|
From: The Jewish Policy Center:
Palestinian Rockets, International Law, and the Goldstone Report
by Johanna Markind
Palestinian Rocket Report
December 23, 2009
Twenty-two years ago, President Ronald Reagan cautioned that proposed extensions to "international law" would aid terrorists and endanger civilians. Today, in the aftermath of the Goldstone Report, his comments are more pertinent than ever. The Goldstone Report ignores multiple violations of international law by the Palestinian terrorist organization known as Hamas, and challenges Israel's right to defend its citizens from rocket attacks.
Hamas Violates Geneva
The Goldstone Report, a report on the Israeli incursion into the Gaza Strip in December 2008 and January 2009, was released in September 2009. It alleges that Israel violated international law in the course of defending its population from Hamas rocket attacks. The report has a great many flaws – too many to list here. For the purposes of this essay, however, the problems associated with international law begin on page 82 of the report.
|
|
Read more...
|
|
From Jurist:
Goldstone, Gaza and (Dis)Proportionality: Three Strikes
JURIST Guest Columnists Laurie Blank of Emory Law's International Humanitarian Law Clinic and Gregory Gordon of the University of North Dakota School of Law say that the most glaring failure of the controversial Goldstone Commission Report on the Gaza conflict has gone unnoticed....
The Goldstone Commission Report on the January 2009 Israel-Palestinian conflict in Gaza — which comes before the United Nations today, November 4, 2009 — has been accused of failure on various levels. Many commentators argue that the Report fails the Israeli-Palestinian peace process. Some say it reflects a failure to understand the deeper historical realities of the Israeli-Palestinian conflict. Still others say it fails the originally conceived purpose of the United Nations Human Rights Council and fails the search for objective truth. Its most glaring failure, though, has gone unnoticed. The Report fails the law.
|
|
Read more...
|
A lengthy mediation on the ethics of war in the context of Operation Cast Lead. No one's asking that every member of the Mission's panel adhere to these findings, but at least one, to counterbalance Christine Chinkin, who had already made up her mind on the subject of ius ad bellum.
Operation Cast Lead and the Ethics of Just War
By Asa Kasher
Was Israel's conduct in its campaign against Hamas morally justified?
Editor’s Note:
On Saturday, December 27, 2008, after eight years of continuing rocket attacks on its territory by Islamic terrorist organizations, Israel launched a full-scale military operation against the Hamas regime in the Gaza Strip. Officially named Operation Cast Lead, it began with massive air-strikes against Hamas and Islamic Jihad targets, and continued with a ground incursion in which thousands of Israeli soldiers participated. After twenty-two days of fighting, Israel announced a unilateral ceasefire, which became effective on January 18, 2009.
While the political and military achievements of the operation are contested, the damage it left in its wake is undisputed. Ten Israeli soldiers and three Israeli civilians were killed. Due to the asymmetry of forces, the Palestinian side sustained especially heavy casualties: According to Palestinian sources in the Gaza Strip (whose credibility, it must be noted, is questionable), more than one thousand people were killed and much of Gaza’s infrastructure was destroyed. Humanitarian relief agencies estimate that nearly 100,000 Palestinians were left homeless.
The destruction caused by the Gaza operation, as well as the disturbing pictures of it broadcast around the world, incited violent international protest and a public debate within Israel itself. The most outspoken critics of the operation accused the Jewish state of engaging in excessive and indiscriminate aggression, as well as committing war crimes against the Palestinians. More moderate commentators questioned the necessity of some of the Israel Defense Forces’ (IDF) actions during the fighting, and wondered whether the operation could have been brought to a close without causing such widespread carnage.
Though understandable and perhaps inevitable, this heated debate is unfortunately founded, in most cases, on insufficient and flawed information, semantic confusion, and the misuse of moral principles. The main purpose of this article, written by one of Israel’s leading philosophers, is to try to deal with some of these shortcomings. At the very least, it points us toward the proper moral, ethical, and legal standards by which the Gaza operation should be evaluated.
***
A properly functioning state should plan its actions carefully, execute them appropriately, and examine them scrupulously afterwards. A military operation is an important and complex act of state, and it is not exempt from proper planning, execution, and examination.
|
|
Read more...
|
|
The section of Daniel Friedmann's article dealing with the unacceptably biased legal reasoning of the Goldstone report in its treatment of evidence, which he characterizes as "untenable reasoning, which would have failed a first-year law student, [and] casts grave doubts about the justice himself."
Exclusive: 'Goldstone report - the terrorists' Magna Carta'
Oct. 29, 2009
DANIEL FRIEDMANN , THE JERUSALEM POST
Goldstone thus justified an appointment that militates against basic rules of fairness, due process and natural justice. His untenable reasoning, which would have failed a first-year law student, casts grave doubts about the justice himself.
Moreover, Goldstone's claim that he was leading "a fact-finding mission" is refuted by the report, which is highly judicial, replete with purported legal analysis of international law, detailed legal findings and reaching judicial determinations on "war crimes."
The inescapable conclusion is that the whole report is invalid and cannot form a basis for any decision or action.
It is also not surprising that Goldstone's report became what it is - a complete aberration.
The mission's general approach
The report makes every effort to downplay Hamas crimes. Hamas and other terrorist entities are described by the benign term "Palestinian armed groups." In some cases, the mission simply declines to examine Hamas misdeeds. One example of this inaction regards Shifa Hospital in Gaza. Despite ample grounds indicating that a Hamas command center was located in the hospital, the report states that it did "not investigate the case of Al-Shifa hospital and is not in a position to make any finding with regard to these allegations" (p. 466).
Clear evidence unfavorable to Hamas is either discarded or "reinterpreted." For instance, during the operation, Islam Shahwan, spokesman for the Hamas police force, stated that "police officers received clear orders from the leadership to face the [Israeli] enemy." However, this clear admission as to the role of the Hamas police takes on new meaning when the mission uncritically accepts Shahwan's explanation that his intention was that in the event of an invasion, the police would continue to uphold public order and ensure the movement of essential supplies (p. 414). A statement by the commander of Hamas's Executive Force (p. 410) that his group acted as "resistance fighters" received similar benign interpretation (p. 416).
Reliable evidence supporting the Israeli position received completely different treatment.
In an effort to explain its targeting of sensitive locations, Israel submitted to the mission photographic evidence showing the launching of rockets from within or near residential buildings, schools, mosques and hospitals. However, the mission had no qualms in discounting them on the grounds that it could not determine whether the photos showed what is alleged, and that many photos related to firing of rockets from Gaza before the operation (p. 449).
The mission even denied requests to invite witnesses such as Col. Kemp, who was likely to support the Israeli position. The explanations offered by Goldstone for this unbalanced treatment are not much stronger than those he provided for keeping Chinkin on the mission.
Much of the evidence gathered by the mission was most likely tainted. Members of the mission were accompanied during their visit to Gaza by Hamas officials, a group which deliberately and consistently pursues a policy of disinformation. It is highly improbable that the mission could get a true picture of Hamas's misdeeds and of what really happened. Indeed, the report admits that the witnesses interviewed appeared "reluctant to speak about the presence or conduct of hostilities by the Palestinian armed groups" - a reluctance which "may have stemmed from a fear of reprisals" (p. 438).
This behavior by the Islamic group has been aptly described by Kemp:
"Hamas, like Hizbullah, are expert at driving the media agenda. Both will always have people ready to give interviews condemning Israeli forces for war crimes. They are adept at staging and distorting incidents."
|
|
Trevor Norwitz on the double standards used by the Mission in both assessing evidence/testimony and passing judgments (almost exclusively negative ones on Israel).
Double Standard in Assessment of Credibility of Evidence and Intentions.
One of the most surprising elements of your Report is the ease with which you made findings of fact regarding the subjective intentions of the Israeli government and individual Israeli solders to strike at civilian targets and to murder civilians. In fact, you assert that you were able to determine the presence of the subjective fault element (mens rea)required for criminal liability “[i]n almost all of the cases [you examined]”. (25) Your accusations that Israel willfully and intentionally attacked civilians could not be more stark. To quote just one of very many examples: “In reviewing the above incidents the Mission found in every case that the Israeli armed forces had carried out direct intentional strikes against civilians.” (808) And you purported to be able to make these determinations without once speaking to the Israelis whom you accuse of such horrific actions and intentions.
In contrast, you were virtually never able to ascertain any improper intention on the part of the Palestinian parties to this dispute even where the intention behind their actions would seem to be fairly obvious and even though you “enjoyed” their full support and cooperation.
Example: Firing rockets from civilian areas: “On the basis of the information it gathered, the Mission finds that there are indications that Palestinian armed groups launched rockets from urban areas. The Mission has not been able toobtain any direct evidence that this was done with the specific intent of shielding the rocket launchers fromcounterstrokes by the Israeli armed forces.” (480)
Another example: Hamas fighters mingling with civilians: “The Mission finds that the presence of Palestinian armed fighters in urban residential areas during the military operations is established. . . While reports reviewed by the Mission credibly indicate that members of Palestinian armed groups were not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with thecivilian population with the intention of shielding themselves from attack.”(481)12
The evidence on which you base your conclusions that Israel consistently and as a matter of policy attacked civilians and civilian objects consisted of the fact of Israel’s technological superiority and on statements by a handful of Israeli leaders.13 The section on Israel’s strategy in your Report concludes (at 1211): “Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy.”
|
|
Read more...
|
|
Goldstone's behavior in the judging the NATO bombing of Kosovo contradicts in style and substance his treatment of Israel in his Gaza Fact-Finding Mission. Emet m'Tsiyon goes over the material, in particular, the legitimation of a NATO bombing of a TV station that killed at least a dozen civilians with no visible military goal.
Tuesday, October 13, 2009
Prof. Kosta Cavoski in a critique posted on the Emperor's Clothes blog on November 8, 2000, nine years ago. The critique concerns the indictment of two high Bosnian Serb officers captured by Bosnian Muslim forces. Bear in mind that all three parties to the civil war in Bosnia committed massacres and extra-judicial executions. However, the Bosnian Muslim side enjoyed the support of Western govts and media against the Serbs.
Due to the critique's length, we will reproduce only critical mentions of Goldstone which are quoted here below [links to this critique are found above and below].
|
|
Read more...
|
David Bernstein posted a highly critical analysis by Avi Bell on the legal principles and reasoning that characterizes the Goldstone report at the legal blog, The Volokh Conspiracy.
Avi Bell on the Goldstone Report:
David Bernstein, September 18, 2009
My inclination is to dismiss out of hand any report that emerges from the U.N. Human Rights Council, which includes such human rights stalwarts as China, Cuba, Egypt, and Saudi Arabia. I'm even more inclined to do so when it establishes a four-person panel to issue a investigate and issue a report on human rights abuses in the recent Gaza war and the panel is initially ordered to focus only on Israel and ignore Hamas (and it's not clear the mandate was ever really changed); one of the members had already declared Israel guilty of war crimes; the chairman of the panel was on the Board of Directors of Human Rights Watch when it accused Israel of war crimes in Gaza; and the panel couldn't do much actual investigating, because the Israeli government quite properly wouldn't let its members set foot in Gaza or Israel.
Nevertheless, for those who don't share my innate skepticism, I thought I'd pass along the following critique of the Goldstone report, received from Professor Avi Bell of University of San Diego and Bar-Lan University:
In paragraphs 100-102, the Goldstone report finds that the Palestinian Authority violates international law guarantees (presumably speech and assembly) by denying funds and employment to Hamas and Hamas affiliates as well as closing their institutions. It raises similar charges against Israel in paragraph 91-92, where it says that Israel carried out "collective punishment contrary to international humanitarian law" by arresting Hamas members who won election to the Palestinian legislature and that Israel violated "international human rights and humanitarian law, including the prohibition of arbitrary detention, the right to equal protection under the law and not to be discriminated based on political beliefs and the special protections to which children are entitled" by arresting "persons affiliated with Hamas."
|
|
Read more...
|
|
Procedural Flaws 
