Latest Gaza Lawfare

Jul 9, 2009 | AIJAC staff

Update from AIJAC

July 9, 2009
Number 07/09 #05

This Update deals with the problems relating to the latest “investigations” coming out of the UN and NGO community concerning the Gaza conflict early this year – and especially the Goldstone inquiry set up by the UN Human Rights Council. 

First up is Harvard Law Professor Alan Dershowitz who looks at the track record of the Human Rights Council on Israel  and based on this terrible record, argues that the idea that they could set up “an ‘independent’ or objective investigation of Israel is preposterous.” He says it is surprising and disturbing to see Goldstone accept the job given the biases of both the Council and the mandate he was given – and says Goldstone was hired precisely because he is Jewish. Dershowitz says the investigation will ignore the law and at best, paint Hamas and Israel as both equivalently guilty of war crimes. He says Goldstone should resign if that is what he is being pressed to do. For the full argument, CLICK HERE. Commenting in some detail on the larger campaign of lawfare against Israel is Dr. Gerald Steinberg of NGO Monitor.

Next up, Israeli writer Haviv Rettig Gur says Goldstone’s commission has a problem. He says it is not surprising that Israel refused to cooperate, given that the Human Rights Council’s declared it guilty before the investigation was even held, as well as the existing public statements to that effect by one of Goldstone’s colleagues on the investigating panel, Christine Chinkin. Rettig Gur points out that Goldstone himself seems to think he is involved in something like the South African Truth and Reconciliation commissions, but, given that the Israeli-Palestinian conflict is far from over, it is not surprising that the investigation is being exploited to score points in the conflict. Finally, he makes some interesting points about the problems of international law being exposed here.  To read it all, CLICK HERE. A definitive exploration of the international law issues related to the Gaza conflict Justus Reid Weiner and Avi Bell is here. A conference further exploring these issues is summarised here. Making some additional good points on the weaknesses and abuses of international law is David Hazony

Finally, on a different topic, Jeff Robbins, a former US Clinton Administration delegate to the UN, looks at some problems with the focus on the current US-Israel disagreement over settlements –  basing his comments on the latest book by Israeli historian Benny Morris. Robbins points out that Morris demonstrates pretty conclusively that over the past 80 years, the dominant theme of the Arab-Israel conflict has been the fact that Palestinians “do not want any Jewish state in the region, regardless of the boundaries, and regardless of the settlement policy pursued by this Israeli government or that one.” Robbins therefore argues that the conflict over settlement policy is not only obscuring this reality, but strengthened those forces that argue that “in the fullness of time, American support for Israel can be degraded, and with it Israel’s ability to survive.” For all the nuances of this important argument, CLICK HERE. Also commenting on the unfortunate side-effects of the focus on the settlement issue is veteran Washington insider Steve Rosen.

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The UN kangaroo “investigation” of Israeli “war crimes”

Posted by Alan Dershowitz

Double Standard Watch blog, July 2, 2009

Just as Spain’s national Court decided to shelve a phony war crime investigation of a 2002 Israeli air strike in Gaza, a group of lawyers and military experts assigned by the United Nations Human Rights Council continued its phony investigation of “the grave violations of human rights in the occupied Palestinian Territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip.” 

The UN Human Rights Council is a scandal. It’s a successor to the defunct UN Human Rights Commission. Both organizations have a long history of singling out Israel for condemnation and of ignoring real human rights abusers by the world’s worst offenders, several of which dominate the Human Rights Council and it predecessor.

As Hudson Institute scholar Anne Bayefsky recently noted: “The Council has adopted more resolutions and decisions condemning Israel than all the other 191 UN member states combined. The more time the Council spends demonizing Israel, the less likely it becomes that it will ever get around to condemning genocide in Sudan, female slavery in Saudi Arabia, or torture in Egypt.”

The very mandate that authorized the Gaza investigation reveals its bias against Israel. The council has already concluded, without any pretense an investigation, that Israel is guilty of “grave violations of human rights.due to its military attacks.”

It has also concluded that the Gaza Strip “remains occupied,” despite Israel having ended its occupation and having removed every single soldier and settler in 2005. Moreover, the Council’s current president has limited the scope of the investigation to “violations committed in the context of the conflict that took place between 27 December 2008 and 18 January 2009.” Those are the dates of the Israeli response to more than seven years of rocket attacks by terrorists operating behind human shields in Gaza. During the period prior to 27 December 2008, Hamas and its terrorist allies fired thousands of rockets and mortar shells into civilian areas of Israel, killing, maiming and traumatizing Israeli women, men and children. But these attacks that provoked Israel’s self-defense military actions, are excluded from the investigation, according to the mandate and its interpretation by the president of the council. It would be as if they UN convened an investigation of the United States and terrorism but limited the investigation only to actions taken after September 12, 2001.

The very idea of the UN Council conducting an “independent” or objective investigation of Israel is preposterous. It would be as if an all-white Mississippi court were investigating a black man’s self-defense in response to years of lynchings by whites and limiting its investigation to the event following the lynchings. There is simply no way of an investigation conducted under the auspices of the UN Human Rights Council and be fair. Its history of bias should not be legitimated by men and women of decency who care about real human rights.

That is why it was so surprising and disturbing to see a good man like Richard Goldstone agree to head the investigation team appointed by the UN Human Rights Council. Goldstone is a South African who fought against Apartheid and led an important investigation into the causes of violence there, ultimately blaming the government itself for instigating violence through a “third force.” Would he have succeeded if his commission had been limited to white members only, and if its mandate of his investigation was limited to the black violence and excluded the white violence that provoked it? Would he have been willing to lend his good name to legitimate the bad history of all white Apartheid courts? What if he were a black lawyer, deliberately selected by the all white court to be an “Uncle Tom” precisely because he was black?

Goldstone was selected to head this investigation precisely because he is Jewish. Let there be no mistake about that cynical reality. I don’t blame the UN Council for selecting a Jew to legitimate its kangaroo investigation of the Jewish state, but I wonder why a man like Goldstone would allow himself to be used in this manner. Does he not realize how he is being played? How his distinguished reputation is being exploited in the interest of bigotry? Oh yes, Goldstone will be “even-handed.” That is precisely what the Council wants:  equivalent condemnation of Israel and Hamas for unequivalent actions.

Hamas admits-indeed boasts-that it has committed multiple war crimes: first it boasts about firing rockets at Israeli school children; it fires its rockets primarily at times when Israeli children are on their way to and from school; it has hit several kindergartens, elementary schools and playgrounds (fortunately, the children had been sent home); it celebrates every civilian death and injury it causes. Targeting civilians is a war crime.

Second, Hamas boasts of hiding behind human shields, which is also a war crime. A prominent Hamas legislator has boasted of the fact that Hamas:

….[has] formed human shields of the women, the children, the elderly, and the mujahideen, in order to challenge the Zionist bombing machine. It is as if they were saying to the Zionist enemy: ‘We desire death like you desire life.'”

Third, since Hamas is the elected government of Gaza, every rocket attack from Gaza is a violation of Article 51 of the UN Charter, which authorizes member nations to defend itself against “armed attack.”

Fourth, these attacks are part of a long term strategy to destroy a member nation of the United Nations, as the Hamas charter clearly proclaims.

No “investigation” is needed to conclude that Hamas engaged in war crimes.

Israel, on the other hand, is engaged in legitimate self defense:  as a leading British expert, Richard Kemp put it on the BBC during the Gaza War:

I don’t think there has ever been a time in the history of warfare when an army has made more efforts to reduce the civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.”

To be even-handed in the face of such uneven conduct, or to find moral equivalence where there is none, would be the worst sort of immoral bigotry. Yet moral and legal equivalence is precisely what this investigatory commission will “find,” following its “independent fact-finding mission,” unless it finds that Israel’s conduct was worse than Hamas’s because more people died from Israeli fire than from Hamas rockets. The investigators will ignore the law that holds murderers who hide behind human shields responsible for the deaths of these human shields, even when the bullets that killed them came from the weapons of those who engaged in legitimate self-defense. Consider the analogous situation of the Navy SEALs who killed the Somali pirates that had kidnapped American merchant captain Richard Phillips. Similar rescue attempts have sometimes resulted in the tragic deaths of the hostages. Would it be fair to try the SEALs for murder, instead of the pirates? That is exactly what the Gaza commission aims to do to Israel. It will also ignore the fact that Hamas always exaggerates the number of civilians killed by including in that category armed police (who double as terrorists), “civilians” who willing serve as human shields or who willingly allow their homes to be used to manufacture, store or fire rockets, “children” and “women” who have become terrorists, and even “collaborators” killed by Hamas.

Goldstone will try his best to be even-handed. But he knows that unless his report condemns Israel, at least as forcefully as it condemns Hamas, it will never be accepted by the UN Human Rights Council and his work will come to naught. He is an experienced international diplomat. He knows who appointed him. He understands his mandate. He will try to expand it to include Hamas war crimes, so as to be “even-handed,” even though Hamas already boasts of its crimes.

Israel too knows this. They know Goldstone. They know that his appointment was calculated to make it difficult for Israel to refuse to cooperate with a Jewish investigator who has had close ties with the Jewish state. Their refusal to cooperate with this distinguished group of investigators, they will be seen by some as afraid of the “truth.” Had they cooperated, they know that “the truth” produced by this investigation will be a lie. They are in a no-win situation, precisely because Richard Goldstone accepted an appointment he should never have agreed to accept.

Israel should conduct its own thorough investigation and let the chips fall where they may. 

Richard Goldstone should resign in protest if the Human Rights Council finds moral or legal equivalence between the multiple war crimes deliberately committed by a terrorist and the inadvertent deaths caused by the use of human shields to protect terrorists from legitimate self-defense actions taken by a democracy to protect its citizens.

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Analysis: The problem with Goldstone


Jerusalem Post, July 6, 2009

Richard Goldstone has a problem. As head of the Goldstone Mission established by a resolution of Cuba, Egypt and Pakistan in the Human Rights Council in January, Goldstone is charged with investigating Israeli war crimes in Gaza. He has good reasons to be worried.

For one, Israel has refused to cooperate with the mission, citing its founding resolution, which calls on it “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, particularly in the occupied Gaza Strip, due to the current aggression.”

The word “Hamas” appears nowhere in the resolution. Only Israel, already designated as the aggressor, is under investigation. In this, the Goldstone Mission’s founding is no different from the HRC’s regular habit of Israel-bashing. Eighty percent of its resolutions have condemned Israel alone.

“He’s participating in something that is very bizarre,” said UN Watch director Hillel Neuer on the phone from Geneva. “I think he’s convinced himself that he’s presiding over some kind of truth and reconciliation commission a la South Africa.”

Goldstone was chair of the 1991 South African Standing Commission of Inquiry Regarding Public Violence and Intimidation, part of South Africa’s “truth and reconciliation” process.

“Last week he was in Gaza saying to victims, ‘I hear your pain.’ He’s already said he’s doing this for the victims,” said Neuer. Indeed, his invitation of Palestinians and Israelis to Geneva, all expenses paid, to testify before the mission “is something the UN has never done before.”

But Goldstone’s good intentions may be torpedoed by his desire to shoehorn South African-style reconciliation into an ongoing, unreconciled conflict. With the conflict unresolved, a reconciliation process will surely be hijacked for the purposes of the conflict.

Israel believes the mission’s findings were decided ahead of time. It doesn’t help Goldstone’s case that mission member Christine Chinkin, a law professor at the London School of Economics, signed an editorial published in the Sunday Times in January calling Operation Cast Lead a war crime. Would you go before a judge who had already told the media you were guilty?

Goldstone leads a “fact-finding mission” whose purpose is clearly to prove the conclusion already reached in the HRC resolution. Senior Hamas official Ahmed Yousef, in expressing his hopes for the mission, explained that its purpose was to file a report that would be “like ammunition in the hands of the people who are willing to sue Israeli war criminals.”

As any first-year law student knows, a legal system must be fanatically obsessed with procedure, since only a fair process can guarantee fairness and equality of defense before the law. Yet, what passes for “fact-finding” in the Goldstone Mission involves traipsing around Gaza led by Hamas handlers who never left the room while Palestinians testified.

Too many tears have been shed, too much “shock” has been expressed by Goldstone himself during the Gaza visit, for this to continue to retain the veneer of a legal process.

International law is a strange animal. It is a legal system with no consistent enforcement mechanism, no clear and acknowledged legislator, no bedrock procedural rules for a fair gathering of evidence and no system for appeal. While its principles may be noble, it is not a trial by judge or jury, but by an international version of a parliamentary committee.

Thus, Libya or China have little to fear from the likes of the Human Rights Council or international courts, because they are supported by a political mob – either in the form of the Arab and Muslim blocs, or sheer financial and demographic clout. Only when it comes to a country such as Israel, lacking the benefit of hundreds of millions of Jews at its back, international law – in the form of commissions established by, among others, Egypt and Pakistan – suddenly finds its voice.

Courts of law must not only be objective, but must be perceived as such. Judges do not wield real weapons, but rather the power of the perception of fairness, of transcending the conflict they are arbitrating. Law is the diametric opposite of the rule of the mob.

In a reality in which the gaps in international law have made it at times the legitimizer of the lynch mob, can Goldstone be sure his committee will be anything but the start of another front in a war of delegitimization? Is he so ignorant of the methods and history of this conflict that he fails to see this possibility unfolding before him? And, more deeply, Israelis have the right to wonder: is it moral to have a legal system whose laws aren’t legislated by the elected, whose procedures aren’t known ahead of time and which denies all right of appeal – a legal system where only minorities, small states and small peoples ever find themselves on trial?

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Obama and Palestine

The Administration’s distancing of itself from Israel is likely to empower those who believe that American support can be degraded.


Wall Street Journal, JULY 7, 2009

In his new book, “One State, Two States: Resolving The Israel/Palestine Conflict,” historian Benny Morris recounts the lugubrious history of Palestinian refusal to actually accept Israel as a Jewish state in the heart of the uniformly Muslim Middle East. Morris examines the widespread rejection by Palestinians in particular and Arabs in general of a two-state solution that, he points out, has been “a constant refrain of Palestinian leaders … throughout the history of the Palestinian national movement,” up to and including the present.

The refusal of Palestinian politicians, academics and clerics to stipulate that they accept a permanent Jewish state existing next to a Palestinian state is, of course, at once a dirty little secret and the 800 pound gorilla in the room when it comes to the debate over the Palestinian-Israeli conflict.

For over 80 years, as Morris notes, Palestinians have “persuasively demonstrated” that they do not want any Jewish state in the region, regardless of the boundaries, and regardless of the settlement policy pursued by this Israeli government or that one. The Palestinian rejection of any Jewish state has not merely been the recurring theme of the conflict, but the dominant one. Thus, in the 1930s, the Palestinians rejected a proposed two-state solution that would have created a Jewish state in less than 20 percent of Palestine. In the 1940s, the Palestinians rejected the United Nations partition plan which created a Jewish state on less than half of the arable land in Palestine. From 1948 to 1967, when Israel had no presence in Gaza, the West Bank or East Jerusalem, the Arabs created no Palestinian state. After the 1967 war, when Israel accepted the land-for-peace formulation in UN Resolution 242, the Arab world, including the Palestinians, rejected it. In 2000, when Israel supported a plan put forth by President Clinton that would have created an independent Palestinian state with a capital in East Jerusalem comprising all of Gaza and virtually all of the West Bank, the Palestinians rejected this too, instead commencing a campaign of bombings that left 1,100 Israelis dead and, not incidentally, 4,000 Palestinians dead as well.

And in 2006, when Israel unilaterally and forcibly removed thousands of settlers from the Gaza Strip, abandoning any Jewish presence there, Palestinians responded by rocketing Israeli civilian centers, eventually leaving Israel with the unenviable choice between abandoning ever greater numbers of its civilians to daily Palestinian rocket attacks, on one hand, or entering Gaza to stop those attacks, with the inevitable harm done to civilians there, on the other. For its part, the Hamas leadership, which had assassinated many of its opponents and achieved a military takeover of Gaza, was more than content to trade hundreds of Palestinian lives in Gaza for the international criticism of Israel which Israel’s efforts to protect its civilians from these rocket attacks would reliably trigger.

Recently, Palestinian Authority President Mahmoud Abbas told The Washington Post that the Palestinians had once again rejected a two-state solution. Former Prime Minister Olmert, Abbas told the Post, had recently offered an independent Palestinian state comprising all of Gaza, a capital in East Jerusalem and 97 percent of the West Bank – – and Abbas had flatly rejected this as well. “The gaps,” Abbas said, without elaboration, “were too wide.”

In the meantime, Abbas refused to recognize Israel as a Jewish state, telling the Post that he preferred to let the passage of time take its course, confident that American and international pressure on Israel would further weaken Israel’s position. “Until then,” Abbas said, “in the West Bank we have a good reality…the people are living a good life.” And just last week, despite yet more stories in the western media that Hamas was at last “moderating” its position on Israel, Hamas informed former President Carter, whose credulousness on the conflict is a source of some wonderment, that as it had previously made clear, it would never recognize Israel’s right to exist under any circumstances.

The problem with these facts is that they get in the way of an increasingly fashionable orthodoxy: that it is Israeli settlements on the West Bank that are the obstacle to peace between Palestinians and Israelis. Despite the record recounted so soberingly by Morris, this is a line that is advanced by Palestinian supporters in the West with great vigor, even as Palestinians have been proclaiming somewhat indiscreetly that, actually, the trouble with Israel has nothing to do with settlements and everything to do with its existence, which, three generations after Israel’s founding, remains unacceptable.

Morris rather elegantly characterizes the bobbing and weaving of Palestinian spokespeople who profess moderation while continuing to reject Israel’s right to exist as “elisions, disingenuousness and vagueness.” It might be described less gently as mendacity. Nevertheless, the line that it is Israeli settlements that are the problem, and Prime Minister Netanyahu’s reluctance to remove them that is the fundamental impediment to peace, has attained a certain gospel-like adherence in certain quarters and, increasingly, among Democrats. As Dennis Ross and David Makovsky write with understatement in their own new book, “Myths, Illusions and Peace: Finding a New Direction for America in the Middle East,” “those on the left…tend to dismiss ideological opposition to Israel’s existence.”

For Democrats who voted for Barack Obama, but who regard the encirclement of Israel by well-armed fanatics pledged to its destruction with some alarm, the President’s treatment of Prime Minister Netanyahu on the occasion of their first meeting has provoked a certain unease. The Obama Administration’s pointed and singular focus on Israeli settlements while downplaying the underlying problem of Palestinian rejectionism, the extensive leaking aimed at letting the world know what little regard the Administration has for Israel’s newly-elected leader, and Vice President Biden’s ostentatious scolding of Israel’s supporters at a recent AIPAC conference, can all be regarded as part of a master plan, intended to bring the Arab world into the peace process by demonstrating that American policy toward Israel has changed. Under this theory, Obama’s stiff-arming of Israel might be viewed as the diplomatic equivalent of a Hail Mary pass, intended to improve the desperate situation of President Abbas and empower Abbas and other relative moderates to persuade the Arab masses to finally accept a Jewish state.

The risk, of course, is that rather than enhancing the stature of moderates and reducing the influence of those who openly pronounce that what they really seek is the disappearance of Israel, the Obama Administration’s gambit will have the opposite effect. The record of Palestinians professing in the West to accept a two-state solution while assuring their own people that they refuse to accept any such solution is incontrovertible, and does not appear to have evolved to any meaningful degree, as Morris points out.

The Administration’s purposeful distancing of itself from Israel is likely to empower those who have always believed, and who continue to believe, that in the fullness of time, American support for Israel can be degraded, and with it Israel’s ability to survive. Those in the Arab world who have counseled that that is the case—and there are many of them—will take the Administration’s insistence that it wishes to be “an honest broker” as evidence that, at long last, American support for Israel has begun to erode, and that it is only a matter of time before it is no longer necessary for them to pretend that it is a two-state solution in which they are interested. If this proves to be the case, the Obama Administration, while intending to be helpful, will have inadvertently dealt whatever prospects exist for Middle East peace a serious blow.

Mr. Robbins served as a United States Delegate to the United Nations Human Rights Commission in Geneva during the Clinton Administration. He is an attorney at Mintz Levin in Boston.



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