A likely consequence is that Hamas — which formally rejects a two-state solution to the conflict and with which Israel is, to put it mildly, extremely reluctant to negotiate — will benefit if next year’s scheduled elections go forward. Abbas is now polling even with Hamas’ Ismael Haniyeh for the presidency. Meanwhile, the U.S. Congress continues to denounce and reject Goldstone, with little attention paid to the consequences of such a stance for the alternative to Hamas in Palestinian politics.

I asked my friend Hussein Ibish of the American Task Force on Palestine for his perspective on the Obama administration’s relationship with the Palestinians — over Goldstone and beyond — and he emailed me a typically insightful and judicious reply:

I think they also showed a very profound lack of understanding about how what they were asking the PLO to do diplomatically would play out domestically in Palestine in the context of the lack of a settlement freeze and actually the lack of anything specifically concrete the PA could point to as positive benefits deriving from the PLO’s diplomatic strategy of maximum cooperation with the Obama administration. To be fair, the administration has had to balance a lot of different factors while trying to pressure both Israel and the Palestinians to come to terms when there are tremendous domestic political obstacles to either of them actually doing that.

I do think the administration understood to some extent the problem the PA found itself in because the attitude, at least in Geneva, of US representatives towards the Goldstone report softened somewhat after the uproar in Palestine and the Arab world, and I think they’ve shown some understanding of the Palestinian position. However, they seem to decided now is the time to tack towards easing pressure on Israel and turning pressure towards the Palestinians, possibly partly motivated by displeasure on Goldstone but probably more because they want the Palestinians to return to negotiations without insisting on a complete settlement freeze which they have come to understand they are not going to get out of Netanyahu. Overall, I think this administration is more sensitive to the needs of its Palestinian partners than any of its predecessors, but I think the United States in general has a long way to go in realizing how much it shapes the Palestinians it will be dealing with and how much every little detail determines who will be in power in Palestinian society. I think we are inching towards a better understanding of that, but it obviously hasn’t been fully digested yet or things would have gone somewhat differently than they have.

Hussein thinks there just won’t be elections next year. That’s how serious the consequences of this episode are — though he points out that Hamas’ unpopularity means that it won’t necessarily benefit from the damage inflicted on Abbas’ Fatah party. Yet the Goldstone debacle seems to be barely discussed in the United States, a chasm in the story the size of the political and humanitarian problems in Gaza.

The Palestinian side seems to want to put the unfortunate experience behind it. Asked to comment on the impact that the Obama administration’s decision to press Palestinian President Abbas to shunt the Goldstone report aside — it basically devastated his political standing — Maen Areikat, the Palestinian representative in Washington, said through a spokesman that this was “history” and “we’re happy to have it behind us.” Hussein Ibish, a fellow at the American Task Force on Palestine, said that the Palestinians basically know that Congress is going to take these sorts of stances on Israel issues. “I don’t think it will have much of an impact,” Ibish said in an email. “The administration handles diplomacy and has to take responsibility for national security. Everyone here and abroad knows that.”

Even so, Berman has changed some parts of the text. Here’s the new language. First, some more ‘whereas’ clauses:

Whereas Justice Richard Goldstone, who chaired the `United Nations Fact Finding Mission on the Gaza Conflict,’ told the then-President of the UNHRC, Nigerian Ambassador Martin Ihoeghian Uhomoibhi, that he intended to broaden the mandate of the Mission to include “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,” a phrase that, according to Justice Goldstone, was intended to allow him to investigate Hamas attacks on Israeli civilians;

Whereas Ambassador Uhomoibhi issued a statement on April 3, 2009, that endorsed part of Justice Goldstone’s proposed broadened mandate but deleted the phrase “before, during, and after,” and added inflammatory anti-Israeli language;

Whereas a so-called broadened mandate was never officially endorsed by a plenary meeting of the UNHRC, neither in the form proposed by Justice Goldstone nor in the form proposed by Ambassador Uhomoibhi;

That, at least, is a concession to Goldstone. Then there’s this, which is part of the actual “resolved” section stipulating what the House is actually saying by adopting it. I’ll put the new language in bold:

(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, including through leading opposition to any United Nations General Assembly resolution and through vetoing, if necessary, any United Nations Security Council resolution that endorses the contents of this report, seeks to act upon the recommendations contained in this report, or calls on any other international body to take further action regarding this report.

Berman just now replied to the U.N. investigator and South African judge, in the form of a letter to colleagues. He concedes practically nothing to Goldstone. The full reply is after the jump.

Dear Colleague:

Last week, Justice Richard Goldstone sent us and other Members a memorandum outlining his “strong reservations about the text of the resolution” (H.Res.867) that will be voted upon by the House tomorrow. We have the utmost respect for Justice Goldstone, but we disagree with his criticisms of H.Res.867.  Our primary concerns are as follows:

–The mandate of the commission Justice Goldstone chaired (“The United Nations Fact-Finding Mission on the Gaza Conflict”) was one-sided and biased, and, even though Justice Goldstone made earnest efforts to alter the mandate, he did not fully succeed, as we indicate below.  We intend to alter the resolution to take account of Justice Goldstone’s effort.

–The commission’s report lacks context.  It does not take account of the nature of Israel’s enemy – operating from the midst of civilian populations, committed to Israel’s destruction, and fully supported by state actors Iran and Syria.  (In fact, it is rather dismissive of claims that Hamas operated from amidst civilian populations.)  The report generally gives short shrift to Hamas’ relentless rocket attacks on Israeli civilians, over a period of eight years, which precipitated the war.

–The report does not take into account the extent to which witnesses from Gaza were likely intimidated by Hamas.

–In general, the report is credulous of Hamas claims but skeptical of Israeli claims.

We would like to share with you, below, my point-by-point analysis of Justice Goldstone’s comments.

Sincerely,

HOWARD L. BERMAN, Chairman             GARY L. ACKERMAN, Chairman

Committee on Foreign Affairs                    Subcommittee on the Middle East

and South Asia

Letter and Response

[Note: Justice Goldstone counts the descriptive paragraph as Paragraph 1. Therefore, “Paragraph 3” refers to Whereas 2 (and accordingly throughout his text).]

[Goldstone:]

“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 2009, 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.”

Response: The broadened mandate Justice Goldstone sought was discussed, but not voted on, at a UNHRC plenary session. It was then announced via a press release in an altered formulation, more restrictive than the formulation envisioned by Justice Goldstone. The UNHRC did not create a new mandate. The only relevant mandate remained the one which includes operational paragraph 14 of UNHRC resolution A/HRC/S-9/L.1, as was accepted by the Council on January 12, 2009. The January 12 mandate was also the only mandate referenced in the October 16 UNHRC resolution that adopted the Report.

This whereas clause focuses on the mandate. Of course, the far more important issue is the Report itself, which makes only limited mention of the rocket attacks on Israel.

[Goldstone:] “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.”

Response: Paragraph 4 [Whereas #3] of H.Res.867 is addressing the mandate, not the Report. It reads as follows: “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”. That statement is an accurate characterization of both the formal mandate, as passed by the UNHRC, and of the broadened mandate requested by Justice Goldstone.

[Goldstone:] “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.”

Response: The letter Professor Chinkin signed, which was published in the British press in mid-January, did indeed accuse Hamas of war crimes. But it also accused Israel of war crimes, months before the investigation began, clearly prejudging the outcome of the investigation regarding both parties. In my view, Professor Chinkin should have been disqualified from serving on the commission, based on her having signed the letter. The UN watchdog UN Watch notes that Justice Goldstone himself admitted in an August interview that the signature “would have been grounds for disqualification” if the commission had constituted a formal judicial inquiry.

[Goldstone:] “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.”

Response: H.Res.867 uses the phrase “refused to support,” not “opposed by,” as Justice Goldstone suggests. The language of H.Res.867 was carefully chosen to include those nations who voted no, those who abstained, and those who chose not to vote at all, i.e., all those who “refused to support.”

[Goldstone:] “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.”

Response:  As indicated above, the formal mandate is that contained in the UNHRC Resolution A/HRC/S-9/L.1.

[Goldstone:] “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’.”

Response: When summarizing the results of investigations into alleged Israeli attacks on Palestinian civilians, the Report states that “the Mission found in every case [except one] that the Israeli armed forces had carried out direct intentional strikes against civilians” and that “in none of the cases reviewed were there any grounds which could have reasonably induced the Israeli armed forces to assume that the civilians attacked were in fact taking a direct part in the hostilities…”

The assertion regarding “intentional strikes” is particularly mystifying. The Report does not take into account that Israeli soldiers were operating under fire, in an extremely volatile and dangerous environment, in which the enemy was hiding amongst a civilian population.

Nor does the Report generally take into account that testimony from Gazans was given under the watchful eye of Hamas officials. Moreover, the commission heard, at best, only one side of the story, since Israel, despairing of the biased mandate, chose not to participate. Whatever the wisdom of that Israeli decision – and, as indicated below, I do find it understandable – the Report at least should have acknowledged that Israeli non-participation limited the commission’s ability to reach firm conclusions.

[Goldstone:] “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.”

Response: Here is the relevant quote, as well as the passages that directly precede and follow it, taken directly from the article in the Jewish Daily Forward:

“Goldstone defended the report’s reliance on eyewitness accounts, noting his mission had cross-checked those accounts against each other and sought corroboration from photos, satellite photos, contemporaneous reports, forensic evidence and the mission’s own inspections of the sites in question.

For all that gathered information, though, he said, “We had to do the best we could with the material we had. If this was a court of law, there would have been nothing proven.”

Goldstone emphasized that his conclusion that war crimes had been committed was always intended as conditional. He still hopes that independent investigations carried out by Israel and the Palestinians will use the allegations as, he said, “a useful road map.””

http://www.forward.com/articles/116269/

We consider the quote in the whereas to be fully in context.

[Goldstone:] “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.”

Response: We use the phrase “in effect” in our clause because the Report does not explore why Israel has the right to defend itself against terrorist aggression perpetrated by a non-state actor. Justice Goldstone says that “the right to use military force was not considered to fall within our mandate.” Yet, he went beyond his mandate in several other areas of the Report, including discussion of Israel’s policies throughout the occupied territories (including the West Bank) and recommendations that were not called for by the UNHRC resolution that established the mandate.  An acknowledgement of Israel’s right of self-defense would have provided vital context to the issues raised in the Report.

[Goldstone:] “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.”

Response: As noted, Justice Goldstone’s Report went beyond its mandate in several respects; looking at the roles of Iran and Syria in assisting Hamas certainly would have provided critical context to the Report.  Iran and Syria enable Hamas’ terrorism. The assistance Hamas receives from outside actors allows the Hamas terrorist organization to attack Israel incessantly, certain in the knowledge that its arsenals will be replenished.

Hamas’ support by state actors makes it a formidable foe. The report should have considered that geopolitical context.

[Goldstone:] “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.”

Response:   The Report uncritically attributes numerous statements to “Gaza Authorities” (meaning, Hamas), while often casting doubt on information derived from the international and Israeli press and from non-government-affiliated Israelis.

For example, the Report criticizes the fact that an Israeli Government web-post cites a Newsweek article reporting on Hamas depredations against its own population and casts doubt on the accuracy of the article.  According to the Report, the citing of the Newsweek article, far from being an effort to invoke a neutral source, is merely evidence that Israel itself finds the Newsweek report unconvincing, since Israel does not adduce evidence from its own internal sources (p.143 paragraphs 612-614). This is an odd criticism, since intelligence information, no matter how compelling, is only rarely disclosed to the public.

Perhaps most tellingly, the Report appears only to cite Israeli statements when it finds such statements a useful basis for criticizing Israel. For example:

Section 41 – “The Mission examined the mortar shelling of al-Fakhura junction in Jabaliyah next to a UNRWA school, which, at the time, was sheltering more than 1,300 people (chap. X). The Israeli armed forces launched at least four mortar shells. One landed in the courtyard of a family home, killing 11 people assembled there. Three other shells landed on al-Fakhura Street, killing at least a further 24 people and injuring as many as 40. The Mission examined in detail statements by Israeli Government representatives alleging that the attack was launched in response to a mortar attack from an armed Palestinian group. While the Mission does not exclude that this may have been the case, it considers the credibility of Israel’s position damaged by the series of inconsistencies, contradictions and factual inaccuracies in the statements justifying the attack.”

Section 702 – “The Mission views as being unreliable the versions given by the Israeli authorities. The confusion as to what was hit, the erroneous allegations of who was specifically hit and where the armed groups were firing from, the indication that Israeli surveillance watched the scene but nonetheless could not detect where the strikes occurred, all combine to give the impression of either profound confusion or obfuscation.”

By contrast, the Report is far more forgiving when discussing contradictions in Palestinian evidence:

Section 1092 – “There are some minor inconsistencies, which are not, in the opinion of the Mission, sufficiently weighty to cast doubt on the general reliability of Majdi Abd Rabbo. There are also, not surprisingly, some elements of the long account which appear in some versions and not in others. The Mission finds that these inconsistencies do not undermine the credibility of Majdi Abd Rabbo’s account.”

[Goldstone:] “11. Paragraph 16: Again, this is an unfair and selective quotation taken out of context.”

Response: Our whereas clause reads as follows: “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 quote was not taken out of context, and it can be found in Sections 477 and 478 of the Report, as follows:

“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.

478. 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.

The Report also displays numerous examples of credulousness regarding Hamas behavior. For example:

p. 117: “While, in the light of the above reports, the Mission does not discount the use of booby traps by the Palestinian armed groups, it has no basis to conclude that civilian lives were put at risk, as none of the reports record the presence of civilians in or near the houses in which booby traps are alleged to have been set.”

p. 117: “Although the Mission was not able to investigate the allegation of the use of mosques generally by Palestinian groups for storing weapons, it did investigate the incident of a missile attack by the Israeli armed forces against al-Maqadmah mosque on the outskirts of Jabaliyah camp, in which at least 15 people were killed and 40 injured on 3 January 2009 (see chap. XI). The Mission found no evidence that this mosque was used for the storage of weapons or any military activity by Palestinian armed groups. As far as this mosque is concerned, therefore, the Mission found no basis for such an allegation. However, the Mission is unable to make a determination regarding the allegation in general nor with respect to any other mosque that was attacked by the Israeli armed forces during the military operations.”

p. 121: “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 to obtain any direct evidence that this was done with the specific intent of shielding the rocket launchers from counterstrokes by the Israeli armed forces.”

p. 121: “The Mission finds that the presence of Palestinian armed fighters in urban residential areas during the military operations is established. On the basis of the information it gathered, the Mission is unable to form an opinion on the exact nature or the intensity of their combat activities in urban residential areas that would have placed the civilian population and civilian objects at risk of attack. 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 the civilian population with the intention of shielding themselves from attack.”
[Goldstone:] “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.”

Response: The evidence is within the Report itself.  Page 111 of the Report reads as follows: “In its efforts to gather more direct information on the subject, during its investigations in Gaza and in interviews with victims and witnesses of incidents and other informed individuals, the Mission raised questions regarding the conduct of Palestinian armed groups during the hostilities in Gaza. The Mission notes that those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups. Whatever the reasons for their reluctance, the Mission does not discount that the interviewees’ reluctance may have stemmed from a fear of reprisals.”

Hamas is in full control of Gaza, and this “fear of reprisals” significantly helped Hamas shape the findings. See, for example, an Amnesty International publication that reports on how Hamas murdered its rivals while operation Cast Lead was ongoing: http://www.amnesty.org/en/news-and-updates/report/hamas-waged-deadly-campaign-war-devastated-gaza-20090212.

Furthermore, the commission conducted some of its proceedings through holding televised open hearings in Gaza. Given its total control of Gaza and its ability to intimidate, Hamas almost certainly would have been able to control the access and message of each witness attending a televised open hearing. What is beyond doubt is that witnesses were keenly aware that Hamas was monitoring the televised proceedings and likely to inflict reprisals for any unwelcome testimony.

[Goldstone:] “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.”

Response: Justice Goldstone is correct. The Government of Israel decided not to cooperate with the Mission, based on its biased mandate, as well as the UNHRC’s long history of anti-Israel bias. I find that position, at the least, understandable.

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.

The resolution — drafted by Reps. Ileana Ros-Lehtinen (R-Fla.), Dan Burton (R-Ind.), Gary Ackerman (D-N.Y.) and Howard Berman (D-Calif.)  — which condemns Goldstone’s work in very harsh terms, is sure to generate controversy in Congress, within the Obama administration and among peace watchers.

Full text of the resolution after the jump.

111th CONGRESS

1st Session

H. RES. 867

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.

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 `one-sided’;

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.

Update, 7:52 a.m., Friday, Oct. 30: I should have seen that Michael Goldfarb at the Weekly Standard posted link to the resolution last week, so apologies to him. Also, I’ve changed the headline to reflect that Goldstone also criticized Hamas.

In a classic, Americana twist, the matriarch of the birthers has not ruled out her own stint in politics. “You know I never ran for office, but I would not exclude this as a possibility.”

The rest of the interview consists of Taitz patriotically bashing America on foreign soil.- Taitz claims, for the umpteenth time, that the Obama administration is setting up detention camps for its political opponents. Hartman leaves this unchallenged.

- She alleges that Hugo Chavez is buying up voting machines “in Obama’s hometown, Illinois.” (Hartman’s malapropism, not Taitz’s.)

- She claims that the president is an enemy of Israel and that “he issued an executive order to give $900 million to Gaza with no preconditions.” (A lie; Congress had to approve the money.)

- She claims that “the vast majority of the population [in Israel] is supportive [of her quest]. There are some leftists, and some people in the media who are pro-Obama, but even they in private will say they’re with me.”

Dec. 30, 2008 -- A Palestinian stands on the wreckage of a mosque damaged by Israeli airstrike, at the Jabalia refugee camp in Gaza Strip. (Zuma)

Although human rights advocates breathed a sigh of relief when Israel and Hamas declared a cease fire last weekend, that tentative arrangement — already violated on Tuesday by Hamas rockets and Israel’s retaliatory air strikes — isn’t likely to silence the the broad claims of war crimes on both sides.

Illustration by: Matt Mahurin

Incidents like the Israeli shelling of a UN relief agency in central Gaza last week prompted claims that its response to Hamas’s rocket attacks were indiscriminate, disproportionate and violated international law. Meanwhile, Israel, the United States and others have blamed Hamas for provoking the battle and breaking the law itself by targeting civilian neighborhoods with its rockets for years. On January 12, the UN’s Human Rights Council issued a non-binding resolution charging Israel with “grave violations” of human rights and called for an international mission of inquiry. (Thirteen countries abstained.) The next day, the former Canadian justice minister and McGill University law professor Irwin Cotler, a past president of the Canadian Jewish Congress, wrote in The Jerusalem Post that there is “almost no comparable example” anywhere in the world today of a group that so systematically violates international agreements regulating armed conflict as Hamas. Other, more neutral observers, such as Human Rights Watch, have criticized both sides – Hamas for firing rockets into civilian territories in Israel, and Israel for responding by using heavy artillery in residential neighborhoods and not providing sufficient access to humanitarian groups trying to alleviate civilian suffering.

The three-week war reportedly left more than 1,300 Palestinians, including about 700 civilians, dead; attacks by Hamas killed about 10 Israeli soldiers and three civilians.

There’s no question that international law is supposed to govern the Israel-Hamas conflict; but the persistent recriminations raise an important question: Does it matter? So what if Israel and Hamas are violating international humanitarian law, or even intentionally committing war crimes? Who’s going to stop them? It’s an age-old problem of international law; while the laws have been carefully negotiated and in some cases, interpreted over centuries, they’re notoriously difficult to enforce. And because they rely heavily on international pressure, advocates say the United States’ own refusal to apply international humanitarian laws such as the Geneva Conventions to its own conflicts with al Qaeda and the Taliban has undermined the influence of these laws on conflicts around the world.

“In general when you’re talking about international law enforcement, measures are weak and uneven,” said Jessica Montel, Executive Director of B’Tselem, a human rights group in Israel that monitors the occupied territories. “You don’t have an international court and police force and prosecutor’s office to investigate and arrest and try people the way a domestic court would function.”

As a result, perpetrators can often dismiss accusations of legal violations as biased and vindictive. The UN Human Rights Council, for example, is dominated by Muslim nations and their allies, and has managed to shield such countries as Iran and Zimbabwe from official investigations and condemnation, while issuing more than 15 different resolutions criticizing Israel in less than two years. Even toward Sudan, widely believed to have supported genocide, it has expressed only “deep concern.” So when the Council issued its condemnation last week, Israel was able to easily dismiss it as one-sided and reflecting the “fairytale world” of the 47-member Council.

Aside from the difficulty of applying the law objectively, experts generally agree on the relevant principles. First, the use of force is only lawful against militants who pose a direct threat, and not against civilians. That leads to the principle of distinction: an army can only attack a legitimate military target. And if a target is both military and civilian – a building where civilians gather, but where weapons are also stored, for example – soldiers must take reasonable care to avoid harm to civilians. Finally, they must weigh whether the military advantage gained is important enough to justify the harm. Many legal experts believe that at least some of these laws may have been violated by the United States in its own war, beginning with its decision to invade Iraq.

“On paper it’s very easy,” says Montel. “When it comes to applying them in a real live situation it can be complicated and you need information.”

In the Gaza situation, some instances are easier than others. “When Israel said, ‘we bombed the ministry of education because it’s a Hamas institution’, that’s a violation of the principle of distinction. Just because it’s a Hamas institution doesn’t make it a legitimate target.”

But if Israel says the institution is being used to store weapons or shield militants, it’s more difficult. “That raises first a factual question—are they telling the truth?” says Montel. “And if there were weapons, then it’s a proportionality case—was the use of force justified, and was it necessary?”

Mary Ellen O’Connell, a professor of international law at the University of Notre Dame, elaborates: “If a civilian shoots at you, you can shoot back. The real problem comes in where there are both fighters and civilians in the same place. The question then is, are the people shooting from the school so important that you need to counter-attack on the basis of military necessity? Then you have to look at how many civilians will die if you target it. If so many civilians will die that the need to eliminate it is outweighed by the harm you do to civilians, then you can’t go after that target.”

Although emphasizing that she doesn’t have all the facts, O’Connell laments that from what she can tell, in terms of following international law, “they’re all doing badly. Hamas has no right to launch rockets into Israel, and there’s a serious question about the magnitude of Israel’s response.”

James Ross, senior legal advisor for Human Rights Watch, agreed. “We have not had access to Gaza, so it’s hard to make conclusions about specific instances at this point. But on its face, an attack that killed 40 civilians at a UN school may be disproportionate. Israelis said Hamas had a mortar unit there. We would look at, was Hamas trying to shield its forces by being close to the UN, or deploying troops in a way that puts civilians at risk?“

But Ross cautioned that “violations of one side don’t justify another. So even if Hamas was using civilians to shield its forces, that doesn’t give Israel the right to fire indiscriminately at those forces.”

The problem is, who can credibly investigate and determine what laws were broken, and then bring the perpetrators to justice?

“That is a concern,” said Ross. “What’s difficult under international law is that the responsibility rests with the government with authority over the individuals who committed the crimes. That’s historically not been terribly successful.” Indeed, both Israel and Hamas have poor record of investigating their own potential war crimes. That the United States has refused to investigate war crimes committed by the United States doesn’t help, he added. Human Rights Watch is one of many groups that have called on the United States to appoint a commission to investigate US violations of international humanitarian law.

Whether a country will be willing to investigate its own actions is “really a diplomatic chess game, in terms of the pressure it feels,” said Montel, referring to Israel. “And that pressure, if at all, will largely come from the international community.”

If a government still refuses to investigate on its own, there are several ways an international body could get involved. The UN Security Council could set up a special international court, such as it did with Rwanda or Yugoslavia. But given the high cost, slow pace and notorious inefficiencies of those courts, there’s little appetite to create more of them. The Security Council could also ask the International Criminal Court, or ICC, to investigate, even though neither Israel nor Hamas are parties to the treaty that created it. But the United States, which isn’t a party to the treaty either, would surely veto any such resolution, said Ross.

Human Rights Watch has called on the UN Security Council instead to authorize a commission of inquiry staffed by neutral and respected investigators to investigate how the actions of both sides comport with the laws of war. That, too, would require US support.

If that doesn’t work, there’s also the concept of universal jurisdiction, which allows national courts to try cases of grave crimes against humanity even if they were committed on foreign soil by leaders of other countries. Since the 1990s, more than a dozen such cases have been brought around the world, including the charges against Chilean dictator Auguso Pinochet brought by a magistrate in Spain, against former Israeli Prime Minister Ariel Sharon in Belgium, and against former Defense Secretary Donald Rumsfeld in Germany. Very few, however, have actually resulted in convictions, and countries such as Belgium, which had one of the broadest statutes asserting its universal jurisdiction in the world, in 2003 significantly restricted its reach under international political pressure.

The United States has prosecuted perpetrators of war crimes committed abroad, such as the recent conviction of Roy Belfast, a/k/a Chuckie Taylor, the son of Liberian dictator Charles Taylor, arrested in 2006 when he tried to enter the United States using a false passport. In October, he was convicted of, among other things, torturing Liberians between 1999 and 2003. He was sentenced to 97 years in prison.

But that example highlights the fact that which cases are prosecuted is as much a political as a factual question.

“Weaker powers are more likely to be held responsible for violations of the laws of war,” said Montel. “Russia or the US is not going to get to the ICC; meanwhile, it’s only African leaders that are investigated at the ICC. It’s not only the gravity of the crimes committed, it’s also your standing in the world.”

There’s less external pressure on powerful countries to investigate themselves as well. So, for example, although senior Pentagon official Susan Crawford recently acknowledged that the US military commissions at Guantanamo Bay would have to drop the case of Mohammad al-Qatani because he was tortured by US authorities, and although waterboarding has widely been viewed for many years as torture, the Bush administration repeatedly refused to investigate, let alone prosecute, whether US officials violated international humanitarian law. Meanwhile even Vice President Dick Cheney has acknowledged he authorized waterboarding. It’s not clear if Obama will change the government’s position on conducting a criminal investigation.

So does the political nature of its enforcement make international humanitarian law meaningless? Legal experts say no — although international pressure is critical.

“Most of the law is followed because it’s practical and useful,” said O’Connell. “Israelis don’t want to be violating this law. The history of warfare shows that when you ignore the rule of proportionality, for example, it creates so much anger that the war will never end. This law is taken very seriously on the battlefield.”

Although “the court aspect of international law is much weaker than in a criminal justice system,” agreed Ross, “there are other ways the law is enforced,” such as by the concept of reciprocity. Traditionally, “one reason you don’t torture is because you don’t want your citizens treated that way.”

That’s why many US military lawyers adamantly opposed the Bush administration’s approval of torture, humiliation and other harsh interrogation techniques that violated the Geneva Conventions, for use on suspected Taliban and al Qaeda fighters.

Human rights advocates abroad say the United States’ flouting of international law regarding its treatment of suspected terrorists has undermined enforcement of humanitarian laws around the world.

“Over the last five to 10 years you’ve had a real setback in terms of enforcement of the human rights laws,” said Montel, whose organization is based in Jerusalem. “You had a real loss of ground on something like torture. Nobody would have said that’s justified before the Bush administration. Also on arbitrary detention, the US at least used to talk the talk, even if you could criticize its foreign policy. But to have the US all of a sudden saying the prohibition on torture is not absolute, not to mention the conduct of its fighting in Iraq and Afghanistan, is a real setback.”

In Israel, she continued, “you see the rhetorical change. Even now, when we criticize Israeli behavior in Gaza, the automatic response is, ‘look at what the United States did in Fallujah.’ ” In the past, says Montel, the US embassy would speak out against torture or prolonged administrative detentions. But no longer. “In the last few years I haven’t even asked them,” she said.

The new Obama administration could improve the situation “on the level of moral leadership that the US provides,” said Montel. “My hope,” she said, is that the US once again provides “leadership by example.”

As we recited this on Saturday, I couldn’t help but reflect that a distressingly small number of my fellow Jews seem to have given much thought at all to the fact that President Bush is one of the greatest friends the state of Israel — and, yes, the Jewish people — have had in quite a while.

I truly hope no one in the Kristol family suffers from an addiction, because Bill Kristol does not know the difference between being a friend and being an enabler.

A friend tells you what you need to hear, not what you want to hear. An enabler goes along with what you want to do at any given time and reinforces your more self-destructive or shortsighted impulses. “For too long our culture has said, ‘If it feels good, do it,’” George W. Bush frequently hectored the American people, imploring them to turn away from that easy and emotive answer. Certainly, when it came to Israel/Palestine, he never followed his own advice.

Eight years ago, the outlines of a sustainable Israeli-Palestinian peace — two states, an end to occupation, compromises on refugees and Jerusalem and borders — came into undeniable relief under a problematic but secular Palestinian leadership. Today, as every diplomat in the region and beyond acknowledges, those outlines provide the only hopeful path to peace. Only now we’re two Israeli-Palestinian wars later; one Israeli-Hezbollah-Lebanon war later; an increased amount of Iranian regional influence later; a new era of Hamas control over half of Palestine later; and a diminished amount of American regional influence later. It’s not the case that every malady suffered in the region is the fault of the United States, or of George W. Bush. But no one can honestly say, without retreating into some fallacious and meaningless counterfactual conditional, that the Bush administration has been a net benefit to either Israelis or Palestinians. We can’t know what the alternatives would have yielded, but we know that there’s no future along this path but endless catastrophe, and so it’s time to explore the road not taken.

The message is “an invitation” from bin Laden to take part in “jihad to stop the aggression against Gaza.”

The terrorist leader has attempted to hijack the cause of the Palestinians before, so this was probably inevitable. What’s always been interesting is how few Palestinians there are in Al Qaeda, a point that Peter Bergen, among others, has made. Palestinians, one presumes, have problems far more close to home that preclude a fascination with global jihad. Yet In an interesting post at Wonk Room last week, Matt Duss surveyed the rise of ultra-extreme Islamist elements in Gaza — yes, more extreme than Hamas — that are competing with Hamas for power. It doesn’t appear that those are Al Qaeda elements, but just as Israel and the United States blithely squeezed Fatah and wound up with Hamas, it’s worth wondering if there’s an alternative in Gaza worse than Hamas as well.