At a number of points in the controversy over his report, Judge Goldstone has referred to the fact that his Mission selected 36 “representative” incidents to investigate. Here he explains to Bill Moyers:
We chose those 36 because they seemed to be, to represent the most serious, the highest death toll, the highest injury toll. And they appear to represent situations where there was little or no military justification for what happened.
While Goldstone never made the list public, here is, as close as possible, a list of the incidents that the Goldstone Report discussed in some detail, which only come out to a somewhat vague 32. The only two that examine behavior unbecoming of the Palestinians are Gilad Shalit (6 paragraphs) and Palestinian attacks on Fatah supporters (25 paragraphs). The Qassams are condemned, but not investigated, and Hamas is never named as a culprit in the “war crime and possibly crime against humanity that these rocket attacks constitute.”
In other words, the principle incidents — those chosen, and those upon which the Report lavished their attention and their ink — are exclusively about alleged Israeli attacks on Palestinian victims.
List of 32 Incidents in Goldstone Report (compiled by Anne Herzberg, NGO Monitor)
1. The Israeli air strikes on the Gaza main prison and on the Palestinian Legislative Council building (paras 336-373)
2. Arafat City Police HQ (398-402)
3. Attacks on 5 police stations (403-407)
4. UNWRA Compound Gaza City (paras. 543-595)
5. Al-Quds hospital, Tal el-Hawa, Gaza City (paras.596-629)
6. Attacks on al-Wafa hospital, 5 and 16 January 2009 (paras. 630-652)
7. The shelling in al-Fakhura Street by Israeli armed forces (paras. 653-54)
8. Al-Samouni (paras. 706-35) (yet this involves 3 specific incidents)
9. The shooting of Iyad al-Samouni (paras. 736-744)
10. The death of Muhammad Hajji in the attack on his family’s house
11. and the shooting of Shahd Hajji and Ola Masood Arafat (paras.745-754)
12. The shooting of Ibrahim Juha (paras.755-763)
13. The killing of Majda and Rayya Hajaj (paras. 764-769)
14. The shooting of Amal, Souad, Samar and Hajja Souad Abd Rabbo (paras.770-779)
15. The shooting of Rouhiyah al-Najjar (paras.780-787)
16. The Abu Halima family case (paras.788-801)
17. The attack on the al-Maqadmah mosque, 3 January 2009 (paras. 822-43)
18. The attack on the al-Daya family house, 6 January 2009 (paras. 844-866)
19. Attack on the Abd al-Dayem condolence tents (paras. 867-885)
20. The destruction of el-Bader flour mill (paras.913-941)
21. The destruction of the Sawafeary chicken farms (paras.942-961)
22. The Gaza wastewater treatment plant, Road No. 10, al-Sheikh Ejlin, Gaza (paras. 962-974)
23. Namar wells group, Salah ad-Din Street, Jabaliyah refugee camp (paras. 975-989)
24. The destruction of housing (houses of Saleh Hajaj, of Wa’el al-Samouni, of Khalid Abd Rabbo and of Muhammad Fouad Abu Askar [–are these all one incident or four?] (paras. 990-1007)
25. The case of Majdi Abd Rabbo (paras. 1033-1063)
26. The case of Abbas Ahmad Ibrahim Halawa (paras. 1064-1075)
27. The case of Mahmoud Abd Rabbo al-Ajrami (paras. 1076-1085)
28. The case of AD/03 (paras. 1086-1088, 1143-63)
29. Al-Atatra sandpits (paras 1112-26)
30. Detention and abuse of AD/02 (paras 1127-42)
31. Gilad Shalit (paras.1336-1342) [6 paragraphs]
32. Several cases of Hamas killings of Fatah members [though none are mentioned by name and the specificity does not approach other incidents – are these part of the 36? No idea.) (paras 1343-1368).
33? Various incidents in the West Bank?
34? No specific incidents of rocket attacks are detailed.
35? Repression of Dissent chapter lists several incidents.
What’s missing here, of course, is any investigation into the extensive evidence that Hamas used the civilian population as a shield, that they deliberately fired from the midst of civilian neighborhoods in order to provoke attacks, that they dressed as civilians, commandeered ambulances, stole food supplied by Israel to the Gazan population… in short that they did everything they could to maximize their own civilians’ casualties.
All these matters are, of course, critical to assessing the behavior of Israeli troops. And yet, Goldstone explicitly refused to look into this material. Here is one indication that, had he investigated these issues, he might have judged Israeli troops less harshly in their effort to target combatants despite the ubiquitous, intentional presence of civilians. Colonel Richard Kemp, a British commander with extensive experience in asymmetrical combat in Iraq and Afghanistan concludes:
During Operation Cast Lead, the Israeli Defence Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare. Israel did so while facing an enemy that deliberately positioned its military capability behind the human shield of the civilian population. Hamas, like Hizballah, are expert at driving the media agenda. Both will always have people ready to give interviews condemning Israeli forces for war crimes. They are adept at staging and distorting incidents.
The IDF faces a challenge that we British do not have to face to the same extent. It is the automatic, Pavlovian presumption by many in the international media, and international human rights groups, that the IDF are in the wrong, that they are abusing human rights.The truth is that the IDF took extraordinary measures to give Gaza civilians notice of targeted areas, dropping over 2 million leaflets, and making over 100,000 phone calls. Many missions that could have taken out Hamas military capability were aborted to prevent civilian casualties. During the conflict, the IDF allowed huge amounts of humanitarian aid into Gaza. To deliver aid virtually into your enemy’s hands is, to the military tactician, normally quite unthinkable. But the IDF took on those risks.
And yet, the Goldstone Mission explicitly decided not to hear Colonel Kemp’s testimony. Here Goldstone explains why in a letter to Maurice Ostroff:
There was no reliance on Col. Kemp mainly because the Report did not deal with the issues he raised 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. The Mission avoided having to do so in the incidents it decided to investigate.“
This remark is nothing short of breathtaking. (Note that Goldstone admits that the selection of the “36 incidents” was made deliberately to exclude such matters.) And yet the Mission constantly “second-guessed” Israeli soldiers and their commanding officers, repeatedly determining on the basis of unchallenged Palestinian testimony that there was “no military activity” at the time of Israeli action. Indeed, they do not hesitate to reach decisive and damnatory conclusions:
932. Having concluded that the strikes were without any military justification, and therefore wanton and unlawful, the Mission finds it useful to consider if there was any non-military purpose to the strikes.
726. The Mission also reviewed the submission it received from an Israeli researcher, arguing generally that statements from Palestinian residents claiming that no fighting took place in their neighbourhood are disproved by the accounts Palestinian armed groups give of the armed operations. The Mission notes that, as far as the al-Samouni neighbourhood is concerned, this report would appear to support the statements of the witnesses that there was no combat.
696.The Mission does not say that the Israeli armed forces had to accept the risk to themselves at all cost, but in addressing that risk it appears to the Mission that they had ample opportunity to make a choice of weapons that would have significantly limited the risk to civilians in the area. According to the position the Government has itself taken, Israeli forces had a full 50 minutes to respond to this threat – or at least they took a full 50 minutes to respond to it. Given the mobilization speeds of helicopters and fighter jets in the context of the military operations in Gaza, the Mission finds it difficult to believe that mortars were the most accurate weapons available at the time. The time in question is almost 1 hour. The decision is difficult to justify.
1330. The above statements should also be seen in the light of what the Mission has identified as the objectives and strategies of Israel before and during the operations (see chap. XVI). Israel, rather than fighting the Palestinian armed groups operating in Gaza in a targeted way, has chosen to punish the whole Gaza Strip and the population in it with economic, political and military sanctions. This has been seen and felt by many people with whom the Mission spoke as a form of collective punishment inflicted on the Palestinians because of their political choices.
And so on…
So, in fact, the Mission did the precise opposite of what Goldstone assured Ostroff they would do. And Kemp’s testimony would have been highly relevant.
Note that Goldstone uses precisely the same argument he used with Ostroff in his interview with Moyers, as if it were a favor to Israel. It’s the continuation of his mention of the “36 incidents,” and his condemnation of Israel cited above:
We chose those 36 because they seemed to be, to represent the most serious, the highest death toll, the highest injury toll. And they appear to represent situations where there was little or no military justification for what happened. We didn’t want to investigate situations where we would be called upon to second-guess decisions made by Israeli Defense Force leaders or soldiers, in what’s called the “fog of battle”. It’s really unfair to do that, especially without hearing the other side. So we tried to concentrate on issues which seem to be less likely to be justifiable by applying those standards.
In other words, we didn’t look specifically into incidents of Hamas using human shields, didn’t listen to witnesses who, taking that information into account, found the IDF took remarkable risks to avoid hitting civilians. Instead, they chose 36 incidents to investigate which “appear to represent situations where there was little or no military justification for what happened,” and nonethess, found Israel guilty of targeting civilians. If Moyers had done his homework, he’d have noticed the absurdity of Goldstone’s claim.
Indeed, the FFM, even as it only tangentially considered evidence of Hamas’ military strategy of human shields, consistently dismissed any evidence to the contrary. The trope “The Mission found no evidence… did not find any evidence… for illegitimate behavior by Hamas and other Palestinian combatants runs through the report like a scarlet thread:
32. It finds that there is no evidence that the Legislative Council building and the Gaza main prison made an effective contribution to military action.
35. The Mission found no evidence, however, to suggest that Palestinian armed groups either directed civilians to areas where attacks were being launched or that they forced civilians to remain within the vicinity of the attacks.
36. The Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities or that ambulances were used to transport combatants or for other military purposes.
449. Amnesty International also reported, however, that it had seen no evidence that rockets had been launched from residential houses or buildings while civilians were still in them.
465. The Mission found no evidence that this mosque was used for the storage of weapons or any military activity by Palestinian armed groups.
469. On the basis of the investigations it has conducted, the Mission did not find any evidence to support the allegations made by the Israeli Government.
479. The Mission did not find any evidence of civilians being forced to remain in their houses by Palestinian armed groups.
480. A second report states that members of the Palestinian armed groups “also mixed with the civilian population, although this would be difficult to avoid in the small and overcrowded Gaza Strip, and there is no evidence that they did so with the intent of shielding themselves.”
483. 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.
487. On the basis of the investigations it has conducted, the Mission did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities and that ambulances were used to transport combatants or for other military purposes.
488. On the basis of the information it gathered, the Mission found no indication that the civilian population was forced by Hamas or Palestinian armed groups to remain in areas under attack from the Israeli armed forces.
494. From the information available to it, the Mission found no evidence to suggest that Palestinian armed groups either directed civilians to areas where attacks were being launched or forced civilians to remain within the vicinity of the attacks.
495. The Mission found no evidence that members of Palestinian armed groups engaged in combat in civilian dress. It can, therefore, not find a violation of the obligation not to endanger the civilian population in this respect.
1841. The Mission was also given no evidence of any arrests, investigation or prosecution connected with the serious violations of the peremptory norms of international law that have been alleged in information presented in other parts of this report, be these against Palestinian civilians in Gaza or against Israeli civilians.
1953. The Mission found no evidence to suggest that Palestinian armed groups either directed civilians to areas where attacks were being launched or that they forced civilians to remain within the vicinity of the attacks. The Mission also found no evidence that members of Palestinian armed groups engaged in combat in civilian dress. Although in the one incident of an Israeli attack on a mosque it investigated the Mission found that there was no indication that that mosque was used for military purposes or to shield military activities, the Mission cannot exclude that this might have occurred in other cases.
One of the strangest things about the report, to my mind, is that the fact finders never made even the slightest attempt to figure out what the Palestinian fighters – Hamas or Islamic Jihad – were doing. At least in the case of Israel, they repeatedly asked; when Israel didn’t respond they invented what they thought might be reasonable answers (they weren’t). When it comes to the other side, however: nothing. They were in Gaza! They could have sought all sorts of facts. But no: for all the report has to say, there were evil Israelis, there were lots of poor civilians, and here and there, rarely, there were unidentified people shooting rockets. Was their any Gazan semi-military force facing the Israelis? Taking action? Planning attacks or fending off Israeli ones?