and Al Atatra also fled to the school. And therefore there are contradicting hi-, uh, stories regarding the targeting of Immad, the little boy, or targeting those launching rockets from that area. These are false stories. These are lies, especially that from the casualties we did not find any combatant, any military person or even any piece of weaponry.

    REPORT: Paragraph 654 (652) suggests that the findings were based in part on three separate interviews with Muhammed Abu Askar. The Goldstone Report refers to Abu Askar's acknowledged involvement with Hamas only in a footnote that concludes with the denial of "his involvement in armed militant activities." Despite this involvement,  despite the fact that his son was a Hamas fighter (see below), which the Report ignores, and most importantly, despite Abu Askar's false assertions during his testimony (see below), which the Report also ignores, the Goldstone Report casts no doubt whatsoever on Abu Askar's testimony. (It does, though, insist that "the credibility of Israel's position" — that there were militants firing from the area — is "damaged" due to Israeli "inconsistencies and factual inaccuracies." See also the section on double standards below.) (Note: This paragraph was corrected on 10/29.)

    FACT: As noted above, Palestinian eyewitnesses who spoke with the New York Times, Associated Press, and the UK's Channel 4 belie Abu Askar's claim that there was no firing from the Fakhura area. (The Goldstone Report cites the AP and Channel 4 piece, but it ignores the New York Times stories.)

    Abu Askar's claim that "from the casualties we did not find any combatant" or "any military person" further erodes his credibility. According to Col. (res.) Jonathan D. Halevi, eight Palestinian fatalities from the Fakhura incident, including Mohammed Abu Askar's son Khaled, were operatives of terror groups. Citing Palestinian sources, he lists:

    Khaled Mohammed Fuoad Abu Askar, Bilal Hamzah Obeid, Raafat Abu Askar, Osama Jemal Obeid, Iyad Jaber Aman, Abd Muhammad Abd Qudas, and Atia Hassan al-Madhoun and Ziyad al-Madhoun. (Recall that Khaled Askar was also named by Palestinian witness Ibrahim Amen, who spoke with the New York Times, as a Hamas fighter.)

    Moreover, a report by the International Crisis Group, one that was cited in the Goldstone Report, points out that Palestinians it interviewed said at least one of the casualties was a member of Hamas's Qassam Brigades (Gaza's Unfinished Business, page 1, footnote 8).

    Although the Commission acknowledges that Khaled Abu Askar was killed in the Fakhura incident, it fails to indicate that he, or any of the others killed in the incident or listed above, were combatants. On the contrary, the Report seems to go to great lengths to suggest that no combatants were killed in the incident.


    Double Standard Details

    Double Standard: Acceptance of Evidence

    The Goldstone Mission either chose not to investigate, ignored or outrightly dismissed evidence that supported Israeli government allegations, but chose to accept problematic evidence by Palestinian or pro-Palestinian groups that supported allegations of Israeli culpability. For example:

    • The Report notes an assertion by an Islamic Jihad figher that he and his fellow fighters "stay away from houses" if possible, and concluded that this assertion  "suggests the absence of intent" to use civilians as shields. On the other hand, after noting that three Hamas fighters said Palestinain combatants did indeed fire from near homes with the hope that the the presence of civilians would shield them from an Israeli response,  the Report does not similarly conclude that this suggests the presence of intent to use civilians. The Report, in effect, simply ignored the admission by the Hamas fighters, concluding that "the Mission found no evidence" Palestinians sought to use Palestinian civilians to shield them from attack. (See paragraph 453 (451), which quotes International Crisis Group interviews with the Islamic Jihad and Hamas fighters.) 

    • Purported contradictions and falsehoods by Israel were considered by the Commission a blow to Israeli credibility, while contradictions and falsehoods by Palestinian and pro-Palestinian sources were dismissed or ignored. For example:


    * Regarding Israel's assertion that its strike on the Fakhura area was in response to mortar fire, the Report states that the Mission "considers the credibility of Israel's position damaged by the series of inconsistencies, contradictions and factual inaccuracies in the statements justifying the attack." These Israeli claims are dismissed despite the fact that, as noted above, Palestinian witnesses reported that terrorists were firing from the area.



    On the other hand, although Hamas official Muhammed Abu Askar brazenly lied to the commissioners when giving his testimony about the Fakhura school incident (see above), nowhere does the Report raise doubts about his credibility. On the contrary, in reference to one of his specific allegations, it refers to "the credible account of Mr. Abu Askar."


    Meanwhile, when discussing the case of Khalid Abd Rabbo, about which numerous inconsistencies and contradictions had been cited, the Report asserts, "The Mission found Khalid and Kawthar Abd Rabbo to be credible and reliable witnesses. It has no reason to doubt the veracity of the main elements of their testimony."

    Moreover, just as actual contradictions by the Palestinain family are ignored, supposed "contradictions" by Israel are invented. Paragraphs 831 (829) and 832 (830) of the Report state:

    The Israeli armed forces' response to the allegations states:

    … relating to a strike against the “Maqadme” mosque in Beit-Lahiya on January 3rd, 2009, it was discovered that as opposed to the claims, the mosque was not attacked at all. Furthermore, it was found that the supposed uninvolved civilians who were the casualties of the attack were in fact Hamas operatives killed while fighting against the IDF.

    Apart from the apparent contradictions it contains, the Mission notes that the statement does not indicate in any way the nature of the inquiry, the source of its information or the reliability and credibility of such sources.

    Indeed, the authors appear so eager to charge Israel with contradictions, they apparently did not bother to carefully read its response, which in fact contains no contradictions. Israel's response indicates that there was indeed a missle attack that killed Hamas operatives, but that this attack was not against a mosque — two  consistent points that are compatible with each other. Below is a more complete version of Israel's statement:

    ... the head of the investigation looked into two incidents in which it was claimed that attacks directed at mosques lead to the deaths of uninvolved civilians. With regard to the first incident, relating to a strike against the "Maqadme" mosque in Beit-Lehiya on January 3rd, 2009, it was discovered that as opposed to the claims, the mosque was not attacked at all. Furthermore, it was found that the supposed uninvolved civilians who were the casualties of the attack were in fact Hamas operatives killed while fighting against the IDF.

    Israel's insistence that the strike which damaged the mosque and killed a number of Palestinians was not an attack against the mosque itself is also consistent with the Report's statement that the missile struck "near the doorway of the mosque." (Indeed, elsewhere in the Report, it is stated that given the precision of Israel's weapons, "what was struck was meant to be struck." Apparently, though, the Report's authors feel that this conclusion can only be reached if it can be used against Israel, but not when it might reveal that the mosque itself was not targeted.)

    • The Report cites an admission by a Hamas parliamentarian that Palestinians do indeed use human shields, but immediately dismisses the assertion as evidence. Paragraphs 477 (475) and 478 (476) assert:

    The Mission is also aware of the public statement by Mr. Fathi Hammad, a Hamas member of the Palestinian Legislative Council, on 29 February 2009, which is adduced as evidence of Hamas' use of human shields. Mr. Hammad reportedly stated that

    … the Palestinian people has developed its [methods] of death seeking. For the Palestinian people, death became an industry, at which women excel and so do all people on this land: the elderly excel, the mujahideen excel and the children excel. Accordingly, [Hamas] created a human shield of women, children, the elderly and the mujahideen, against the Zionist bombing machine.

    Although the Mission finds this statement morally repugnant, it does not consider it to constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack. The Government of Israel has not identified any such cases.



    Ironically, while the Report concluded that the statement did not constitute evidence that "Hamas forced Palestinian civilians to shield military objectives," it did not comment on whether it constituted evidence that Hamas violated the obligation under customary international humanitarian law that, as the Report describes alsewhere, dictates "each party to the conflict must, to the extent feasible, avoid locating military objectives within or near densely populated areas" and that "each party to the conflict must, to the extent feasible remove civilian persons and objects under its control from the vicinity of military objectives." Although it seems obvious that Fathi Hammad's statement does constitute an admission of violating these precepts, the Report completely dismisses this.

    Thus  the Goldstone Commission apparently does not consider assertions by Palestinian politicians to constitute evidence of Palestinian wrongdoing. By contrast, when it comes to assertions by Israeli politicians, it takes quite the opposite approach. Paragraphs 1204-1206 (1200-1202) cite statements made by Israeli politicians, followed by paragraph 1207's (1203) assertion that "It is in the context of comments such as these that the massive destruction of businesses, agricultural land, chicken farms and residential houses has to be understood."

    Had the Commission adhered to a consistent, impartial standard, the report would have that indicated that Palestinian fighting from among civilians, and civilian casualties, must be understood from the context of  Fathi Hammad's aforementioned statement . Not only did the Report's fail to indicate this,  but, as noted above, they  dismissed Hammad's assertion as irrelevant.

    Another double standard is evident in the Report's use of quotations by Israeli leaders as described above, but its refusal to consider other statements by Israeli leaders that cast doubt on the report's conclusions. (See Double Standard: Motive below.)

    Double Standard: Photographic Evidence

    Paragraphs 19 (19) and 160 (160) of the Report note that the Commission reviewed 1,200 photographs. Of those, it dismisses only the credibility of photographs by Israelis. Paragraph 451 (449) of the Report asserts:

    The Mission reviewed the pictures allegedly showing the launching of rockets “from within or near residential buildings, including schools, mosques and hospitals” in the Israeli Government's paper and in several of the submissions it received. The Mission notes that it is not reasonably possible to determine whether those photographs show what is alleged.

    (A footnote after the reference to "several of the submissions it received" cites a submission by Israeli Maurice Ostroff.)

    By contrast, the Commission accepted without caveat photographs of Gaza's al Quds hospital (Report, paragraphs 597 (595) and 611 (609)); photographs taken by Mu'een Juha of his Gaza house (paragraph 756 (754)); "reliable" photographs of the al Muqadamah mosque, photographs published online by Gaza's "semi-public" Coastal Municipalities Water Utility" (paragraph 976 (973), footnote); and photographs of the house of Wa'el Samouni (paragraph 997 (993)).

    Double Standard: Imputing Motive

    While the Goldstone Commission falsely attributes nefarious motives to Israeli actions in order to indict the state with war crimes, its members do precisely the opposite with Hamas militants — they suggest Palestinian militants lacked intention to abuse civilians — in order to exonerate them from war crimes.


    Motive was freely and falsely attributed to Israel in order to charge them with war crimes. Paragraph 74 (74) of the Report asserts:


    The conditions of life in Gaza, resulting from deliberate actions of the Israeli forces and the declared policies of the Government of Israel – as they were presented by its authorized and legitimate representatives – with regard to the Gaza Strip before, during and after the military operation, cumulatively indicate the intention to inflict collective punishment on the people of the Gaza Strip in violation of international humanitarian law.
    And in paragraph 1331 (1325):
    The facts ascertained by the Mission, the conditions resulting from the deliberate actions of the Israeli armed forces and the declared policies of the Israeli Government – as they were presented by its authorized representatives – with regard to the Gaza Strip before, during and after the military operation, cumulatively indicate the intention to inflict collective punishment on the people of the Gaza Strip. The Mission, therefore, finds a violation of the provisions of article 33 of the Fourth Geneva Convention.
    But government and IDF officials stated just the opposite. For example, the IDF screened the following message from Capt. Benjamin Rutland on January 3, 2009, when the IDF sent ground troops into Gaza, to articulate and make clear the IDF's mission and goals:

    Other examples abound. On December 25, 2008, Israeli Prime Minister Ehud Olmert said at a press briefing that


    I made it clear to the residents of Gaza that we are not acting against them and that we have no intention of punishing them for the actions of Hamas. We will see to the needs of the population in Gaza and will do our utmost to prevent a humanitarian crisis that will impinge upon residents' lives. Residents of Gaza, we are not your enemies and we are not fighting against you. ... Israel is not fighting the Palestinian people but the Hamas terrorist organization that has taken it upon itself to act against the residents of Israel. Therefore, the targets that were attacked today were selected accordingly, with stress being placed on avoiding harm to innocents.

    Elsewhere in the Report, similar  nefarious motives were attributed to the Israel, even in military operations where no Palestinian civilians were reported killed or injured.:

    Original: 50. ...The Mission... finds that [Israel's] destruction of the [Al Bader] mill was carried out for the purposes of denying sustenance to the civilian population, which is a violation of customary international law and may constitute a war crime.

    Final version: 50. ..The Mission...finds that the destruction of the mill was carried out to deny sustenance to the civilian population, which is a violation of customary international law and may constitute a war crime.

    No one was reported injured or killed during this Israeli operation. The Report acknowledges that the mill was the tallest building in the area, that Israeli troops occupied and used the upper floors of the mill after the airstrike, and that, during the operation in general, Israel felt that “because roads and buildings were often mined, IDF forces had to target them to protect themselves.” A rational observer would therefore conclude that the mill was not fired on for the purposes of denying sustenance, but rather in order to clear potential mines and fighters from a high-ground military objective that Israel deemed important to occupy during the fighting. 

    That Israel's attack was "for the purposes of denying sustenance to the civilian population" is further belied by the fact that the country actually increased humanitarian aid, which includes food aid, to the Palestinians during Operation Cast Lead.

    During Operation Cast Lead, the following humanitarian aid was transferred from Israel into Gaza:

    37,159 tons of humanitarian aid on 1503 trucks were transferred via the Kerem Shalom and Karni crossings (food, medication and medical supplies)

    1,535,750 liters of heavy duty diesel for the Gaza power station

    234 tons of gas for domestic use

    188,000 liters of diesel for UNRWA vehicles and needs

    3,896 tons of grain, on 98 trucks were transferred via the Karni conveyor belt

    Even on January 9 — the day Israel was said to have taken over the Al Bader mill — 41 trucks carrying food products and electrical equipment entered Gaza via Israel's Kerem Shalom crossing. And over the following week, 622 more trucks carrying more than 15,000 tons of food, medical supplies and humanitarian aid were transferred to the territory.

    Indeed, Israel points out that it transfered 14,208 tons of flour into Gaza during the war, or an average of 618 tons/day. Not only is this quantity significantly more flour than the 220 metric tons the Al Bader mill could have produced in a day; but more strikingly, it is well over the 450 tons/day that the UN and the World Food Programme say Gaza needs.

    Israel also implemented a daily humanitarian recess (ceasefire) in order to facilitate the transfer of humanitarian supplies.

    Meanwhile, Hamas was stealing some of those humanitarian shipments, including food and flour, leading UN Secretary General Ban Ki Moon to tell Hamas it must "refrain from interference with the provision and distribution of humanitarian assistance in Gaza."  Israel also noted Palestinian reports that Hamas operatives seized bags of donated flour to sell at outrageous prices. 

    The Goldstone commission, however, did not let facts get in the way of implying motive in order to charge Israel with war crimes.

    The commission presumed not only to impute motive to individual actions but to Israel's overall military operation, accepting only the evidence and statements which supported the Commission's pre-decided conclusion, while dismissing or ignoring all others.  Thus, the Report concluded that:


    1884. (1681) ...the [military] operations were in furtherance of an overall policy aimed at punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support. The Mission considers this position to be firmly based in fact, bearing in mind what it saw and heard on the ground, what it read in the accounts of soldiers who served in the campaign, and what it heard and read from current and former military officers and political leaders whom the Mission considers to be representative of the thinking that informed the policy and strategy of the military operations. 
    In fact, the Mission did come across evidence that Palestinian combatants mingled with the civilian population in order to shield themselves from Israeli attack. The evidence, an admission by Hamas fighters, is especially telling considering the obvious reasons (related to both domestic and international politics) that loyal Palestinian troops would deny such behavior. In January 2009, the International Crisis Group interviewed Hamas fighters, who told the interviewers that, as the ICG paraphrased it, "combatants often fired in close proximity to homes and from alleys, hoping that nearby civilians would deter Israel from responding." While the Goldstone Report acknowledged the existence of this evidence, it clearly ignored it when concluding that it found no evidence Palestinian combatants intended to shield themselves from attack by mingling with civilians.







    The Goldstone Report - Using Terminology in Service of Deception [Eli E. Hertz]

    Summary ... The rhetoric by Arab leaders on behalf of the alleged 'Palestinian' people rings hollow. Arabs never established a Palestinian state in 1947 when the UN recommended to partition Palestine. Nor did the Arabs recognize or establish a Palestinian state during the two decades prior to the Six-Day War when Judea and Samaria were under Jordanian control and the Gaza Strip was under Egyptian control; nor did the Arabs cry out for autonomy or independence during those years under Jordanian and Egyptian rule. So much for facts and accuracy.


    Justice Richard Goldstone and the United Nations Human Rights Council, sought to rewrite history by labelling Judea and Samaria (known as the West Bank [sic]) "Occupied Palestinian Territories" [Paragraph 11], calling Israeli Arabs "Palestinian citizens of Israel" [Paragraph 111], referring to Israeli Arab villages as "Palestinian Israeli communities" [Paragraph 110] and calling Arab inhabitants of Gaza "Palestinian People in the Gaza strip" [Paragraph 1,859]. Essentially Goldstone is endowing Arabs in Judea, Samaria and Gaza with an aura of bogus peoplehood and statehood, as well as a false history as if title or ownership could be assigned out of thin air.

    No legal binding authority has empowered Goldstone or any UN organ, including the International Court of Justice (ICJ) or the Human Rights Council to decide that the territories of the West Bank, known as Judea and Samaria, and Gaza could be transformed into "Occupied Palestinian Territories" or "Palestine." Goldstone's use of these dishonest, loaded terms empowers terrorism and the Palestinians [sic] with the right to use all measures to expel Israel.

    Palestine is a Geographical Area, Not a Nationality

    Arabs, the UN and its organs, and lately the International Court of Justice (ICJ) as well, have repeatedly claimed that the Palestinian [sic] Arabs are a native people — so much so that almost everyone takes it for granted. The problem is that a stateless Palestinian people is a fabrication. The word Palestine is not even Arabic.

    Palestine was never an independent state belonging to any people, nor did a Palestinian people distinct from other Arabs appear during 1,300 years of Muslim hegemony in Palestine under Arab and Ottoman rule. During that rule, local Arabs were actually considered part of, and subject to, the authority of Greater Syria (Suriyya al-Kubra).

    Historically, before the Arabs fabricated the concept of Palestinian peoplehood as an exclusively Arab phenomenon, no such group existed. This is substantiated in countless official British Mandate-vintage documents that speak of the Jews and the Arabs of Palestine — not Jews and Palestinians.

    In fact, before local Jews began calling themselves Israelis in 1948 (when the name "Israel" was chosen for the newly-established Jewish State), the term "Palestine" applied almost exclusively to Jews and the institutions founded by new Jewish immigrants in the first half of the 20th century, before the state's independence.

    Some examples include:

    The Jerusalem Post, founded in 1932, was called The Palestine Post until 1948. Bank Leumi L'Israel, incorporated in 1902, was called the "Anglo-Palestine Company" until 1948. The Jewish Agency — an arm of the Zionist movement engaged in Jewish settlement since 1929 — was initially called the Jewish Agency for Palestine. Today's Israel Philharmonic Orchestra, founded in 1936 by German Jewish refugees who fled Nazi Germany, was originally called the "Palestine Symphony Orchestra," composed of some 70 Palestinian Jews. The United Jewish Appeal (UJA) was established in 1939 as a merger of the United Palestine Appeal and the fundraising arm of the Joint Distribution Committee.

    There Has Never Been a Sovereign Arab State in Palestine

    The artificiality of a Palestinian identity is reflected in the attitudes and actions of neighboring Arabs who never established a Palestinian state or advocated one prior to the Six-Day War in 1967.

    Only twice in Jerusalem's history has it served as a national capital. The first time was as the capital of the two Jewish Commonwealths during the First and Second Temple periods, as described in the Bible, reinforced by archaeological evidence and numerous ancient documents. The second time is in modern times as the capital of the State of Israel. It has never served as an Arab capital for the simple reason that there has never been a Palestinian Arab state.

    The rhetoric by Arab leaders on behalf of the Palestinians rings hollow. Arabs never established a Palestinian state when the UN in 1947 recommended to partition Palestine, and to establish "an Arab and a Jewish state" (not a Palestinian state, it should be noted). Nor did the Arabs recognize or establish a Palestinian state during the two decades prior to the Six-Day War when the West Bank was under Jordanian control and the Gaza Strip was under Egyptian control; nor did the Palestinian Arabs clamor for autonomy or independence during those years under Jordanian and Egyptian rule.

    So much for facts and accuracy. For the record, here is the Goldstone Report.