By Mortimer B. Zuckerman

April 14, 2011

Goldstone's report had been the most important contributor to the demonization campaign waged against Israel in recent years

Seismic events shake the world. The turmoil in the Arab world has taken attention from one shock that has yet to play itself out. Let's call it The Goldstone Fault. Its consequences have been as grievous as a 7.0 earthquake.

In the aftermath of Israel's assault on Gaza and its Hamas masters just over two years ago, the United Nations commissioned an inquiry by Richard Goldstone, a former justice of South Africa's highest court. Goldstone dismissed the notion that Israel's actions were a legitimate response to months of indiscriminate cross-border rocket attacks on civilians in Israel. He signed his name to the conclusion that Israel intentionally attacked civilians in Gaza. It has been described as the most vicious indictment of Israel since the U.N. General Assembly adopted the infamous "Zionism is racism" resolution in 1975. The Goldstone Report, issued in September 2009, was taken seriously because of its U.N. imprimatur and the credibility that came from Goldstone being both a Zionist and a Jew.

Now, sensationally, Goldstone has himself disavowed the most critical charge of his report. In an op-ed in the Washington Post, Goldstone shocked all who follow the Middle East by admitting that he erred -- that he no longer believes that Israel intentionally killed civilians in Gaza. In part, this is because of Israel's painstaking investigations of some 400 allegations of misconduct; Hamas refused to investigate any of the evidence of its misconduct.

Goldstone acknowledges that he and his colleagues didn't really have solid evidence when they wrote that Israel had deliberately targeted civilians. He now says that any civilian deaths were inadvertent in the usual fog of war.

Deliberately killing civilians is a war crime, but it is different if civilians are killed during a legitimate operation against a legitimate military target. Tragic though it always is, this "collateral damage" is accepted as an unavoidable reality of armed conflict. The parallel in the civil law definition of crime is that there must be two components: actus reus, that is, the act itself; and mens rea, the intent to commit the act. Goldstone has now concluded that there was no such criminal intent to kill civilians as he originally charged. In effect, then, the core of his earlier indictment has collapsed. Furthermore, the U.N. Human Rights Council, which created the Goldstone fact-finding mission, is now accused by Goldstone of unilateral hostility toward Israel.

The judge's first error -- blunder would not be unfair -- was to accept loaded terms of reference from the Human Rights Council. The brief he accepted made it almost inevitable that his mission would excuse the aggressor, Hamas, and punish the defender, Israel. Just consider the implication in the original mandate (later changed at Goldstone's insistence, he says) to "investigate all violations of international human rights law and international humanitarian law by the occupying power, Israel, against the Palestinian people throughout the occupied Palestinian territory."

Nothing there about the rocket attacks by Hamas deliberately aimed at Israel's population. The mandate Goldstone accepted gave a free pass for Hamas prior to the dates to be studied. This excluded the period during which Hamas launched thousands of rockets intended to kill and wound as many people as possible. Hamas continued its murderous assaults in the face of repeated warnings from Israel to cease firing or face the consequences. In effect, the terms reversed the terrorist and the victim.

This was a war that never would have happened if thousands of rockets and mortar shells, an estimated 12,000 of them, had not been launched at the state of Israel from Gaza by Hamas. There were no longer any Israeli soldiers or settlers in Gaza. Israel had evacuated them all. It had no claim on Gaza. The attacks were clearly motivated by Hamas's ideological commitment to waging war on Israel and the Israelis. Yet in the report, Hamas never appears as a responsible party for what happened and indeed is described innocuously as "Palestinian armed groups" rather than Hamas itself. The best that Goldstone can now do is to say in his op-ed, "If I had known then what I know now, the Goldstone Report would have been a different document." And how!

In the perennial rush to condemn Israel, it was largely overlooked that Israel unilaterally ended its occupation in Gaza in 2005. It removed the settlers and the settlements and left behind the only viable business there, a series of greenhouses that could have been used by the residents to create a flourishing economy. Instead, Hamas initiated a coup against Fatah and then brought in thousands of rockets, which they randomly fired to kill, maim, and traumatize Israeli citizens in Israel proper. When Israel sought help from the international community to stop the rockets, its appeals were ignored. No support for peace came from the United Nations or any other international body.

Many of the rockets that continued to rain on Israel barely missed schools, hospitals, and civilian apartment complexes. As the rockets increased in frequency, without any international rebuke or even appeal to the terrorists, what was Israel to do? It warned and warned, and when it received no response except more rockets, it began a military operation. No democracy could allow an enemy whose charter calls for its destruction to fire rockets at its children without any military response. Even then Sen. Barack Obama acknowledged this when he visited Sderot in the Negev in 2008 and said, "I don't think any country would find it acceptable to have missiles raining down on the heads of their citizens."

What's more, the Goldstone Report basically ignored the fact that Hamas had placed military camps, arms depots, and rocket-launching sites in Gaza's civilian population centers. Israeli forces sought to minimize casualties when they attacked these areas. They interrupted local radio transmissions and dropped thousands of leaflets to warn of attacks and urge civilians to evacuate. They sent phone messages to residents whose buildings would possibly be targeted. An unmanned aerial vehicle was used to monitor whether the civilians had left. If the residents had not left, the Israelis would fire a special warning shot at the roof of the building so the residents would have another chance to leave.

How could an army with such a policy be accused of deliberately killing civilians, as the Goldstone Report on Gaza alleged? No other army in the world had taken the steps that Israel adopted to protect civilians.

What of the attacks on mosques that were alleged? The militarization of mosques has been a practice used across the Middle East in recent years. In Gaza, mosques were used to launch rockets and store Kassam and Grad rockets. Witness that when Israel struck these facilities, there were secondary and tertiary explosions from the weaponry stored within.

Using mosques for their war was only one of many ruses by Hamas. It forced residents to stay at home in neighborhoods where the Israel Defense Forces operated; it infiltrated terrorist operatives into civilian neighborhoods, including changing their uniforms to civilian clothing while fighting the IDF. It surrounded its fighters with children; it situated its military infrastructure in public institutions, fired rockets and mortar shells from within civilian populations, and summoned civilians to operatives' houses to serve as human shields for terrorists in danger of IDF attack. Mosques, hospitals, educational institutions, and other public spaces were used for storing weapons, including the extensive military use of al-Shifa Hospital in Gaza.

The list goes on and on. Yet the Goldstone Report did not blame Hamas for this abuse. It systemically ignored or rejected Israel's submissions on the issue of human shields and Israel's efforts to prevent harm to noncombatants.

The report discounted the testimony of the former commander of British forces in Afghanistan, Northern Ireland, Bosnia, and Macedonia, Col. Richard Kemp. As Kemp put it: "Many missions that could have taken out Hamas's military capabilities were aborted to prevent civilian casualties." He best summarized for the Human Rights Council the reality of what transpired during the Gaza war regarding the actions of the IDF: "During Operation Cast Lead, the Israeli Defense 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."

All true and verifiable. Yet the U.N. report placed no responsibility on Hamas for what occurred. Instead the terrorists were unidentified, as if there were no chain of command headed by Hamas ordering the rocket attacks. However, Hamas's interior minister in Gaza, Fathi Hamad, made this notable admission on Oct. 28, 2009: "We work in coordination with the resistance factions to make it easier for them to carry out their missions." Earlier that year, as the report noted, Hamad admitted that Hamas often created "a human shield of women, children, the elderly, and the mujahideen against the Israeli military." Even worse, the U.N. mission ignored and would not take as evidence photography that clearly showed that Hamas launched rockets from populated areas. Just imagine what the United States would do if anti-personnel rockets loaded with shrapnel were being fired randomly at civilian areas and 20 percent of Americans were within range.

Paradoxically, during the conflict, the IDF processed huge amounts of humanitarian aid into Gaza. As Kemp noted: "To deliver aid virtually into your enemy's hands is, to the military tactician, normally quite unthinkable. But the IDF took on those risks." Israel was sending about 100 trucks every day loaded with grain, humanitarian aid, and other goods into Gaza, something which I personally witnessed.

The Goldstone Report, in effect, rescinded Israel's right of self-defense against Hezbollah and Hamas, both of which are embedded in civilian populations. Yet each such conflict inexorably draws the Jewish state one step closer to pariah status. Any limited victory on the battlefield is turned into major defeats in the arena of world public opinion. Israel simply cannot continue to be drawn into many wars against terrorists hiding behind their own civilians to attack Israeli civilians.

Yes, now Goldstone has withdrawn his central concern and stated that Israel did not intentionally harm civilians, but his original report nourished a campaign to delegitimize the state of Israel and label it as a war criminal. The mission relied on heavily partisan and highly selective information supplied by anti-Israel groups such as Human Rights Watch.

What Goldstone accomplished was to persuade much of the world that Israel would purposely kill civilians. Now he acknowledges that Israel has looked into every charge of war crimes, all 400 or so of them, incident by incident; punishment was issued in those few (three) that went outside the rules of war as set by Israel which adhered to a morality in battle that the Western world respects.

The 21st century is trying to cope with a new form of warfare in which terrorist groups launch attacks against "enemy" civilians from behind the shield of "friendly" civilians. To distinguish combatants from noncombatants is a tremendously difficult challenge in this kind of war, particularly when Hamas leaders issue instructions to their fighters to shed their uniforms to blend in with the civilian population -- and some civilians certainly did die. The Israeli army asserted all along that approximately 50 percent of the casualties in the war were Hamas terrorists, figures now proven correct in contrast to the 10 percent originally alleged. The civilians who died did so from attacks on legitimate military targets.

Asymmetrical world wars in which terrorists and insurgents deliberately conceal themselves among civilians are the story of 21st-century armed struggle. There are no easy answers to resolve the moral dilemmas they pose. The United States sends drones after terrorists in Pakistan when it finds them in range, but what happens if this exposes civilians to injury or death, which has occurred a number of times. Was that disproportionate?

Let's remember that civil law holds murderers who hide behind human shields responsible for the deaths of those human shields. When the police accidentally kill a hostage held by a criminal, it is the hostage-taker, not the police officer, who is guilty of homicide. That is the appropriate analogy for what went on in Gaza. How could Goldstone ignore the massive evidence of Israeli efforts to comply with international humanitarian law in order to reduce civilian casualties?

Nobody can expect Goldstone's newly found contrition to change the Muslim world's position on the IDF and Israel. It should, however, influence public opinion-makers in civilized countries that have increasingly fallen under the influence of the anti-Israel poison that has been trickling in from the "human rights" groups and other radical left-wing and fringe groups that accord no "human rights" to Jews. They joined forces with radical Islamic groups and sought to delegitimize the nation of Israel and undermine its just right to defend itself against a terror that continues even after Israel had evacuated every centimeter of occupied territory in Gaza.

The Goldstone Report became the most important contributor to the demonization campaign waged against Israel in recent years. Quite simply, he was duped. Only now does he praise unequivocally the investigations carried out by the IDF. The Goldstone Report was the equivalent of a modern-day Dreyfus trial for the state of Israel. It was a disguised effort to undermine the legitimacy of the state of Israel as the home of the Jewish people.

Goldstone has recanted his false accusation of wrongdoing by Israel. His admission, properly reported, should push back the tide of anti-Israel propaganda based on his conclusions. Will it? The original accusations may live on, but his admission of error should never be forgotten.


Richard Goldstone Recants His Report Attacking Israel is republished with permission of STRATFOR.


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