The Case Against the Goldstone Report: A Study in Evidentiary Bias
The Goldstone Report, when read in full and in context, is much worse than most of its detractors (and supporters) believe. It is far more accusatory of Israel, far less balanced in its criticism of Hamas, far less honest in its evaluation of the evidence, far less responsible in drawing its conclusion, far more biased against Israeli than Palestinian witnesses, and far more willing to draw adverse inferences of intentionality from Israeli conduct and statements than from comparable Palestinian conduct and statements. It is worse than any report previously prepared by any other United Nations agency or human rights group. As Major General Avichai Mandelblit, the advocate general of the Israeli Defense Forces, aptly put it:
“I have read every report, from Human Rights Watch, Amnesty International, the Arab League. We ourselves set up investigations into 140 complaints. It is when you read these other reports and complaints that you realize how truly vicious the Goldstone report is. He made it look like we set out to go after the economic infrastructure and civilians, that it was intentional: It’s a vicious lie.”
The Goldstone report is, to any fair reader, a shoddy piece of work, unworthy of serious consideration by people of good will, committed to the truth.
Most of the criticism and praise of the report has been based on its highly publicized and controversial conclusions, rather than on its methodology, analysis and substantive findings. The one statement Richard Goldstone has made, with which I agree, is that many of the report’s most strident critics have probably not read the entire report. But it is also true, though I have not heard the report’s biased author say this, that many of the report’s most vocal defenders and advocates have also not read it.
It is not surprising that so few of the report’s critics and supporters have actually made their way through its dense and repetitive texts. The version I originally read was 553 pages long plus appendices. There are 1223 footnotes, though many of its most critical statements are not well sourced. It is poorly written, obviously drafted by several different hands and without the benefit of a good overall editor. It is laden with internal inconsistencies, shoddy citations of authority, and overall poor craftsmanship. If a camel is a horse designed by a committee, this report lacks even the grace of a dromedary. Most of the commentary on the report, both pro and con, seems to be based on its somewhat sanitized summary and conclusion. Some of the worst mistakes are buried very deep in the report, many of the most serious ones toward the end.
Efforts are currently underway by supporters of the report to have governments, prosecutors, non-governmental organizations, religious groups and distinguished individuals sign on to the report, so as to give it the credibility it now lacks. No one should do so without reading the report in full—and without reading responsible criticisms (and defenses) of the report. I have read every word of the report and compared different sections. I have offered to debate Goldstone about its contents. He has refused, as he has generally refused to respond substantively to credible critics of the report. My offer to debate still stands. If he refuses, as I expect he will, let him at least respond to the serious legal, factual and moral criticisms contained in this study and others. As the head of the mission and the report’s most visible public defender, Goldstone has a public obligation to respond to responsible criticism, which to date, he has not done.
In the coming week, the Secretary-General of the United Nations will present a compilation of responses to the Goldstone Report. I am submitting this analysis for inclusion.
The Israeli military will soon publish a detailed rebuttal to the Goldstone Report, providing photographic and other hard evidence that contradicts its most serious “findings.” I am not in a position to deal with specific military issues. But I am in a position to consider and evaluate the evidentiary methodology employed by the Goldstone Report.
In this analysis, I will focus on the two central conclusions reached in the report. The first is that the real purpose of Operation Cast Lead was not to protect Israeli civilians from Hamas rockets, over eight thousand of which had struck Israel over a nine year period. According to the report, Israel used the rocket attacks on its citizens as a pretext, an excuse, a cover for the real purpose of the operation, which was to target innocent Palestinian civilians—children, women, the elderly—for death. This criminal objective was explicitly decided upon by the highest levels of the Israeli government and military and constitutes a deliberate and willful war crime. The report found these serious charges “to be firmly based in fact” and had “no doubt” of their truth.
In contrast, the Mission decided that Hamas was not guilty of deliberately and willfully using the civilian population as human shields. It found “no evidence” that Hamas fighters “engaged in combat in civilian dress,” “no evidence” that “Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack,” and no support for the claim that mosques were used to store weapons. 
As we will see, the report is demonstrably wrong about both of these critical conclusions. The hard evidence conclusively proves that the exact opposite is true, namely that:
– Israel did not have a policy of targeting innocent civilians for death. Indeed the IDF went to unprecedented lengths to minimize civilian casualties; and
– That Hamas did have a deliberate policy of having its combatants dress in civilian clothing, fire their rockets from densely populated areas, use civilians as human shields, and store weapons in mosques.
What is even more telling than its erroneous conclusions, however, is its deliberately skewed methodology, particularly the manner in which it used and evaluated similar evidence very differently, depending on whether it favored the Hamas or Israeli side.
The evidentiary bias of the report should come as no surprise to anyone who is familiar with the members of the Mission and statements they have made both before, during and after working on the report. There were four members: A Pakistani woman, who was formerly Special Representative of the Secretary-General on Human Rights Defenders; an Irish man, who was formerly a Colonel in the Irish Defense Forces; a British woman, who is a professor at the London School of Economics; and a South African man, the former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
The Pakistani member of the Mission, Hina Jilani, signed a letter (along with two other Mission members) before even being appointed stating that “The events in Gaza have shocked us to the core.” After the report was completed, she made statements indicating that victims must not only be listened to, but that it would be “very cruel to not give credence to their voices.” She did not mention that the “voices” of the Gaza witnesses were monitored and controlled by Hamas, since their testimony was televised, and that much of it was demonstrably false and contradicted by hard evidence.
The Irish member of the Mission, Col. Desmond Travers, refused to believe evidence that undercut Hamas’ position even when it was on videotape and utterly uncontradicted. This is what he said about weapons being stored in Gaza mosques: “We also found no evidence that mosques were used to store munitions. Those charges reflect Western perceptions in some quarters that Islam is a violent religion….If I were a Hamas operative the last place I’d store munitions would be in a mosque. It’s not secure, is very visible, and would probably be pre-targeted by Israeli surveillance. There are a [sic] many better places to store munitions.” Not only is there physical evidence that conclusively proves that mosques are a favorite place to store rockets and other weapons, but Hamas leaders boast of it.
The British member, Christine Chinkin, had already decided the case before hearing one bit of evidence. Here is what she said in a letter that bore her signature written before she was even appointed to the Mission: “The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence…. The killing of almost 800 Palestinians, mostly civilians, and more than 3,000 injuries, accompanied by the destruction of schools, mosques, houses, UN compounds and government buildings, which Israel has a responsibility to protect under the Fourth Geneva Convention, is not commensurate to the deaths caused by Hamas rocket fire….Israel’s actions amount to aggression, not self-defence, not least because its assault on Gaza was unnecessary….As things stand, its invasion and bombardment of Gaza amounts to collective punishment of Gaza’s 1.5m inhabitants contrary to international humanitarian and human rights law…. [T]he manner and scale of its [Israel’s] operations in Gaza amount to an act of aggression and is contrary to international law, notwithstanding the rocket attacks by Hamas.” Here is the curious manner in which Goldstone responded to claims Chinkin was biased: “This is not a judicial inquiry. If it had been a judicial inquiry, that letter she’d signed would have been a ground for disqualification.” If her bias would have been a ground for judicial disqualification, then surely her conclusions should not be credited by quasi-judicial bodies, such as the International Criminal Court, the U.N. Council on Human Rights and other governmental and non-governmental bodies.
Finally, the South African member, Richard Goldstone, insisted that the hearings in Gaza be televised, thereby assuring that all witnesses had to tow the Hamas party line or risk certain death. Goldstone also lied about the role Hamas played in escorting and presenting evidence to the Mission. Here is what Goldstone wrote about being escorted by Hamas: “I must, however, categorically deny the allegation that Hamas officials accompanied Members of the Fact Finding Mission at all, let alone ‘at every stage of their visit to Gaza.’ Reports to that effect are denial of truth, as I have already publically stated. I would have found this to be quite unacceptable.” The actual truth is quite different. According to an Associated Press article published on June 9, 2009, “Hamas security often accompanied his [Goldstone’s] team during their five-day trip to Gaza last week, raising questions about the ability of witnesses to freely describe the militant group’s actions.”
How could Goldstone possibly know who among those escorting him were affiliated with Hamas? The reality is that nothing significant takes place in Gaza without the approval of Hamas.
Richard Goldstone has acknowledged that he accepted the role of Chairman with a clear preconceived agenda.  He has told numerous Jewish friends and acquaintances that he agreed to take on the task in order to “help Israel.” He believed that he would bring “balance” to the report. Whether his real motive was to help Israel or to accomplish some other goal, it is always disqualifying to come to a quasi-judicial fact finding function with a preconceived agenda. Sometimes it causes one to lean over backwards, sometimes forwards. But leaning in either direction is inconsistent with objectivity.
II. Goldstone: Israel Intentionally Kills Innocent Civilians
I begin with the Mission’s most irresponsible criticism of Israel. At bottom the report accuses the Jewish state of having implemented a policy in Gaza that borders on genocide. It blames the civilian deaths that occurred during Operation Cast Lead not on the fog of war, not on the use of human shields by Hamas, not on the inevitability of civilian casualties when rockets are fired from densely populated urban areas, not even on the use of “disproportionate force” by Israel. Instead it blames the Palestinian civilian deaths on an explicit policy devised at the highest levels of the Israeli government and military, of killing as many Palestinian civilians as possible. It concludes that Operation Cast Lead was not designed to stop the rocket attacks on Israel’s civilians—more than eight thousand over a nine year period. Instead, the rocket attacks merely served as an excuse for the Israeli military to achieve its real purpose: namely the killing of Palestinian civilians. Lest there be any doubt that this is the accusation being made, read the words of the report itself:
“While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self-defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.”
At other points in the report, the language “at least in part” is dropped. Instead the report concludes that Israel’s “overall policy [was] aimed at punishing the Gaza population” and that its “force [was] aimed not at the enemy,” but at “the civilian population.” It found that Israel was guilty of “the direct targeting and arbitrary killing of Palestinian civilians” and that the killings “are the result of deliberate planning and policy decisions.” “[T]he Mission finds that the incident and patterns of events that are considered in this report have resulted from deliberate planning and policy decisions throughout the chain of command, down to the standard operating procedures and instructions given to the troops on the ground.” “[I]n every case the Israeli armed forces had carried out direct intentional strikes against civilians,” and the report considered that “the civilian population as such” was “the object of attacks,” rather than the collateral victims of military actions directed against combatants.
These are among the most serious charges ever leveled by a United Nations organization against a member state. It accuses Israel of using Hamas rocket attacks against its civilians as an excuse—a cover—for a carefully planned and executed policy of deliberately targeting innocent civilians for mass murder. As philosophy professor Moshe Halbertal, a strong peace advocate and frequent critic of Israeli military actions (including during Operation Cast Lead), put it:
“Now, there is a huge moral difference between the accusation that Israel did not do enough to minimize collateral civilian death and the claim that Israel targeted civilians intentionally. It might well be that Israel should have done more than it did to minimize collateral deaths—it is a harsh enough claim, and it deserves a thorough examination. But the claim that Israel intentionally targeted civilians as a policy of war is false and slanderous.”
Even Israel’s most vociferous domestic critics—The Public Committee Against Torture in Israel and B’Tselem—acknowledge that “Israel did not have a policy of intentionally killing civilians….” Jessica Montell, Executive Director of B’Tselem, wrote, “I was disturbed by the framing of Israel’s military operation as part of ‘an overall policy aimed at punishing the Gaza population for its resilience.’ The facts presented in the report itself would not seem to support such a far-reaching conclusion.” While condemning the operation as disproportionate, or worse, these organizations did not cross the “huge moral” line—the line irresponsibly and mendaciously crossed by the Goldstone Report—of accusing Israel of intentionally targeting civilians for death. As the New York Times reported:
“[V]irtually no one in Israel, including the leaders of Breaking the Silence and the human rights group B’Tselem, thinks that the Goldstone accusation of an assault on civilians is correct. ‘I do not accept the Goldstone conclusion of a systematic attack of civilian infrastructure,’ said Yael Stein, research director of B’Tselem. ‘It is not convincing.’”
One would expect that before making so serious and unprecedented a charge, the report would present overwhelming direct evidence of such a policy. Israel is, after all, an open society with an aggressive investigative media, a strong independent judiciary, many dissenting voices, vigorous opposition parties, a vibrant peace movement and few secrets. Yet the report presents absolutely no hard evidence to support its serious accusations of a governmental policy of deliberately maximizing civilian deaths.
Indeed, much of the evidence cited in the report proves precisely the opposite—that Israel’s policy was to minimize civilian deaths, while attacking those responsible for targeting Israeli civilians with rocket attacks. Moreover, it ignores massive amounts of evidence—some specifically offered to it, other publicly available in open sources—that prove beyond any doubt that the central conclusions of the report are demonstrably false.
Goldstone has himself acknowledged that there is no actual “evidence” that the report’s conclusions are correct. Indeed, he has gone even further and admitted that “If this was a court of law, there would have been nothing proven.” He has also said he would not be embarrassed “if many of the allegations turn out to be disproved” —as it appears likely they will be, by photographic and other hard evidence. Yet Israel’s enemies cite the report as if it proved its charges beyond all doubt. That is because the report itself is written so as to suggest, quite falsely, that it had proved its case. For example:
“The Mission considers this position [“The operations were in furtherance of an overall policy aimed at publishing the Gaza population….”] to be firmly based in fact….”
“[T]he systematic and deliberate nature of the activities described in this report leave the Mission in no doubt that responsibility lies in the first place with those who designed, planned, ordered and oversaw the operations.”
The reality is that the report’s central conclusions—that Israel’s policy was to maximize the deaths of civilians—is not “firmly based in fact.” It is made up of whole cloth and contradicted by the evidence purportedly relied on by those who wrote the report. Moreover, it is disproved by public record evidence deliberately ignored by the report.
The report relies on five categories of evidence that purport to prove that Israel’s true intention was not to defend its civilians against Hamas rocket attacks, but rather to maximize the deaths of innocent Palestinian civilians. These categories are: statements of military leaders; statements of political officials; the nature of Israeli weaponry; the number of civilian casualties; and the fact that the IDF deliberately attacked food supplies and non-human civilian targets, such as a wastewater plant.
The first category consists of statements—generally quoted with little or no context—made by Israeli military leaders before the beginning of Operation Cast Lead. These include the following:
“In its operations in southern Lebanon in 2006, there emerged from Israeli military thinking a concept known as the Dahiya doctrine, as a result of the approach taken to the Beirut neighborhood of that name. Major General Gadi Eisenkot, the Israeli Northern Command chief, expressed the premise of the doctrine:
What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. […] We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. […] This is not a recommendation. This is a plan. And it has been approved.”
“After the war in southern Lebanon in 2006, a number of senior former military figures appeared to develop the thinking that underlay the strategy set out by Gen. Eiskenot. In particular Major General (Ret.) Giora Eiland has argued that, in the event of another war with Hizbullah, the target must not be the defeat of Hizbullah but ‘the elimination of the Lebanese military, the destruction of the national infrastructure and intense suffering among the population… Serious damage to the Republic of Lebanon, the destruction of homes and infrastructure, and the suffering of hundreds of thousands of people are consequences that can influence Hizbollah’s behavior more than anything else.’”
“These thoughts, published in October 2008 were preceded by one month by the reflections of Col. (Ret.) Gabriel Siboni:
With an outbreak of hostilities, the IDF will need to act immediately, decisively, and with force that is disproportionate to the enemy’s actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes. The strike must be carried out as quickly as possible, and must prioritize damaging assets over seeking out each and every launcher. Punishment must be aimed at decision makers and the power elite… In Lebanon, attacks should both aim at Hizbollah’s military capabilities and should target economic interests and the centres of civilian power that support the organization. Moreover, the closer the relationship between Hezbollah and the Lebanese Government, the more the elements of the Lebanese State infrastructure should be targeted. Such a response will create a lasting memory among … Lebanese decision makers, thereby increasing Israeli deterrence and reducing the likelihood of hostilities against Israel for an extended period. At the same time, it will force Syria, Hizbollah, and Lebanon to commit to lengthy and resource-intensive reconstruction programmes…
This approach is applicable to the Gaza Strip as well. There, the IDF will be required to strike hard at Hamas and to refrain from the cat and mouse games of searching for Qassam rocket launchers. The IDF should not be expected to stop the rocket and missile fire against the Israeli home front through attacks on the launchers themselves, but by means of imposing a ceasefire on the enemy.”
These polemic snippets—calculated to deter Hezbollah and Hamas from firing rockets at Israeli civilians—were selected from thousands of statements made over the years by IDF officers. Even so, not a single one of them—nor any statement quoted in the entire report—calls for the maximization of Palestinian civilian deaths, or for the specific targeting of Palestinian civilians. They specifically exclude targeting civilians for death from the list of appropriate punitive actions, such as damage to “national infrastructure,” the “elimination of the Lebanese military” and generic “suffering of hundreds of thousands of people.” Civilians always suffer from military actions, and even from lesser sanctions. For example, on December 11, 2009, U.S. Secretary of Defense Robert Gates warned that sanctions against Iran would be intended “to persuade the Iranian government that they would actually be less secure with nuclear weapons” because “their people will suffer enormously” from sanction. Surly such a statement could not be used to prove that the United States intends to kill Iranian civilians.
The so-called “Dahiya doctrine” of responding to rocket attacks with disproportionate force intended to destroy infrastructure says nothing about specifically targeting civilians for death. To the contrary, the quoted material says that “punishment must be aimed at the decision makers,” referring to those who make the decision to allow the rockets to be fired, and to “civilian power that supports” the terrorist organization, namely Hamas. Ordinary people, civilians, are not mentioned. Their exclusion is significant. Yet the report misused this doctrine and these quotes to try to prove that the object of Operation Cast Lead was the killing of civilians.
The report itself admits that it does not know “whether Israeli military officials were directly influenced by these writings.” But it reaches the conclusion that “what is prescribed as the best strategy appears to have been precisely what was put into practice.” Yes! The destruction of physical infrastructure. Not the targeting of civilians. Indeed, what was “put into practice” was a policy of warning civilians by phone, emails, leaflets and other means. As we shall see, Israel went to great lengths to protect civilians, not to attack them.
Instead of looking to the hard evidence that is completely inconsistent with any Israeli policy of targeting civilians and maximizing civilian deaths, the report focused on selective statements of Israeli leaders made before Operation Cast Lead and calculated to deter rocket attacks by threatening a disproportionate response.
It is more than ironic that the same report refused to credit much more specific statements made by Hamas leaders before Operation Cast Lead. On February 29, 2008, Fathi Hammad, a leading Hamas legislator, made the following statement:
“For the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine. It is as if they were saying to the Zionist enemy: ‘We desire death like you desire life.’”
The report quoted this statement and then chose to ignore it. This is what it said:
“Although the Mission finds this statement morally repugnant, it does not consider it to constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack.”
Nor apparently did it consider it in any way relevant to whether Palestinian civilians willingly allowed themselves to be used as human shields—or even as to whether the IDF might reasonably have believed it to be relevant when they planned the operation.
In contrast to this dismissive attitude toward this and other specific and bellicose statements and threats of Hamas political leaders, the report attributed considerable weight to vague and general statements made by Israeli political officials during and after Operation Cast Lead. It focused particularly on one statement made by Tzipi Livni who was then Israel’s Minister of Foreign Affairs. On January 13, 2009, Livni said, “We have proven to Hamas that we have changed the equation. Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild—and this is a good thing.”
The report also quotes Eli Yishai, then Minster of Industry, Trade and Labour. Yishai said on January 6, 2009,
“It [should be] possible to destroy Gaza, so they will understand not to mess with us…it is a great opportunity to demolish thousands of houses of all the terrorists, so they will think twice before they launch rockets. I hope the operation will come to an end with great achievements and with the complete destruction of terrorism and Hamas. In my opinion, they should be razed to the ground, so thousands of houses, tunnels, and industries will be demolished….[T]he operation will continue until a total destruction of Hamas.” The report quotes Yishai as saying on February 2, 2009, “Even if the rockets fall in an open air or to the sea, we should hit their infrastructure, and destroy 100 homes for every rocket fired.”
With these quotes in hand the report concludes, “Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy.” There is an argument, albeit a very weak one, that these quotes suggest an unlawful policy of disproportionate destruction of property. This argument is weak because the use of the word “disproportionate” quoted on page 9 supra does not constitute an admission that unlawfully disproportionate force would be employed under the standards of international law. Under international law, the harm collaterally inflicted on civilians must not be disproportionate to the military objective. But there is no prohibition against using overwhelming—that is disproportionate —military force against a legitimate military object. Israel had a perfect right to kill every single Hamas fighter, even if that number was in the thousands, in order to stop the rockets from endangering millions of Israeli civilians. The fact that 8,000 Hamas rockets succeeded in killing only a dozen or so Israelis, does not require Israel to limit the number of Hamas combatants killed. Reading the quote on page 8 does not suggest that the speaker was urging disproportionate civilian casualties but rather he was urging military force greater than and disproportionate to the number of Israelis killed by to the rockets that were being fired at Israeli civilians. This is perfectly lawful under international law. If proportionality were required in relation to military targets, it would be impossible for countries like the United States to employ its overwhelming military weapons—drones, tomahawk missiles, stealth bombers—against terrorists, who are poorly equipped but determined to kill.
To argue, moreover, that these polemical statements directed against property and terrorists conclusively prove a “deliberate policy” of “violence against civilians” is simply absurd. Livni suggests that Israel will “go wild” on Hamas in order to restore deterrence, and nowhere suggests civilians will be targeted. Yishai says he wants to “destroy Gaza,” but quickly clarifies that this means “complete destruction of terrorism and Hamas,” a legitimate military objective. The report concludes that Yishai’s quote regarding destruction of homes may suggest “reprisals against civilians … contrary to international humanitarian law.” Unsurprisingly, the report omits that in this same speech Yishai clarifies that homes destroyed will be “terrorists’ homes while informing them in advance —so as not to hurt the family members.” This deliberate omission is particularly disturbing, since it is directly relevant to the report’s most damning condemnation of Israel, and the omitted portion of the quote undercuts the report’s conclusion. One can be extremely critical of some of the statements quoted in the report without using them as a basis for the non-sequitur argument that they prove an intent to do what they pointedly do not advocate: namely the deliberate killing of babies, innocent women and other civilians.
The report seems to realize its own weaknesses. It attempts to shore up the connection between political statements and a “deliberate policy” of “violence against civilians” by suggesting Israel sees Hamas’ supporting infrastructure as “encompass[ing] effectively the population of Gaza.” According to this argument, Israel intentionally targets civilians because it considers them the Hamas infrastructure. The report’s purported evidence for this dubious claim is the “indiscriminate and disproportionate impact of [Israel’s] restrictions on the movement of goods and people [into Gaza].” It simply does not follow, however, that Israel’s blockade means Israel considers all Gaza civilians to constitute Hamas supporting infrastructure, or that all Gaza civilians are appropriate military targets. A blockade is a blunt instrument; by definition it is deleterious to civilian life (see, for instance, the statement by Robert Gates, quoted at page 9 supra). There is an enormous difference—a difference ignored by the report but not by Israel—between depriving civilians of non-essential commodities and targeting civilians for murder. It is a classic non-sequitur to argue that a boycott proves an intent to kill.
The report’s second piece of evidence that Israel considers all Gazans to be Hamas infrastructure is that Hamas won parliamentary elections. The Mission, of course, has no evidence that Israeli leadership considers Gazan civilians who voted for Hamas to constitute Hamas infrastructure. Moreover, many civilians did not vote in the election and some who did voted against Hamas. The report stretches for any argument, no matter how unrealistic, to support its conclusion that Israel had a deliberate policy of murdering civilians.
In addition to relying on statements of military and political officials, the report also points to the IDF’s advanced military capabilities in concluding that Israel intentionally targeted civilians. The argument is that, because the IDF uses such advanced weaponry, whenever civilians were killed, they must have been killed intentionally. On multiple occasions, the report notes that the IDF “possesses very advanced hardware” and that Israel is “a market leader in the production of some of the most advanced pieces of military technology available.” It also notes that Israel has “very significant capacity for precision strikes” and “extensive and intimate knowledge” of Gaza. The report concludes that, “taking into account the ability to plan [and] the means to execute plans with the most developed technology available…the incident and patterns of events that are considered in this report have resulted from deliberate planning and policy decisions.”
It should go without saying that, no matter how advanced or sophisticated weaponry may be, errors are made in the fog of war. A month before Operation Cast Lead, United States forces in Afghanistan attacked a wedding, killing nearly forty civilians. Although everyone agrees that the United States has advanced weaponry, no reasonable person would argue that this is proof that America was targeting an Afghan wedding party. Likewise, Israeli use of sophisticated weaponry should not serve as proof that Israelis intended to kill civilians during Operation Cast Lead. After all, the IDF killed several of its own soldiers through “friendly fire” mistakes.
The Goldstone Report purports to connect advanced weaponry to intentional killing by erasing the possibility of error. The report paints the IDF as a military force that, unlike any other military force in the world, simply does not commit errors. The report quotes approvingly an IDF report stating that “99 per cent of the [air force] firing that was carried out hit targets accurately.” There are two problems with relying on this figure to conclude intentionality. First, the figure speaks only to the air force and does not include ground force accuracy. The air force, with its guided weapons, more often hits intended targets than, for instance, a tank attempting to shell its attackers. The overall IDF accuracy rate must be lower than 99%. The second issue with concluding intentionality from an accuracy figure is the mistake of fact issue. If an Israeli soldier targets a person he believes to be a militant and kills him, but the person killed was not a militant, the soldier still made ‘accurate’ use of his weapon within the meaning of the 99% figure. However, because the soldier made a mistake of fact, he would not possess the requisite purpose to be liable for intentional killing of a civilian. This is particularly significant in light of the fact that so many Hamas combatants wore civilian clothing and mingled with the civilian population.
In one of the incidents the report investigated, the attack on the al-Daia residence, Israel claimed a mistake of fact defense. According to Israel, “[T]he IDF intended to strike a weapons’ storage facility located in a building next this [the Al-Daia] residence. However, the IDF erroneously targeted the Al-Daia residence, rather than the weapons storehouse.”
The report claims that it is aware of no other Israeli admissions of error besides the Al-Daia incident. Therefore, the report makes the astonishing conclusion that no other errors occurred. The report reads, “[S]ince it [the Al-Daia incident] appears to be the only incident that has elicited admission of error by the Israeli authorities, the Mission takes the view that the Government of Israel does not consider the other strikes brought to its attention to be the result of similar or other errors.” It is important to note the implication that this statement concerns all incidents, not just those incidents investigated in the report. After all, the statement is made in a section discussing “the objectives and the strategy underlying the Israeli military operations in Gaza.” The Mission’s claim, however, that “it has found only one example [Al-Daia] where the Israeli authorities have acknowledged that an error had occurred,” is not made in good faith. Justice Goldstone and the Mission need only look at the Israeli government report entitled “The Operation in Gaza” (cited over 50 times in the Goldstone Report) to find other Israeli admissions of error. In “The Operation in Gaza,” the Israeli government claims that an attack on an oxygen truck that killed four civilians and four Hamas militants was a mistake of fact error. The IDF erroneously believed the oxygen canisters to be rockets and targeted the truck for destruction. Four out of the nine IDF deaths were caused by friendly fire. Of course these deaths were errors. Surely there were many more errors, as there always are in war. To assume that all of the deaths caused by errors were, in fact, deliberate, begs the critical question and reflects the bias of the report.
The fourth category of evidence the Goldstone Report relies upon in concluding Israel had a policy of murdering civilians is simply the number of civilian casualties. At the outset it must be noted that the death of civilians does not automatically prove commission of war crimes. According to Louis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, “Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur.” The report strongly implies that the number of civilians killed in Operation Cast Lead is evidence of Israel’s intent to kill civilians. Results prove intent, at least when it comes to Israel. For instance, the report notes that “some of those killed were combatants directly engaged in hostilities against Israel, but many were not. The outcome and the modalities of the operations indicate, in the Mission’s view, that they were only partially aimed at killing leaders and members of Hamas, al-Qassam Brigades and other armed groups.” But a careful analysis of the results, in fact, proves the exact opposite.
The chart below illustrates a breakdown of Palestinian casualties during the Gaza operation as reported by the Palestinian Centre for Human Rights, B’Tselem, and the Israeli Defense Forces. The PCHR maintains that 1,417 people were killed by Israeli forces, including 926 civilians, 255 policemen, and 236 combatants. B’Tselem counts 1,387 Palestinian deaths, including 773 civilians, 248 policemen, 330 combatants, and 26 unknown. The IDF claim the total number of casualties was 1,166, including 295 civilians, 709 combatants (the IDF includes policemen in the combatant category) and 162 unknown.
To deconstruct these figures properly, the status of the Gaza police must first be considered, since approximately 250 of them were among those listed as “civilians” who were killed. Although the Goldstone Report concludes that the Gaza police force was a “civilian law-enforcement agency,” there is overwhelming evidence to suggest otherwise. The Gaza police has its origins in the Hamas Executive Force. When the Executive Force was formed in 2006, its commander announced that the force was “the nucleus of the future Palestinian army. The resistance must continue. We have only one enemy. They are Jews. We have no other enemy. I will continue to carry the rifle and pull the trigger whenever required to defend my people.”  According to the report, the Executive Force merged with a reorganized PA police in October 2007. Despite the fact that the Executive Force no longer technically exists, during Operation Cast Lead a police spokesman said, “Police officers received clear orders from the leadership to face the enemy, if the Gaza Strip were to be invaded.” This is conclusive evidence that the Gaza police were not entitled to the protections accorded to civilians in war. In addition, evidence suggests many policemen were combatant individuals regardless of their connection with the police. According to one count, 91% of the policemen killed were either members of a terrorist organization or in infantry training, with a “decisive majority” of casualties belonging to military wings. In any event, reasonable people can and do disagree as to the status of the Gaza policemen killed by Israel. They cannot simply be lumped together with infants and other obvious non-combatants for purposes of listing the number of dead civilians.
There is clearly a large divergence between the IDF numbers and the PCHR and B’Tselem numbers. Although the Goldstone report claims that Israel’s numbers “fall far short of international law standards,” the PCHR numbers that the report cites are considerably more troubling. For instance, some Palestinian casualties that were counted by PCHR as civilians were undoubtedly combatants. PCHR classified Abdullah Abdul Hamid Hussam Abu Mu’ammar , Mohammed Akram Mohammed Abu Harbid, and Belal Hamza Ali ‘Ubeid (under 18) as civilians and identified all three as students. Here are pictures of these three “civilians” from a militant website.
The second problem with the PCHR numbers is a statistical discrepancy that cannot be squared with the Goldstone Report’s conclusion that Israel intentionally and indiscriminately targeted civilians. The International Institute for Counter-Terrorism (ICT) at the Interdisciplinary Center Herzilya independently determined from PCHR’s casualty list 314 combatants, 239 policemen, and 363 civilians. This left 518 people with an unknown status. If Israel killed civilians intentionally and indiscriminately, we should expect the distribution within the civilian/unknown category to be proportionate to the Gaza population, roughly 25% men, 25% boys, 25% girls, 25% women. Instead, ICT found the civilian/unknown category was composed of 56% men, 22% boys, and 22% girls and women combined. (“Boys” and “girls” are defined as under 18,  and many boys and girls in Gaza are combatants by any definition of that term. Indeed 16 and 17 year olds are often used in martyr operations, precisely because of their youthful appearance.) These statistics are relevant for two reasons. First, the demographic (men) that is more likely to actually be terrorists, is vastly over-represented in the unknown/civilian category. Second, the demographic (men) that Israel is more likely to mistake as terrorists is vastly over-represented in the unknown/civilian category. In any case, these statistics are completely inconsistent with claims of intentional, indiscriminate killing of civilians.
Despite the problematic nature of the highly-biased PCHR count, even the story the raw PCHR numbers tell are not evidence of intent to kill civilians. If we count policemen as combatants, there were according to PCHR 491 combatant deaths and 926 civilian deaths. Thus, even according to one of the most biased and skewed sources available, there was a combatant casualty to civilian casualty ratio of 1 to 1.885. That is, for every Palestinian combatant killed, less than two civilians were killed. It is sad that so many innocents died during the Gaza war, but numbers alone do not prove that Israel intended to kill civilians, especially in light of how Hamas used civilians as shields (see section III infra). A United Nations report estimates that worldwide 75% of war casualties are civilians. Some have suggested that the combatant-civilian casualty ratio for America’s recent drone attacks in Pakistan is as high as 1 to 10. Others have suggested that during NATO’s 1999 Kosovo operation, there were four civilian casualties for every combatant casualty. In late December of 2009, an American air strike killed ten civilians in Afghanistan. Although there are valid arguments about the prudence of these operations, no reasonable person argues that these numbers prove an intention to kill Pakistani, Yugoslav, or Afghani civilians.
If the ratio alone proves anything it is that there was a policy of reducing civilian deaths, not targeting civilians. If Israel’s intention was truly to kill civilians, why was the combatant to civilian casualty ratio only one to less than two? Certainly if one of the world’s most advanced military forces intended to kill civilians it could have made that ratio one to five or even one to ten. As Professor Halbertal writes, “There are 1.5 million people in Gaza and around 10,000 Hamas militants, so the ratio of militants to civilians is 1:150. If Israel targeted civilians intentionally, how on earth did it reduce such a ratio to 1:3 or 2:3?”
The report’s final argument, made implicitly at various points in the document, goes something like this: Israel deliberately targeted non-human civilian targets, such as a flour mill and a wastewater plant; this proves that the IDF wanted to punish civilians who relied on these facilities; it follows therefore that the IDF deliberately intended to hit human civilian targets and kill as many civilians as possible. There are two responses to this argument, the first factual, the second logical.
As to the facts, the New York Times has reported that the IDF study, soon to be released, will dispute the claim that Israel willfully targeted the food and wastewater plant:
“The Goldstone report asserts that the Bader flour mill ‘was hit by an airstrike, possibly by an F-16.’ The Israeli investigators say they have photographic proof that this is false, that the mill was accidentally hit by artillery in the course of a firefight with Hamas militiamen. The dispute is significant since the United Nations report asserts that ‘the destruction of the mill was carried out for the purpose of denying sustenance to the civilian population,’ an explicit war crime.
A second finding concerned the destruction of a wastewater plant, leading to an enormous outflow of raw sewage. The Goldstone report contended that it was hit by a powerful Israeli missile in a strike that was ‘deliberate and premeditated.’ The Israelis say they had nothing to do with that plant’s collapse and suggest that it may have been the result of Hamas explosives.”
I will have more to say about these incidents following the release of the Israeli rebuttal. But even if it were true that Israel sought to punish the civilian population of Gaza by attacking food and sewage facilities, it would not follow that Israel intended to kill civilians. Israel acknowledged that it deliberately limits the flow of consumer goods into Gaza as part of an effort to impose sanctions on the Hamas government for its policy of targeting Israeli civilians with anti-personnel weapons. Just as American sanctions against Iran would cause the Iranian “people [to] suffer,” so too to do Israeli sanctions. But it is a far cry from sanctions to murder, and it is a non-sequitur to argue that the destructions of non-human civilian targets proves an intention to target human beings for death.
Nowhere does the report detail how difficult it is, in the fog of war, to target combatants while avoiding civilian casualties. Nowhere does the report detail the great lengths Israel goes to in order to spare civilian lives. It does not give any historical context. It does not mention how, under the leadership of air force chief Eliezer Shkedi, the IDF worked diligently to decrease the combatant-civilian air attack casualty ratio from 1 to 1 during the second intifada in 2003 to an astounding one civilian for every thirty combatants in 2007. This is the best ratio ever achieved by an armed force, and it required enormous dedication of resources and commitment to reduce civilian casualties, even those closely related to terrorist leaders. Nor does Goldstone mention that routine Israeli policy sacrifices valuable military opportunities in order to protect innocent civilians. The report does not tell the reader that, when Israel targeted a high-level Hamas meeting in 2003, it used a relatively light bomb in order to avoid civilian casualties. Since it did not attack its targets with full capacity, all of the militants (including the Hamas leader) escaped.
The report does not even discuss Israel’s professed operating procedures during Operation Cast Lead. It does not discuss how the humanitarian impact on a target was considered both at the planning stage and immediately prior to attack. It does not inform the reader that where an air force pilot saw civilians straying into the path of an already-launched missile, where possible, he diverted the missile to avoid excess civilian casualties. The Goldstone Report does not mention that under IDF operating procedure, moving targets are to be struck when they are as far away from civilians as possible. During the latter part of Operation Cast Lead the IDF, to its great detriment, “unilaterally suspended military operations for at least three hours each day, to enable re-supply of the population and other humanitarian relief activities.” The IDF deployed 120 humanitarian support officers during the operation. How is any of this consistent with a general policy of targeting civilians?
Israel’s efforts to protect civilians who were placed in harm’s way by Hamas’ decision to fire rockets from densely populated urban areas was unprecedented in military history. The Goldstone Mission deliberately chose to ignore the best expert testimony on precisely this issue. Here is what the former commander of British forces in Afghanistan, Colonel Richard Kemp, told the United Nations Human Rights Council on October 16, 2009:
“I am the former commander of the British forces in Afghanistan. I served with NATO and the United Nations; commanded troops in Northern Ireland, Bosnia and Macedonia; and participated in the Gulf War. I spent considerable time in Iraq since the 2003 invasion, and worked on international terrorism for the UK Government’s Joint Intelligence Committee.
Mr. President, based on my knowledge and experience, I can say this: During Operation Cast Lead, the Israeli Defence Forces did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.
Israel did so while facing an enemy that deliberately positioned its military capability behind the human shield of the civilian population.
Hamas, like Hizballah, are expert at driving the media agenda. Both will always have people ready to give interviews condemning Israeli forces for war crimes. They are adept at staging and distorting incidents.
The IDF faces a challenge that we British do not have to face to the same extent. It is the automatic, Pavlovian presumption by many in the international media, and international human rights groups, that the IDF are in the wrong, that they are abusing human rights.
The truth is that the IDF took extraordinary measures to give Gaza civilians notice of targeted areas, dropping over 2 million leaflets, and making over 100,000 phone calls. Many missions that could have taken out Hamas military capability were aborted to prevent civilian casualties. During the conflict, the IDF allowed huge amounts of humanitarian aid into Gaza. To deliver aid virtually into your enemy’s hands is, to the military tactician, normally quite unthinkable. But the IDF took on those risks.
Despite all of this, of course innocent civilians were killed. War is chaos and full of mistakes. There have been mistakes by the British, American and other forces in Afghanistan and in Iraq, many of which can be put down to human error. But mistakes are not war crimes.
More than anything, the civilian casualties were a consequence of Hamas’ way of fighting. Hamas deliberately tried to sacrifice their own civilians.
Mr. President, Israel had no choice apart from defending its people, to stop Hamas from attacking them with rockets.
And I say this again: the IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.”
Colonel Kemp had made the same points during Operation Cast Lead and they were well known to the writers of the Goldstone Report, who deliberately chose to ignore this expert testimony. Goldstone acknowledged that the omission was deliberate and tried to explain it away:
“[T]was no reliance on Col. Kemp mainly because in our Report we did not deal with the issues he raised 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.’”
That is a willful lie. The report dealt specifically with precisely that issue. Everything the Israeli Army did was done in the course of a difficult military operation designed to stop rockets fired from civilian areas from targeting a million Israeli children, women and other civilians. The basic flaw of the Goldstone Report is that, without a scintilla of evidence, the biased commissioners concluded that the Israeli military action in Gaza was motivated not by the defense of its citizens but rather by desire to murder Palestinian civilians. Based on that unproven, untrue and biased conclusion, the commission was then able to ignore massive evidence, much of it self-proving and easily available on the internet, that the Israeli Army took considerable steps to reduce civilian casualties, while engaged in military action designed to prevent the murder of its own civilians. Had it considered and credited Colonel Kemp’s conclusion that “the IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare,” it could not come to the mendacious conclusion it reached, namely that it was the explicit policy of the IDF to target Palestinian civilians and to maximize civilian deaths. A nation’s armed forces cannot at the same time do more to safeguard civilians than any army in history, while it is targeting them for death. There is a simpler and more sinister reason why the report chose to ignore the expert testimony of Colonel Kemp: it totally undercut the central conclusion of the report regarding Israel’s policy, intentions and actions. The very idea that the report “did not deal with the issues” raised so powerfully by Colonel Kemp, as Goldstone has claimed, speaks volumes about the bias of its authors.
For the most part, the report dismisses Israeli attempts to aid civilians. As Professor Moshe Halbertal wrote:
“In line with [the] principles [developed for the IDF by Professor Halbertal and others], the Israeli Air Force developed the following tactic. Since Hamas hides its headquarters and ammunition storage facilities inside civilian residential areas, the Israeli army calls the residents’ telephones or cell phones, asking them to move immediately out of the house because an attack is imminent. But Hamas, in reaction to such calls, brings the innocent residents up to the roof, so as to protect the target from an attack, knowing that, as a rule, the Israeli army films the target with an unmanned drone and will avoid attacking the civilians on the roof. In response to this tactic, Israel developed a missile that hits the roof without causing any actual harm in order to show the seriousness of its intention. The procedure, called ‘roof-knocking,’ causes the civilians to move away before the deadly attack.”
“It is rather a strange point in the Goldstone Report that this practice, which goes a long way to protect civilians, is actually criticized. Concerning such a practice, the report states that, “if this was meant as a warning shot, it has to be deemed reckless in the extreme.” The truth is that this is an admirable and costly effort to avoid civilian collateral harm. As is true with many of its criticisms, the report does not state what the alternative should be. What should Israel do in such a case? Attack the house without calling on its residents to move, or attack it while they are gathered on the roof? Or maybe avoid attacks altogether, allowing the enemy to take effective shelter among civilians?”
Neither the report nor its author addressed Professor Halbertal’s questions.
It also ignored the vast evidence of Israeli actions on the ground that were utterly inconsistent with any purported policy of targeting civilians or maximizing civilian deaths. These actions included the evacuation to Israeli hospitals of wounded civilians, the foregoing of appropriate military targets because the risk to civilians was too great, and—as Colonel Kemp explained—the massive repeated and expensive warnings the IDF provided to civilians. Finally, the report virtually ignores the fact that Israel choose not to invade Gaza City. Only this phase would have assured military victory by capturing or killing the Hamas fighters responsible for the planning and firing of rockets. At least part of the reason for not invading Gaza City was the realization that many Palestinian civilians would inevitably be killed or injured. Here is a picture of Israel admitting a Gazan child for treatment through the Erez Crossing on Dec. 31, 2008.
As the New York Times recently reported:
“General Halamish said in an interview that the army chose not to attack many leaders of Hamas because they lived among children and the elderly. He added that during the operation, Israel withheld fire for three hours a day so food and other aid supplies could be brought into Gaza. During these hours he said, a quarter of the shooting from Hamas took place. Hamas also ambushed the civilian supply trucks.”
“Another senior military official who spoke on the condition of anonymity following regular military practice, said that neither the military command structure nor the government wanted to invade Gaza in December 2008, but felt that the continental rocket attacks by Hamas on Israeli civilians forced their hand. The war, he said, followed the least aggressive of three contemplated routes — conquer Gaza and occupy it again as was done in the West Bank in 2002, retake Hamas’s weapons supply routes and hold them to dry out the organization’s arsenal, or attack the Hamas military and state infrastructure and leave. It was the third that occurred.”
The report does not address these facts on the ground. Nor does it consider the most basic question of all: What would Israel gain by targeting civilians for death? It simply is not rational for Israel to target civilians. The Goldstone Report has brought worldwide condemnation upon Israel. Surely Israel would not want to bring such condemnation upon herself.
Every Israeli official understands that every time a Palestinian civilian—especially a child or woman—is killed, Israel loses. As a western diplomat put it several years ago: Palestinian terrorists have “mastered” the “harsh arithmetic of pain.” “Palestinian [civilian] casualties play in their favor, and Israeli [civilian] casualties play in their favor.” Every time a Palestinian terrorist kills an Israeli civilian, Hamas wins. And every time an Israeli soldier kills a Palestinian civilian, Hamas wins. That is their strategy, and it is a win-win for terrorism and a lose-lose for democracy. Civilian deaths are inevitable in a conflict of this kind, but the accusation that they are part of a deliberate Israeli plan or policy defies reality and is wrong as a matter of fact. Reasonable people may disagree as to whether the deaths that resulted from Israel’s military objects were proportional or disproportional to risks its civilians feared from Hamas rockets. Reasonable people could also disagree about whether Israel’s policy of destroying Hamas buildings, tunnels and industry should be permissible under international law. But that is not the essence of what the report accuses Israel of deliberately planning—namely the deliberate targeting and killing of hundreds of innocent Palestinian women and children. On this most serious of charges, not only is there absolutely no evidence that points to this conclusion, what evidence there is points exactly the other way. Yet the report distorts the evidence, misquotes its sources, and turns the truth on its head, in order to arrive at a conclusion that at least some of its members had reached before even beginning to gather evidence for the report.
It is important to note that the report contains disturbing narratives accusing IDF soldiers of murdering Palestinian civilians. The Goldstone Report does not contain enough evidence to prove war crimes were committed, but parts of it do suggest investigations should be opened into the conduct of certain soldiers. Israel fully accepts the obligation to investigate and has carried out investigations of 140 incidents. If any soldiers committed war crimes, they should be prosecuted and punished in accordance with Israeli law. It bears no repeating that the commission of war crimes must be subjected to the strongest possible condemnation. If any soldier intentionally targeted Palestinian civilians, we must condemn him in the same manner that Hamas is condemned for targeting Israeli civilians.
Rogue soldiers are a fact of war. No matter how exacting military discipline, there will always be a soldier who sees war as an opportunity to release his own brutality. Recently, an American Private was convicted of murdering four innocent civilians while on duty in Iraq. This does not mean, however, that it is the policy of the American forces to murder civilians. Yet the Goldstone Report takes the alleged instances of Israeli soldiers intentionally targeting civilians and claims it was the policy of Israel to intentionally target civilians. There is simply no evidence to support this illogical conclusion.
To its discredit, the Goldstone Report treats many complex and nuanced military, moral, and legal issues in an overly simplistic manner. The question of who is a civilian, for instance, is generally relegated to a footnote. This is, of course, a highly complex issue, especially in the context of fighting a terrorist enemy embodied in a quasi-government. It is intellectually dishonest to say that the question of who is a civilian is a black and white matter. There is no moral equivalence between bombing a home containing a harmless Palestinian baby and bombing a home in which the IDF knows a Palestinian ‘civilian’ has willingly stored Hamas rockets. Reasonable people must recognize that there is a “continuum of civilianality.” On one end of this continuum are those who send rockets into Israel. On the other end are those innocents who do not contribute in any way to the Hamas terrorist enterprise. At various points along the continuum are those who willingly store rockets for Hamas, who willingly provide Hamas with expertise in making rockets, and who willingly allow themselves to be used as human shields. Simply listing the numbers of civilians killed during the operation does not recognize that the casualties are distributed across this continuum.
The Supreme Court of Israel has grappled with these questions at leng