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The Goldstone Report: Justice Richard Goldstone Revises His Position

05 April 2011 F OCAL P OINTS • In September 2009, the U.N. Human Rights Council Fact-Finding Mission on the Gaza Conflict, chaired by Justice Richard Goldstone, published its report, citing potential breaches of the Law of Armed Conflict committed during the IDF's operation in Gaza in the winter of 2008-2009. The report largely based its conclusions on findings regarding incidents that the report concluded were evidence of war crimes • The report was immediately criticized as a highly biased and unfounded document that was the product of a dubious methodology and questionable legal analysis. • On 1 April 2011, Justice Goldstone wrote an editorial in revising his position and labeling the mission's report a flawed account that placed undue blame on the IDF's conduct in the conflict. Justice Goldstone affirmed that at the time, the report lacked the necessary information to draw decisive conclusions. • Contrary to the report's conclusions, Justice Goldstone established that Palestinian civilians killed in the operation "were not targeted as a matter of policy," while crimes committed by were irrefutably intentional. • Justice Goldstone commended 's ability and willingness to investigate alleged violations of the Law of Armed Conflict through the IDF's internal law enforcement system. In contrast, he unequivocally denounced Hamas's categorical failure to do so. • Justice Goldstone deplored the U.N. Human Rights Council's "history of bias against Israel" and called on the Council to condemn the "heinous acts" of unremitting rocket and mortar fire from the Gaza Strip as well as the terrorist attack in Itamar. • He asserted that non-state actors such as Hamas are fully accountable for upholding the Law of Armed Conflict, particularly the obligation to protect civilians on both sides of a conflict. • Ultimately, Justice Goldstone affirmed Israel's "right and obligation to defend itself and its citizens against attacks from abroad and within."

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A BSTRACT

If I had known then what I know now, the Goldstone Report would have been a very different document. “ Justice Richard Goldstone, 1 April 2011

On 15 September 2009, a Fact-Finding Mission established to investigate instances of alleged war crimes during Israel's military operation in Gaza in the winter of 2008-2009 submitted its report to the U.N. Human Rights Council (HRC). The mission, headed by the South African Justice Richard Goldstone, offered a deeply biased and highly problematic legal analysis of Israel's conduct before and during the operation.

On 1 April 2011, Justice Goldstone published an op-ed in the Washington Post, "Reconsidering the Goldstone Report on Israel and War Crimes," in which he significantly revised key positions expressed in the report and offered a new assessment on the IDF's activities during the operation in Gaza. Two years after the publication of the report, Goldstone stated unequivocally that the Fact-Finding Mission did not have the relevant information necessary to draw informed conclusions. He acknowledged the legitimacy of the IDF's investigative process and condemned Hamas' blatant disregard for the Law of Armed Conflict as it continues to indiscriminately target civilians in rocket and mortar attacks.

A DDRESSING THE S UBJECT OF W AR C RIMES In his article, Justice Goldstone reevaluated the report's allegations that the IDF deliberately targeted civilians during the course of the operation – an allegation that had served as the primary basis behind the report's findings that the IDF had perpetrated war crimes. In his op-ed, Justice Goldstone confirmed that while there were cases of individual misconduct in the IDF, "civilians were not intentionally targeted as a matter of policy."

In contrast, during the operation Hamas maintained a deliberate and incessant campaign against Israeli civilians. As Justice Goldstone emphasizes, the Law of Armed Conflict applies "no less to non-state actors such as Hamas then they do to national armies;" by directly targeting

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That the crimes allegedly committed by Hamas were intentional goes without saying – its rockets were

purposefully and indiscriminately aimed at civilian targets.

“ Justice Richard Goldstone, 1 April 2011

Justice Goldstone also acknowledged that the report failed to adequately ascertain the number of civilian casualties in Gaza. He explained that the report did not "corroborate how many Gazans killed were civilians and how many were combatants," and indicated that the number of civilian causalities in the report may have been inflated. At the time of the operation Hamas reported that only a small number of those killed in the operation were active participants in hostilities. However in November 2010, Hamas Interior Minister Fathi Hammad rescinded those claims and confirmed Israel's assessment that approximately half of those killed in Gaza during the operation were indeed members of Hamas's armed forces.

The Israel military's numbers have turned out to be similar to those recently furnished by Hamas. JUSTICE Richard Goldstone, 1 April 2011

I SRAEL' S J UDICIAL S YSTEM AND I NVESTIGATIVE P ROCESS Following the Goldstone Report the HRC established a committee of independent experts to examine and assess the manner in which Israel and Hamas have investigated the allegations contained in the Goldstone Report. The committee of independent experts, originally chaired by Professor Christian Tomuschat (later replaced by Justice Mary McGowan-Davis), issued two reports detailing the efforts and resources Israel dedicated to investigating claims of alleged operational misconduct during the operation in Gaza. Overall, Israel opened over 50 criminal investigations and in the appropriate cases the investigations lead to prosecution before military courts.

In his op-ed, Justice Goldstone reiterated that his committee's report was never intended to be a "judicial or even quasi-judicial proceeding" and that "our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report." As Justice Goldstone noted, "McGowen Davis has found that Israel has done this to a significant degree." In January 2011, speaking at , Justice Goldstone 3

-Unclassified- expressed his respect for the "courageous" Israeli military authorities for both investigating their own soldiers and for divulging their findings to the public.

H AMAS' S YSTEMATIC V IOLATIONS OF I NTERNATIONAL L AW

At minimum I hoped that in the face of a clear finding that

its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Judge Richard Goldstone, 1 April 2011

While Israel committed considerable time and resources to investigating allegations raised with respect to IDF activities in Gaza, the committee of independent experts found that "the de facto authorities [Hamas] have not conducted any investigations into the launching of rocket and mortar attacks against Israel."

Not only did Hamas fail to discharge its obligation to investigate war crimes, but it has persisted in its policy of deliberately targeting civilians. For ten years – proceeding, during and following the operation in Gaza – Hamas has waged a ceaseless campaign of rocket and mortar attacks on Israeli territory. Since 2001, Hamas has maintained a constant barrage of rocket and mortar fire at Israel and though the IDF's operation in Gaza resulted in the decrease of the frequency and volume of attacks diminished, hundreds of rockets and mortars have been shot at Israel since January 2009. Rocket and mortar attacks remain a part of daily life in southern Israel as Hamas continues its illegal and unremitting crusade to inflict indiscriminate harm on the Israeli civilian population.

C RITICIZING THE U.N. H UMAN R IGHTS C OUNCIL At his lecture at Stanford in January 2011, Justice Goldstone criticized the HRC for its tendency to "repeatedly rush to pass condemnatory resolutions in the face of alleged violations of human rights law by Israel but fail to take similar action in the face of even more serious violations by other States." In his op-ed two months later, he similarly repudiated the HRC, "whose history of bias against Israel cannot be doubted."

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-Unclassified- In January Justice Goldstone claimed that since the Goldstone report's publication, the HRC has failed to institute much needed reform. He contended that the HRC (which consists of 47 member states including Libya1, Bahrain, Malaysia, Pakistan, Saudi Arabia, Uganda, Angola etc.) has ignored a variety of institutionalized injustices and war crimes throughout the world and that in order to remain a relevant international adjudicator of justice and human rights, must address its fundamental bias. To do so, the HRC must recognize the inherent illegality of Hamas' prolonged aggression against Israeli civilians.

That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Counsel should condemn these heinous acts in the strongest terms.

Judge Richard Goldstone, 1 April 2011

IDF R ESPONSE TO THE O PERATION AND L ESSONS L EARNED The IDF remains committed to fulfilling all relevant and applicable obligations defined by the Law of Armed Conflict and particularly to minimizing civilian casualties as much as possible. In conjunction with its criminal and command investigations, following the operation in Gaza the IDF initiated a series of internal reviews reassessing various operational practices, especially in the context of urban warfare. As a result of these assessments, the IDF introduced new orders and procedures regulating, inter alia, the use of certain munitions.

However these alterations do not impinge, in any manner, on Israel's right and duty to defend itself and protect its citizens. As Justice Goldstone stated on 1 April, "Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within." Hamas' continued use of human shields and its practice of locating weapons caches, rocket-launching sites and other military objectives in densely populated areas and in the vicinity of public facilities such as hospitals and schools endangers the lives of the residents of the Gaza Strip, while its continued rocket and mortar attacks endanger those of Israeli citizens. The international community must join Israel in a united effort to denounce these illegal actions for the sake of civilians on both sides.

1 Libya's membership has since been suspended 5