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by Richard Landis


Richard Goldstone has an op-ed in the New York Times (NYT) today. It is most striking because it is so transparently misleading. Indeed, it's just the kind of misinformation that fisking was invented to counter. So I couldn't help doing so.

Goldstone clearly counts on addressing a sympathetic audience ignorant of the facts — a choir. I address those readers of the news who still want to be part of a "reality-based" community, for whom evidence must be addressed, analyzed, and assessed. You make up your mind if Judge Goldstone is an honest, fair-minded man, or someone who, for whatever mysterious reason, is in thrall to a narrative he must serve, regardless of the evidence.

Justice in Gaza


I ACCEPTED with hesitation my United Nations mandate to investigate alleged violations of the laws of war and international human rights during Israel's three-week war in Gaza last winter. The issue is deeply charged and politically loaded. I accepted because the mandate of the mission was to look at all parties: Israel; Hamas, which controls Gaza; and other armed Palestinian groups.

This is astonishing. Mary Robinson — the presiding genius of Durban I — rejected it because the mandate was only to investigate Israel, tainted from the beginning. Goldstone requested, in vain, that the mandate be widened. For him to pretend that the mandate was to investigate all groups when it never was, whether he threw in some comments on Hamas or not, assumes a pervasive illiteracy among his audience — the readers of the NYT.

I accepted because my fellow commissioners are professionals committed to an objective, fact-based investigation.

The case against the composition of his committee — not one person sympathetic to Israel, at least one, Christine Chinkin, openly hostile — has led two groups of lawyers, in England and in Canada, to demand Chinkin's disqualification since she had already pronounced herself — long before she saw any real evidence — on Israel's guilt. Goldstone, even as he tossed out the petition on a subtle technicality, admitted that Chinkin's case was borderline and the report reconfirms her prejudice. So whence comes this bland denial?

But above all, I accepted because I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm.

While this sounds great to the liberal ear, these laws were formulated for conventional warfare. When the war is asymmetrical and the attacker hides among civilians for protection — using human shields — the laws need reinterpreting. It's precisely this explanatory context of insurgents using human shields as cover for attacks on enemy civilians, that Chinkin dismissed from the beginning, and that the Commission, even though it occasionally considers evidence for it, systematically minimizes.

Here it is worth noting that this failure to recognize the problem has on the one hand been exploited by UN member states and officials of the UNHRC and by NGO officials to attack Israel's legitimacy. This is worse than naïveté — by masking and excusing this criminal behavior, this approach constitutes a major contribution to the perpetuation of global conflict.

In the fighting in Gaza, all sides flouted that fundamental principle.

While the Goldstone commission's report was actually far more condemnatory of Israel than this even-handed formulation suggests, it calls into question the depth perception of the person making it. No other country in the world — the US, Great Britain, Germany — included, has spent as much time and developed as high a standard of restraint in carrying out attacks that might harm enemy civilians. Indeed, were the rest of the world accused by the standard in which Israel's behavior "flouts" fundamental principles, they would all pass in front of Israel for severity or crime. This is recipe for outlawing war, or rather, the right of the advanced countries to defend themselves against asymmetrical warriors.

Many civilians unnecessarily died and even more were seriously hurt. In Israel, three civilians were killed and hundreds wounded by rockets from Gaza fired by Hamas and other groups. Two Palestinian girls also lost their lives when these rockets misfired.

In Gaza, hundreds of civilians died.

This is a mild version of the report, which sides with the Palestinian count of about 1400 killed, of which 900 were civilians. Close examination of this list reveals it to have numerous cases of combatants "miscategorized" civilians. (For another, independent, study of the same data, see here.)

Goldstone's commission basically took over the figures from the NGOs (who all backed to some extent, the findings of the tendentious PCHR publication). Notes NGO Monitor:

Despite all the evidence to the contrary, Goldstone's report asserts that the "data provided by non-governmental sources with regard to the percentage of civilians among those killed are generally consistent ..." (para. 30). There is no such "consistency" — the numbers claimed by these organizations differ by the hundreds. Goldstone also fails to note the major lack of credibility in PCHR's data, such as characterizing two leading Hamas military figures, Nizar Rayan and Siad Siam, as civilians. And as researchers have shown, the B'Tselem data, while different from PCHR's, is also unreliable.

Even by the PCHR figures, Israel has a 1:4 ratio of combatants to civilians, at least twice to ten times as good as US standards. And if the extensive research of some defenders of Israel are right, then its more like a 1:1 or better. Compare this with the twenty thousand civilians Ceylonese troops killed to get at a thousand Tamil Tigers, around the same time as Operation Cast Lead, and you get a sense of the disproportion here. Comparatively, even the figures Palestinians, NGOs and Goldstone promote, make Israel's air campaign the most careful in the history of urban and aerial warfare.

They died from disproportionate attacks on legitimate military targets and from attacks on hospitals and other civilian structures. They died from precision weapons like missiles from aerial drones as well as from heavy artillery. Repeatedly, the Israel Defense Forces failed to adequately distinguish between combatants and civilians, as the laws of war strictly require.

This paragraph summarizes the entire 575 fact-finding report, and constitutes a "cut and paste" job of the work of deeply politicized Human Rights NGOs. (Goldstone was on the board of HRW, which had already weighed in heavily against Israel before he began the Commission. In order to avoid the semblance of a conflict of interest, he resigned from HRW.) In reality, as the report demonstrates, Goldstone does not know how many "civilians" died; they do not have any idea whether the attacks on "legitimate military targets" were "disproportionate", whether "hospitals and other civilian structures" were used by Hamas, and whether "precision weapons like missiles from aerial drones" were used. (That last comment bears the particular signature of HRW's Marc Garlasco, who eagerly applies to Israel a standard he never came near meeting in his own military work.)

Israel is correct that identifying combatants in a heavily populated area is difficult, and that Hamas fighters at times mixed and mingled with civilians. But that reality did not lift Israel's obligation to take all feasible measures to minimize harm to civilians.

It's all here. How often, and how systematically did Hamas mingle with civilians, even compel civilians to serve as human shields? The Commission minimizes this issue repeatedly, and never considers the possibility that the few shreds of evidence they briefly take up are actually the tip of a massively intimidated iceberg of Palestinian grievance against Hamas that they dare not voice, and that the Commission, eager to judge Israel harshly, showed no interest in detecting.

Notes Dan Kosky in the Guardian:

Yet it is perhaps what is missing which is most telling. Reading the report, one would be unaware of Hamas's human-shield strategy, a significant contributory factor to the civilian deaths in Gaza. Goldstone prefers to ignore the obvious. Although he states: "Palestinian armed groups were present in urban areas during the military operations and launched rockets from urban areas", he avoids the logical conclusion of the massive use of human shields. Of course, admitting that Hamas endangered Gazan citizens would provide an alternative to Israeli guilt. Yet, rather than state the inconvenient truth, the report reinforces preconceived Israeli culpability.

This is the main reason of leaving Hamas' violations out of the mandate: the more you pay attention to their atrocious behavior — maximizing their own civilian casualties — the more Israel gets "off the moral hook."

Our fact-finding team found that in many cases Israel could have done much more to spare civilians without sacrificing its stated and legitimate military aims.

As the report shows, the term "fact finding" is entirely misleading — the report was composed of NGO claims and carefully chosen "eyewitness" testimony, which has been demonstrated to be inconsistent, at best, as clearly shown in the Abd Rabbo case.

It should have refrained from attacking clearly civilian buildings, and from actions that might have reslted in a military advantage but at the cost of too many civilian lives.

Here the astoundingly unjust measure of what "constitutes a sufficiently advantageous target to warrant civilian casualties," can best be seen by a comparison with just one incident. This NATO bombing in Serbia, was adjudicated by the International Court, for which Goldstone was a prosecutor. Hence, presumably, this ruling should offer some kind of precedent (or at least guideline) in this new and highly subjective field of law. NATO forces had bombed a TV station without warning (lest they endanger their pilots), killing 10-17 civilians, and interrupting transmission for a couple of hours. The court ruled:

Assuming the station was a legitimate objective, the civilian casualties were unfortunately high but do not appear to be clearly disproportionate.

Mark Garlasco makes similar remarks in defense of the US, whose record for minimizing civilian casualties, especially under his guidance in the early years of this decade, was far below Israel's:

"I don't think people really appreciate the gymnastics that the U.S. military goes through in order to make sure that they're not killing civilians," Garlasco points out.

Garlasco ordered over 50 strikes none of which hit their target. Under him US civilian to combatant casualtes in targeted killings were well below 1:10. His maximal acceptable casualty limit was 50. Israel's is 15, and commanders often call off strikes for even lower figures. As a result, for this decade Istael's casualty ratio is almost 2:1 (250 targets, 150 collateral casualties).

In these cases, Israel must investigate, and Hamas is obliged to do the same. They must examine what happened and appropriately punish any soldier or commander found to have violated the law.

In addition to the absurd and immoral equivalence between Israel and Hamas, the claim that Israel has a "dismal record" of investigating its own forces is Goldstone's self-justification. Comparison with other countries in similar situations disproves this claim.

Unfortunately, both Israel and Hamas have dismal records of investigating their own forces. I am unaware of any case where a Hamas fighter was punished for deliberately shooting a rocket into a civilian area in Israel — on the contrary, Hamas leaders repeatedly praise such acts. While Israel has begun investigations into alleged violations by its forces in the Gaza conflict, they are unlikely to be serious and objective.

Is this projection?

Also note: the language here is drawn almost verbatim from HRW's press release from Sept. 16

But both Israel and Hamas have dismal records of investigating and holding accountable members of their own forces for serious laws-of-war violations.

Goldstone conducted an independent investigation? Looks more like plagiarism from HRW, from which Goldstone apparently resigned only formally.

Absent credible local investigations, the international community has a role to play.

The term "international community" is self-serving as invoked by Goldstone — the UN human rights mechanism, including the UNHRC, as well as institutions like the ICC, are politicized, biased, and are responsible, along with the NGOs which they are closely linked, for the destruction of the values of human rights. Note that the Commission's mandate was established by the a body presided over by Cuba and containing such stalwart human rights defenders as:

Angola, Argentina, Azerbaijan, Bahrain, Bangladesh, Bolivia, Brazil, Burkina Faso, Chile, China, Cuba, Djibouti, Egypt, Gabon, Ghana, India, Indonesia, Jordan, Madagascar, Malaysia, Mauritius, Mexico, Nicaragua, Nigeria, Pakistan, Philippines, Qatar, Russian Federation, Saudi Arabia, Senegal, South Africa, Uruguay, Zambia

This is "human rights" through the Newspeak looking glass.

If justice for civilian victims cannot be obtained through local authorities, then foreign governments must act. There are various mechanisms through which to pursue international justice. The International Criminal Court and the exercise of universal jurisdiction by other countries against violators of the Geneva Conventions are among them. But they all share one overarching aim: to hold accountable those who violate the laws of war. They are built on the premise that abusive fighters and their commanders can face justice, even if their government or ruling authority is not willing to take that step.

Pursuing justice in this case is essential because no state or armed group should be above the law. Western governments in particular face a challenge because they have pushed for accountability in places like Darfur, but now must do the same with Israel, an ally and a democratic state.

Goldstone selects Israel as the scapegoat for "Western governments" to justify the ICC case on Sudan and respond to charges that this case is "racist" or anti-Arab.

Failing to pursue justice for serious violations during the fighting will have a deeply corrosive effect on international justice, and reveal an unacceptable hypocrisy. As a service to the hundreds of civilians who needlessly died and for the equal application of international justice, the perpetrators of serious violations must be held to account.

This is nearly breathtaking. The "Human Rights" NGO's and the UN have an obsession with Israel that literally sucks away attention to far more serious violations the world over. Notes Anne Bayefsky:

The Council has adopted more resolutions and decisions condemning Israel than all the other 191 UN member states combined.... The more time the Council spends demonizing Israel, the less likely it becomes that it will ever get around to condemning genocide in Sudan, female slavery in Saudi Arabia, or torture in Egypt."

If anything, this report, far from helping the cause of human rights, helps that of terrorists.

Hypocrisy is rampant in Goldstone's report, including this final remark. If the commission wanted to go after a Western "ally" just for the sake of even-handedness — itself a dubious way to proceed — then surely the USA, with, at least according to claims by respectable organizations of having killed hundreds of thousands of Iraqis deserves more scrutiny than tiny, beleaguered Israel, with — at most — its hundreds of casualties.

Richard Goldstone, the former chief prosecutor for war-crime tribunals on Rwanda and the former Yugoslavia, is the head of the United Nations Fact-Finding Mission on the Gaza Conflict.

Richard Goldstone, what happened to you? I'm reading your book. You have investigated really awful cases of mass slaughter. How could you lose your sense of proportions, your moral compass, and join this mad chorus of accusers? What "gift" has corrupted your sight?

Professor Landes teaches History at Boston University and is Director and co-founder of the Center for Millennial Studies. He blogs at the Augean Stables website and has been an active participant in exposing the Mohammad al-Dura hoax. He coined the term "Pallywood" to describe Palestinian productions, hoaxes, that are designed to create negative emotional responses to Israel. Contact him at

This article was published September 17, 2009 on the Augean Stables website: fisking-goldstone-whats-happened-to-this-man/


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