Part IV 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 #8: “Whereas the report repeatedly made sweeping and unsubstantiated determinations that the Israeli military had deliberately attacked civilians during Operation Cast Lead;
[Goldstone:] “7. Paragraph 8: This whereas clause is factually incorrect. The findings included in the report are neither “sweeping” nor “unsubstantiated” and in effect reflect 188 individual interviews, review of more than 300 reports, 30 videos and 1200 photographs. Additionally, the body of the report contains a plethora of references to the information upon which the Commission relied for our findings.
Since the terms “sweeping and unsubstantiated” are judgment calls, it’s hard for me to see how one can respond that they’re “factually incorrect.” Is this how lawyers write?
[Berman 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.
Note that the reason the FFM could reach such sweeping conclusions as:
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…
is because they hand-picked the incidents to highlight precisely this point.
Goldstone explained 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.
Once they had their incidents — most likely from a list created for them by the NGOs — they heard testimony which they found entirely credible.
Whereas clause #9: “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.’;”
[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.
As far as I can make out, the Berman response did not address this point directly, but it is well worth addressing because it has to be one of the nastiest pieces of newspeak in the Goldstone lexicon. He used this same argument in the continuation of his comment to Moyers cited previously:
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.
Now this sounds just fine until you realize what it meant in practice. First, it meant no systematic investigation of Hamas use of civilians as human shields.
And second it meant, no need to consult people like Colonel Richard Kemp because, since his comments are based on what it means to fight against an insurgency that embeds itself in a civilian population (while attacking your civilians), they are about “the fog of war,” and therefore irrelevant. So while Kemp concludes as a result of his perspective:
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.
Goldstone finds it unnecessary to even hear his testimony because:
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.“
Now I try and avoid ad hominem arguments, but this is intellectual dishonesty of the nastiest sort. “Hey, don’t blame me, I’m your friend.”
(From Daled Amos): The fact is that the Goldstone Report did not hesitate to “make finding on situations where decisions had been made by Israeli soldiers “in the fog of battle.” In its critique of the content of the Goldstone Report, CAMERA points out that the Goldstone Report does not hesitate to double-guess what was going through the mind of the IDF:
Motive was freely and falsely attributed to Israel in order to charge them with war crimes. Paragraph 74 (74) of the Report asserts: The conditions of life in Gaza, resulting from deliberate actions of the Israeli forces and the declared policies of the Government of Israel – as they were presented by its authorized and legitimate representatives – with regard to the Gaza Strip before, during and after the military operation, cumulatively indicate the intention to inflict collective punishment on the people of the Gaza Strip in violation of international humanitarian law.
And in paragraph 1331 (1325): The facts ascertained by the Mission, the conditions resulting from the deliberate actions of the Israeli armed forces and the declared policies of the Israeli Government – as they were presented by its authorized representatives – with regard to the Gaza Strip before, during and after the military operation, cumulatively indicate the intention to inflict collective punishment on the people of the Gaza Strip. The Mission, therefore, finds a violation of the provisions of article 33 of the Fourth Geneva Convention.
Israel’s analysis of the Goldstone Report -– the existence of which Goldstone also denies -– also notes among the faults of the Report:
- Second-guessing choice of weapons and tactics without knowledge of available resources. The Report concludes that with respect to one particular incident, Israeli forces should have used different weapons to further limit the risk to civilians in the area, and is untroubled by the fact that it has no information regarding the available troops, weapons or intelligence. The Report observes that forces had 50 minutes in which to respond to a significant threat (the time used by the force to accurately identify the source of fire), and opines that given this time, “it is difficult to believe that mortars were the most accurate weapons available” (¶ 696).
Displaying a troubling disconnect from the reality of urban fighting on many simultaneous fronts, it suggests that the forces in the field should used “helicopters and fighter jets”, assuming that these are readily available to commanders in the field.
- Second-guessing what commanders should have anticipated. The Report concludes with respect to another incident that Israeli forces should not have been surprised that they were faced with anti-tank missile fire in the vicinity of a UNRWA installation, and therefore should have taken different steps to respond to this hostile fire, other than applying the commonly used technique of smoke screening (¶ 588). Again, the Report seeks to substitute its judgment for that of the commanders in the field, without any of the information necessary to conduct a proper analysis under the applicable law.One would almost think that Judge Goldstone did not read his own report–something he readily ascribes to his critics.
Notes Daled Amos: One would almost think that Judge Goldstone did not read his own report–something he readily ascribes to his critics.