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Avi Bell on the Goldstone Report:

My inclination is to dismiss out of hand any report that emerges from the U.N. Human Rights Council, which includes such human rights stalwarts as China, Cuba, Egypt, and Saudi Arabia. I'm even more inclined to do so when it establishes a four-person panel to issue a investigate and issue a report on human rights abuses in the recent Gaza war and the panel is initially ordered to focus only on Israel and ignore Hamas (and it's not clear the mandate was ever really changed); one of the members had already declared Israel guilty of war crimes; the chairman of the panel was on the Board of Directors of Human Rights Watch when it accused Israel of war crimes in Gaza; and the panel couldn't do much actual investigating, because the Israeli government quite properly wouldn't let its members set foot in Gaza or Israel.

Nevertheless, for those who don't share my innate skepticism, I thought I'd pass along the following critique of the Goldstone report, received from Professor Avi Bell of University of San Diego and Bar-Lan University:

In paragraphs 100-102, the Goldstone report finds that the Palestinian Authority violates international law guarantees (presumably speech and assembly) by denying funds and employment to Hamas and Hamas affiliates as well as closing their institutions. It raises similar charges against Israel in paragraph 91-92, where it says that Israel carried out "collective punishment contrary to international humanitarian law" by arresting Hamas members who won election to the Palestinian legislature and that Israel violated "international human rights and humanitarian law, including the prohibition of arbitrary detention, the right to equal protection under the law and not to be discriminated based on political beliefs and the special protections to which children are entitled" by arresting "persons affiliated with Hamas."

This is perverse in the extreme, particularly in light of duties of states under UN Security Council resolution 1373 to do exactly that. Israel has additional duties to arrest these people under the International Convention for the Suppression of the Financing of Terrorism (1999) and International Convention for the Suppression of Terrorist Bombings (1997). Of course the PA is arguably not a state and not required to abide by 1373, but by the same token, it's not a state required to obey the universal declaration of human rights (assuming that was binding anyway).

Which brings me to the bigger issue: how Goldstone deals with terrorism altogether. This is the shocker: Goldstone examines the issue and finds only one party guilty of terrorism — ISRAEL. In paragraphs 60, 880, 1169, 1718 (second time -- there are two paragraphs numbered 1719) & 1724 (second), the Commission accuses Israel of violating article 33 ban of the Fourth Geneva Convention and article 51 (2) of Additional Protocol I by committing acts of terror.

The closest the Commission gets to admitting that Hamas committed acts of terror is in paragraph 1722 (first), where it says "it is plausible that one of the primary purposes of these continued [Hamas rocket] attacks is to spread terror," paragraph 1724 (first), where the report finds that the rockets "have caused terror in the affected communities of southern Israel" and in paragraph 108 where the report finds "significant evidence to suggest that one of the primary purposes … is to spread terror." But, ultimately, the Commission refuses even here to make a finding that Hamas has committed acts of terror, and instead in paragraph 1724, the report charges Hamas with the crime of indiscriminate attacks.

Elsewhere, the Report never refers to Hamas as a terrorist group or even hints that there might be a legal question. When citing Israeli references to Hamas as terrorist, it includes scare quotes (e.g., paragraph 282 and arguably paragraph 382) if the reference is not in a longer quotation (e.g., paragraph 371). In one place (footnote 246), the report, while refusing to acknowledge that Hamas is a terrorist organization, stresses that surely "political" and "social welfare" wings of Hamas are not terrorist, citing the Australian listing of only the military wing as "terrorist." In another spot (paragraph 1206), the report mocks the idea that one can distinguish activity promoting or supporting terrorism: the report states, "There is, in particular, a lack of clarity about the concept of promoting 'terrorist activity': since Israel claims there is no real division between civilian and military activities and it considers Hamas to be a terrorist organization, it would appear that anyone who supports Hamas in any way may be considered as promoting its terrorist activity. Hamas was the clear winner of the latest elections in Gaza. It is not far-fetched for the Mission to consider that Israel regards very large sections of the Gazan civilian population as part of the 'supporting infrastructure'."

On the other hand, there is numerous use, without scare quotes, of the word terror to describe Israeli activities. See, for instance, paragraph 1256, where the report describes the psychological state of Palestinians in Gaza as follows, "Many of those who met the Mission stated that they felt terrorized." Or paragraph 1690, where the report states, "It is in these circumstances that the Mission concludes that what occurred in just over three weeks at the end of 2008 and the beginning of 2009 was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population."

Comments open for four hours.

taney71:
Does anyone take the UN or any international body seriously?
9.18.2009 10:32am
DiverDan (mail):
I have but two questions - (1) Does any part of the dues the United States pay to the United Nations go to fund this kind of drivel? (2) If so, WHY ARE WE PAYING THEM????
9.18.2009 10:38am
neurodoc:
taney71: Does anyone take the UN or any international body seriously?
Do you really mean to be so all-encompassing as, "Does anyone take the UN or any international body seriously?"

Where the UN is concerned, unfortunately, the answer is clearly "yes."
9.18.2009 10:39am
Strict:
Professor,

Aside from the UN report and its dubious credibility, do you believe that Israel committed any crimes in Gaza?

I think there's a presumption that in a war, a party commits war crimes. No conflicts come to mind which didn't include war crimes.
9.18.2009 10:42am
neurodoc:
: I have but two questions - (1) Does any part of the dues the United States pay to the United Nations go to fund this kind of drivel? (2) If so, WHY ARE WE PAYING THEM????
For a long time, the US was in "arrears" to the UN, at least according to the UN's notion of what the US's share of the burden should be. (Very disproportionate on a per capita basis.) I believe that was resolved and we paid up, though I don't recall the details. (When did we start/stop holding back on our contributions? What caused us to start/stop?)
9.18.2009 10:44am
neurodoc:
Strict: I think there's a presumption that in a war, a party commits war crimes. No conflicts come to mind which didn't include war crimes.
One immaculate conception in the course of history, but no "immaculate" wars?
Strict: Aside from the UN report and its dubious credibility...
Aside from that, how did you like the play, Mrs. Lincoln?

(I take your points and generally agree with their thrust.)
9.18.2009 10:48am
DavidBernstein (mail):
Aside from the UN report and its dubious credibility, do you believe that Israel committed any crimes in Gaza?
Israel has a couple of dozen open investigations and prosecutions of soldiers for engaging in illegal behavior. Obviously, not all illegal behavior will be discovered. So, the short answer is yes, if you mean by "Israel" "any Israeli soldiers" along the lines of exactly what you'd expect in any war: some individual soldiers or units or commanders misbehave. But if you're asking whether the war itself was "disproportionate" or any of the specific ways it was conducted were criminal, the former issue is laughable unless one just assumes that Israel had no right to defend itself from Hamas rockets, and with regard to the second, I can't say that I've read every related documents, but I haven't seen any persuasive evidence that Israel violated any of its international law obligations assumed via treaty, and, from what I've seen only debatable evidence that it violated certain amendments to the Geneva convention that it hasn't signed on to, which in my mind settles the legal issue.
9.18.2009 10:53am
zuch (mail) (www):
neurodoc:
One immaculate conception in the course of history, but no "immaculate" wars?
One "immaculate war". How'd that turn out? But if "immaculate wars are as uncommon as virgin births (and there's argument that I may have allowed exaggeration of the frequency of both), the original point was well-made.

Cheers,
9.18.2009 10:56am
Dave456 (mail):
I am very happy about this report. It's content is so farcical and easily disporven that it serves more of an indictment of the UN than anything else.

For example, when your report can be discredited by Youtube videos you are in serious trouble.

Goldstone could find no "proof" that mosques were used for weapons.
9.18.2009 11:04am
guestagain (mail):
With comments open it is a rare opportunity to give props to Professor Bernstein for the steadfast reporting on HRW. Thank you.
9.18.2009 11:08am
JustWorld:
David,

Thank you for this link. I am curious about a few things. Under UN Security Council resolution 1373 and similar conventions, why does it follow that all of Hamas can be designated a terrorist organization?

My feeling on this is that both the Israeli government and the Palestinian Authority and Hamas like to play fast and loose with international law and obligations. What are the barriers, apart from the US at the UNSC or other political , to establishing an independent tribunal to investigate and prosecute on all sides? Specifically, what legal barriers?

Thank you for being open to questions.
9.18.2009 11:10am
Mike S.:
One would find the claim that Israel's actions were disproportionate if those making the claim would say what might be proportionate. I would hope no one would say it was appropriate (although it is surely proportionate) for Israel to indiscrimanately launch a rocket at Gaza for every one launched at Israel. Israel has been condemned for attempting to target Hamas commanders directly, economic sanctions, destroying smuggling tunnels, building a fence, running check points, closing the crossings into Gaza and (apparently in the latest report) arresting Hamas commanders who win elections. At some point one must draw the conclusion that what the critics really object to is Israel defending itself from terrorists, rather than the specific means used.
9.18.2009 11:11am
Raoul (mail):
You finally are open to comments- well it is about time. I read that report you posted last week critcizing HRC. The report was full of holes and frankly not worth the 100 pages, the real malfeasance allegations covered 12 pages but the report was elongated to make it appear voluminous (a common strategy for propagandists). The part I like was how guerrilla warfare is a war crime since it exposes the civilian population; perhaps Sherlock wrote the report. But let's be clear here: both sides commit atrocities and yes, Israel, as the occupying power is held to a higher standard. BUT BUT the real issue is the ongoing depravity, abuse and violence committed by Israel and the IDF on a population of abject poverty AND as long as they stay where there are not wanted the situation will continue. Unless something happens soon, Jews will be a minority in their own country (killing only males does not affect population growth) and it will not be far from that to becoming a pariah state like South Africa. The irony of putting facts in the ground (settlements) will lead to the dissolution of the Jewish state (unless the unthinkable happens, e.g., expulsion- which of course would lead to major wars).
9.18.2009 11:23am
neurodoc:
zuch: One "immaculate war". How'd that turn out?
I think it was the subject of a movie and in the end everyone hugged and agreed it was silly to have ever been at odds and they should be friends ever after.
JustWorld: why does it follow that all of Hamas can be designated a terrorist organization
A distinction should be drawn between the "good" Hamas, which provides services to Palestinians, and the "bad" Hamas, which devotes itself to terrorism of various sorts, the goal being the destruction of Israel?
9.18.2009 11:37am
Dave456 (mail):
A few obvious points of rediculous bias in the report.
9.18.2009 11:41am
JustWorld:
Neurodoc: Well Hamas is a political party. It's not, despite the widespread belief, anything like Al Qaeda, and I strongly feel that war crimes are individual acts, to be prosecuted and punished on an individual basis. So I see no reason for the blanket condemnation of Hamas. It's not simply a criminal conspiracy. Avigdor Lieberman and the right wing Israeli government should be shunned by this standard.
9.18.2009 11:49am
vepxistqaosani (mail) (www):
Raoul,

>> as long as they stay where there[sic] are not wanted the situation will continue

You may be right, but "where they are not wanted" encompasses at least the entire Middle East, if not the entire globe.

It is rare for a pro-Palestinian commentator to so nakedly call for the mass expulsion or extermination of the Jews. Thank you for that bit of honesty, however unintentional it may have been.
9.18.2009 11:56am
DavidBernstein (mail):
It's not simply a criminal conspiracy.
The mafia is not simply a criminal conspiracy, either. It owns many legitimate businesses, sponsors various local charities and social events (John Gotti loved to sponsor block parties), has been involved in American foreign policy, and is active in politics and labor organizing. It's still a criminal conspiracy, though.
9.18.2009 12:01pm
Waste (mail):
JustWorld,

Hamas is a political organization. It's also a terrorist organization. It's possible to be both. While war crimes are usually individual acts, states can also be actors by instituting policies to commit such acts. The blanket condemnation for Hamas is because of it is a terrorist organization. Read their charter.

That being said I wonder if it would be a war crimes for the simple fact that those are treaties signed by nation states. Of which Hamas is not a member. The rules for war are a bit more strict than internal police matters if I remember correctly. And since neither Gaza nor the West Bank are nation states the later I would think should apply. The difference has more to do with who is involved than any real violations.
9.18.2009 12:05pm
Steve:
A distinction should be drawn between the "good" Hamas, which provides services to Palestinians, and the "bad" Hamas, which devotes itself to terrorism of various sorts, the goal being the destruction of Israel?

I seem to recall that back in the day, we used to debate a similar point with respect to the IRA and Sinn Fein. As I remember, it was considered absurd to think that there might be a "good side" and a "bad side" - right up until the point when it wasn't considered absurd any more. I dunno, maybe a terrorist organization can have a political arm after all.
9.18.2009 12:08pm
JustWorld:
David: Very well. Then arrest and prosecute those who are guilty of conspiring to commit acts of terrorism. We do not ban labor unions and political parties, nor do we prohibit their participation in politics. Your analogy, while appealing, also undermines the approach both Israel and the US have taken in their "war" on "terrorism." The response, then, is trial and punishment.

Waste: Their charter was developed, as I recall, well over a decade ago. It exists now as a political bargaining chip and is no different from the settlement plans of the ultranationalists in Israel. Have you read some of the Republican Party platforms in the United States?

But I think what you are getting at, the criminal law approach, is the best one. The Gaza Strip and the West Bank cannot continue to exist in a legal limbo to suit the needs of Israel's increasingly right wing polity.
9.18.2009 12:13pm
NickM (mail) (www):
That point had something to do with the IRA laying down their arms.

Men being men, and not angels, the "good side" and "bad side" distinction is a wonderful device for allowing societal reconciliation once fighting has stopped. Before then, it serves to increase the power of terrorist organizations.

Nick
9.18.2009 12:19pm
einhverfr (mail) (www):
There are some interesting points to consider here.

On the whole, I think the concern about the bias of the report is correct. While there is no doubt that, given the way a domestic terrorist organization like the KKK is protected by our Constitution, that by US standards, both the PA and the Israel government are way out of line, it is also true that no other country that I am aware of shares those standards.

The report resonates with many Americans because we feel that these things would be out of line if done in the US. Perhaps that is the point of the exercise in hypocrisy.

So is the problem that the rest of the world doesn't hold with our values on freedom of speech and assembly? Or that the US goes to far here? Inquiring minds want to know!
9.18.2009 12:32pm
Connecticut Lawyer (mail):
I am waiting for Mr. Goldstone to take his road show to Afghanistan so he can investigate the recent incident in which German and American forces incinerated some 100 villagers who were trying to steal gasoline from a couple of hijacked tankers.

Oh, wait, he only investigates Jews. Never mind.
9.18.2009 12:40pm
Floridan:
"the report describes the psychological state of Palestinians in Gaza . . ."

Without commenting on the accuracy of the report, it seems to me that a Palestinian could feel terrorized by Israel's military offensive into Gaza without Israeli troops being guilt of terrorist acts.
9.18.2009 12:44pm
Strict:

I am waiting for Mr. Goldstone to take his road show to Afghanistan so he can investigate the recent incident in which German and American forces incinerated some 100 villagers who were trying to steal gasoline from a couple of hijacked tankers.

Oh, wait, he only investigates Jews. Never mind.


Is Mr. Goldstone Jewish? I thought he is. Do you think he hates Jews, himself and his family included?
9.18.2009 12:56pm
JustWorld:
Strict: Of Jewish descent. Not that it matters, although according to his daughter he is a Zionist and loves Israel.
9.18.2009 1:05pm
DavidBernstein (mail):
Then arrest and prosecute those who are guilty of conspiring to commit acts of terrorism.
This is precisely the strategy the entire Western world rejected when dealing with Al Qaeda and the Taliban after 9/11. So either Nato and Israel are guilty for not following it, or no one is.
9.18.2009 1:23pm
Waste (mail):
JustWorld,

Not sure what kind of bargaining chip it is when a non negotiable part of your charter is the complete destruction of a sovereign state.

I agree that the limbo status of the West Bank and Gaza need to be addressed. I think Israel should have told Egypt and Jordan and take care of their territory and hold them responsible for what happens from there. Though I think Egypt has renounced any claim on their part of the land. If they fail to do so then Israel should annex it and be done with it. Of course it would be controversial and condemed but long term would serve their interests better than what is occuring now.
9.18.2009 1:24pm
JustWorld:
David: Your hostility is unwarranted (I am sorry if it was unintended, but it comes across that way). It was misguided for the US to reject that strategy in 2001. Moreover, there has been plenty of internal opposition to the rejection of that strategy since.

This is not about some sort of Israeli exception to the rule. It should be the rule.

We will see what happens with Bagram. In the meantime, "they do it, too" is not an excuse.
9.18.2009 1:26pm
JustWorld:
Waste: Israel doesn't want to do that. The Israeli government wishes to continue the annexation of the West Bank, control of the air and coast of the Gaza Strip, and the occupation as a whole indefinitely. If they annex it, they will definitely need to address the issue of voting and equal rights.

The current situation is unsustainable.
9.18.2009 1:29pm
einhverfr (mail) (www):
JustWorld:

The Israeli government wishes to continue the annexation of the West Bank, control of the air and coast of the Gaza Strip, and the occupation as a whole indefinitely. If they annex it, they will definitely need to address the issue of voting and equal rights.


I am far more cynical than you. I don't think the Israeli Government wants anything in this matter. I think they are caught in a confused policy which has left the country without established borders.

So rather than do SOMETHING to resolve the unsustainable situation, they are caught between conflicting interests and unable to do ANYTHING.

The solution from the US side should be to tie foreign aid to both the PA and Israel to the following two conditions:
1) The Green Line shall be Israel's defined borders.
2) Any Jews in the PA territories shall be full citizens of the PA with a right to remain in their homes if they wish.

I guarantee the settler problem would be resolved in a heartbeat if pressure were made regarding our investments in the area in this direction. Hint: There is a reason they Arab Israelis would rather be Israeli subjects than be subjected to the PA.....
9.18.2009 1:38pm
HipposGoBerserk (mail):
einhverfr - you lost me.

Raul - you seem not to understand that the Palestinians are amongst the richest Arabs, since they benefit from partial integration into the Israeli economy.
9.18.2009 1:47pm
yankev (mail):
Richard Landes also has an excellent and thorough fisking at theaugeanstables.com.
9.18.2009 1:48pm
DavidBernstein (mail):
David: Your hostility is unwarranted (I am sorry if it was unintended, but it comes across that way). It was misguided for the US to reject that strategy in 2001. Moreover, there has been plenty of internal opposition to the rejection of that strategy since.

This is not about some sort of Israeli exception to the rule. It should be the rule.
It wasn't hostility, I was simply pointing out that Israel is playing by the same rules established by other nations. One could argue that these rules are wrong, but that means there is no reason to single out Israel. But I do think one reason the i.l. community does tend to single out Israel is they think if they can establish new rules against a relatively weak and unpopular opponent, they can then use that precedent against the U.S., Nato, etc.

As for some of the other post, you are neglecting the simplest way to end the conflict over Gaza: Hamas simply has to announce that it's no longer at war with Israel, that it is no longer arming itself for war against Israel, and that pending an agreed-upon solution in the West Bank it will henceforth expend its energy on governing Gaza and developing its economy. And mean it. That would be the end of the siege of Gaza.
9.18.2009 1:57pm
Steve:
This is precisely the strategy the entire Western world rejected when dealing with Al Qaeda and the Taliban after 9/11. So either Nato and Israel are guilty for not following it, or no one is.

I think the benefit of the "9/11 Doctrine" may be limited to the facts of that case. Just because the invasion of Afghanistan met with general agreement at the time, that hardly means the entire Western world has agreed to renounce the "criminal law" approach to counterterrorism forevermore - as no one can seriously dispute, I think. At this point the Western world, including our close allies like Britain, is basically back to the police approach.
9.18.2009 2:01pm
einhverfr (mail) (www):
HipposGoBerserk:

There are two settlement related issues in the West Bank. The first is that the PA does not believe that Jews can be a part of the Palestinian State. The second is that there are movements in Israel which seek to use these to drive existing Palestinians off their property and annex and into Israel. While these movements do not have a great deal of mainstream support, they do exist and should not be discounted.

My thinking though is this: If the US is to be an honest broker as well as a supplier of aid, we need to start being a little tougher to both sides. Thus far we have tended to be relatively pro-status-quo which doesn't really work. We need to start looking at and addressing bigger problems, such as the unwillingness of either side to admit to real ethnic pluralism.

The argument that many pro-settlement folks make is that the Israeli government shouldn't force settlers from their land and I agree with this point. The better solution is to transfer the land and and inhabitants to the PA. No reason to send in the IDF to evict people. Just make the PA promise to ensure their full recognition as Jewish Palestinians. The PA doesn't want to do this, so the US should pressure them to do so.

The US should also then pressure Israel to transfer all settlements outside the Green Line ('67 borders) to the PA. Give the residents notice that they can either join the PA or move back within the borders of Israel. I bet nearly all will do the latter (give them three months to sell land and move back in prior to the transfer-- or they can hold onto the land, move back in and sell it later). No forced confiscation of land. Merely a question of who you want to have a your government.
9.18.2009 2:03pm
JustWorld:
David:

We will have to disagree. Hamas has stopped rocket attacks to no avail, they gun down Al Qaeda insurgents, they communicate their interest in a two state solution....and still the bombings continue. Israel (and its patron state, the US) was unwilling to give them a chance to govern under anything approximating normal conditions. There was a choice, of course: they could have prohibited them from participating in the elections. But they didn't, and there you have it.

I sincerely doubt your read of the Human Rights Council. It might have something to do with the world's largest refugee camp, instead of some ulterior, conspiratorial plan.

Anyway, thank you for at least opening up the comments for debate this time. My feeling is that the Israeli government now consists of authoritarian human rights abusers and is quickly turning into something that Americans will eventually no longer be able to support. And I think Israel's friends should be advocates of a just, peaceful, principled and pragmatic solution to the conflict, instead of apologists for the crimes of the last two governments. Good day to you, sir.
9.18.2009 2:05pm

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