Avi Bell on Bill Moyers on Richard Goldstone

Bill Moyers of PBS interviewed Richard Goldstone two days ago. The transcript of the interview is here. (You can also watch the interview from the same page, the link is in the upper left corner).

I haven't even read the entire Report yet, it's so long; once I eventually finish it I'll write my thoughts. However, Professor Avi Bell, law professor at Bar-Ilan and at University of San Diego, has e-mailed his responses to the interview to a list I get. (That would be the group behind the Understanding the Goldstone Report website).

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Avi Bell:

1. The Goldstone report draws its conclusions on the basis of 36 incidents it says it investigated. The report says that incidents are illustrative and therefore justify the broader conclusions made by the report. But Goldstone admits that the report lied in saying that the incidents are “illustrative” and in saying that the Mission worked according to its self-described neutral mandate rather than the official biased one. Goldstone says “We chose those 36 because they seemed to be, to represent the most serious, the highest death toll, the highest injury toll. And they appear to represent situations where there was little or no military justification for what happened.” In other words, the Mission chose incidents that were seen as NOT ILLUSTRATIVE, and, rather, most likely to support a finding of war crimes.

2. Goldstone repeatedly misstates the law in the interview.
a. Goldstone implicitly misstates the rule of distinction. Goldstone rightly says that the rule of distinction requires combatants to distinguish between “combatants and innocent civilians.” But then, he “proves” that Israel violated the rule of distinction by saying “We found evidence in statements made by present and former political and military leaders, who said, quite openly, that there's going to be a disproportionate attack. They said that if rockets are going to continue, we're going to hit back disproportionately.” Stating that a counter-attack will be disproportionate to the attack isn’t a violation of the rule of distinction. The rule of distinction requires that Israel not aim its fire at civilians as such. It has nothing to do with how much fire Israel can aim at legitimate targets.

b. Regarding the rules of distinction and proportionality, Moyers asks Goldstone, “Who is to say that? Who is to make that distinction?” Goldstone answers, “Well, that distinction must be made after the event.” That is absolutely, positively, not the law. The law is that commanders must make judgments on the basis of knowledge they have at the time, not that one second-guesses them after the event and judges them guilty on the basis of knowledge they may not have had. Thus, for example, Newton testified “In order to properly assess a real proportionality assessment therefore, the relevant question is what did the commander know? What information was available to him?”

This is not an isolated misstatement by Goldstone. Throughout the interview, he keeps giving examples of judging after the fact. For example, he says: “We spoke to the owner of a home in Gaza City. He said he looked out of his window and he saw some militants, whether Hamas or other Palestinian groups, setting up their mortar launchers in his yard. He ran out and said, "Get out of here. I don't want you doing this here. You're going to endanger my family, because they going to bomb. Get out." And in fact, they left. Whether that was typical or atypical, I don't know, we didn't, obviously, cover the field. But assuming they had disobeyed them, assuming they had launched the rockets from over the objections of the household owner, and his family, they launched the rockets and disappeared. It would be a war crime, as I understand it, for Israel to have bombed the home of that innocent household, who didn't want this to happen.” Goldstone again, is wrong. Even if the facts were as Goldstone stated them, and the owner was absolutely innocent, the launching point of rockets would still be a legitimate target, and it would be permissible to attack it if the collateral damage were proportionate to anticipated military advantage, notwithstanding the damage to an innocent owner.

Here’s another example. Moyer prompts “so there was intention,” meaning Israel deliberately violated the rule of distinction. Goldstone responds: “Well, certainly. You know, one thing one can't say about the Israel Defense Forces is that they make too many mistakes. They're very, a sophisticated army. And if they attack a mosque or attack a factory, and over 200 factories were bombed, there's just no basis to ascribe that to error. That must be intentional.” Goldstone again is arguing that he can determine whether there was a crime by looking after the fact at what was destroyed, without any evidence of what the commander thought was the military advantage in attacking the site and what the commander thought would be the collateral damage. In Goldstone’s favor, here he at least tries to provide an excuse for his misstatement of the law: his preposterous assumption of Israeli omniscience.

c. Goldstone falsely states that the only legal way to fight in an urban area is with commando actions. Moyer asks him: “But when the terrorists, the militants, whatever one wants to call them, are known to be embedded in, as you say, those tight, complex, concentrated areas, what's the other army to do?” Goldstone says: “It's for example, to launch commando actions, to get at the militants and not the innocent civilians.” This is clearly not in line with the practice of any other state in the world.

3. Goldstone says that NATO fighting in Yugoslavia was basically legal (Goldstone’s comment: “Take the United States fighting wars in Kosovo and Iraq and Afghanistan. They have certainly at a high level, gone to extremes to protect innocent civilians. Where they've made mistakes, and mistakes have been made, in Kosovo, in Iraq, in Afghanistan, apologies have followed. The United States, in general, has accepted and tried its best, with the assistance of military lawyers, has tried its best to avoid violating international humanitarian law.”). But Israel’s government specifically said, and the report noted that “The Israeli Government states that this expression of its objectives is no broader than those expressed by NATO in 1998 during its campaign in the Federal Republic of Yugoslavia” (paragraph 1201). And the report responded by intimating that Israel’s objectives were therefore illegal (paragraph 1202 – “The Mission makes no comment on the legality or otherwise of NATO actions there”), before then saying explicitly that Israel’s objectives were illegal.

4. It’s interesting to see what Goldstone calls a good investigation. He dismisses the more than 100 Israeli investigations now ongoing because, he says, “it's now, what, seven months since the end of the war. There's only been one successful prosecution against a soldier, who stole a credit card, which is really almost fodder for cartoonists, in the plethora of alleged war crimes.” In other words, Israeli investigations will only be credible if they find Israelis guilty. The other reason he advances for attacking the Israeli investigations is “in those military investigations, as far as I've read, in only one cases have the military even approached the victims in Gaza. And obviously, to have a full investigation, one needs, as you say, to hear both sides.” This is rich, considering that Goldstone never spoke to any of the persons he accuses of committing crimes. Goldstone adds that Israeli investigations shouldn’t be trusted because they are done in “…secrecy? And, you know, I always quote Justice Brandeis, who said, "The best disinfectant is sunlight." And this is happening in the dark. And even with the best good faith in the world on the part of the military investigators, the victims are not going to accept decisions that are taken in the dark, and don't involve them.” But Goldstone is still refusing to refuse the evidence (written submissions, etc.) on the basis of which the report was written.

5. Goldstone states of Israel, “It's got a wonderful legal system, its got a great judicial system, its got retired judges who certainly, in my book, would earn the respect of the overwhelming number of people around the world, including the Arab world, who, if they held open, good faith inquiries, would put an end to this.” It’s worth reciting this in relation to Goldstone’s claims of the inadequacy of Israeli investigations. As paragraph 1803 of the report admits, the Israeli investigatory system ends at the High Court of Justice. Anyone who is disappointed with a decision not to investigate an incident or bring charges against an individual, or failure of a military court to convict may appeal to the High Court of Justice. This includes non-citizens, like alleged Palestinian victims, and interested observers like Goldstone himself. And the High Court of Justice has no standing requirement, so anyone may bring suit, even if they are not directly harmed. If Goldstone really cares to have new investigations, and has any real evidence to show that crimes were committed aside from the conclusory statements in the report, why doesn’t he file a petition with the Israeli High Court of Justice? Why doesn’t he suggest it to any of the alleged Palestinian victims? Is he afraid to put his alleged evidence to the test of a court?