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Saturday, April 2, 2011
Text of Goldstone Washington Post Op Ed - Reconsidering Goldstone Report on Israel and war crimes

[Dr. Aaron Lerner - IMRA: Goldstone papers over that he very willingly
played the fool during the entire course of the preparation of his report.
He bent over backwards to avoid asking Arab "witnesses" anything that would
expose their gross and obvious lies and continued this approach until he
submitted his shameful report.]

Reconsidering the Goldstone Report on Israel and war crimes

By Richard Goldstone, The Washington Post Friday, April 1, 8:42 PM
http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-war-crimes/2011/04/01/AFg111JC_story.html

We know a lot more today about what happened in the Gaza war of 2008-09 than
we did when I chaired the fact-finding mission appointed by the U.N. Human
Rights Council that produced what has come to be known as the Goldstone
Report. If I had known then what I know now, the Goldstone Report would have
been a different document.

The final report by the U.N. committee of independent experts — chaired by
former New York judge Mary McGowan Davis — that followed up on the
recommendations of the Goldstone Report has found that “Israel has dedicated
significant resources to investigate over 400 allegations of operational
misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not
conducted any investigations into the launching of rocket and mortar attacks
against Israel.”

Our report found evidence of potential war crimes and “possibly crimes
against humanity” by both Israel and Hamas. That the crimes allegedly
committed by Hamas were intentional goes without saying — its rockets were
purposefully and indiscriminately aimed at civilian targets.

The allegations of intentionality by Israel were based on the deaths of and
injuries to civilians in situations where our fact-finding mission had no
evidence on which to draw any other reasonable conclusion. While the
investigations published by the Israeli military and recognized in the U.N.
committee’s report have established the validity of some incidents that we
investigated in cases involving individual soldiers, they also indicate that
civilians were not intentionally targeted as a matter of policy.

For example, the most serious attack the Goldstone Report focused on was the
killing of some 29 members of the al-Simouni family in their home. The
shelling of the home was apparently the consequence of an Israeli commander’s
erroneous interpretation of a drone image, and an Israeli officer is under
investigation for having ordered the attack. While the length of this
investigation is frustrating, it appears that an appropriate process is
underway, and I am confident that if the officer is found to have been
negligent, Israel will respond accordingly. The purpose of these
investigations, as I have always said, is to ensure accountability for
improper actions, not to second-guess, with the benefit of hindsight,
commanders making difficult battlefield decisions.

While I welcome Israel’s investigations into allegations, I share the
concerns reflected in the McGowan Davis report that few of Israel’s
inquiries have been concluded and believe that the proceedings should have
been held in a public forum. Although the Israeli evidence that has emerged
since publication of our report doesn’t negate the tragic loss of civilian
life, I regret that our fact-finding mission did not have such evidence
explaining the circumstances in which we said civilians in Gaza were
targeted, because it probably would have influenced our findings about
intentionality and war crimes.

Israel’s lack of cooperation with our investigation meant that we were not
able to corroborate how many Gazans killed were civilians and how many were
combatants. The Israeli military’s numbers have turned out to be similar to
those recently furnished by Hamas (although Hamas may have reason to inflate
the number of its combatants).

As I indicated from the very beginning, I would have welcomed Israel’s
cooperation. The purpose of the Goldstone Report was never to prove a
foregone conclusion against Israel. I insisted on changing the original
mandate adopted by the Human Rights Council, which was skewed against
Israel. I have always been clear that Israel, like any other sovereign
nation, has the right and obligation to defend itself and its citizens
against attacks from abroad and within. Something that has not been
recognized often enough is the fact that our report marked the first time
illegal acts of terrorism from Hamas were being investigated and condemned
by the United Nations. I had hoped that our inquiry into all aspects of the
Gaza conflict would begin a new era of evenhandedness at the U.N. Human
Rights Council, whose history of bias against Israel cannot be doubted.

Some have charged that the process we followed did not live up to judicial
standards. To be clear: Our mission was in no way a judicial or even
quasi-judicial proceeding. We did not investigate criminal conduct on the
part of any individual in Israel, Gaza or the West Bank. We made our
recommendations based on the record before us, which unfortunately did not
include any evidence provided by the Israeli government. Indeed, our main
recommendation was for each party to investigate, transparently and in good
faith, the incidents referred to in our report. McGowan Davis has found that
Israel has done this to a significant degree; Hamas has done nothing.

Some have suggested that it was absurd to expect Hamas, an organization that
has a policy to destroy the state of Israel, to investigate what we said
were serious war crimes. It was my hope, even if unrealistic, that Hamas
would do so, especially if Israel conducted its own investigations. At
minimum I hoped that in the face of a clear finding that its members were
committing serious war crimes, Hamas would curtail its attacks. Sadly, that
has not been the case. Hundreds more rockets and mortar rounds have been
directed at civilian targets in southern Israel. That comparatively few
Israelis have been killed by the unlawful rocket and mortar attacks from
Gaza in no way minimizes the criminality. The U.N. Human Rights Council
should condemn these heinous acts in the strongest terms.

In the end, asking Hamas to investigate may have been a mistaken enterprise.
So, too, the Human Rights Council should condemn the inexcusable and
cold-blooded recent slaughter of a young Israeli couple and three of their
small children in their beds.

I continue to believe in the cause of establishing and applying
international law to protracted and deadly conflicts. Our report has led to
numerous “lessons learned” and policy changes, including the adoption of new
Israel Defense Forces procedures for protecting civilians in cases of urban
warfare and limiting the use of white phosphorus in civilian areas. The
Palestinian Authority established an independent inquiry into our
allegations of human rights abuses — assassinations, torture and illegal
detentions — perpetrated by Fatah in the West Bank, especially against
members of Hamas. Most of those allegations were confirmed by this inquiry.
Regrettably, there has been no effort by Hamas in Gaza to investigate the
allegations of its war crimes and possible crimes against humanity.

Simply put, the laws of armed conflict apply no less to non-state actors
such as Hamas than they do to national armies. Ensuring that non-state
actors respect these principles, and are investigated when they fail to do
so, is one of the most significant challenges facing the law of armed
conflict. Only if all parties to armed conflicts are held to these standards
will we be able to protect civilians who, through no choice of their own,
are caught up in war.
==================
The writer, a retired justice of the Constitutional Court of South Africa
and former chief prosecutor of the U.N. International Criminal Tribunals for
the former Yugoslavia and Rwanda, chaired the U.N. fact-finding mission on
the Gaza conflict.

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