Goldstone v. Ros-Lehtinen and Berman

We reported earlier this week the resolution that U.S. Rep. Ileana Ros-Lehtinen (R-Fla.), the senior Republican on the U.S. House of Representatives, introduced condemning the Goldstone report, and urging the Obama administration not to allow it to advance further.

(Quickie refresher: the U.N. Human Rights Council mandated a fact finding mission, led by Richard Goldstone, a noted pro-Israel human rights judge, to investigate alleged war crimes during last winter’s Gaza war. Israel would not cooperate with the mission, saying the original mandate, by naming only Israel and assuming war crimes had been committed, was inherently biased. Goldstone addressed Hamas actions as well in his report and accused both sides of war crimes and possibly crimes against humanity.)

Ros-Lehtinen marshalled to her side the who’s-who of House Middle East luminaries: The chairman, Rep. Howard Berman (D-Calif.) and the chairman and ranking member of its Middle East subcommittee, Reps. Gary Ackerman (D-N.Y.) and Dan Burton (R-Ind.) respectively.

We briefed this, but I haven’t had time until now to post the whole thing, and it’s below the jump. Last I looked, it’s garnered 114 co-sponsors (very good in a four-day period).

Also below the jump is Goldstone’s reply. I give him a win on points.

He raises serious issues of fact with the "Whereases" preceding the resolution’s non-binding recommendations.

The most egregious of these is less a lie than a problematic conflation; the resolution ellides from Goldstone’s mandate to his report without noting that he expanded his mandate. Here’s Goldstone:

Whereas clause #3: “Whereas the mandate of the `fact-finding mission’ makes no mention of the relentless rocket and mortar attacks, which numbered in the thousands and spanned a period of eight years, by Hamas and other violent militant groups in Gaza against civilian targets in Israel, that necessitated Israel’s defensive measures;”

This whereas clause is factually incorrect. As noted above, the expanded mandate clearly included the rocket and mortar attacks. Moreover, Chapter XXIV of the Report considers in detail the relentless rocket attacks from Gaza on Israel and the terror they caused to the people living within their range. The resulting finding made in the report is that these attacks constituted serious war crimes and possibly crimes against humanity.

Now, Goldstone is also a little spare with the truth here (but not as parsimonious as the resolution’s drafters, and I’ll explain below); He had no "expanded mandate;" He had, as this Jerusalem Post interview relates, a chat with the UNHRC’s president who seems to be a weasel ("Read into it what you want, Judge Dick!"), but who finally went to the Council and essentially said, "This is what Goldstone wants," and there were no objections.


"I indicated to the then-president of the Human Rights Council, Ambassador Martin Uhomoibhi of Nigeria, that I could not agree to take on the mission unless alleged war crimes and human rights violations on all sides were subject to the investigation."

Uhomoibhi replied that this was already "implied in the resolution and he made it absolutely clear in the mandate he gave the fact finding mission that the investigation should cover all sides. The mandate that my colleagues and I accepted is ‘to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 to 18 January 2009, whether before, during or after,’" Goldstone wrote.

Goldstone is a lawyer and must know that this is not a formally expanded mandate, or perhaps he has an expansive notion of his own Solomonic powers to issue judgments ("So it is said, so it shall be done.") And this is not a minor matter: The UNHRC explicitly condemns Israel in its resolution advancing the report, but not Hamas. (There is an allusion to Hamas, inserted, Goldstone has said, only after his objection to an earlier draft.)

But the Ros-Lehtinen resolution’s deception is more serious, in that it principally condemns the report and not the UNHRC resolution or even the mandate (although both are condemned in passing). This suggests that the report made no effort to place the war in context, or even to address Hamas; this simply is not true, although one can argue — persuasively, I think — that its conclusions, in terms of underweighting the asymmetry of urban warfare against a group that hews to a genocidal manifesto are nonetheless skewed.

Another deception Goldstone notes is the misrepresentation of his interview recently with the Forward (and Ros-Lehtinen is not alone in this, this misrepresentation has gone viral); Goldstone explains that he is the prosecutor bringing the indictment, not the judge in court:

Whereas clause #10: ‘Whereas in the October 16th edition of the Jewish Daily Forward, Richard Goldstone, the head of the `United Nations Fact Finding Mission on the Gaza Conflict’, is quoted as saying, with respect to the mission’s evidence-collection methods, `If this was a court of law, there would have been nothing proven.’”

The remark as quoted is both inaccurate and taken completely out of context. What I had explained to The Forward was that the Report itself would not constitute evidence admissible in court of law. It is my view, as jurist, that investigators would have to investigate which allegations they considered relevant. That, too, was why we recommended domestic investigations into the allegations.

And Goldstone takes issue with the notion that the report denies Israel’s right to self-defense:

Whereas clause #11: “Whereas the report, in effect, denied the State of Israel the right to selfdefense, and never noted the fact that Israel had the right to defend its citizens from the repeated violent attacks committed against civilian targets in southern Israel by Hamas and other Foreign Terrorist Organizations operating from Gaza;”

It is factually incorrect to state that the Report denied Israel the right of self-defense. The report examined how that right was implemented by the standards of international law. What is commonly called ius ad bellum, the right to use military force was not considered to fall within our mandate. Israel’s right to use military force was not questioned.

The resolution alludes to Israel’s claim, in its formal reply, that the mission "was continuously accompanied by Hamas officials," although Goldstone has explicitly denied this, citing passages in the report in which the mission interviews  witnesses, unhampered. You’d think Ros-Lehtinen’s staff would base the resolution’s language on more than a claim made without substantiation and, moreover, would not leap from "continuously accompanied" to "selecting and prescreening" based on … what? I give this point to Goldstone.

Whereas clause #16: “Whereas Hamas was able to significantly shape the findings of the investigation mission’s report by selecting and prescreening some of the witnesses and intimidating others, as the report acknowledges when it notes that `those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups . . . from a fear of reprisals’;”

The allegation that Hamas was able to shape the findings of my report or that it pre-screened the witnesses is devoid of truth. I challenge anyone to produce evidence in support of it.

Which is not to say Goldstone is above futzing around with the truth. Here he addresses the complaint that a member of his mission, Christine Chinkin, had signed a letter before joining the mission concluding that Israel was guilty of war crimes:

Whereas clause #4: “Whereas the `fact-finding mission’ included a member who, before joining the mission, had already declared Israel guilty of committing atrocities in Operation Cast Lead by signing a public letter on January 11, 2009, published in the Sunday Times, that called Israel’s actions `war crimes’;”

This whereas clause is misleading. It overlooks, or neglects to mention, that the member concerned, Professor Christine Chinkin of the London School of Economics, in the same letter, together with other leading international lawyers, also condemned as war crimes the Hamas rockets fired into Israel.

So what. All this means is that Hamas also has a valid case against Chinkin and, by extension, the commission. Her membership still undermines (although, I don’t think, nullifies) the entire mission and its report.

Also, while Goldstone’s point here is essentially correct …

Whereas clause #15: “Whereas in one notable instance, the report stated that it did not consider the admission of a Hamas official that Hamas often `created a human shield of women, children, the elderly and the mujahideen, against [the Israeli military]‘ specifically to `constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack.’;”

This whereas clause is misleading, since the quotation is taken out of context. The quotation is part of a section of the report dealing with the very narrow allegation that Hamas compelled civilians, against their will, to act as human shields. The statement by the Hamas official is repugnant and demonstrates an apparent disregard for the safety of civilians, but it is not evidence that Hamas forced civilians to remain in their homes in order to act as human shields. Indeed, while the Government of Israel has alleged publicly that Hamas used Palestinian civilians as human shields, it has not identified any cases where it claims that civilians were doing so under threat of force by Hamas or any other party.

… it raises the legitimate question of why Goldstone’s commission saw fit to cite Israeli know-nothings like Haim Ramon and Eli Yishai (I mean, really) to prove intent to target civilians.

Full resolution and Goldstone reply below the jump.

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House Resolution 867:

IN THE HOUSE OF REPRESENTATIVES
OCTOBER 23, 2009
Ms. ROS-LEHTINEN (for herself, Mr. BERMAN, Mr. BURTON of Indiana, and Mr. ACKERMAN) submitted the following resolution; which was referred to the Committee on Foreign Affairs

RESOLUTION

Calling on the President and the Secretary of State to oppose unequivocally any endorsement or further consideration of the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ in multilateral fora.

Whereas, on January 12, 2009, the United Nations Human Rights Council passed Resolution A/HRC/S–9/L.1, which authorized a ‘‘fact-finding mission’’ regarding Israel’s
conduct of Operation Cast Lead against violent militants in the Gaza Strip between December 27, 2008, and January 18, 2009;

Whereas the resolution pre-judged the outcome of its investigation, by one-sidedly mandating the ‘‘fact-finding mission’’ to ‘‘investigate all violations of international human rights law and International Humanitarian Law by . . . Israel, against the Palestinian people . . . particularly in the occupied Gaza Strip, due to the current aggression’’;

Whereas the mandate of the ‘‘fact-finding mission’’ makes no mention of the relentless rocket and mortar attacks, which numbered in the thousands and spanned a period
of eight years, by Hamas and other violent militant groups in Gaza against civilian targets in Israel, that necessitated Israel’s defensive measures;

Whereas the ‘‘fact-finding mission’’ included a member who, before joining the mission, had already declared Israel guilty of committing atrocities in Operation Cast Lead by signing a public letter on January 11, 2009, published in the Sunday Times, that called Israel’s actions ‘‘war crimes’’;

Whereas the mission’s flawed and biased mandate gave serious concern to many United Nations Human Rights Council Member States which refused to support it, including
Bosnia and Herzegovina, Cameroon, Canada, France, Germany, Italy, Japan, the Netherlands, the Republic of Korea, Slovakia, Slovenia, Switzerland, Ukraine, and the United Kingdom of Great Britain and Northern Ireland;

Whereas the mission’s flawed and biased mandate troubled many distinguished individuals who refused invitations to head the mission;

Whereas, on September 15, 2009, the ‘‘United Nations Fact Finding Mission on the Gaza Conflict’’ released its report;

Whereas the report repeatedly made sweeping and unsubstantiated determinations that the Israeli military had deliberately attacked civilians during Operation Cast Lead;

Whereas the authors of the report, in the body of the report itself, admit that ‘‘we did not deal with the issues . . . regarding the problems of conducting military operations in civilian areas and second-guessing decisions made by soldiers and their commanding officers ‘in the fog of war.’ ’’;

Whereas in the October 16th edition of the Jewish Daily Forward, Richard Goldstone, the head of the ‘‘United Nations Fact Finding Mission on the Gaza Conflict’’, is
quoted as saying, with respect to the mission’s evidence collection methods, ‘‘If this was a court of law, there would have been nothing proven.’’;

Whereas the report, in effect, denied the State of Israel the right to self-defense, and never noted the fact that Israel had the right to defend its citizens from the repeated violent attacks committed against civilian targets in southern Israel by Hamas and other Foreign Terrorist Organizations operating from Gaza;

Whereas the report largely ignored the culpability of the Government of Iran and the Government of Syria, both of whom sponsor Hamas and other Foreign Terrorist Organizations;

Whereas the report usually considered public statements made by Israeli officials not to be credible, while frequently giving uncritical credence to statements taken
from what it called the ‘‘Gaza authorities’’, i.e. the Gaza leadership of Hamas;

Whereas, notwithstanding a great body of evidence that Hamas and other violent Islamist groups committed war crimes by using civilians and civilian institutions, such as mosques, schools, and hospitals, as shields, the report repeatedly downplayed or cast doubt upon that claim;

Whereas in one notable instance, the report stated that it did not consider the admission of a Hamas official that Hamas often ‘‘created a human shield of women, children, the elderly and the mujahideen, against [the Israeli military]’’ specifically to ‘‘constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack.’’;

Whereas Hamas was able to significantly shape the findings of the investigation mission’s report by selecting and prescreening some of the witnesses and intimidating others, as the report acknowledges when it notes that ‘‘those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups . . . from a fear of reprisals’’;

Whereas even though Israel is a vibrant democracy with a vigorous and free press, the report of the ‘‘fact-finding mission’’ erroneously asserts that ‘‘actions of the Israeli government . . . have contributed significantly to a political climate in which dissent with the government and its actions . . . is not tolerated’’;

Whereas the report recommended that the United Nations Human Rights Council endorse its recommendations, implement them, review their implementation, and refer the
report to the United Nations Security Council, the Prosecutor of the International Criminal Court, and the United Nations General Assembly for further action;

Whereas the report recommended that the United Nations Security Council—

(1) require the Government of Israel to launch further investigations of its conduct during Operation Cast Lead and report back to the Security Council within six
months;

(2) simultaneously appoint an ‘‘independent committee of experts’’ to monitor and report on any domestic legal or other proceedings undertaken by the Government
of Israel within that six-month period; and

(3) refer the case to the Prosecutor of the International Criminal Court after that six-month period;

Whereas the report recommended that the United Nations General Assembly consider further action on the report and establish an escrow fund, to be funded entirely by
the State of Israel, to ‘‘pay adequate compensation to Palestinians who have suffered loss and damage’’ during Operation Cast Lead;

Whereas the report ignored the issue of compensation to Israelis who have been killed or wounded, or suffered other loss and damage, as a result of years of past and
continuing rocket and mortar attacks by Hamas and other violent militant groups in Gaza against civilian targets in southern Israel;

Whereas the report recommended ‘‘that States Parties to the Geneva Conventions of 1949 start criminal investigations [of Operation Cast Lead] in national courts, using universal jurisdiction’’ and that ‘‘following investigation, alleged perpetrators should be arrested and prosecuted’’;

Whereas the concept of ‘‘universal jurisdiction’’ has frequently been used in attempts to detain, charge, and prosecute Israeli and United States officials and former
officials in connection with unfounded allegations of war crimes and has often unfairly impeded the travel of those individuals;

Whereas the State of Israel, like many other free democracies, has an independent judicial system with a robust investigatory capacity and has already launched numerous investigations, many of which remain ongoing, of Operation Cast Lead and individual incidents therein;

Whereas Libya and others have indicated that they intend to further pursue consideration of the report and implementation of its recommendations by the United Nations Security Council, the United Nations General Assembly, the United Nations Human Rights Council, and other multilateral fora;

Whereas the President instructed the United States Mission to the United Nations and other international organizations in Geneva to vote against resolution A–HRC–S–12–1, which endorsed the report and condemned Israel, at the special session of the Human Rights Council held on October 15–16, 2009;

Whereas, on September 30, 2009, Secretary of State Hillary Clinton described the mandate for the report as ‘‘onesided’’;

Whereas, on September 17, 2009, Ambassador Susan Rice, United States Permanent Representative to the United Nations, expressed the United States’ ‘‘very serious concern with the mandate’’ and noted that the United States views the mandate ‘‘as unbalanced, one-sided and basically unacceptable’’;

Whereas the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ reflects the longstanding, historic bias at the United Nations against the democratic, Jewish State of Israel;

Whereas the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ is being exploited by Israel’s enemies to excuse the actions of violent militant groups and their state sponsors, and to justify isolation of and punitive measures against the democratic, Jewish State of Israel;

Whereas, on October 16, 2009, the United Nations Human Rights Council voted 25–6 (with 11 states abstaining and 5 not voting) to adopt resolution A–HRC–S–12–1, which
endorsed the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ and condemned Israel, without mentioning Hamas, other such violent militant
groups, or their state sponsors; and

Whereas efforts to delegitimize the democratic State of Israel and deny it the right to defend its citizens and its existence can be used to delegitimize other democracies and deny them the same right: Now, therefore, be it Resolved, That the House of Representatives—

(1) considers the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ to be irredeemably biased and unworthy of further consideration or legitimacy;

(2) supports the Administration’s efforts to combat anti-Israel bias at the United Nations, its characterization of the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ as ‘‘unbalanced, one-sided and basically unacceptable’’, and its opposition to the resolution on the report;

(3) calls on the President and the Secretary of State to continue to strongly and unequivocally oppose any endorsement of the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ in multilateral fora;

(4) calls on the President and the Secretary of State to strongly and unequivocally oppose any further consideration of the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ and any other measures stemming from this report in multilateral fora; and

(5) reaffirms its support for the democratic, Jewish State of Israel, for Israel’s security and right to self-defense, and, specifically, for Israel’s right to defend its citizens from violent militant groups and their state sponsors.

Goldstone’s reply:

The Honorable Howard Berman
Chairman, House Committee on Foreign Affairs
The Honorable Ileana Ros-Lehtinen
Ranking Member, House Committee on Foreign Affairs

October 29, 2009

Dear Chairman Berman and Ranking Member Ros-Lehtinen,

It has come to my attention that a resolution has been introduced in the Unites States House of Representatives regarding the United Nations Fact Finding Mission on the Gaza Conflict, which I led earlier this year.

I fully respect the right of the US Congress to examine and judge my mission and the resulting report, as well as to make its recommendations to the US Executive branch of government.

However, I have strong reservations about the text of the resolution in question – text that includes serious factual inaccuracies and instances where information and statements are taken grossly out of context.

I undertook this fact-finding mission in good faith, just as I undertook my responsibilities vis à vis the South African Standing Commission of Inquiry Regarding Public Violence and Intimidation, the International War Crimes Tribunal on the former Yugoslavia, the International Criminal Tribunal for Rwanda, the International Panel of the Commission of Enquiry into the Activities of Nazism in Argentina, the Independent International Commission on Kosovo, and the Volker Committee investigation into the UN’s Iraq oil-for-food program in 2004/5.

I hope that you, in similar good faith, will take the time to consider my comments about the resolution and, as a result of that consideration, make the necessary corrections.

Whereas clause #2: “Whereas, on January 12, 2009, the United Nations Human Rights Council passed Resolution A/HRC/S-9/L.1, which authorized a `fact-finding mission’ regarding Israel’s conduct of Operation Cast Lead against violent militants in the Gaza Strip between December 27, 2008, and January 18, 2009;”

This whereas clause ignores the fact that I and others refused this original mandate, precisely because it only called for an investigation into violations committed by Israel. The mandate given to and accepted by me and under which we worked and reported reads as follows:

". . .to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after".

Whereas clause #2: “Whereas the resolution pre-judged the outcome of its investigation, by onesidedly mandating the `fact-finding mission’ to `investigate all violations of international human rights law and International Humanitarian Law by . . . Israel, against the Palestinian people . . . particularly in the occupied Gaza Strip, due to the current aggression’”

This whereas clause ignores the fact that the expanded mandate that I demanded and received clearly included rocket and mortar attacks on Israel and as the report makes clear was so interpreted and implemented. It was the report carried out under this broadened mandate – not the original, rejected mandate – that was adopted by the Human Rights Council and that included the serious findings made against Hamas and other militant Palestinian groups.

Whereas clause #3: “Whereas the mandate of the `fact-finding mission’ makes no mention of the relentless rocket and mortar attacks, which numbered in the thousands and spanned a period of eight years, by Hamas and other violent militant groups in Gaza against civilian targets in Israel, that necessitated Israel’s defensive measures;”

This whereas clause is factually incorrect. As noted above, the expanded mandate clearly included the rocket and mortar attacks. Moreover, Chapter XXIV of the Report considers in detail the relentless rocket attacks from Gaza on Israel and the terror they caused to the people living within their range. The resulting finding made in the report is that these attacks constituted serious war crimes and possibly crimes against humanity.

Whereas clause #4: “Whereas the `fact-finding mission’ included a member who, before joining the mission, had already declared Israel guilty of committing atrocities in Operation Cast Lead by signing a public letter on January 11, 2009, published in the Sunday Times, that called Israel’s actions `war crimes’;”

This whereas clause is misleading. It overlooks, or neglects to mention, that the member concerned, Professor Christine Chinkin of the London School of Economics, in the same letter, together with other leading international lawyers, also condemned as war crimes the Hamas rockets fired into Israel.

Whereas clause 5: “Whereas the mission’s flawed and biased mandate gave serious concern to many United Nations Human Rights Council Member States which refused to support it, including Bosnia and Herzegovina, Cameroon, Canada, France, Germany, Italy, Japan, the Netherlands, the Republic of Korea, Slovakia, Slovenia, Switzerland, Ukraine, and the United Kingdom of Great Britain and Northern Ireland;”

This whereas clause is factually incorrect. The mandate that was given to the Mission was certainly not opposed by all or even a majority of the States to which reference is made. I am happy to provide further details if necessary.

Whereas clause #6: “Whereas the mission’s flawed and biased mandate troubled many distinguished individuals who refused invitations to head the mission;”

This whereas clause is factually incorrect. The initial mandate that was rejected by others who were invited to head the mission was the same one that I rejected. The mandate I accepted was expanded by the President of the Human Rights Council as a result of conditions I made.

Whereas clause #8: “Whereas the report repeatedly made sweeping and unsubstantiated determinations that the Israeli military had deliberately attacked civilians during Operation Cast Lead;”

This whereas clause is factually incorrect. The findings included in the report are neither "sweeping” nor “unsubstantiated” and in effect reflect 188 individual interviews, review of more than 300 reports, 30 videos and 1200 photographs. Additionally, the body of the report contains a plethora of references to the information upon which the Commission relied for our findings.

Whereas clause #9: “Whereas the authors of the report, in the body of the report itself, admit that `we did not deal with the issues . . . regarding the problems of conducting military operations in civilian areas and second-guessing decisions made by soldiers and their commanding officers `in the fog of war.’;”

This whereas clause is misleading. The words quoted relate to the decision we made that it would have been unfair to investigate and make finding on situations where decisions had been made by Israeli soldiers "in the fog of battle". This was a decision made in favor of, and not against, the interests of Israel.

Whereas clause #10: ‘Whereas in the October 16th edition of the Jewish Daily Forward, Richard Goldstone, the head of the `United Nations Fact Finding Mission on the Gaza Conflict’, is quoted as saying, with respect to the mission’s evidence-collection methods, `If this was a court of law, there would have been nothing proven.’”

The remark as quoted is both inaccurate and taken completely out of context. What I had explained to The Forward was that the Report itself would not constitute evidence admissible in court of law. It is my view, as jurist, that investigators would have to investigate which allegations they considered relevant. That, too, was why we recommended domestic investigations into the allegations.

Whereas clause #11: “Whereas the report, in effect, denied the State of Israel the right to selfdefense, and never noted the fact that Israel had the right to defend its citizens from the repeated violent attacks committed against civilian targets in southern Israel by Hamas and other Foreign Terrorist Organizations operating from Gaza;”

It is factually incorrect to state that the Report denied Israel the right of self-defense. The report examined how that right was implemented by the standards of international law. What is commonly called ius ad bellum, the right to use military force was not considered to fall within our mandate. Israel’s right to use military force was not questioned.

Whereas clause #12: “Whereas the report largely ignored the culpability of the Government of Iran and the Government of Syria, both of whom sponsor Hamas and other Foreign Terrorist Organizations;”

This whereas clause is misleading. Nowhere that I know of has it ever been suggested that the Mission should have investigated the provenance of the rockets. Such an investigation was never on the agenda, and in any event, we would not have had the facilities or capability of investigating these allegations. If the Government of Israel has requested us to investigate that issue I have no doubt that we have done our best to do so.

Whereas clause #14: “Whereas, notwithstanding a great body of evidence that Hamas and other violent Islamist groups committed war crimes by using civilians and civilian institutions, such as mosques, schools, and hospitals, as shields, the report repeatedly downplayed or cast doubt upon that claim;”

This is a sweeping and unfair characterization of the Report. I hope that the Report will be read by those tasked with considering the resolution.

I note that the House resolution fails to mention that notwithstanding my repeated personal pleas to the Government of Israel, Israel refused all cooperation with the Mission. Among other things, I requested the views of Israel with regard to the implementation of the mandate and details of any issues that the Government of Israel might wish us to investigate.

This refusal meant that Israel did not offer any information or evidence it may have collected regarding actions by Hamas or other Palestinian groups in Gaza. Any omission of such information and evidence in the report is regrettable, but is the result of Israel’s decision not to cooperate with the Fact-Finding mission, not a decision by the mission to downplay or cast doubt on such information and evidence.

Whereas clause #15: “Whereas in one notable instance, the report stated that it did not consider the admission of a Hamas official that Hamas often `created a human shield of women, children, the elderly and the mujahideen, against [the Israeli military]‘ specifically to `constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack.’;”

This whereas clause is misleading, since the quotation is taken out of context. The quotation is part of a section of the report dealing with the very narrow allegation that Hamas compelled civilians, against their will, to act as human shields. The statement by the Hamas official is repugnant and demonstrates an apparent disregard for the safety of civilians, but it is not evidence that Hamas forced civilians to remain in their homes in order to act as human shields. Indeed, while the Government of Israel has alleged publicly that Hamas used Palestinian civilians as human shields, it has not identified any cases where it claims that civilians were doing so under threat of force by Hamas or any other party.

Whereas clause #16: “Whereas Hamas was able to significantly shape the findings of the investigation mission’s report by selecting and prescreening some of the witnesses and intimidating others, as the report acknowledges when it notes that `those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups . . . from a fear of reprisals’;”

The allegation that Hamas was able to shape the findings of my report or that it pre-screened the witnesses is devoid of truth. I challenge anyone to produce evidence in support of it.

Sincerely,
Justice Richard J. Goldstone

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