Goldstone Tells Congress That Resolution Misrepresents His Gaza Report

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Friday, October 30, 2009 at 2:35 pm

Via Michael Goldfarb, the respected former South African judge who investigated war crimes in Gaza has sent a letter to Congress highlighting factual errors in its resolution condemning his investigation. For instance: the resolution condemns Goldstone’s team for

pre-judg[ing] 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’;

Goldstone replies:

That is why I and others refused the original mandate – 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 20089, whether before, during or after”.
That mandate clearly included rocket and mortar attacks on Israel and as the report makes clear was so interpreted and implemented. It was the report with that mandate that was adopted by the Human Rights Council and that included the serious findings made against Hamas and other militant Palestinian groups.

And on and on. Goldstone finds factual flaws in nearly every paragraph of the resolution. The resolution says Goldstone “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.” Not true, Goldstone says:

It is again 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.

Here’s the full letter:

MEMORANDUM

FROM: RICHARD GOLDSTONE
TO: INTERESTED PERSONS
RE: HR 867

Here are some comments on this resolution in an effort to correct factual errors:

1. Paragraph 3:
That is why I and others refused the original mandate – 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 20089, whether before, during or after”.
That mandate clearly included rocket and mortar attacks on Israel and as the report makes clear was so interpreted and implemented. It was the report with that mandate that was adopted by the Human Rights Council and that included the serious findings made against Hamas and other militant Palestinian groups.

2. Paragraph 4:
This is factually incorrect. Chapter XXIV of the Report considers in detail the relentless rocket attacks from Gaza on Israel and the terror it caused to the people living within their range. The finding is made that they constituted serious war crimes and possibly crimes against humanity.

3. Paragraph 5:
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.

4. Paragraph 6:
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. That is factually incorrect. I am happy to provide further details if necessary.

5. Paragraph 7:
This too is factually incorrect. The mandate that had been rejected was the one I rejected. Mary Robinson, for example, has written in support of the mandate given to and accepted by me.

6. Paragraph 9:
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 and not against the interests of Israel.
I do not consider that it is fair or just to label the findings as “sweeping and unsubstantiated determinations”.

7. Paragraph 11:
What I had explained to The Forward was that the Report itself would not constitute evidence admissible in court of law and that investigators would have to investigate which allegations they considered relevant. That, too, was why we recommended domestic investigations into the allegations. The remark as quoted is both inaccurate and taken completely out of context.

8. Paragraph 12:
It is again 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.

9. Paragraph 13:
This is the first suggestion that I have come across to the effect that we should have investigated the provenance of the rockets. It was simply not 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.

10. Paragraph 14:
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.

11.Paragraph 16:
Again, this is an unfair and selective quotation taken our of context.

12. Paragraph 17:
That Hamas was able to shape the findings or that it pre-screened the witnesses is devoid of truth and I challenge anyone to produce evidence in support of it.

Finally, I note that there is not a word to record that notwithstanding repeated pleas to the Government of Israel, it refused all cooperation with the Mission. Amongst others, 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.

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Mick
Comment posted October 30, 2009 @ 2:46 pm

Thanks for posting the memo from Judge Goldstone. I forwarded it to my congressional rep.


Mick
Comment posted October 30, 2009 @ 6:46 pm

Thanks for posting the memo from Judge Goldstone. I forwarded it to my congressional rep.


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[...] to Richard Goldstone, the resolution’s text is filled with inaccuracies.  He has written a letter responding to some of the resolution’s mis-characterizations of the UN [...]


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