The United Nations’ “Report of the United Nations Fact-Finding Mission on the Gaza Conflict”1 was the most vicious indictment of the State of Israel bearing the seal of the United Nations since the UN General Assembly adopted its infamous “Zionism is Racism” resolution in 1975, which it subsequently revoked. A special session of the 47-member United Nations Human Rights Council called for establishing the Fact-Finding Mission that prepared the report through the adoption of Resolution S-9/1 on January 12, 2009. The special session was convened at the request of Cuba, Egypt, and Pakistan – not exactly beacons of human rights. Resolution S-9/1 was adopted with the notable support of Russia, China, Arab/Islamic, and third world countries, but without the support of a single democracy such as Canada or the member states of the European Union. The president of the Human Rights Council appointed a South African judge, Justice Richard Goldstone, to head the proposed fact-finding mission.
The background of this activity on the part of the UN Human Rights Council was Israel’s decision to launch a three-week military campaign, called Operation Cast Lead, on December 27, 2008, in order to reduce significantly, if not eliminate, the indiscriminate rocket and mortar fire from the Hamas-controlled Gaza Strip into Israel, that had been taking place for eight long years. In the period leading up to Operation Cast Lead, the rate of rocket fire on Israeli towns and villages had escalated dramatically: from 179 in 2005 to 946 in 2006 and then surging yet again in 2008 to 1,572 yearly rocket attacks. By December 2008, nearly one million Israeli civilians were forced to move into bomb shelters. No state could accept this kind of continuing situation. Israel certainly had a right of self-defense under the UN Charter.
The UN Human Rights Council did not appear to be interested in learning the truth of what happened in the Gaza Strip. It prejudged Israel with the language of the resolution that called for the creation of its Fact-Finding Mission. Thus Resolution S-9/1 condemns Israel’s military operation in Gaza, which it says “resulted in massive violation of the human rights of the Palestinian people.” Moreover, the resolution “demands” that Israel “stop the targeting of civilians and medical facilities.” The end of the resolution put forth the idea of dispatching an “independent fact-finding mission,” which, unlike a judicial proceeding, did not have to follow certain rigorous procedures, especially with respect to the evidence it gathered.
Indeed, Justice Goldstone himself told The Forward in an interview published on October 7, 2009, “If this had been a court of law there would have been nothing proven.2 And what new facts did the UN Human Rights Council expect to find if it had already determined in its resolution that Israel had engaged in “the targeting of civilians?” Moreover, the President of the Human Rights Council felt free to appoint two other panelists, Christine Chinkin and Hina Jilani, who, along with Goldstone, signed an open letter in March 2009, already condemning Israel for “gross violations of international humanitarian law,” before any investigation was launched.3 In any normal legal proceeding, they would have been disqualified. What was left to investigate if Israel was found guilty right from the start? The Goldstone Report, published in September 2009, ultimately relied upon political sources of information that helped tilt its findings in one direction.
The UN Human Rights Council already had a history of clear anti-Israel bias. Indeed, of the 11 special sessions it has convened since its establishment in 2006, five have dealt with Israel. Back in November 2006, former UN Secretary-General Kofi Annan strongly criticized how the new UN Human Rights Council functioned right after its creation, noting its anti-Israel emphasis: “Since the beginning of their work, they have focused almost entirely on Israel, and there are other crisis situations, like Sudan, where they have not been able to say a word.” The UN Human Rights Council had just replaced the UN Human Rights Commission, which despite its illustrious past under its founder, Eleanor Roosevelt, had since that time become a highly politicized body that unfairly singled out Israel repeatedly. The goal of those who pushed the idea of a fact-finding mission in 2009 was to use it to invent a narrative hostile to Israel, which could serve their larger goal of delegitimizing the Jewish state.
Strictly speaking, the Goldstone report was primarily directed against Israel. The Goldstone Report alleged that Israeli troops had committed “war crimes” by attacking purely civilian targets in the Gaza War. Running through the report in incident after incident is the charge that Israel intentionally attacked civilian targets. To make matters worse, the report failed to link Hamas to any violations of the laws of war, even though its continuing rocket attacks on Israeli civilians, as well as shielding rocket emplacements in civilian buildings, caused the Gaza War to begin with. There was only mention of anonymous “Palestinian armed groups.” It is probably for that reason that the Hamas second in command in Damascus, Musa Abu Marzuq, told the Saudi satellite channel Al-Arabiya that “the report acquits Hamas almost entirely.”4
In April 2011, Justice Goldstone wrote an op-ed in the Washington Post in which he retracted the central premise of his report that Israel had deliberately killed Palestinian civilians.5 This assertion by the UN report appeared spurious to begin with, given the fact that the IDF provided multiple warnings in Arabic to Palestinian civilians that were communicated by telephone, radio, and leaflets, before any attack on a civilian structure being used for military purposes.
When an official UN report is issued, and it makes such baseless charges against a UN member, the UN’s own credibility is put into question. For by rejecting his panel’s assertion that Israel intentionally killed Palestinian civilians, Goldstone was also rejecting one of the central pillars of the UN Human Rights Council’s resolution that commissioned his report to begin with. Thus, the Goldstone Report was not only damaging for Israel, but also for the UN. Those who launched this politicized investigation into Israeli actions in Gaza apparently did not care that the result would ultimately degrade the UN itself.
How had the Goldstone team produced such a result? What methodology was used? It is essential to understand that its members held a very specific outlook of the nature of this kind of armed conflict and this affected their conclusions. In part, this was the consequence of the terms of reference for the Fact-Finding Mission that appeared in the UN Human Rights Council resolution. But there were other factors affecting the judgment of the Goldstone panel. Colonel Desmond Travers of Ireland was the senior military figure on Goldstone’s panel and probably its most important member after Justice Goldstone. In a wide-ranging interview in Middle East Monitor from February 2, 2010,6 he utterly rejects that there is something called “asymmetric warfare” in which insurgent forces introduce civilians into the battlefield against modern armies in a way that changes the nature of warfare. This outlook directly affected what Travers and his colleagues looked for as they gathered evidence, and how they went about the interviews that they conducted with Palestinians in the Gaza Strip.
Take, for example, the case of Muhammad Abu Askar, a longtime Hamas member who served as the director-general of the ministry of religious endowments in the Gaza government. He appeared before the Goldstone Panel arguing that his house had been “unjustly” blown up by Israel, though he admitted that he was warned in advance by the IDF, who telephoned him directly informing him that his home was to be targeted and he had better vacate the area.7 The Goldstone Report concludes that Abu Askar’s home was of an “unmistakably civilian nature.” If that was the case then Israel would have violated one of the basic principles of international law by failing to discriminate between military and civilian objects and personnel during wartime.
Because the UN actually posted on its website video clips with the questioning of Abu Askar by the Goldstone Panel,8 it is possible to examine how panelists reached their conclusions. They asked him detailed questions about the warning he received. They also asked about the other homes in the area. But the most pivotal question that would help them determine whether Abu Askar’s house was purely civilian in nature or was a legitimate military target was never asked. No one bothered to confront him with the unpleasant but necessary question of whether Hamas munitions were being stored in his house.
In January 2010, the Israel Defense Force completed its own internal investigation of many of the incidents that appear in the Goldstone Report, including the case of Abu Askar, findings submitted by Israeli representatives to the UN secretary general.9 It turned out that the cellar and other parts of Abu Askar’s house served as a storage facility for large stockpiles of weapons and ammunition, including Iranian-supplied Grad rockets that had been used against Israeli cities such as Ashkelon, Ashdod, and Beersheba.
Indeed, the area around the house had been used as a launch site for attacking many Israeli towns and villages. If anyone in the UN’s research division had bothered to check the Arabic website of the Izz al-Din al-Qassam Brigades of Hamas, they would have discovered that Khaled Abu Askar, Muhammad’s son, worked for the military supply unit of Hamas and provided its operatives with rockets and military equipment.10 The failure of the Goldstone panel to look into these issues and to ask the most basic questions of Muhammad Abu Askar regarding his use of his own house to store rockets illustrates frankly how unprofessional this investigation really was.
The Abu Askar case is only one of many incidents that appear in the Goldstone Report, but it is representative of a pervasive problem that appears throughout. In trying to reconstruct the reality of what occurred in the Gaza War, the team members refused to consider that Hamas was exploiting civilian areas to gain military advantage. In late October 2009, Colonel Travers confidently told Harper’s: “We found no evidence that mosques were used to store munitions.” He then added his own ideological position on the matter that helped him make such a conclusive assertion: “Those charges reflect Western perceptions in some quarters that Islam is a violent religion.”11 It appeared that Travers’ conclusions were more the product of political correctness than empirical evidence that he worked hard to collect.
For, when Travers was asked how many mosques he actually inspected, he answered that he visited two. He did not even think that he needed to be more thorough for he dismissed the very possibility that anyone would hide munitions in a place of worship. In contrast, earlier this year, Colonel Tim Collins, a British veteran of the Iraq War, visited Gaza for BBC Newsnight and actually inspected the ruins of a mosque that Israel had destroyed because it had been a weapons depot. He found that there was evidence of secondary explosions caused by munitions stored in the mosque cellar.12 Travers clearly did not think it was necessary to make the same effort.
In other theaters of war in the Middle East, the militarization of mosques was very common. In 2004, US forces in Iraq found weapons and insurgents in no fewer than 60 mosques in the town of Fallujah.13 While the Goldstone Report itself stated that it was unable to make a determination whether mosques were used for military purposes by the Palestinians, it nonetheless concluded that mosques were a “civilian object” and that Israeli operations against them were a violation of international law.
More generally, the Goldstone team simply refused to accept the argument that Hamas had used the Palestinian population in the Gaza Strip, as well as its civilian infrastructure, as human shields – a hallmark of the asymmetric warfare used by insurgents. Speaking about Hamas, Travers in his 2010 interview states point blank, “We found no evidence for the human shield phenomenon.” As a result, from the Goldstone panel’s worldview, Hamas had no responsibility for exploiting the Palestinian population to shield its military operations. Travers, in particular, was operating with ideological filters that prevented him from seeing evidence that contradicted his worldview.
From Israel’s military experience, it was clear that Hamas used human shields effectively. A new report by Israel’s Intelligence and Information Center contains Israeli Air Force videos showing that on Dec. 27, 2008, the first day of the Gaza War, after the residents of a building serving as a munitions storehouse were warned of an imminent Israeli air operation, they did not evacuate but ran to the roof of the building. As a result, Israel aborted the airstrike it had planned.14 Other Israeli Air Force videos show Hamas operatives deliberately moving toward groups of children or using them in the fighting in order to escape any possible Israeli attack.15 Detained Hamas combatants confirmed the existence of this military tactic.16
However, the Goldstone panel did not want to consider the possibility that the Gaza War was part of an emerging battlefield in which private homes, mosques, and innocent civilians are intentionally exploited by terrorist groups that seek to fight the West. In February 2010, Afghan officials reported that the Taliban were increasingly using human shields against US and allied forces trying to make inroads in Helmand province. Similar tactics have been employed by the Taliban in Pakistan as well.17
With respect to the Gaza Strip, the Goldstone Report recommended that states open criminal investigations against those whom it alleges may have committed war crimes. It also seeks the intervention of the International Criminal Court.18 Already, British courts have sought the arrest of former Israeli officers on the basis of complaints issued by Islamic and radical left-wing groups in London.19 Might not US and other NATO officers be exposed to the same treatment on the basis of these precedents? Hamas created a legal arm, called al-Tawthiq (lit. documentation), which fed information to the Goldstone panel and today provides British lawyers with material to seek the arrest of Israelis in Britain.What would prevent the Taliban from finding lawyers to do the same?
What needs to be done is to recognize that Western armies will be dealing increasingly with situations in which terrorist groups embed their military capabilities in the heart of civilian areas. In these circumstances, Western armies have three choices if their countries come under attack: 1) to surrender to terrorism and not defend their citizens, 2) to act like the Russians in Chechnya and use indiscriminate firepower, or 3) to find a way to separate the civilians from the military capabilities they hope to destroy.
Israel clearly chose the last option, using an unprecedented system of warnings to the Palestinian population, by means of leaflets, breaking into Hamas radio broadcasts with special Arabic transmissions, and finally by telephone calls and text messages to the residents of a targeted area to evacuate and avoid danger.
The Human Rights Council and its Goldstone Report never suggested how Israel was supposed to respond to eight years of rocket fire. Despite the multiple warnings that Israel issued to the Palestinian population, the report has the audacity to charge that Israeli soldiers “deliberately” killed Palestinian civilians, basing this accusation on biased interviews with Gaza residents whom it admitted were in “fear of reprisals.” The Goldstone Report does not ask itself how it could charge that Israel had a policy of deliberately killing civilians, if Israel actually took extraordinary measures to warn the very same civilian population of impending attacks. But rather than being discredited, unfortunately the Goldstone report picked up steam. The UN General Assembly voted on the report on November 5, 2009.20
It was noteworthy that countries with forces deployed in insurgency wars, such as Afghanistan, either opposed or abstained. Yet in a second vote in late February 2010, Britain and France changed their vote from abstention to support for the Goldstone Report. In mid-March 2010, the European Parliament voted to endorse the report as well.21
No one is suggesting that human rights be sacrificed on the altar of national security. The laws of war need to be carefully protected along with the lives of the innocent. The problem with the Goldstone Report is not the result of the need to revise those laws: They need to be applied correctly and not in a way that ignores what insurgent forces are doing on the ground. If a public building filled with munitions needs to be attacked at night when civilians are not present, it is not for reasons of revenge but rather from military necessity. The Goldstone panel did not want to consider that possibility because of its own prejudices and its political objectives.
The politicization of the UN Human Rights Council through the Goldstone Report meant that one of the greatest international bodies established after the Second World War had been corrupted and its standing seriously compromised. For a short time, the Palestinian Authority (PA) desisted from pressing for the advancement of the report in relevant UN bodies, largely because of US pressure. But soon thereafter, the PA joined Hamas and the many organizations in Europe that were urging punitive measures against Israel and sought the UN Security Council’s adoption of the report.22 What was important for pro-Palestinian activists in Geneva who were at the heart of the effort to produce the Goldstone Report was not to understand what happened in the Gaza Strip in 2009, but to successfully wage political warfare against Israel, even if that meant adopting any means to achieve that end.
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1 United Nations Human Rights Council, “Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict,” A/HRC/12/48,25 September 2009, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/158/66/PDF/G0915866. pdf?OpenElement
2 “Goldstone: If This Was a Court of Law, There Would Have Been Nothing Proven,” The Forward, Oct. 7, 2009, http://forward.com/articles/116269/goldstone-if-this-was-a-court-of-law-there-wou/
3 “Experts Seek Gaza Inquiry,” Amnesty International, Mar 16, 2009, http://www.amnesty.org.nz/news/experts-seek-gaza-inquiry and Christine Chinkin, Richard Falk et al,. “Israel’s Bombardment of Gaza is Not Self-Defense – It’s a War Crime,” Sunday Times, Jan. 11 2009, http://www.timesonline.co.uk/tol/comment/letters/article5488380.ece; http://www.scribd.com/doc/22193692/UN-Watch-Request-toDisqualify-Prof-Christine-Chinkin-From-U-N-Gaza-Inquiry
4 “Palestinians Approve of UN Resolutions,” Jerusalem Post, October 16, 2009, http://www.jpost.com/servlet/Satellite?pagename=JPost/JPArticle/ShowFull&cid=1255694826067.
5 Goldstone, “Reconsidering the Goldstone Report on Israel and war crimes,” Washington Post, April 2, 2011, http://www.washingtonpost.com/opinions/reconsidering-the-goldstone-report-on-israel-and-warcrimes/2011/04/01/AFg111JC_story.html.
6 Hanan Chehata, “Exclusive MEMO interview with Colonel Desmond Travers – Co-author of the UN’s Goldstone Report,”Middle East Monitor, London, February 2010, http://www.middleeastmonitor.com/downloads/interviews/interview-with-colonel-desmond-travers.pdf
7 United Nations Human Rights Council, “Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict,” (see 1, above),pp. 125, 150, 155, 211.
8 UN Webcast: UN Human Rights Council Archived Video, “UN Fact Finding Mission on the Gaza Conflict – Public Hearings – June 28-29, 2009, Gaza City,” Mr. Mohammad Fouad Abu Askar” target=”_blank”>http://www.un.org/webcast/unhrc/archive.asp?go=090628 Mr. Mohammad Fouad Abu Askar, http://webcast.un.org/ramgen/ondemand/conferences/unhrc/gaza/gaza02
9 Israel Defense Forces, Conclusions of Investigations into Central Claims and Issues of Operation Cast Lead,http://www.idfblog.com/2009/04/22/idf-announcement-findings-from-cast-lead-investigations/; See also: Israel Defense Forces, Responses to the Goldstone Report, Israel Defense Forces, Responses to the Goldstone Report, http://www.idfblog.com/reports/responsesto-goldstone-report/
10 Dore Gold and Jonathan Dahoah Halevi, “The UN Gaza Report: A Substantive Critique,” Jerusalem Center for Public Affairs and Legacy Heritage Fund, 2009, p. 13.
11 Ken Silverstein, “Six Questions for Desmond Travers on the Goldstone Report,” Harpers, Oct. 29, 2009. http://harpers.org/blog/2009/10/six-questions-for-desmond-travers-on-the-goldstone-report/
12 “Celebrated Iraq war veteran’s view of the Gaza conflict,” BBC Newsnight, http://news.bbc.co.uk/2/hi/8470100.stm
13 “Marines Find Weapons Throughout Fallujah,” ABC News, November 24, 2004, http://abcnews.go.com/WNT/story?id=280897.
14 Intelligence and Terrorism Information Center, Preventing the harming of uninvolved persons – Weapons and ammunition are located in the building – The IDF notified the tenants to evacuate the building – In order to prevent attack on the building, many civilians go up on the roof, December 27,2008, available at http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/video/v12b.wmv (showing civilians arriving on roof of building containing Hamas weapons cache to protect it from announced IDF strike).
15 “Hamas Exploitation of Civilians as Human Shields,” The Meir Amit Intelligence and Terrorism Information Center, Jan, 2009, http://www.terrorism-info.org.il/en/article/1835; See also http://www.terrorism-info.org.il/data/pdf/PDF_08_204_2.pdf
16 Israel Security Agency, Selected Examples of Interrogations Following Operation Cast Lead, available at http://www.shabak.gov.il/English/EnTerrorData/Archive/Operation/Pages/cast-lead-Interrogations.aspx. See also videos illustrating this practice (in Hebrew) on the Intelligence and Terrorism Information Center website, e.g., Hamas modus operandi – Terrorist shooting from a roof of a house and using children as a human shield, January 6, 2009, http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/video/v9.wmv (depicting terrorist shooting from roof of house, calling out to civilians to help him get out of the house, and leaving the house protected by children as shields); Intelligence and Terrorism Information Center, Hamas modus operandi – Hamas terrorist searching for shelter after shooting rockets towards Israel, available at http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/video/v10.wmv (depicting terrorist pushing himself into a group of children after firing rocket towards Israel);Intelligence and Terrorism Information Center, Preventing the harming of uninvolved persons – Hamas terrorists integrate with civilians in order to avoid being hit and thus endangering uninvolved civilians, January 12, 2009, available at http://www.terrorism-info.org.il/malam_multimedia/Hebrew/heb_n/video/v11.wmv (depicting targeting of senior terrorist by IDF forces and cancellation of attack after children and woman holding a baby arrive).
17 “Taliban using human shields, says Afghan army general,: The Guardian, Feb. 17, 2010, http://www.theguardian.com/world/2010/feb/17/taliban-human-shields; “Probe: Taliban used civilians as ‘human shields’,” NBC News, May 9, 2009, http://www.nbcnews.com/id/30657714/ns/world_news-south_and_central_asia/#.UrrypNIW2LI; “Afghanistan Taliban ‘Using Human Shields’ – General,” BBC News Feb. 17, 2009, http://news.bbc.co.uk/2/hi/8519507.stm.
18 United Nations Human Rights Council, “Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict,” (see 1, above),pp. 394, 399, 424.
19 “Israeli Military Delegation Call Off Official Visit to Britain Over Fears They Could Be Arrested for War Crimes,” Daily Mail Online, Jan. 5, 2010, http://www.dailymail.co.uk/news/article-1240797/Israeli-military-delegation-official-visit-Britain-fears-arrested-war-crimes.html;UN, “ICC Must Order War Crimes Trials for Israeli Leaders,” Al Arabiya News, Feb. 5, 2009, http://www.alarabiya.net/views/2009/02/05/65815.html;”Israeli; “Fear of arrest still prevents Israeli officials from visiting Britain,” Haaretz May 30, 2012, http://www.haaretz.com/news/diplomacy-defense/fear-of-arrest-still-preventsisraeli-officials-from-visiting-britain.premium-1.433452.
20 “By Recorded Vote, General Assembly Urges Israel, Palestinians to Conduct Credible, Independent Investigations into Alleged War Crimes in Gaza,” Sixty-Fourth General Assembly Plenary, GA/10883,http://www.un.org/News/Press/docs/2009/ga10883.doc.htm
21 “Despite Heavy Lobbying, EU Parliament Endorses Goldstone Report,” EU Observer, March 10, 2010, http://euobserver.com/foreign/29650.
22 “Furor Sends Palestinians Into Shift on U.N. Report,” New York Times, October 8, 2009, http://www.nytimes.com/2009/10/08/world/middleeast/08mideast.html?_r=0