An open reply to Judge Goldstone re the Panel discussion "Civilians in War Zones"
- An open reply to Judge Goldstone re the Panel discussionFrom Maurice Ostroff January 28, 2011
"Civilians in War Zones" at Stanford University on January 20, 2011
Dear Judge Goldstone,
Thank you very much for the copy of your "Notes for panel on civilians in war zones" with permission to use them as I wish. Thank you too for raising during the panel discussion, the question I had posed in my open letter of January 16 about the casualty figures announced by Hamas interior minister Fathi Hammad which approximate those quoted by the IDF. http://www.2nd-thoughts.org/id313.html
I particularly appreciate your considered comments that place a new perspective on aspects of your Report which should be taken into account by those who have rushed to use it to demonize Israel. Let me start with your very last paragraph in which you state that punishing war crimes should be done, "on the basis of the equality of all nations before the law", a fundamental aspect of any legal system which is consistently breached in the case of Israel. The "disproportionate" focus on, and magnification of, every little wart in Israel while ignoring, and in some cases even encouraging, real gross violations of human rights elsewhere is a stain on the UN.
It is indeed admirable that in paragraph 52 you displayed the courage to publicly state that "to their shame" a majority of members of the Human Rights Council refused to establish a mission to make recommendations to ensure accountability for crimes believed to have been committed in Sri Lanka and I concur fully with your observation in paragraph 53, that this indefensible action by the Human Rights Council "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".
Paragraphs 50 to 54 inclusive of your notes should be compulsory reading for all who make judgmental comments about human rights.
In paragraphs 3 and 4 you acknowledge 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. Having studied the Mission's Report in detail and having noted the abundant material that had been submitted to it that the Mission ignored, including a professional memorandum by five Australian lawyers and several video memoranda, I believe that the members of the Mission did act as unfair armchair critics. I raised this very issue in my memoranda while the Mission was sitting and with great respect I believe that sufficient account was not taken of this vitally important aspect. In particular, I believe it inexcusable that the Mission rejected my written suggestion to call for evidence from Colonel Kemp who is among the most qualified soldiers able to evaluate the circumstances in which decisions are made in the type of warfare conducted in Gaza.
It is impossible for anyone to know what goes on in the mind of another person and the Mission obviously erred in assuming that the intent of some soldiers and commanders was to deliberately attack 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 Predator drones as a year ago. They carried out more than 200 missile and bomb strikes over the last year, and the civilian casualties they caused have stoked anger and anti-Americanism. Since the start of 2009, the drones have fired at least 184 missiles and 66 laser-guided bombs at militant suspects in Afghanistan.
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 your Report that have contributed largely to vilification of Israel in international media.
Clause 730 of your Report stated that "a first projectile struck next to the five men soon after they had left the house (at a time at which there was no combat in the area) and two or three projectiles struck the house after the survivors had retreated into the house" and I am pleased that this has been corrected in your paragraph 35 in which you refer to Israeli drone photographs of a group of men carrying firewood towards a house (not leaving the house as reported) that was incorrectly interpreted to be rocket launchers leading to the order to bomb the men and the building. What would a reasonable person have done in the heat of battle on sighting a group of what appears to be rocket launchers about to be launched?
In paragraph 21 you said that the Mission did not investigate criminal conduct on the part of any individual whether in Israel, Gaza or the West Bank and it is hard to reconcile this statement with many of the judgmental conclusions arrived at in the Report like the statement in paragraph 32 that certain evidence and reports by NGO's "led the Fact Finding Mission to conclude that, as a probability, the attack on the al-Samouni family constituted a deliberate attack on civilians". It is however, gratifying that in paragraph 42, you concede that if the latest version to which you have referred with regard to the al-Samouni house is correct, it would not, you suggest, excuse the actions of the IDF in attacking the house it might well, however, justify a finding that the attack was not a deliberate one against civilians
As mentioned in my open letter of January 16, Hamas Interior Minister, Fathi Hammad's published casualty figures indicate that IDF reports are more reliable than those provided by the NGO's. There is therefore good reason to accept the aforementioned IDF report on the al-Samouni tragedy.
There is a glaring lacuna in all the casualty figures quoted, namely. the number ascribed to having been caused by Israel which may have been inflicted by Palestinians. On Feb 2, 2009 Ma'an, the Palestinian news Agency reported that a senior leader within Fatah slammed what he called "Hamas crimes against patriotic people" in the Gaza Strip after a string of reports of human rights violations committed by Palestinians against Palestinians in the Gaza Strip during the Israeli war on Gaza. Ziyad Abu Ein spoke out against the rights violations and accused Hamas of "terrorism," and said they were preventing media outlets in Gaza report on their crimes. He published a list of 181 names of those in Gaza who were killed, maimed, beaten or tortured during the Israeli war on Gaza. It is interesting to note that the news item refers to 181 claimed killed, shot or maimed by de facto government forces in Gaza. De facto combatants is possibly a good description of the Gaza police force whose casualties are treated as non-combatants by B'Tselem as described in your Report.
In paragraph 38, you refer to the incident in which a nine-year old boy was forced at gunpoint to open bags thought to contain explosives and you question the appropriateness of the suspended jail sentences handed down by the Israeli court to two soldiers who were involved. Since you are not in possession of the trial proceedings, please allow me to ask on what basis you question the sentence and whether reasonable persons would have acted differently than these two soldiers, bearing in mind that according to the evidence, there were several adults present at the time, none of whom offered to replace the boy in opening the bag. Is this situation very different than when we are required to open our bags on passing through security checks? Surely if the bag had been booby-trapped at least one of the adults present would have replaced the boy.
It is indeed gratifying that you acknowledged the extensive Israeli investigations and judicial actions against offenders and made reference to the complete absence of any investigations by Hamas. So too, is your statement that to compound this failure, hundreds of rockets have continued to be fired at civilian targets in Israel from Gaza since the publication of the Gaza Report.
Allow me to point out that your statement in paragraph 41 "The mood in Israel has become increasingly antagonistic to human rights organizations" is only partially correct. The fact is that 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 as typified by the slanted casualty statistics provided by B'Tselem that misled your Mission and the consistent violation of the principle that you so eloquently defined in your last paragraph that I quote again viz " .. the equality of all nations before the law"