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Fighting the Goldstone Report
Posted By Alan M. Dershowitz On February 2, 2010 @ 12:08 am In FrontPage | 12 Comments
In its most recent response to the Goldstone report, the Israeli government has catalogued the investigations being conducted by the Israeli Defense Forces:
“Of the 150 incidents, so far 36 have been referred for criminal investigation. To date, criminal investigators have taken evidence from almost 100 Palestinian complainants and witnesses, along with approximately 500 IDF soldiers and commanders. The Paper describes some of the challenges encountered in the conduct of the investigations, including accessing evidence from battlefield situations and the need to make arrangements, together with non-governmental organizations such as B’Tselem, to locate and interview Palestinian witnesses. To address these challenges, special investigative teams have been appointed and are currently investigation complaints arising from the Gaza Operation.”
Some charges being investigated derive from the Goldstone report. Others go beyond the report. The Israeli response explains the extensive investigatory mechanisms employed by Israel, several of which are completely independent of the military chain of command. It compares the Israeli investigatory mechanisms with those of other democratic nations, such as the United States, the United Kingdom, Canada and Australia.
It then discloses the results of investigations regarding several of the charges made in the Goldstone report, proving by photographic and other evidence that they are unfounded or exaggerated. Of the 150 charges investigated, “36 criminal investigations [were] opened thus far.” The investigations are ongoing.
No other democratic country in the world, with comparably thorough investigative mechanisms, would be told that it had to do more—that a judicial investigation was also required. Neither the United States nor United Kingdom have been told that a judicial inquiry, beyond the investigations already underway, must be conducted. But the Goldstone report demands that Israel and Israel alone must go beyond its normal investigative mechanism and bring in outside judges. This reflects yet another double standard.
Nonetheless, it would be prudent for Israel to conduct a completely independent judicial review. Not that its results would ever satisfy the world’s numerous Israel-bashers. It ought to be conducted to satisfy Israel and supporters of Israel that no stone has been left unturned.
Such a review could include the issuance of subpoenas to soldiers, commanders and policy makers, as in a trial. Or it could be limited to traditional “judicial review” of the findings of military investigators, as in an appeal. That should be up to the Israeli government to decide.
Whatever type of review is decided upon, it will be real—as distinguished from the so-called “investigation” conducted by Hamas, which has already decided that those who fired rockets into Israel had no intention to kill Israeli civilians. Why then did they fire the rockets when children were on the way to school? Why did they fire them in the direction of cities and towns?
What will happen if Israel conducts a probing investigation and Hamas conducts a whitewash? According to the Goldstone report, that should result in referring Hamas, but not Israel, to the International Criminal Court and other tribunals. Will that happen? Don’t hold your breath.
The reality, which any truly independent investigation of Hamas and Israel would disclose, is that many of the civilians who were killed during Operation Cast Lead were, in fact, the victims of a deliberate and willful policy of killing Palestinian civilians in order to gain a non-military advantage. The real question is who killed these civilians and who should be held responsible for their deaths.
Any fair assessment of the evidence leads to the following conclusion: Hamas deliberately conducted its terrorist activities against Israel in a manner calculated by Hamas to produce Palestinian civilian deaths from Israeli weapons. Any fair assessment of the evidence also leads to the conclusion that, while Israel loses from the death of every Palestinian civilian, Hamas gains from every such death. As Golda Meir once put it: “We can perhaps forgive you for killing our children, but we can never forgive you for making us kill your children.”
The last thing Israel wants to do is kill innocent Palestinian civilians. But every democracy is obligated to protect its own civilians from rocket attacks. The truth is that Hamas deliberately fired rockets at Israeli civilians from densely populated civilian areas precisely to put Israel to a Hobson’s choice: either do nothing and allow Israeli civilians to be subject to indiscriminate rocket attacks; or attack those who are firing the rockets, thereby assuring that there will be some Palestinian civilian deaths. The Goldstone report inverted these conclusions because of the evidentiary bias it showed in evaluating the facts. It falsely blamed Israel rather than Hamas for the civilian deaths caused, both factually and morally, by the longstanding Hamas tactic.
It is a well-accepted principle of law, both domestic and international, that when a terrorist fires from a crowded area at innocent people, and the only way the police have of stopping the terrorist from endangering innocent lives is by shooting at him—if the policeman, despite his best efforts, shoots and kills innocent civilians, the terrorist is responsible for those deaths, not the policeman. Any fair assessment of the events in Gaza must begin with that principle—a principle totally ignored by the Goldstone report.
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