Judge Goldstone's letter to the sponsors of the US Congressional
resolution condemning his report --
-----------------------------------
The Honorable Howard Berman
Chairman, House Committee on Foreign Affairs
The Honorable Ileana Ros-Lehtinen
Ranking Member, House Committee on Foreign Affairs
October 29, 2009
Dear Chairman Berman and Ranking Member Ros-Lehtinen,
It has come to my attention that a resolution has been introduced in
the Unites States House of Representatives regarding the United Nations
Fact Finding Mission on the Gaza Conflict, which I led earlier this year.
I fully respect the right of the US Congress to examine and judge my
mission and the resulting report, as well as to make its recommendations
to the US Executive branch of government. However, I have strong
reservations about the text of the resolution in question – text that
includes serious factual inaccuracies and instances where information
and statements are taken grossly out of context.
I undertook this fact-finding mission in good faith, just as I undertook
my responsibilities vis à vis the South African Standing Commission of
Inquiry Regarding Public Violence and Intimidation, the International
War Crimes Tribunal on the former Yugoslavia, the InternationalCriminal
Tribunal for Rwanda, the International Panel of the Commission of Enquiry
into the Activities of Nazism in Argentina, the Independent International
Commission on Kosovo, and the Volker Committee investigation into the
UN's Iraq oil-for-food program in 2004/5.
I hope that you, in similar good faith, will take the time to consider
my comments about the resolution and, as a result of that consideration,
make the necessary corrections.
Whereas clause #1: "Whereas, on January 12, 2009, the United Nations
Human Rights Council passed Resolution A/HRC/S-9/L.1, which authorized
a 'fact-finding mission' regarding Israel's conduct of Operation Cast
Lead against violent militants in the Gaza Strip between December 27,
2008, and January 18, 2009;"
This whereas clause ignores the fact that I and others refused this
original mandate, precisely because it only called for an investigation
into violations committed by Israel. The mandate given to and accepted
by me and under which we worked and reported reads as follows:
". . .to investigate all violations of international human rights law
and international humanitarian law that might have been committed at
any time in the context of the military operations that were conducted
in Gaza during the period from 27 December 2008 and 18 January 2009,
whether before, during or after".
Whereas clause #2: "Whereas the resolution pre-judged the outcome of
its investigation, by one-sidedly mandating the 'fact-finding mission'
to 'investigate all violations of international human rights law and
International Humanitarian Law by . . . Israel, against the
Palestinian people . . . particularly in the occupied Gaza Strip, due
to the current aggression'"
This whereas clause ignores the fact that the expanded mandate that I
demanded and received clearly included rocket and mortar attacks on
Israel and as the report makes clear was so interpreted and
implemented. It was the report carried out under this broadened
mandate – not the original, rejected mandate – that was adopted by
the Human Rights Council and that included the serious findings made
against Hamas and other militant Palestinian groups.
Whereas clause #3: "Whereas the mandate of the 'fact-finding mission'
makes no mention of the relentless rocket and mortar attacks, which
numbered in the thousands and spanned a period of eight years, by
Hamas and other violent militant groups in Gaza against civilian
targets in Israel, that necessitated Israel's defensive measures;"
This whereas clause is factually incorrect. As noted above, the
expanded mandate clearly included the rocket and mortar attacks.
Moreover, Chapter XXIV of the Report considers in detail the
relentless rocket attacks from Gaza on Israel and the terror they
caused to the people living within their range. The resulting finding
made in the report is that these attacks constituted serious war
crimes and possibly crimes against humanity.
Whereas clause #4: "Whereas the 'fact-finding mission' included a
member who, before joining the mission, had already declared Israel
guilty of committing atrocities in Operation Cast Lead by signing a
public letter on January 11, 2009, published in the Sunday Times, that
called Israel's actions 'war crimes';"
This whereas clause is misleading. It overlooks, or neglects to
mention, that the member concerned, Professor Christine Chinkin of the
London School of Economics, in the same letter, together with other
leading international lawyers, also condemned as war crimes the Hamas
rockets fired into Israel.
Whereas clause #5: "Whereas the mission's flawed and biased mandate
gave serious concern to many United Nations Human Rights Council
Member States which refused to support it, including Bosnia and
Herzegovina, Cameroon, Canada, France, Germany, Italy, Japan, the
Netherlands, the Republic of Korea, Slovakia, Slovenia, Switzerland,
Ukraine, and the United Kingdom of Great Britain and Northern
Ireland;"
This whereas clause is factually incorrect. The mandate that was given
to the Mission was certainly not opposed by all or even a majority of
the States to which reference is made. I am happy to provide further
details if necessary.
Whereas clause #6: "Whereas the mission's flawed and biased mandate
troubled many distinguished individuals who refused invitations to
head the mission;"
This whereas clause is factually incorrect. The initial mandate that
was rejected by others who were invited to head the mission was the
same one that I rejected. The mandate I accepted was expanded by the
President of the Human Rights Council as a result of conditions I
made.
Whereas clause #8: "Whereas the report repeatedly made sweeping and
unsubstantiated determinations that the Israeli military had
deliberately attacked civilians during Operation Cast Lead;"
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.
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.';"
This whereas clause is misleading. 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 of,
and not against, the interests of Israel.
Whereas clause #10: "Whereas in the October 16th edition of the Jewish
Daily Forward, Richard Goldstone, the head of the 'United Nations Fact
Finding Mission on the Gaza Conflict', is quoted as saying, with
respect to the mission's evidence-collection methods, 'If this was a
court of law, there would have been nothing proven.'"
The remark as quoted is both inaccurate and taken completely out of
context. What I had explained to The Forward was that the Report
itself would not constitute evidence admissible in court of law. It is
my view, as jurist, that investigators would have to investigate which
allegations they considered relevant. That, too, was why we
recommended domestic investigations into the allegations.
Whereas clause #11: "Whereas the report, in effect, denied the State
of Israel the right to self- defense, and never noted the fact that
Israel had the right to defend its citizens from the repeated violent
attacks committed against civilian targets in southern Israel by Hamas
and other Foreign Terrorist Organizations operating from Gaza;"
It is factually incorrect to state that the Report denied Israel the
right of self-defense. The report examined how that right was
implemented by the standards of international law. What is commonly
called ius ad bellum, the right to use military force was not
considered to fall within our mandate. Israel's right to use military
force was not questioned.
Whereas clause #12: "Whereas the report largely ignored the
culpability of the Government of Iran and the Government of Syria,
both of whom sponsor Hamas and other Foreign Terrorist Organizations;"
This whereas clause is misleading. Nowhere that I know of has it ever
been suggested that the Mission should have investigated the
provenance of the rockets. Such an investigation was never on the
agenda, and in any event, we would not have had the facilities or
capability of investigating these allegations. If the Government of
Israel has requested us to investigate that issue I have no doubt that
we have done our best to do so.
Whereas clause #14: "Whereas, notwithstanding a great body of evidence
that Hamas and other violent Islamist groups committed war crimes by
using civilians and civilian institutions, such as mosques, schools,
and hospitals, as shields, the report repeatedly downplayed or cast
doubt upon that claim;"
This is a sweeping and unfair characterization of the Report. I hope
that the Report will be read by those tasked with considering the
resolution. I note that the House resolution fails to mention that
notwithstanding my repeated personal pleas to the Government of
Israel, Israel refused all cooperation with the Mission. Among other
things, I requested the views of Israel with regard to the
implementation of the mandate and details of any issues that the
Government of Israel might wish us to investigate.
This refusal meant that Israel did not offer any information or
evidence it may have collected regarding actions by Hamas or other
Palestinian groups in Gaza. Any omission of such information and
evidence in the report is regrettable, but is the result of Israel's
decision not to cooperate with the Fact-Finding mission, not a
decision by the mission to downplay or cast doubt on such information
and evidence.
Whereas clause #15: "Whereas in one notable instance, the report
stated that it did not consider the admission of a Hamas official that
Hamas often 'created a human shield of women, children, the elderly
and the mujahideen, against [the Israeli military]' specifically to
'constitute evidence that Hamas forced Palestinian civilians to shield
military objectives against attack.';"
This whereas clause is misleading, since the quotation is taken out of
context. The quotation is part of a section of the report dealing with
the very narrow allegation that Hamas compelled civilians, against
their will, to act as human shields. The statement by the Hamas
official is repugnant and demonstrates an apparent disregard for the
safety of civilians, but it is not evidence that Hamas forced
civilians to remain in their homes in order to act as human shields.
Indeed, while the Government of Israel has alleged publicly that Hamas
used Palestinian civilians as human shields, it has not identified any
cases where it claims that civilians were doing so under threat of
force by Hamas or any other party.
Whereas clause #16: "Whereas Hamas was able to significantly shape the
findings of the investigation mission's report by selecting and
prescreening some of the witnesses and intimidating others, as the
report acknowledges when it notes that 'those interviewed in Gaza
appeared reluctant to speak about the presence of or conduct of
hostilities by the Palestinian armed groups . . . from a fear of
reprisals';"
The allegation that Hamas was able to shape the findings of my report
or that it pre-screened the witnesses is devoid of truth. I challenge
anyone to produce evidence in support of it.
Sincerely,
Justice Richard J. Goldstone
resolution condemning his report --
-----------------------------------
The Honorable Howard Berman
Chairman, House Committee on Foreign Affairs
The Honorable Ileana Ros-Lehtinen
Ranking Member, House Committee on Foreign Affairs
October 29, 2009
Dear Chairman Berman and Ranking Member Ros-Lehtinen,
It has come to my attention that a resolution has been introduced in
the Unites States House of Representatives regarding the United Nations
Fact Finding Mission on the Gaza Conflict, which I led earlier this year.
I fully respect the right of the US Congress to examine and judge my
mission and the resulting report, as well as to make its recommendations
to the US Executive branch of government. However, I have strong
reservations about the text of the resolution in question – text that
includes serious factual inaccuracies and instances where information
and statements are taken grossly out of context.
I undertook this fact-finding mission in good faith, just as I undertook
my responsibilities vis à vis the South African Standing Commission of
Inquiry Regarding Public Violence and Intimidation, the International
War Crimes Tribunal on the former Yugoslavia, the InternationalCriminal
Tribunal for Rwanda, the International Panel of the Commission of Enquiry
into the Activities of Nazism in Argentina, the Independent International
Commission on Kosovo, and the Volker Committee investigation into the
UN's Iraq oil-for-food program in 2004/5.
I hope that you, in similar good faith, will take the time to consider
my comments about the resolution and, as a result of that consideration,
make the necessary corrections.
Whereas clause #1: "Whereas, on January 12, 2009, the United Nations
Human Rights Council passed Resolution A/HRC/S-9/L.1, which authorized
a 'fact-finding mission' regarding Israel's conduct of Operation Cast
Lead against violent militants in the Gaza Strip between December 27,
2008, and January 18, 2009;"
This whereas clause ignores the fact that I and others refused this
original mandate, precisely because it only called for an investigation
into violations committed by Israel. The mandate given to and accepted
by me and under which we worked and reported reads as follows:
". . .to investigate all violations of international human rights law
and international humanitarian law that might have been committed at
any time in the context of the military operations that were conducted
in Gaza during the period from 27 December 2008 and 18 January 2009,
whether before, during or after".
Whereas clause #2: "Whereas the resolution pre-judged the outcome of
its investigation, by one-sidedly mandating the 'fact-finding mission'
to 'investigate all violations of international human rights law and
International Humanitarian Law by . . . Israel, against the
Palestinian people . . . particularly in the occupied Gaza Strip, due
to the current aggression'"
This whereas clause ignores the fact that the expanded mandate that I
demanded and received clearly included rocket and mortar attacks on
Israel and as the report makes clear was so interpreted and
implemented. It was the report carried out under this broadened
mandate – not the original, rejected mandate – that was adopted by
the Human Rights Council and that included the serious findings made
against Hamas and other militant Palestinian groups.
Whereas clause #3: "Whereas the mandate of the 'fact-finding mission'
makes no mention of the relentless rocket and mortar attacks, which
numbered in the thousands and spanned a period of eight years, by
Hamas and other violent militant groups in Gaza against civilian
targets in Israel, that necessitated Israel's defensive measures;"
This whereas clause is factually incorrect. As noted above, the
expanded mandate clearly included the rocket and mortar attacks.
Moreover, Chapter XXIV of the Report considers in detail the
relentless rocket attacks from Gaza on Israel and the terror they
caused to the people living within their range. The resulting finding
made in the report is that these attacks constituted serious war
crimes and possibly crimes against humanity.
Whereas clause #4: "Whereas the 'fact-finding mission' included a
member who, before joining the mission, had already declared Israel
guilty of committing atrocities in Operation Cast Lead by signing a
public letter on January 11, 2009, published in the Sunday Times, that
called Israel's actions 'war crimes';"
This whereas clause is misleading. It overlooks, or neglects to
mention, that the member concerned, Professor Christine Chinkin of the
London School of Economics, in the same letter, together with other
leading international lawyers, also condemned as war crimes the Hamas
rockets fired into Israel.
Whereas clause #5: "Whereas the mission's flawed and biased mandate
gave serious concern to many United Nations Human Rights Council
Member States which refused to support it, including Bosnia and
Herzegovina, Cameroon, Canada, France, Germany, Italy, Japan, the
Netherlands, the Republic of Korea, Slovakia, Slovenia, Switzerland,
Ukraine, and the United Kingdom of Great Britain and Northern
Ireland;"
This whereas clause is factually incorrect. The mandate that was given
to the Mission was certainly not opposed by all or even a majority of
the States to which reference is made. I am happy to provide further
details if necessary.
Whereas clause #6: "Whereas the mission's flawed and biased mandate
troubled many distinguished individuals who refused invitations to
head the mission;"
This whereas clause is factually incorrect. The initial mandate that
was rejected by others who were invited to head the mission was the
same one that I rejected. The mandate I accepted was expanded by the
President of the Human Rights Council as a result of conditions I
made.
Whereas clause #8: "Whereas the report repeatedly made sweeping and
unsubstantiated determinations that the Israeli military had
deliberately attacked civilians during Operation Cast Lead;"
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.
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.';"
This whereas clause is misleading. 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 of,
and not against, the interests of Israel.
Whereas clause #10: "Whereas in the October 16th edition of the Jewish
Daily Forward, Richard Goldstone, the head of the 'United Nations Fact
Finding Mission on the Gaza Conflict', is quoted as saying, with
respect to the mission's evidence-collection methods, 'If this was a
court of law, there would have been nothing proven.'"
The remark as quoted is both inaccurate and taken completely out of
context. What I had explained to The Forward was that the Report
itself would not constitute evidence admissible in court of law. It is
my view, as jurist, that investigators would have to investigate which
allegations they considered relevant. That, too, was why we
recommended domestic investigations into the allegations.
Whereas clause #11: "Whereas the report, in effect, denied the State
of Israel the right to self- defense, and never noted the fact that
Israel had the right to defend its citizens from the repeated violent
attacks committed against civilian targets in southern Israel by Hamas
and other Foreign Terrorist Organizations operating from Gaza;"
It is factually incorrect to state that the Report denied Israel the
right of self-defense. The report examined how that right was
implemented by the standards of international law. What is commonly
called ius ad bellum, the right to use military force was not
considered to fall within our mandate. Israel's right to use military
force was not questioned.
Whereas clause #12: "Whereas the report largely ignored the
culpability of the Government of Iran and the Government of Syria,
both of whom sponsor Hamas and other Foreign Terrorist Organizations;"
This whereas clause is misleading. Nowhere that I know of has it ever
been suggested that the Mission should have investigated the
provenance of the rockets. Such an investigation was never on the
agenda, and in any event, we would not have had the facilities or
capability of investigating these allegations. If the Government of
Israel has requested us to investigate that issue I have no doubt that
we have done our best to do so.
Whereas clause #14: "Whereas, notwithstanding a great body of evidence
that Hamas and other violent Islamist groups committed war crimes by
using civilians and civilian institutions, such as mosques, schools,
and hospitals, as shields, the report repeatedly downplayed or cast
doubt upon that claim;"
This is a sweeping and unfair characterization of the Report. I hope
that the Report will be read by those tasked with considering the
resolution. I note that the House resolution fails to mention that
notwithstanding my repeated personal pleas to the Government of
Israel, Israel refused all cooperation with the Mission. Among other
things, I requested the views of Israel with regard to the
implementation of the mandate and details of any issues that the
Government of Israel might wish us to investigate.
This refusal meant that Israel did not offer any information or
evidence it may have collected regarding actions by Hamas or other
Palestinian groups in Gaza. Any omission of such information and
evidence in the report is regrettable, but is the result of Israel's
decision not to cooperate with the Fact-Finding mission, not a
decision by the mission to downplay or cast doubt on such information
and evidence.
Whereas clause #15: "Whereas in one notable instance, the report
stated that it did not consider the admission of a Hamas official that
Hamas often 'created a human shield of women, children, the elderly
and the mujahideen, against [the Israeli military]' specifically to
'constitute evidence that Hamas forced Palestinian civilians to shield
military objectives against attack.';"
This whereas clause is misleading, since the quotation is taken out of
context. The quotation is part of a section of the report dealing with
the very narrow allegation that Hamas compelled civilians, against
their will, to act as human shields. The statement by the Hamas
official is repugnant and demonstrates an apparent disregard for the
safety of civilians, but it is not evidence that Hamas forced
civilians to remain in their homes in order to act as human shields.
Indeed, while the Government of Israel has alleged publicly that Hamas
used Palestinian civilians as human shields, it has not identified any
cases where it claims that civilians were doing so under threat of
force by Hamas or any other party.
Whereas clause #16: "Whereas Hamas was able to significantly shape the
findings of the investigation mission's report by selecting and
prescreening some of the witnesses and intimidating others, as the
report acknowledges when it notes that 'those interviewed in Gaza
appeared reluctant to speak about the presence of or conduct of
hostilities by the Palestinian armed groups . . . from a fear of
reprisals';"
The allegation that Hamas was able to shape the findings of my report
or that it pre-screened the witnesses is devoid of truth. I challenge
anyone to produce evidence in support of it.
Sincerely,
Justice Richard J. Goldstone
Geen opmerkingen:
Een reactie posten