Fisking Goldstone’s Response to Berman: Whereas Clause #2

Part I of the fisking of Goldstone’s Response to Berman.

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

Whereas clause #2: “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;

[Goldstone Response]: This whereas clause ignores the fact that I and others refused this original mandate, precisely because 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.”

[BERMAN 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.

Indeed, all that Goldstone can point to is a very vague, purely verbal rearticulation of the mandate that could include Hamas. There was never a formal change in the mandate, and surely any effort to change it would have never passed, especially now that we know that the original drive behind this mission was the Organization of Islamic States. To insist heatedly that this ambiguous verbal change justifies his taking this admittedly biased mandate from a notoriously biased body, seems somewhat in bad faith.

That bad faith is compounded by the fact that the Mission did, indeed, carry out the original mandate with the merest fig leaf of a modification (see below). Of the “36 incidents” they chose to investigate, the overwhelming majority concerned Israel’s behavior. The crucial issues like Hamas’ use of civilian shields remained virtually, insidiously untouched.

And just as there is still no mention of Hamas or Palestinian agency in this ‘updated mandate,’ there is no mention of Hamas in the accusations against the loosely-termed “Palestinian armed groups operating in Gaza.” Notes Jonathan Dahoah Halevy:

    It does not seem that ignorance was responsible for the way the Goldstone Committee ignored the direct connection between Hamas and “Palestinian armed groups.” It is a fair assumption that its bias was deliberate and that the Committee’s curious methodology no less than its “ignorance” were behind the way it took statements from Palestinian “eyewitnesses” failing to ask basic questions on terrorist activities during the war.

    The issue of Hamas’ invisible responsibility for war crimes, like many other claims made by the report, shows that it is a masterpiece of deception and manipulation whose only intention is to frame Israel for war crimes and exonerate Hamas. Khaled Mashaal and Ismail Haniyeh can take a vacation to The Hague without having to worry about the Goldstone Report. Unfortunately, the same is not true of Gabi Ashkenazi, Israel’s chief of staff.

On the contrary, the Mission treated Hamas with a great deal of respect, both during its hearings in Gaza, where it visited some sites with Hamas officials, and in its Report, where it treated Hamas officials as reliable sources of evidence.

UN investigator Richard Goldstone, right, walks with Hamas parliament member Ahmed Bahr, second right, and members of a UN delegation during a visit to the Palestinian parliament building that was destroyed in January during Israel’s offensive on the Gaza Strip, in Gaza City.

Goldstone’s report also commented on Hamas’ cooperation:

    The Report expresses gratitude for Hamas’ cooperation:
    9. During its visits to the Gaza Strip, the Mission held meetings with senior members of the Gaza authorities [i.e., Hamas officials] and they extended their full cooperation and support to the Mission.

And not surprisingly, they’re delighted with the results.

To get an idea of how farcical the Report’s respect for Hamas as a responsible government, consider how they cite Hamas denials that it rocketed Israel:

    1635. In response to questions by the Mission, on 29 July 2009, the Gaza authorities [i.e. Hamas officials] stated that they had “nothing to do, directly or indirectly, with al-Qassam or other resistance factions” and stated that they were able to exercise a degree of persuasion over the armed factions in relation to proposed ceasefires. While noting that the weaponry used by the armed factions was not accurate, the Gaza authorities discouraged the targeting of civilians.

No investigation or even discussion of the plausibility of such a statement ensues, and when the time comes to condemn the rocketing, the references are to unnamed “Palestinian armed groups in Gaza.” (1691)

6 Responses to Fisking Goldstone’s Response to Berman: Whereas Clause #2

  1. sshender says:

    Anybody else watching the Gold/Goldstone debate?
    I’ve tried capturing the stream – in vain. I hope they will upload it later for people who did not see it in real time.

  2. harris says:

    I saw it in parts. If you have read my post about the mosque incident. Now it was a tungsten projectile after it had been a mortar shell for a while.

    Here is an important thing regarding the critiques of the report. It doesn’t really matter if Goldstone is unbalanced with regard to Hamas atrocities. It may sound strange but it’s true. He is a judge. And for a judge there are good reasons for ignoring other cases when investigating a case of alleged Israeli war crimes. A judge would fail as a judge if he would balance his current case with some other case. Therefore all critiques that tend to argue that he has forgotten about Israeli victims and who started it are esentially futile. An alleged Israeli attack could be war crime even if the Hamas had fired millions of rockets on Tel Aviv before. Goldstone can easily dismiss all these accusations. Let’s face it. For delivering hit on Goldstone and the mission members themselves one has to point out that he as a judge with respect to every single isolated case has failed / has made things up / has made lunatic assumptions etc.

  3. AT says:

    The Goldstone report is a red herring … while we muster up all the evidence in the world for how biased/factually incorrect/irresponsible it is, the UN and the world now has the formal ammunition it needs to restrain Israel, supplied by a Jew no less.

    This battle is not winnable on the world’s terms. The world at large does not want its Jews, and only some vague sense of shame has inhibited it from materializing its predilections over the last 60 years.

  4. Cynic says:


    A judge would fail as a judge if he would balance his current case with some other case.

    Don’t judges rely on previous judgements in judging a particular case?
    How many times have I read where a lawyer has argued “in the case of XYZ” for finding in his client’s favour.

    Then again how many times have we shaken our heads in amazement at a judge’s ruling which makes no sense.

  5. Eliyahu says:

    All this legalistic hair-splitting and worrying what a judge might say in his own defense remind me, in light of the purpose of the goldstone mission to hinder Israel’s actions in self-defense, of the notorious Dred Scott decision of the US Supreme Court in 1857:
    The court’s majority found that “the negro has no rights that a white man is bound to respect.”

    Just change the word “negro” to Jew and we are in 2009 –de facto if not de jure.

    by the way, RL, the name of Ihsanoglu’s body is the awkwardly named but highly powerful, Organization of the Islamic Conference, not as given.

    walt-mearsheimer complain about the “Israel Lobby” but not a word about the OIC and its domination of the UN and its ancillary bodies, mainly through the phenomenon of logrolling.

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