House Resolution 867 - The US Congress Disses the Goldstone Report

Not surprisingly, the US congress, ever obedient to the Israel Lobby, has piled on the bandwagon of ad hominem and slanderous attacks on the Goldstone Report. Here is the entire body of the resolution, deconstructed paragraph-by-paragraph to illustrate how facts are irrelevant when you wish to lynch someone.

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’’;

How does mandating a mission to investigate all violations of ...law pre-judge the outcome? The authors obviously believe that Israel is so far beyond reproach that merely to investigate is to pre-judge the outcome.

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;

So what? This remark is pointless for a number of reasons:

• The investigation was looking into what happened during the conflict, not the validity of the reasons for starting the conflict (i.e. Israel's response to rocket and mortar attacks). Whether or not Israel was justified in attacking Gaza is beyond the scope of the mandate, hence the mandate need not include reference to that.
• It is not a defence to the charge of war crimes to point to the other side and say they also committed war crimes. That the Hamas rockets were war crimes and probably crimes against humanity may be true, but it is neither here nor there when considering if Israel, once it entered Gaza, behaved legally.
• Goldstone initially refused to accept the mandate as written and had the President of the Human Rights Council amend the mandate to add investigating the rockets (which Goldstone did). Some point to the fact that this amendment was never ratified by the HRC itself. While true, it matters not as Goldstone operated under the amended mandate and his report, accepted by the HRC addressed the amended mandate.
• It is not proven that Israel's actions were, in fact, justified by the Hamas rockets. As numerous experts in international law have pointed out, Israel had other options. But this is irrelevant as the Goldstone report did not investigate whether or not Israel was justified in attacking Gaza -- it took that as a given and concentrated only on what happened during that attack (i.e. accepted at face value without question that Israel had the right to defend itself and that its actions in attacking Gaza were completely justified).
• The report itself (putting aside the mandate for the moment) does discuss the rocket attacks at some length and does say they are a war crime. What more does the US Congress want?

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’’;

Not true. Read the actual letter. It does not declare Israel guilty of committing atrocities. What it says is that Israel's actions could not (in the opinion of numerous experts in international law) be justified as self-defence. Regardless of one's opinion on that matter, the Goldstone report was not considering this issue (was Israel justified in entering Gaza), it was studying what happened during that attack (a different matter than the one discussed in the letter). So not only is this comment untrue, it is irrelevant.

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;

So what? Six voted against. 25 voted for. 11 abstained. Even if every country that abstained voted against it would still have passed. Also, justice is not a matter of popular vote. Israel's guilt must be a matter for an objective open judicial process to adjudicate, not a popularity contest at the UNHRC or anywhere else.

Whereas the mission’s flawed and biased mandate troubled many distinguished individuals who refused invitations to head the mission;

And it troubled Goldstone also, until it was changed to be balanced. Also, one must not assume that the reason the many distinguished individuals who refused invitations did so simply because they thought the mandate was flawed. I suspect many saw how Dr. John Mearsheimer (the R. Wendell Harrison Distinguished Service Professor of Political Science at the University of Chicago) and Dr. Stephen Walt (Belfer Professor of International Affairs, John F. Kennedy School of Government, Harvard University) were pilloried for having researched and written the landmark book, The Israel Lobby and U.S. Foreign Policy and decided that investigating Israel was not a wise career move. Complaining about the mandate was an easy out. Fortunately for the cause of justice and the rule of law, Dr. Goldstone is a courageous scholar. Finally, where in the Geneva Convention does it say one cannot be investigated for war crimes unless the other side of the conflict is also investigated? A war crime is a war crime is a war crime. Investigating a possible war crime is worthy and legitimate whether or not anyone else is also investigated at the same time. Again, this resolution is a deft attempt to misdirect attention away from Israel by addressing everything about the mission and its report EXCEPT the 30+ documented instances of actions that are probably war crimes. And again I say, if Israel did not commit these war crimes, what is the problem with an open judicial process? Not only would Israel's international reputation be enhanced significantly, the credibility of Dr. Goldstone and the UNHRC would be effectively destroyed forever. What more could Israel and her supporters possibly desire?

Whereas the report repeatedly made sweeping and unsubstantiated determinations that the Israeli military had deliberately attacked civilians during Operation Cast Lead;

Not true:

• Sweeping? Hardly. The report makes it clear that only a very small number of alleged war crimes were investigated and only those that could be investigated in depth with corroborated testimnbony and evidence. The report itself states it is not comprehensive or all inclusive. How can such a limited investigation be considered sweeping?
• Unsubstantiated? Hardly. Given the number of witnesses and corroborating reports from other NGO as well as members of the IDF (to the extent that that information could be obtained in spite of Israel's lack of cooperation), how can one reasonably claim that the findings are unsubstantiated?
• Even if one grants that outrageous claim, if the findings are not true, what is the problem with having an open, transparent, and objective investigation? Remember, the Goldstone mission was a fact-finding mission only, not a judicial investigation. If the authors of HR 867 truly believe that Israel is innocent, then why the fear of a real investigation?

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.’’’;

Understandably. That is more properly done by the judicial inquiry. And how does this admission in any way invalidate the recommendations?

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.’’;

So what? The Goldstone report is a fact-finding mission, not a judicial inquiry. Goldstone, ever cautious is merely making it clear that by the very nature of the mission, the findings do not constitute a finding of guilt. That is for a proper judicial process to determine. The authors of this resolution are obviously grasping at every bit of mud they can possibly hurl in a desparate attempt to mask the obvious -- the mission and its report document things that really must be investigated formally and if Israel isn't willing to do it, the International community must do so. Of all countries, Israel must understand that the world cannot let war crimes and crimes against humanity go uninvestigated.

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 south- ern Israel by Hamas and other Foreign Terrorist Organizations operating from Gaza;

Outrageously not true! The mission's mandate did not include a consideration of why Israel attacked, just what happened during the attack. Indeed, the report took as a given Israel's right to self defence. But self-defence is not a defence against war crimes. The report does not deny Israel's right to self-defence, and it is not relevant to the mission's findings. Furthermore, with respect to Israel's right to defend itself against the allegations, the mission made numerous overtures to Israel to participate and provide information to the mission. Israel refused every invitation. Any omission or flaw in the report because of Israel's intransigence must be considered Israel's fault, not the missions or Goldstone's.

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;

Irrelevant. The report also ignored the culpability of the United States that sponsors the Israel Defense Force (to the tune of three billion a year). Of course, by mentioning the twin bogeymen of Iran and Syria we can smear the report by association. And yet again, the crimes of others do not absolve one's own crimes.

Whereas the report usually considered public statements made by Israeli officials not to be credible, while frequently giving uncritical credence to statements taken from what it called the ‘‘Gaza authorities’’, i.e. the Gaza leadership of Hamas;

Not true. The report dismisses statements from both sides that are obviously false, and accepts other tentatively. Again, this mission was to collect information on possible war crimes. It is up to the judicial process that must follow to critically evaluate those statements and the mission's findings.

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;

Where is the great body of evidence that the drafters of this resolution claim exists? The mission repeatedly asked the Government of Israel to provide them with this evidence but Israel refused. The mission did find some evidence and there is no doubt that a proper judicial investigation of the actions of Hamas and Palestinians will reveal more. The approach is not to toss the baby out with the bath water (i.e. trash the report), but to implement Goldstone's recommendations which require both sides, Israel and Hamas/Palestine, to hold open, credible, transparent, and objective judicial investigations. And again, Hamas's war crimes do not mean Israel gets a free pass to commit its own war crimes in retaliation.

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.’’

So what? Hamas committed war crimes. Israel probably committed war crimes. The report merely recommends that both parties be formally investigated.

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’’

Misleading! While Hamas no doubt wanted to influence the report, so did Israel. The mission went out of its way to ensure that witnesses were not influenced by Hamas. While some witnesses were probably discouraged from being entirely forthcoming, the same was also true on the other side (Israel actively thwarted the mission's ability to interview Israelis and members of the IDF).

Whereas even though Israel is a vibrant democracy with a vigorous and free press, the report of the ‘‘fact-finding mission’’ erroneously asserts that ‘‘actions of the Israeli government. . . have contributed significantly to a political climate in which dissent with the government and its actions. . . is not tolerated’’;

While there is no doubt that the press in Israel is much more free than it is in the US, ask the historian Ilan Pappe ( a University historian researching the founding of Israel) who was forced to leave Israel because of death threats after the scholarly publications he wrote showed evidence from the Israeli government's archives of ethnic cleansing of Palestinians by the IDF.

Whereas the report recommended that the United Nations Human Rights Council endorse its recommendations, implement them, review their implementation, and refer the report to the United Nations Security Council, the Prosecutor of the International Criminal Court, and the United Nations General Assembly for further action;

Whereas the report recommended that the United Nations Security Council— (1) require the Government of Israel to launch further investigations of its conduct during Operation Cast Lead and report back to the Security Council within six months; (2) simultaneously appoint an ‘‘independent committee of experts’’ to monitor and report on any domestic legal or other proceedings undertaken by the Government of Israel within that six-month period; and (3) refer the case to the Prosecutor of the International Criminal Court after that six-month period;

Incomplete. This resolution misrepresents the report by leaving out the fact that Goldstone calls for Hamas to do the same. It is entirely balanced in what is asks of both sides. Not so this resolution.

Whereas the report recommended that the United Nations General Assembly consider further action on the report and establish an escrow fund, to be funded entirely by the State of Israel, to ‘‘pay adequate compensation to Palestinians who have suffered loss and damage’’ during Operation Cast Lead;

And the problem with this is? The IDF destroyed hundreds of millions of dollars of civil and commercial infrastructure completely unrelated to the military and terrorist operations of Hamas. Why shouldn't this damage be compensated for?

Whereas the report ignored the issue of compensation to Israelis who have been killed or wounded, or suffered other loss and damage, as a result of years of past and continuing rocket and mortar attacks by Hamas and other violent militant groups in Gaza against civilian targets in southern Israel;

Certainly those responsible for the damage to Israelis ought to pay compensation also. There is, however, the fact that the damage done by the IDF to the Palestinians is a thousand-fold more severe than that done by Hamas. So while compensation is due in both directions, the Hamas debt is petty cash compared to Israel's obligations.

Whereas the report recommended ‘‘that States Parties to the Geneva Conventions of 1949 start criminal investigations [of Operation Cast Lead] in national courts, using universal jurisdiction’’ and that ‘‘following investigation, alleged perpetrators should be arrested and prosecuted’’

And your problem with bringing criminals to just is what? Oh, I forgot, this is the US Congress (remember Mark Twain once said Congress may be America's only 'distinct criminal class').

Whereas the concept of ‘‘universal jurisdiction’’ has frequently been used in attempts to detain, charge, and prosecute Israeli and United States officials and former officials in connection with unfounded allegations of war crimes and has often unfairly impeded the travel of those individuals;

Unfairly in whose opinion? I'm assuming Israel doesn't have any trouble impeding the travel of World War II war criminals.

Whereas the State of Israel, like many other free democracies, has an independent judicial system with a robust investigatory capacity and has already launched numerous investigations, many of which remain ongoing, of Operation Cast Lead and individual incidents therein;

None of these investigations passed the sniff test. Secret hearings without witnesses or outside observers are not //"investigations"//, they are a charade.

Whereas Libya and others have indicated that they intend to further pursue consideration of the report and implementation of its recommendations by the United Nations Security Council, the United Nations General Assembly, the United Nations Human Rights Council, and other multilateral fora;

Libya is a well-known bogeyman so anything Libra wants must be wrong.

Whereas the President instructed the United States Mission to the United Nations and other international organizations in Geneva to vote against resolution A-HRC-S-12-1, which endorsed the report and condemned Israel, at the special session of the Human Rights Council held on October 15-16, 2009;

Obama has enough battles on his hands right now to take on the Israel Lobby.

Whereas, on September 30, 2009, Secretary of State Hillary Clinton described the mandate for the report as ‘‘one-sided’’; Whereas, on September 17, 2009, Ambassador Susan Rice, United States Permanent Representative to the United Nations, expressed the United States’ ‘‘very serious concern with the mandate’’ and noted that the United States views the mandate ‘‘as unbalanced, one-sided and basically unacceptable’’;

Ditto.

Whereas the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ reflects the longstanding, historic bias at the United Nations against the democratic, Jewish State of Israel;

So they are biased -- prove them wrong by holding open investigations.

Whereas the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ is being exploited by Israel’s enemies to excuse the actions of violent militant groups and their state sponsors, and to justify isolation of and punitive measures against the democratic, Jewish State of Israel;

And I assume that the Nuremberg trial results were exploited by Germany's enemies. So what?

Whereas on October 16, 2009, the United Nations Human Rights Council voted 25-6 (with 11 states abstaining and 5 not voting) to adopt resolution A-HRC-S-12-1, which endorsed the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ and condemned Israel, without mentioning Hamas, other such violent militant groups, or their state sponsors; and

So what.? The resolution condemned war crimes and crimes against humanity committed by ANY party. That Hamas was not mentioned specifically does not mean Israel gets a free Get out of jail card.

Whereas efforts to delegitimize the democratic State of Israel and deny it the right to defend its citizens and its existence can be used to delegitimize other democracies and deny them the same right: Now, therefore, be it Resolved, That the House of Representatives—

Wow, that's a stretch. Because Israel may have committed war crimes and Goldstone had the temerity to point out this possibility, other democracies might be delegitimized? Someone will have to show me how those dots are connected.

(1) considers the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ to be irredeemably biased and unworthy of further consideration or legitimacy;

Here it is: because the report didn't damn Hamas enough or praise Israel enough we should ignore the entire report. No so fast. Even if the report is flawed, even if Goldstone is an anti-semite and a self-loathing Jew hater, what is the problem with asking both Israel and Hamas to look into the questionable events identified in the report?

(2) supports the Administration’s efforts to combat anti-Israel bias at the United Nations, its characterization of the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ as ‘‘unbalanced, one-sided and basically unacceptable’’, and its opposition to the resolution on the report;

More of, let's throw the baby out with the bath water (and since the baby is probably Palestinian, what's the problem)? While it might be nice for the UN and UNHRC to spend as much time on other states that violate human rights, it is not a defence for Israel to say many UNHRC members violate human rights so don't look too closely at what we do. That the UN and UNHRC has concentrated on Israel at the expense of other known abusers of human rights is unfortunate, but it does not, in and of itself, invalidate the Goldstone report nor diminish the severity of the allegations against Israel.

(3) calls on the President and the Secretary of State to continue to strongly and unequivocally oppose any endorsement of the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ in multilateral fora;

We must not permit the rule of law to apply to Israel.

(4) calls on the President and the Secretary of State to strongly and unequivocally oppose any further consideration of the ‘‘Report of the United Nations Fact Finding Mission on the Gaza Conflict’’ and any other measures stemming from this report in multilateral fora; and

Yadda, yadda, yadda.

(5) reaffirms its support for the democratic, Jewish State of Israel, for Israel’s security and right to self-defense, and, specifically, for Israel’s right to defend its citizens from violent militant groups and their state sponsors

Misdirection. The Goldstone reports has nothing to do with Israel's right to self-defence or its right to defend its citizens. That was never in question. What is in question is how Israel goes about defending itself. That is the legitimate concern of international bodies and since Israel is a signatory to the Geneva Conventions, it must ensure that its actions are in compliance with International Law. The Geneva Conventions do not say, you can do whatever you want if you claim self-defence. They say, even if you are defending yourself, there are things you must not do. And this is only reasonable. Instead of state actors, consider individuals: if someone runs at you with a sharp pencil, you are entirely within your right to hit them in order to defend yourself. You are not permitted, however, to shoot them. In summary, as flawed, biased, and one-sided as the mission and report may be, that is no reason not to ask both parties to mount proper investigations.