Judge Goldstone Contradicts the UN High Commissioner for Human Rights
But Ms. Pillay's views are sharply contradicted by none other than Judge Richard Goldstone who headed the UN Mission to Gaza that produced the controversial Goldstone Report.
During a recent panel discussion on "Civilians in War Zones" at Stanford University, Judge Goldstone mentioned that Ms. Pillay had requested the HRC to establish a Mission to investigate crimes likely to have been committed during the conflict in Sri Lanka and it is indeed notable that he courageously stated publicly that "to their shame" a majority of HRC members refused to do so.
"fueled the long-standing and repeated complaints by Israel that the Human Rights Council and the UN in general are biased against it. They repeatedly rush to pass condemnatory resolutions in the face of alleged violations of human rights law by Israel but fail to take similar action in the face of even more serious violations by other States. Until the Gaza Report they failed to condemn the firing of rockets and mortars at Israeli civilian centers."
In dealing with the recent public statement by Hamas interior minister Fathi Hammad, who quoted figures of combatant casualties in the Cast Lead Operation that roughly match the 709 claimed by Israel. Goldstone said that Israel assumed that the 250 members of Hamas who were killed in police headquarters were combatants, but that this is not necessarily so. However, he continued that, if in fact, those police officers were members of the Hamas military wing the number of combatants who were killed would approximate the number claimed by the Israeli Government.
It appears that Judge Goldstone may not be aware of the fact that Gaza police incorporate the Executive Force (al-Quwwa al-Tanfiziyya) which, according to a Reuters report of August 21, 2007 numbered 6,000 men. Even the Hamas interior minister acknowledged that when Israel targeted the police stations, "250 martyrs were killed, from Hamas and other factions." It should be pointed out too, that an ICRC document "Interpretive Guidance on the notion of direct participation in hostilities under international humanitarian law" concludes that "..even under the terms of the Hague Regulations and the Geneva Conventions, all armed actors showing a sufficient degree of military organization and belonging to a party to the conflict must be regarded as part of the armed forces of that party." This certainly includes the Gaza police force and justifies the attacks on the police stations.
There is a glaring lacuna in all the casualty figures quoted in the Goldstone Report, namely the number ascribed to having been caused by Israel which may have been inflicted by Palestinians. On February 2, 2009 Ma'an, the Palestinian news Agency reported that a senior Fatah leader, Ziyad Abu Ein accused Hamas of terrorism. He published a list of 181 names of those who were killed, maimed, beaten or tortured by Hamas during the Israeli war on Gaza.
It is disturbing that on its website, B'Tselem, whose reports greatly influenced the Goldstone Report, states that persons who participate in combat but do not actually fulfill a combat function are not legitimate objects of attack except when taking a direct part in hostilities -- on their way to fire a rocket, during the firing of the rocket or on the way back and that wherever there is doubt, it works in the individual's favor. This would imply for example, that a combatant who fires rockets into civilian areas of Israel on a regular basis, but is killed while enjoying a cup of coffee in a restaurant, would be treated in B'Tselem's records that were supplied to the Goldstone report as a civilian casualty.
Judge Goldstone stressed that oftentimes decisions are taken by military commanders in the heat of battle, and that it can be unfair to become an armchair critic after the event. In the circumstances it is inexcusable that the Mission rejected my written suggestion to call for evidence from Colonel Richard Kemp who is among the most qualified soldiers able to evaluate decisions in the type of warfare conducted in Gaza. This suggestion was made in one of several memoranda I sent to the Mission before the hearings in Gaza and Geneva commenced. Judge Goldstone explained this rejection in an open letter to me dated September 21, 2009.
It is impossible for anyone to know what goes on in the mind of another, and the Mission obviously erred in assuming that there were incidents where the evidence appeared to establish that civilians were attacked without any military justification and that in respect of most of those incidents the attacks appeared to be deliberately aimed at civilians. Even when intentions are impeccable, collateral civilian casualties are inevitable, as clearly demonstrated in Afghanistan despite President Obama's expressed good intentions. The NY Times of Feb 19, 2010 reported that the US Air Force now flies twice as many drones as a year ago and the civilian casualties have stoked anti-Americanism.
The strikes typically came when troops or the drones came across people who appeared to be planting homemade bombs, but P. W. Singer, a scholar at the Brookings Institution said officers also had to keep in mind that not everyone digging by the side of the road is automatically an insurgent. Singer's warning emphasizes the danger of confusing genuine error with criminal intent in situations where the combatants are hardly distinguishable from civilians. This applies particularly to the tragic Samouni case with its devastating unjustified accusations in the Goldstone Report that have contributed largely to vilification of Israel in international media.
During the panel discussion Judge Goldstone dealt at some length with this case which he described as the single most serious incident reported in the Gaza Report. He said,
"Early on the cold wintry morning of 5 January, several male members of the al-Samouni family went outside to gather firewood. They were in clear sight of the Israeli troops. As the men returned with the firewood, projectiles fired from helicopter gunships killed or injured them."
Goldstone remarked that it was great pity that the Israeli Government did not provide the Fact Finding Mission with its own version of the events adding that if this version is correct, it might well, justify a finding that the attack was not a deliberate one against civilians.
It is indeed gratifying that Goldstone acknowledged the extensive Israeli investigations and judicial actions against offenders compared with the complete absence of any investigations by Hamas and the compounding of this failure by hundreds of rockets fired at civilian targets in Israel from Gaza since the publication of the Gaza Report.
Goldstein said that the mood in Israel has become increasingly antagonistic to human rights organizations. I believe this is only partially correct as on the whole, we are proud of the fact that so many human rights organizations are allowed to operate freely in Israel. What we have become increasingly opposed to, are not the NGO's as such, but to those organizations that regularly publish biased reports typified by the slanted casualty statistics provided by B'Tselem that misled the Goldstone Mission and the consistent violation of the principle that Goldstone so eloquently defined viz " .. the equality of all nations before the law."