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The Case Against the Goldstone Report
Posted By Alan M. Dershowitz On January 28, 2010 @ 12:00 am In FrontPage | 15 Comments
The Goldstone Report is much more scurrilous than most of its detractors (and supporters) believe. According to the report, Israel used the more than 8,000 rocket attacks on its civilians merely as a pretext, an excuse, a cover for the real purpose of Operation Cast Lead, 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.
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.
I have written a detailed analysis of the Goldstone Methodology, which is now available online. It is being sent to the Secretary General of the United Nations for inclusion in critiques of the Goldstone report received by the United Nations. This analysis documents the distortions, misuses of evidence and bias of the report and those who wrote it. It demonstrates that the evidence relied on by the report, as well as the publicly available evidence it deliberately chose to ignore, disproves its own conclusions.
The central issue that distinguishes the conclusions the Goldstone Report reached regarding Israel, on the one hand, and Hamas, on the other, is intentionality. The report finds that the most serious accusation against Israel, namely the killing of civilians, was intentional (and deliberately planned at the highest levels). The report also finds that the most serious accusations made against Hamas, namely that their combatants wore civilian clothing to shield themselves from attack, mingled among the civilian populations and used civilians as human shields, was unintentional.
These issues are, of course, closely related. If it were to turn out that there was no evidence that Hamas ever operated from civilians areas, and that the IDF knew this, then the allegation that the IDF, by firing into civilian areas, deliberately intended to kill Palestinian civilians, would be strengthened. But if it were to turn out that the IDF reasonably believed that Hamas fighters were deliberately using civilians as shields, then this fact would weaken the claim that the IDF had no military purpose in firing into civilian areas. Moreover, if Hamas did use human shields then the deaths of Palestinian civilian shields would be more justly attributable to Hamas then to Israel.
Since intentionality, or lack thereof, was so important to the report’s conclusions, it would seem essential that the report would apply the same evidentiary standards, rules and criteria in determining the intent of Israel and in determining the intent of Hamas. Yet a careful review of the report makes it crystal clear that its writers applied totally different standards, rules and criteria in evaluating the intent of the parties to the conflict. The report resolved doubts against Israel in concluding that its leaders intended to kill civilians, while resolving doubts in favor of Hamas in concluding that it did not intend to use Palestinian civilians as human shields. Moreover, when it had precisely the same sort of evidence in relation to both sides—for example, statements by leaders prior to the commencement of the operation—it attributed significant weight to the Israeli statements, while entirely discounting comparable Hamas statements. This sort of evidentiary bias, though subtle, permeates the entire report.
In addition to the statements of leaders, which are treated so differently, the report takes a completely different view regarding the inferring of intent from action. When it comes to Israel, the report repeatedly looks to results and infers from the results that they must have been intended. But when it comes to Hamas, it refuses to draw inferences regarding intent from results. For example, it acknowledges that some combatants wore civilian clothes, and it offers no reasonable explanation for why this would be so other than to mingle indistinguishably from civilians. Yet it refuses to infer intent from these actions.
Highly relevant to the report’s conclusion that militants did not intend for their actions to shield themselves from counterattack is that the Mission was “unable to make any determination on the general allegation that Palestinian armed groups used mosques for military purpose,” “did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities,” did not find evidence “that ambulances were used to transport combatants or for other military purposes,” and did not find “that Palestinian armed groups engaged in combat actives from United Nations facilities that were used as shelters during the military operations.”
There is, however, hard evidence that Hamas did operate in mosques and, at the very least, near hospitals. Circumstantial evidence (precise weaponry) was used to prove Israeli intent. Regarding Hamas, the circumstantial evidence even stronger in inferring intent. It is beyond obvious that militants do not fire rockets in the vicinity of mosques or hospitals because it is easier to launch rockets near community institutions. Rather, they do so only because of the special protections afforded to hospitals and religious centers in war.
The report—commissioned by an organization with a long history of anti-Israel bigotry, and written by biased “experts,” with limited experience and a pre-ordained result—is one-sided and wrong in its fundamental conclusions. This should not be surprising since conclusions can be no better than the methodology employed, and the methodology employed in this report is fundamentally flawed.
So now it is up to Richard Goldstone to explain the evidentiary bias that is so obviously reflected in the report, and that is documented in my lengthier analysis available online. The burden is on him to justify the very different methodologies used in the report to arrive at its conclusions regarding the intentions of Israel and the intentions of Hamas. Failure to assume that burden will constitute an implicit admission that the conclusions reached in the Goldstone report are not worthy of consideration by people of good will.
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