Goldstone continues to complain that no one has read his report. Dershowitz has. Unpublished essay published with his permission.
The Case Against the Goldstone Report: A Study in Evidentiary Bias
by Alan Dershowitz
The Goldstone Report, when read in full and in context, is much worse than most of its detractors (and supporters) believe. It is far more accusatory of Israel, far less balanced in its criticism of Hamas, far less honest in its evaluation of the evidence, far less responsible in drawing its conclusion, far more biased against Israeli than Palestinian witnesses, and far more willing to draw adverse inferences of intentionality from Israeli conduct and statements than from comparable Palestinian conduct and statements. It is worse than any report previously prepared by any other United Nations agency or human rights group. As Major General Avichai Mandelblit, the advocate general of the Israeli Defense Forces, aptly put it:
"I have read every report, from Human Rights Watch, Amnesty International, the Arab League. We ourselves set up investigations into 140 complaints. It is when you read these other reports and complaints that you realize how truly vicious the Goldstone report is. He made it look like we set out to go after the economic infrastructure and civilians, that it was intentional: It's a vicious lie."
The Goldstone report is, to any fair reader, a shoddy piece of work, unworthy of serious consideration by people of good will, committed to the truth.
Most of the criticism and praise of the report has been based on its highly publicized and controversial conclusions, rather than on its methodology, analysis and substantive findings. The one statement Richard Goldstone has made, with which I agree, is that many of the report's most strident critics have probably not read the entire report. But it is also true, though I have not heard the report's biased author say this, that many of the report's most vocal defenders and advocates have also not read it.
It is not surprising that so few of the report's critics and supporters have actually made their way through its dense and repetitive texts. The version I originally read was 553 pages long plus appendices. There are 1223 footnotes, though many of its most critical statements are not well sourced. It is poorly written, obviously drafted by several different hands and without the benefit of a good overall editor. It is laden with internal inconsistencies, shoddy citations of authority, and overall poor craftsmanship. If a camel is a horse designed by a committee, this report lacks even the grace of a dromedary. Most of the commentary on the report, both pro and con, seems to be based on its somewhat sanitized summary and conclusion. Some of the worst mistakes are buried very deep in the report, many of the most serious ones toward the end.
Efforts are currently underway by supporters of the report to have governments, prosecutors, non-governmental organizations, religious groups and distinguished individuals sign on to the report, so as to give it the credibility it now lacks. No one should do so without reading the report in full—and without reading responsible criticisms (and defenses) of the report. I have read every word of the report and compared different sections. I have offered to debate Goldstone about its contents. He has refused, as he has generally refused to respond substantively to credible critics of the report. My offer to debate still stands. If he refuses, as I expect he will, let him at least respond to the serious legal, factual and moral criticisms contained in this study and others. As the head of the mission and the report's most visible public defender, Goldstone has a public obligation to respond to responsible criticism, which to date, he has not done.
In the coming week, the Secretary-General of the United Nations will present a compilation of responses to the Goldstone Report. I am submitting this analysis for inclusion.
The Israeli military will soon publish a detailed rebuttal to the Goldstone Report, providing photographic and other hard evidence that contradicts its most serious "findings." I am not in a position to deal with specific military issues. But I am in a position to consider and evaluate the evidentiary methodology employed by the Goldstone Report.
In this analysis, I will focus on the two central conclusions reached in the report. The first is that the real purpose of Operation Cast Lead was not to protect Israeli civilians from Hamas rockets, over eight thousand of which had struck Israel over a nine year period. According to the report, Israel used the rocket attacks on its citizens as a pretext, an excuse, a cover for the real purpose of the operation, which was to target innocent Palestinian civilians—children, women, the elderly—for death. This criminal objective was explicitly decided upon by the highest levels of the Israeli government and military and constitutes a deliberate and willful war crime. The report found these serious charges "to be firmly based in fact" and had "no doubt" of their truth.
In contrast, the Mission decided that Hamas was not guilty of deliberately and willfully using the civilian population as human shields. It found "no evidence" that Hamas fighters "engaged in combat in civilian dress," "no evidence" that "Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack," and no support for the claim that mosques were used to store weapons. 
As we will see, the report is demonstrably wrong about both of these critical conclusions. The hard evidence conclusively proves that the exact opposite is true, namely that:
- Israel did not have a policy of targeting innocent civilians for death. Indeed the IDF went to unprecedented lengths to minimize civilian casualties; and
- That Hamas did have a deliberate policy of having its combatants dress in civilian clothing, fire their rockets from densely populated areas, use civilians as human shields, and store weapons in mosques.
What is even more telling than its erroneous conclusions, however, is its deliberately skewed methodology, particularly the manner in which it used and evaluated similar evidence very differently, depending on whether it favored the Hamas or Israeli side.
The evidentiary bias of the report should come as no surprise to anyone who is familiar with the members of the Mission and statements they have made both before, during and after working on the report. There were four members: A Pakistani woman, who was formerly Special Representative of the Secretary-General on Human Rights Defenders; an Irish man, who was formerly a Colonel in the Irish Defense Forces; a British woman, who is a professor at the London School of Economics; and a South African man, the former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
The Pakistani member of the Mission, Hina Jilani, signed a letter (along with two other Mission members) before even being appointed stating that "The events in Gaza have shocked us to the core." After the report was completed, she made statements indicating that victims must not only be listened to, but that it would be "very cruel to not give credence to their voices." She did not mention that the "voices" of the Gaza witnesses were monitored and controlled by Hamas, since their testimony was televised, and that much of it was demonstrably false and contradicted by hard evidence.
The Irish member of the Mission, Col. Desmond Travers, refused to believe evidence that undercut Hamas' position even when it was on videotape and utterly uncontradicted. This is what he said about weapons being stored in Gaza mosques: "We also found no evidence that mosques were used to store munitions. Those charges reflect Western perceptions in some quarters that Islam is a violent religion….If I were a Hamas operative the last place I'd store munitions would be in a mosque. It's not secure, is very visible, and would probably be pre-targeted by Israeli surveillance. There are a [sic] many better places to store munitions." Not only is there physical evidence that conclusively proves that mosques are a favorite place to store rockets and other weapons, but Hamas leaders boast of it.
The British member, Christine Chinkin, had already decided the case before hearing one bit of evidence. Here is what she said in a letter that bore her signature written before she was even appointed to the Mission: "The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence…. The killing of almost 800 Palestinians, mostly civilians, and more than 3,000 injuries, accompanied by the destruction of schools, mosques, houses, UN compounds and government buildings, which Israel has a responsibility to protect under the Fourth Geneva Convention, is not commensurate to the deaths caused by Hamas rocket fire….Israel's actions amount to aggression, not self-defence, not least because its assault on Gaza was unnecessary….As things stand, its invasion and bombardment of Gaza amounts to collective punishment of Gaza's 1.5m inhabitants contrary to international humanitarian and human rights law…. [T]he manner and scale of its [Israel's] operations in Gaza amount to an act of aggression and is contrary to international law, notwithstanding the rocket attacks by Hamas." Here is the curious manner in which Goldstone responded to claims Chinkin was biased: "This is not a judicial inquiry. If it had been a judicial inquiry, that letter she'd signed would have been a ground for disqualification." If her bias would have been a ground for judicial disqualification, then surely her conclusions should not be credited by quasi-judicial bodies, such as the International Criminal Court, the U.N. Council on Human Rights and other governmental and non-governmental bodies.
Finally, the South African member, Richard Goldstone, insisted that the hearings in Gaza be televised, thereby assuring that all witnesses had to tow the Hamas party line or risk certain death. Goldstone also lied about the role Hamas played in escorting and presenting evidence to the Mission. Here is what Goldstone wrote about being escorted by Hamas: "I must, however, categorically deny the allegation that Hamas officials accompanied Members of the Fact Finding Mission at all, let alone 'at every stage of their visit to Gaza.' Reports to that effect are denial of truth, as I have already publically stated. I would have found this to be quite unacceptable." The actual truth is quite different. According to an Associated Press article published on June 9, 2009, "Hamas security often accompanied his [Goldstone's] team during their five-day trip to Gaza last week, raising questions about the ability of witnesses to freely describe the militant group's actions."
How could Goldstone possibly know who among those escorting him were affiliated with Hamas? The reality is that nothing significant takes place in Gaza without the approval of Hamas.
Richard Goldstone has acknowledged that he accepted the role of Chairman with a clear preconceived agenda.  He has told numerous Jewish friends and acquaintances that he agreed to take on the task in order to "help Israel." He believed that he would bring "balance" to the report. Whether his real motive was to help Israel or to accomplish some other goal, it is always disqualifying to come to a quasi-judicial fact finding function with a preconceived agenda. Sometimes it causes one to lean over backwards, sometimes forwards. But leaning in either direction is inconsistent with objectivity.
II. Goldstone: Israel Intentionally Kills Innocent Civilians
I begin with the Mission's most irresponsible criticism of Israel. At bottom the report accuses the Jewish state of having implemented a policy in Gaza that borders on genocide. It blames the civilian deaths that occurred during Operation Cast Lead not on the fog of war, not on the use of human shields by Hamas, not on the inevitability of civilian casualties when rockets are fired from densely populated urban areas, not even on the use of "disproportionate force" by Israel. Instead it blames the Palestinian civilian deaths on an explicit policy devised at the highest levels of the Israeli government and military, of killing as many Palestinian civilians as possible. It concludes that Operation Cast Lead was not designed to stop the rocket attacks on Israel's civilians—more than eight thousand over a nine year period. Instead, the rocket attacks merely served as an excuse for the Israeli military to achieve its real purpose: namely the killing of Palestinian civilians. Lest there be any doubt that this is the accusation being made, read the words of the report itself:
"While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self-defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole."
At other points in the report, the language "at least in part" is dropped. Instead the report concludes that Israel's "overall policy [was] aimed at punishing the Gaza population" and that its "force [was] aimed not at the enemy," but at "the civilian population." It found that Israel was guilty of "the direct targeting and arbitrary killing of Palestinian civilians" and that the killings "are the result of deliberate planning and policy decisions." "[T]he Mission finds that the incident and patterns of events that are considered in this report have resulted from deliberate planning and policy decisions throughout the chain of command, down to the standard operating procedures and instructions given to the troops on the ground." "[I]n every case the Israeli armed forces had carried out direct intentional strikes against civilians," and the report considered that "the civilian population as such" was "the object of attacks," rather than the collateral victims of military actions directed against combatants.
These are among the most serious charges ever leveled by a United Nations organization against a member state. It accuses Israel of using Hamas rocket attacks against its civilians as an excuse—a cover—for a carefully planned and executed policy of deliberately targeting innocent civilians for mass murder. As philosophy professor Moshe Halbertal, a strong peace advocate and frequent critic of Israeli military actions (including during Operation Cast Lead), put it:
"Now, there is a huge moral difference between the accusation that Israel did not do enough to minimize collateral civilian death and the claim that Israel targeted civilians intentionally. It might well be that Israel should have done more than it did to minimize collateral deaths—it is a harsh enough claim, and it deserves a thorough examination. But the claim that Israel intentionally targeted civilians as a policy of war is false and slanderous."
Even Israel's most vociferous domestic critics—The Public Committee Against Torture in Israel and B'Tselem—acknowledge that "Israel did not have a policy of intentionally killing civilians…." Jessica Montell, Executive Director of B'Tselem, wrote, "I was disturbed by the framing of Israel's military operation as part of 'an overall policy aimed at punishing the Gaza population for its resilience.' The facts presented in the report itself would not seem to support such a far-reaching conclusion." While condemning the operation as disproportionate, or worse, these organizations did not cross the "huge moral" line—the line irresponsibly and mendaciously crossed by the Goldstone Report—of accusing Israel of intentionally targeting civilians for death. As the New York Times reported:
"[V]irtually no one in Israel, including the leaders of Breaking the Silence and the human rights group B'Tselem, thinks that the Goldstone accusation of an assault on civilians is correct. 'I do not accept the Goldstone conclusion of a systematic attack of civilian infrastructure,' said Yael Stein, research director of B'Tselem. 'It is not convincing.'"
One would expect that before making so serious and unprecedented a charge, the report would present overwhelming direct evidence of such a policy. Israel is, after all, an open society with an aggressive investigative media, a strong independent judiciary, many dissenting voices, vigorous opposition parties, a vibrant peace movement and few secrets. Yet the report presents absolutely no hard evidence to support its serious accusations of a governmental policy of deliberately maximizing civilian deaths.
Indeed, much of the evidence cited in the report proves precisely the opposite—that Israel's policy was to minimize civilian deaths, while attacking those responsible for targeting Israeli civilians with rocket attacks. Moreover, it ignores massive amounts of evidence—some specifically offered to it, other publicly available in open sources—that prove beyond any doubt that the central conclusions of the report are demonstrably false.
Goldstone has himself acknowledged that there is no actual "evidence" that the report's conclusions are correct. Indeed, he has gone even further and admitted that "If this was a court of law, there would have been nothing proven." He has also said he would not be embarrassed "if many of the allegations turn out to be disproved" —as it appears likely they will be, by photographic and other hard evidence. Yet Israel's enemies cite the report as if it proved its charges beyond all doubt. That is because the report itself is written so as to suggest, quite falsely, that it had proved its case. For example:
"The Mission considers this position ["The operations were in furtherance of an overall policy aimed at publishing the Gaza population…."] to be firmly based in fact…."
"[T]he systematic and deliberate nature of the activities described in this report leave the Mission in no doubt that responsibility lies in the first place with those who designed, planned, ordered and oversaw the operations."
The reality is that the report's central conclusions—that Israel's policy was to maximize the deaths of civilians—is not "firmly based in fact." It is made up of whole cloth and contradicted by the evidence purportedly relied on by those who wrote the report. Moreover, it is disproved by public record evidence deliberately ignored by the report.
The report relies on five categories of evidence that purport to prove that Israel's true intention was not to defend its civilians against Hamas rocket attacks, but rather to maximize the deaths of innocent Palestinian civilians. These categories are: statements of military leaders; statements of political officials; the nature of Israeli weaponry; the number of civilian casualties; and the fact that the IDF deliberately attacked food supplies and non-human civilian targets, such as a wastewater plant.
The first category consists of statements—generally quoted with little or no context—made by Israeli military leaders before the beginning of Operation Cast Lead. These include the following:
"In its operations in southern Lebanon in 2006, there emerged from Israeli military thinking a concept known as the Dahiya doctrine, as a result of the approach taken to the Beirut neighborhood of that name. Major General Gadi Eisenkot, the Israeli Northern Command chief, expressed the premise of the doctrine:
What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. […] We will apply disproportionate force on it and cause great damage and destruction there. From our standpoint, these are not civilian villages, they are military bases. […] This is not a recommendation. This is a plan. And it has been approved."
"After the war in southern Lebanon in 2006, a number of senior former military figures appeared to develop the thinking that underlay the strategy set out by Gen. Eiskenot. In particular Major General (Ret.) Giora Eiland has argued that, in the event of another war with Hizbullah, the target must not be the defeat of Hizbullah but 'the elimination of the Lebanese military, the destruction of the national infrastructure and intense suffering among the population… Serious damage to the Republic of Lebanon, the destruction of homes and infrastructure, and the suffering of hundreds of thousands of people are consequences that can influence Hizbollah's behavior more than anything else.'"
"These thoughts, published in October 2008 were preceded by one month by the reflections of Col. (Ret.) Gabriel Siboni:
With an outbreak of hostilities, the IDF will need to act immediately, decisively, and with force that is disproportionate to the enemy's actions and the threat it poses. Such a response aims at inflicting damage and meting out punishment to an extent that will demand long and expensive reconstruction processes. The strike must be carried out as quickly as possible, and must prioritize damaging assets over seeking out each and every launcher. Punishment must be aimed at decision makers and the power elite… In Lebanon, attacks should both aim at Hizbollah's military capabilities and should target economic interests and the centres of civilian power that support the organization. Moreover, the closer the relationship between Hezbollah and the Lebanese Government, the more the elements of the Lebanese State infrastructure should be targeted. Such a response will create a lasting memory among … Lebanese decision makers, thereby increasing Israeli deterrence and reducing the likelihood of hostilities against Israel for an extended period. At the same time, it will force Syria, Hizbollah, and Lebanon to commit to lengthy and resource-intensive reconstruction programmes…
This approach is applicable to the Gaza Strip as well. There, the IDF will be required to strike hard at Hamas and to refrain from the cat and mouse games of searching for Qassam rocket launchers. The IDF should not be expected to stop the rocket and missile fire against the Israeli home front through attacks on the launchers themselves, but by means of imposing a ceasefire on the enemy."
These polemic snippets—calculated to deter Hezbollah and Hamas from firing rockets at Israeli civilians—were selected from thousands of statements made over the years by IDF officers. Even so, not a single one of them—nor any statement quoted in the entire report—calls for the maximization of Palestinian civilian deaths, or for the specific targeting of Palestinian civilians. They specifically exclude targeting civilians for death from the list of appropriate punitive actions, such as damage to "national infrastructure," the "elimination of the Lebanese military" and generic "suffering of hundreds of thousands of people." Civilians always suffer from military actions, and even from lesser sanctions. For example, on December 11, 2009, U.S. Secretary of Defense Robert Gates warned that sanctions against Iran would be intended "to persuade the Iranian government that they would actually be less secure with nuclear weapons" because "their people will suffer enormously" from sanction. Surly such a statement could not be used to prove that the United States intends to kill Iranian civilians.
The so-called "Dahiya doctrine" of responding to rocket attacks with disproportionate force intended to destroy infrastructure says nothing about specifically targeting civilians for death. To the contrary, the quoted material says that "punishment must be aimed at the decision makers," referring to those who make the decision to allow the rockets to be fired, and to "civilian power that supports" the terrorist organization, namely Hamas. Ordinary people, civilians, are not mentioned. Their exclusion is significant. Yet the report misused this doctrine and these quotes to try to prove that the object of Operation Cast Lead was the killing of civilians.
The report itself admits that it does not know "whether Israeli military officials were directly influenced by these writings." But it reaches the conclusion that "what is prescribed as the best strategy appears to have been precisely what was put into practice." Yes! The destruction of physical infrastructure. Not the targeting of civilians. Indeed, what was "put into practice" was a policy of warning civilians by phone, emails, leaflets and other means. As we shall see, Israel went to great lengths to protect civilians, not to attack them.
Instead of looking to the hard evidence that is completely inconsistent with any Israeli policy of targeting civilians and maximizing civilian deaths, the report focused on selective statements of Israeli leaders made before Operation Cast Lead and calculated to deter rocket attacks by threatening a disproportionate response.
It is more than ironic that the same report refused to credit much more specific statements made by Hamas leaders before Operation Cast Lead. On February 29, 2008, Fathi Hammad, a leading Hamas legislator, made the following statement:
"For the Palestinian people, death has become an industry, at which women excel, and so do all the people living on this land. The elderly excel at this, and so do the mujahideen and the children. This is why they have 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.'"
The report quoted this statement and then chose to ignore it. This is what it said:
"Although the Mission finds this statement morally repugnant, it does not consider it to constitute evidence that Hamas forced Palestinian civilians to shield military objectives against attack."
Nor apparently did it consider it in any way relevant to whether Palestinian civilians willingly allowed themselves to be used as human shields—or even as to whether the IDF might reasonably have believed it to be relevant when they planned the operation.
In contrast to this dismissive attitude toward this and other specific and bellicose statements and threats of Hamas political leaders, the report attributed considerable weight to vague and general statements made by Israeli political officials during and after Operation Cast Lead. It focused particularly on one statement made by Tzipi Livni who was then Israel's Minister of Foreign Affairs. On January 13, 2009, Livni said, "We have proven to Hamas that we have changed the equation. Israel is not a country upon which you fire missiles and it does not respond. It is a country that when you fire on its citizens it responds by going wild—and this is a good thing."
The report also quotes Eli Yishai, then Minster of Industry, Trade and Labour. Yishai said on January 6, 2009,
"It [should be] possible to destroy Gaza, so they will understand not to mess with us…it is a great opportunity to demolish thousands of houses of all the terrorists, so they will think twice before they launch rockets. I hope the operation will come to an end with great achievements and with the complete destruction of terrorism and Hamas. In my opinion, they should be razed to the ground, so thousands of houses, tunnels, and industries will be demolished….[T]he operation will continue until a total destruction of Hamas." The report quotes Yishai as saying on February 2, 2009, "Even if the rockets fall in an open air or to the sea, we should hit their infrastructure, and destroy 100 homes for every rocket fired."
With these quotes in hand the report concludes, "Statements by political and military leaders prior to and during the military operations in Gaza leave little doubt that disproportionate destruction and violence against civilians were part of a deliberate policy." There is an argument, albeit a very weak one, that these quotes suggest an unlawful policy of disproportionate destruction of property. This argument is weak because the use of the word "disproportionate" quoted on page 9 supra does not constitute an admission that unlawfully disproportionate force would be employed under the standards of international law. Under international law, the harm collaterally inflicted on civilians must not be disproportionate to the military objective. But there is no prohibition against using overwhelming—that is disproportionate —military force against a legitimate military object. Israel had a perfect right to kill every single Hamas fighter, even if that number was in the thousands, in order to stop the rockets from endangering millions of Israeli civilians. The fact that 8,000 Hamas rockets succeeded in killing only a dozen or so Israelis, does not require Israel to limit the number of Hamas combatants killed. Reading the quote on page 8 does not suggest that the speaker was urging disproportionate civilian casualties but rather he was urging military force greater than and disproportionate to the number of Israelis killed by to the rockets that were being fired at Israeli civilians. This is perfectly lawful under international law. If proportionality were required in relation to military targets, it would be impossible for countries like the United States to employ its overwhelming military weapons—drones, tomahawk missiles, stealth bombers—against terrorists, who are poorly equipped but determined to kill.
To argue, moreover, that these polemical statements directed against property and terrorists conclusively prove a "deliberate policy" of "violence against civilians" is simply absurd. Livni suggests that Israel will "go wild" on Hamas in order to restore deterrence, and nowhere suggests civilians will be targeted. Yishai says he wants to "destroy Gaza," but quickly clarifies that this means "complete destruction of terrorism and Hamas," a legitimate military objective. The report concludes that Yishai's quote regarding destruction of homes may suggest "reprisals against civilians … contrary to international humanitarian law." Unsurprisingly, the report omits that in this same speech Yishai clarifies that homes destroyed will be "terrorists' homes while informing them in advance —so as not to hurt the family members." This deliberate omission is particularly disturbing, since it is directly relevant to the report's most damning condemnation of Israel, and the omitted portion of the quote undercuts the report's conclusion. One can be extremely critical of some of the statements quoted in the report without using them as a basis for the non-sequitur argument that they prove an intent to do what they pointedly do not advocate: namely the deliberate killing of babies, innocent women and other civilians.
Continued here: The case against the Goldstone Report
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