Goldstone: ‘If This Was a Court Of Law, There Would Have Been Nothing Proven.’Visiting Professor Richard Goldstone in The Forward, October 07, 2009
The incident detailed in paragraphs 713 through 716 of the Goldstone Report, if accurate, was a moment of indiscriminate terror.
A hundred members of the extended al-Samouni family are gathered together in one house, ordered there by Israeli soldiers patrolling their Gaza neighborhood of Zeytoun as part of Operation Cast Lead. Five men step out of the house to collect firewood. Suddenly, out of nowhere, a missile strikes them, fired, possibly, from an Apache helicopter. Two or three more missiles follow, this time aimed directly at the house. In all, 21 family members are killed, among them many women and small children. When the surviving al-Samounis attempt to leave and make their way to Gaza City, they are told by an Israeli soldier to return to the house, to “go back to death.”
A few pages later, in paragraphs 822 through 826, there’s another scene of seemingly unprovoked violence. In a mosque on the outskirts of Jabilyah, somewhere between 200 and 300 men and women are gathered for the evening prayer. An explosion rips the front door off its hinges and flings it all the way across the room. A missile has struck the mosque’s entrance, killing 15 people, some kneeling mid-prayer. A boy sitting by the door has his leg blown off.
The details are hard to turn away from, but they have, in fact, been largely ignored. Instead, the heated conversation about the Goldstone Report, the United Nations fact-finding mission led by Richard Goldstone, an internationally respected jurist and a South African Jew, has revolved mostly around political questions — charges of imbalance, lack of context and a history of anti-Israel bias on the part of the U.N. Human Rights Council, which gave Goldstone his charge.
Goldstone’s findings themselves have, meanwhile, been left largely unexamined. The 36 specific incidents he focuses on in his report paint a disturbing picture of an Israeli army purposefully targeting unarmed civilians. But the facts of the report are built mostly on testimonies of Palestinian eyewitnesses, which have received little scrutiny or verification. Critics also call attention to parts of the commission’s work that they say was sloppily done, without sufficient cross-examination and double checking of information. Alternative interpretations of the incidents described are not considered, let alone fully explored.
Israel’s decision to refuse to cooperate with the Goldstone Commission as it was doing its work—a decision questioned even by some critics of the report—doubtless played a role in this. Tellingly, in an interview with the Forward on October 2, Goldstone himself acknowledged the tentative nature of his findings.
“Ours wasn’t an investigation, it was a fact-finding mission,” he said, sitting in his Midtown Manhattan office at Fordham University Law School, where he is currently visiting faculty. “We made that clear.”
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.”
He recalled his work as chief prosecutor for the international war crimes tribunal in Yugoslavia in 1994. When he began working, Goldstone was presented with a report commissioned by the U.N. Security Council based on what he said was a fact-finding mission similar to his own in Gaza.
“We couldn’t use that report as evidence at all,” Goldstone said. “But it was a useful roadmap for our investigators, for me as chief prosecutor, to decide where we should investigate. And that’s the purpose of this sort of report. If there was an independent investigation in Israel, then I think the facts and allegations referred to in our report would be a useful road map.”
Nevertheless, the report itself is replete with bold and declarative legal conclusions seemingly at odds with the cautious and conditional explanations of its author. The report repeatedly refers, without qualification, to specific violations of the Fourth Geneva Convention committed by Israel and other breaches of international law. Citing particular cases, the report determines unequivocally that Israel “violated the prohibition under customary international law” against targeting civilians. These violations, it declares, “constitute a grave breach” of the convention.
It is this rush to judgment based on what critics believe to be unsubstantiated allegations that has angered some who have delved into the details.
“If the accusations are true they are very serious,” said Avi Bell, a law professor at Bar-Ilan University. “But they are still just accusations. That doesn’t make them true in and of themselves. That’s where the fact-finding should begin, not where it should end.”
Goldstone said he believed Israel did have a “responsibility” to respond in some way to the incessant Hamas missiles from Gaza. It was the form this response took that, he said, “amounted to reprisals and collective punishment, and constitute war crimes.”
The report’s brief against Israel can be broken down into two broad categories. For the first, it uses satellite maps, eyewitness accounts and on-the-ground inspection to illustrate many instances in which large civilian infrastructure sites in Gaza were targeted and destroyed—food storage centers, water supply sources, agricultural land, sewage plants, as well as police stations and the legislative building in Gaza City. The only explanation for this kind of targeting, said Goldstone, is to collectively punish the population. Indeed, most legal experts agree that targeting such non-military sites is a war crime. But in its own published report on Cast Lead, issued in July, Israel openly acknowledges hitting these non-military targets, characterizing them instead as part of the “Hamas terrorist infrastructure,” and therefore legitimate objects for attack.
It is the second category of charges in the report that many Israelis condemn furiously as a kind of blood libel, contesting not only Goldstone’s legal conclusions about what happened, but also that the events in question happened at all.
Goldstone asserts that the Israeli army, in a few detailed instances, specifically targeted unarmed, non-combatants on the ground in conditions where no fighting was taking place. If true, these would be serious breaches of Israel’s own “Law of Armed Conflict.” Unlike the destruction of infrastructure, Israel has repeatedly emphasized in public that under no circumstances does it condone shooting of civilians. While not disclosing details, the Israeli army has said that it is looking into 100 complaints related to the Gaza operation and is currently conducting 13 criminal investigations.
In a section entitled, “Deliberate Attacks Against the Civilian Population,” Goldstone’s report examines 11 incidents, including the al-Samouni family deaths and the strike against the al-Maqadmah mosque in Jabaliyah. Both have also been cited repeatedly by Goldstone in his public comments as particularly egregious examples of what he termed Israel’s criminal conduct during the war.
In the al-Samouni case, the report lists its sources of information. Five members of the family were interviewed, as well as a few neighbors. The mission also interviewed Palestinian Red Crescent personnel who said they sought but were denied permission by the Israeli Army to come to the aid of those wounded. Mission members visited the site of the house that was hit in the attack. Goldstone described sitting with the family among the debris of their destroyed house. Material from other NGOS—it doesn’t distinguish which ones—were also reviewed. The mission also examined photos that appeared to verify the deaths of the 21 men, women and children the witnesses said died.
But for the most part, the actual details of the events that took place on the morning of January 5, 2009, resulting in the 21 deaths, were pieced together from eyewitness testimony.
Israel responded dismissively to initial reports of the Army’s attack on the home of Wa’el al-Samouni. On January 9, Israeli Army spokesman Jacob Dallal denied that the army gathered any large group of people into the house or that any attack had taken place on any house in the neighborhood at all. It is a statement the army has never amended.
Despite this declaration, the Goldstone report shows photos of Wa’el al-Samouni’s home, taken on January 18, when the surviving family members were finally able to return. The photos “show feet and legs sticking out from under the rubble and sand, and rescuers pulling out the bodies of women, men and children,” the report notes. The house, and most other houses in the neighborhood had been demolished, the report adds.
Some have challenged the report’s version. These critics raise questions as to whether the Samounis’ neighborhood was fully pacified when the Israeli Army shelled the house, as the report contends. Jonathan Halevi, a retired lieutenant colonel in the Israel army, submitted material to the commission citing accounts of combat by Palestinian armed groups that he argued disproved many assertions made in the report.
The Goldstone report made use of Halevi’s material, finding that they actually supported Goldstone’s own findings. But Halevi faulted Goldstone for failing to look into similar material freely available elsewhere on-line.
In the material Halevi sent to the commission about the Samouni incident, he focused exclusively on the military activity of Hamas in the area at the time in question. He found there was none and Goldstone cited this in the report as evidence that fighting had ended. But Halevi said that other information—specifically, the Web sites of other militant groups—would have made it clear that another militia, Islamic Jihad, was operating in the area on the morning in question.
“From the report you can get the impression that Israel operated in the Gaza Strip in a vacuum, which means there was almost no resistance,” said Halevi, who was an adviser to the Policy Planning Division of the Israel Ministry of Foreign Affairs and is currently a researcher at the Jerusalem Center for Public Affairs.
Halevi has studied the names of those killed in the incursion and matched them with lists of Hamas and Islamic Jihad militants listed on websites for the two groups. He contends that not only was fighting ongoing near the al-Samouni’s house, but that some of the men in the al-Samouni family were actually connected with Islamic Jihad and that the attack might not have been as unprovoked and indiscriminate as presented in the report. If the Palestinian witnesses had been cross-examined to establish their credibility, Halevi said, a more complex picture might have emerged.
Others have raised more general concerns about the reliance on eyewitness testimony.
“People don’t see what they think they see,” said Bell, the Bar Ilan law professor. “They don’t remember what they think they remember. That’s in the best of circumstances when they are trying to give you accurate information. In this case, what you have are witnesses that, for the most part, are living under a totalitarian government and subject to systematic intimidation. And also, they are living in a long time war zone where they have extreme hostility to the other side.”
Goldstone has referred to the mosque incident as a case where there is no other possible interpretation for what could have occurred other than a deliberate targeting of civilians. Besides the eyewitness accounts, the mission visited the mosque and conducted a forensic investigation. In his talk with the Forward, Goldstone emphasized what set apart this attack as a war crime.
“Assuming that weapons were stored in the mosque, it would not be a war crime to bomb it at night,” Goldstone said. “It would be a war crime to bomb it during the day when 350 people are praying.”
As with the al-Samouni house, Israel denied at the time that an attack on the mosque had taken place at all.
But critics have also questioned whether the clear cut version of the attack that appears in the report is the whole story. According to Halevi’s research, as well as the investigative work of an anonymous blogger called “Elder of Ziyon” — both of whom crosschecked websites for Islamic Jihad and Hamas — among the 15 dead were six men who they contend were members of the Al Qassam Brigades, Hamas’s paramilitary wing.
Because the blast hit just outside the mosque, Halevi posits that it was perhaps a drone attack aimed at a group of militants meeting nearby. Because the mosque had unexpectedly combined its sunset and evening prayers that day, as the report itself describes, the Israelis might have come to the false conclusion that the mosque itself was empty, he speculated.
The report does not entertain such other possibilities or address the coincidence that so many of the dead were, according to Halevi, militants, by Hamas’ own listing. At the end of the section on the mosque attack, the report arrives at its conclusion: Based on accounts “from multiple witnesses” as well as viewing the site, Israel violated international law, the Fourth Geneva Convention, and the International Covenant on Civil and Political Rights.
Goldstone maintains that the burden is now on Israel to counter these findings through its own probe.
“If I was advising Israel, I would say have open investigations,” he told the Forward. “In that way, you can put an end to this. It’s in the interest of all the people of Israel that if any of our allegations are established and if they’re criminal, there should be prosecutions. And if they’re false, that should be established. And I wouldn’t consider it in any way embarrassing if many of the allegations turn out to be disproved.”
Goldstone rejected the credibility of the army’s secret investigation of itself. He noted that none of the Palestinian witnesses he had met reported having been contacted by the army to hear their account. Instead, he offered the example of the Israeli investigation into the Sabra and Shatilla massacres, commissioned by Menachem Begin, as a model to emulate.
The United States has so far blocked action against Israel in the United Nations regarding the Goldstone Report — even convincing Palestinians to drop their push in the U.N. Human Rights Council to reach a Security Council resolution. The matter has been postponed until March of next year. But lately, the United States has also been publicly urging Israel to conduct an independent and open investigation.
As a democracy, said State Department spokesman Ian Kelly on October 5, “Israel ha[s] the kind of institutions that could address these allegations. And, of course, we urged Israel to address these very serious allegations.”