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The Goldstone Report: Judge Richard Goldstone Revises His Position

05 April 2011
FOCAL POINTS
 In September 2009, the U.N. Human Rights Council Fact-Finding Mission on the Gaza
Conflict, chaired by Justice Richard Goldstone, published a 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 the Washington Post 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 by IDF forces "were not targeted as a matter of policy," while crimes
committed by Hamas were irrefutably intentional.
 Justice Goldstone commended Israel'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.

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 Ultimately, Justice Goldstone affirmed Israel's "right and obligation to defend itself and its
citizens against attacks from abroad and within."

ABSTRACT

“ 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.

ADDRESSING THE SUBJECT OF WAR CRIMES

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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citizens, Hamas contravened international law and committed war crimes and crimes
against humanity.

“
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 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

ISRAEL'S JUDICIAL SYSTEM AND INVESTIGATIVE PROCESS

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 Stanford University, Justice Goldstone
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expressed his respect for the "courageous" Israeli military authorities for both investigating
their own soldiers and for divulging their findings to the public.

HAMAS' SYSTEMATIC VIOLATIONS OF INTERNATIONAL LAW

“ 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.
Justice 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.

CRITICIZING THE U.N. HUMAN RIGHTS COUNCIL

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."

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
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member states including Bahrain, Malaysia, Pakistan, Saudi Arabia, Uganda, and Angola, 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.
Justice Richard Goldstone, 1 April 2011

IDF RESPONSE TO THE OPERATION AND LESSONS LEARNED

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.