Level Heads Needed for Goldstone Report

The report by Justice Richard Goldstone on the Fact Finding Mission on the Gaza Conflict, released yesterday, is raising some interesting legal questions.

The report concluded that both Israel and the Palestinians had committed war crimes, and possibly crimes against humanity. The most obvious question people are asking is the effect of this report on the International Criminal Court (ICC).

The Israeli media has stated that the ICC has no jurisdiction over Israel, as a non-signatory to the Rome Statute. Israeli legal scholars have generally taken a similar position, but this appears to be flawed.

Subject-matter jurisdiction under the Rome Statute can be found even for non-signatories when the matter is referred to the court by the Security Council, as was the case with Sudan.

But a case can also be independently investigated by the Prosecutor when using their proprio motu powers under Article 15. The Goldstone report would likely be used as supporting material as part of any investigation initiated under this section,

2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

Irrespective of either of these routes, Prosecutor Luis Moreno-Ocampo indicated in an interview last week with an Arabic paper that one of the Israeli legal advisers involved was South African, and the ICC could gain jurisdiction through that route as well. South Africa ratified the Rome Statute on Nov. 27, 2000.

Moreno-Ocampo also revealed today that he is contemplating charges against Israel for Operation Cast Lead.

The evidence used in the report is also being questioned as primarily from politicized NGOs with vested interests in the conflict. Sudan made the same argument last week by Sudan for its case before the ICC, stating that most of the figures and evidence were by affiliates of rebel groups in Darfur.

But unlike Sudan, Israel refused to participate with the investigation, or provide countering information for the report. Justice Goldstone rejects the impartiality charges, claiming most critics have not read the 575 page report (Disclosure: I haven’t either).

Worst of all, charges of anti-Semitism have been leveled against Justice Goldstone. He identifies himself as Jewish, and has worked with organizations within Israel in the past, including a position as trustee of Hebrew University.

Rahm Emanuel has also received similar charges for his role in the Obama administration, arguably the first American Presidency of the 21st c. to actually attempt engagement with parties in the region to work towards peace.

anti-semitic obama

Roadside posters from my last trip to Israel of Barack Obama saying "Anti-Semitic" and "Jew-Hater." (C)2009 Omar Ha-Redeye

Closer to home, Jonathan Kay and Hillel Neuer level some quite direct vitriol towards Naomi Klein yesterday. But Klein has not, to date, claimed that Kay or Neuer are “anti-Semitic” or “self-hating Jews.”

Yes, the conflict in Israel is incredibly complex. And there may or not be problems with the methodology of the Goldstone report.

Labeling motivation as driven by hatred though should be reserved for the worst and clearest cases of animosity, or it stonewalls genuine attempts to achieve peaceful resolution of the conflict. Even worse, the terminology will lose its impact, and sympathy for combating racism will be eroded.

Level heads will be needed to address the outcomes of the report, to contemplate perhaps if it does have some merit, and to acknowledge its flaws. The true test will come if the case does go to the ICC.

Justice Goldstone’s daughter, Nicole, lives in Canada and says that his involvement actually moderated the tone of the report,

My father took on this job because he thought he is doing the best thing for peace, for everyone, and also for Israel..

It wasn’t easy [for him]. My father did not expect to see and hear what he saw and heard.

He is currently in Canada, visiting his family for the upcoming Jewish holiday of Rosh Hashana. He will be speaking at the University of Western Ontario tomorrow on the subject of war crimes, and the discussion is guaranteed to prove interesting.


A video of the speech will be uploaded on YouTube shortly.


  1. The funny thing is, that Richard Goldstone mission has interviewed only the people, which Hamas has allowed to interview, and only in the presence of Hamas gunmen.

    Does anybody doubts the reliability of the evidences collected during such an interviews?:)

  2. “Olga” (or should I say Adam),

    Here is what the report says about how they gathered information:

    17. The Mission based its work on an independent and impartial analysis of compliance by the parties with their obligations under international human rights and humanitarian law in the context of the recent conflict in Gaza, and on international investigative standards developed by the United Nations.

    18. The Mission adopted an inclusive approach in gathering information and seeking views. Information-gathering methods included:
    (a) the review of reports from different sources;
    (b) interviews with victims, witnesses and other persons having relevant information;
    (c) site visits to specific locations in Gaza where incidents had occurred;
    (d) the analysis of video and photographic images, including satellite imagery;
    (e) the review of medical reports about injuries to victims;
    (f) the forensic analysis of weapons and ammunition remnants collected at incident sites;
    (g) meetings with a variety of interlocutors;
    (h) invitations to provide information relating to the Mission’s investigation requirements;
    (i) the wide circulation of a public call for written submissions;
    (j) public hearings in Gaza and in Geneva;

    19. The Mission conducted 188 individual interviews. It reviewed more than 300 reports, submissions and other documentation either researched of its own motion, received in reply to its call for submissions and notes verbales or provided during meetings or otherwise, amounting to more than 10,000 pages, over 30 videos and 1,200 photographs.

    20. By refusing to cooperate with the Mission, the Government of Israel prevented it from meeting Israeli government officials, but also from travelling to Israel to meet with Israeli victims and to the West Bank to meet with Palestinian Authority representatives and Palestinian

    There is nothing in the report that suggests that the investigator’s access to information was constrained by anyone in the territories aside from Israeli authorities (paras. 7-9). Their sources as identified are numerous and varied. Considering that the conclusions of the report are extremely critical of Hamas as well, and Hamas rejects their findings, it’s unlikely that your unsourced allegations have much credence.

    There are lawyers in Canada and the U.K. that have raised charges of bias for other reasons relating to the panel composition, but these persons are not neutral parties either. In fact, some of them were mentioned in the piece above, and quite deliberately.

    What the report does call for is Israel to conduct it’s own public investigation, rather than the military inquiries that have occurred so far (pp. 549-51). But it also provides recommendations to many other parties, including Palestinians, the ICC, the General Assembly and others.

    I do hope you and other members of the public come to the talk tonight and ask Justice Goldstone any remaining questions you may have.

  3. I would hope that any discussion of the Goldstone Report could get beyond simple ad hominems like who called whom a racist, or who used what nickname, and into matters of substance. As to whether the use of public hearings or, for that matter, private interviews by U.N. staff visiting Gaza are a reliable way to gather the testimony of eyewitnesses unafraid of reprisals and unfettered by security concerns, all evidence seems to point to legitimate fears. The Gazan authorities have not been models of free speech. In fact, they have shown a clear willingness to monitor civil society criticism very closely indeed and to prosecute extrajudicially those whom they believe have voiced incorrect or impolitic opinions. While evidence other than eyewitness reports was available and by all accounts the Goldstone reporters sought it out, Olga’s point that the eyewitness reports themselves were likely tainted is certainly a reasonable one.

    I must say that what I find somewhat unfortunate in the interesting account provided here (other than the already-noted focus on the weakest arguments, such as name-calling, rather than trying to address the strongest ones — surely this is the very definition of the straw-man fallacy?), is the failure to try in any way to account for just why the Israeli government refused or might have refused to participate in the Goldstone mission’s report. My feeling is that, generally, a balanced piece is one that attempts to document the relevant parties’ motivations. Doing so here would have provided a richer account.

  4. J,
    I agree generally with your sentiment, but first people will have to get past (hopefully) the name-calling.
    Justice Goldstone really did address many areas of concern in his talk, and I’ll post the link to it once it’s live on YouTube.

  5. But, then, the Goldstone report is simply inaccurate. See http://samsonblinded.org/blog/goldstone-report-the-rebuttal.htm for example

  6. Again, almost all of these issues are addressed in his talk. For example, fishing provides an important food source to people in Gaza, so using it as an economic indicator is misleading.

    Once UWO Law uploads it I’ll post the link here, but you can check their channel in the meantime.

  7. To refer to Olga’s assertions as having little creedence b/c they are unsourced is innacurate and perhaps patronizing. the sources of those allegations may be easily assertained and they are reliable and accurate. Most likely she was not about to write a full bibliography nd source her allegations on a COMMENT ON A BLOG POST. On the other hand, the practical reality on the ground illustrates her assertions about limited access to information are likely accurate; the simple fact is that those very same figures and escorts involved in the commission (i.e. HAmas) have maintained their stronghold by generally keeping their populace in the dark. In fact, to advance the position that the powers that be within gaza would allow free access to an outside body is simply illogical in light of Hamas’ brutal repression of their own inhabitant’s access to information, Despite Goldstone’s claim to the contrary at paras 7-9.
    Ultimatley defending the credibility of the report by reference to the actual report’s assertion that it is credible is ridiculous. Especially an UNPROVEN or UNVERIFIABLE assertion like that.
    Few would be prepared to give Israel, Hamas, or Fatah(obviously biased actors) that kind of benefit of the doubt and that same benefit should not be afforded to a report authored in a large part by Chriten Chinken (another obviously bias actor) who had made up her mind vis-a-vis Israel’s “war crimes” even before the operation had ended.

    Finally, below is just one example of many, of the report containing fatal innacuracies and relying on unreliable witnesses. The case of Khaled and Kawthar Abed Rabbo, as outlined by CAMERA, offers ample evidence of unreliable witnesses. While the Goldstone committee “found Khalid and Kawthar Abd Rabbo to be credible and reliable witnesses [and] has no reason to doubt the veracity of the main elements of their testimony,” Khaled Abd Rabbo and his relatives have given more than a dozen different versions of what happened to them on Jan. 7, 2009.

    Bottom line is that the Goldstone report should not prima facie be viewed as an unbiased politicaly motivated fact-findiong mission as the report claims it is. Rather the report began with a deliberate and politically motivated agenda aimed at demonizing Israel. No greater proof can be found than, in the words of Goldstone himself: “I felt I had to take on this position, otherwise the report could have only looked at the actions of Israel. I only took this position upon being assured that possible war crimes on both sides would be investigated.” Though Goldstone’s intentions are laudable, the nefarious agendas (prevalent in the systematically biased against Israel, United Nations) regrettably found their way onto the pages of the report.

    For a detailed account of the Khaled and Kawthar Abed Rabbo fiaseco, See: http://www.camera.org/index.asp?x_context=7&x_issue=18&x_article=1728

    For proof of Chinkin’s (oone of the 4 authors of the report’s)obvious bias , See: http://www.timesonline.co.uk/tol/comment/letters/article5488380.ece

    Useful links and an overview of the gross innacuracies in the report can be found at: http://www.honestreporting.com/articles/45884734/critiques/new/The_Goldstone_Report_Rewarding_Palestinian_Terror.asp

    – “The real” Adam

    ps. Omar – Tho I love to share my views :) I dont blog… so dont get used to this

  8. Justice Goldstone as Head of the Mission repeatedly insisted that the Mission was not a judicial inquiry and so “could not reach judicial conclusions”. On this basis that he justified the inclusion of partisan mission members, admitting that their involvement “would not be appropriate for a judicial inquiry’. The Report however is highly judicial in nature, reaching conclusive judicial determinations of guilt, and including ‘detailed legal findings’ even in the absence of the sensitive intelligence information which Israel did not feel able to provide. These determinations are made notwithstanding the Report’s admission that it does “pretend to reach the standard of proof applicable in criminal trials”.

  9. Justice Goldstone’s talk is now available on YouTube.

    To briefly address some of the points above, non-judicial inquiries do make determinations, but the distinction is that they are not binding in nature. He will be presenting his findings, and they may or may not be accepted.

    Any issues with individuals raised above(opposed to the hundreds of other sources) would only speak to the weight of the evidence, not its admissiblity. The vast majority was collected in neutral settings such as Geneva.

    Some of the continued objections are linked here. Sam Sasan Shoamanesh, legal adviser with the International Criminal Court (ICC), also raises broader issues here.

    If the ICC does place charges against Israel, there will be strong pressure to do the same against Gaza, as both sides are accused of war crimes and possibly crimes against humanity. The challege with the latter move is defining it as a state per the Rome Statute, likely based on the Montevideo Convention:
    (a) Permanent population
    (b) Defined territory
    (c) Government
    (d) Capacity to enter into relations with other states

    The inability of Gaza to exert active and effective control of its borders under (b) has been used to deny state status previously, but it may be conceded for the definitional purposes of the ICC alone if it chooses to pursue this option.

  10. Thanks for posting the link to the video Omar, for those of us unable to make it to the event. A very even-handed, level-headed speaker indeed.

    WRT the allegations of coerced Gazan testimony, it should be noted that some of the report’s factual finding include corroboration by detailed UN satellite images. So if eye-witness accounts in Gaza were were coerced, then those tricky Hamas thugs somehow knew in advance exactly what would be visible on the UNISAT footage, and cunningly forced people to lie exactly (and only) in ways that would turn out to be compatible with the independently verifiable facts about e.g. the destruction of civilian industrial and agricultural facilities. How diabolical! Or worse still, those nasty Hamas agents somehow manipulated UNISAT images, as well as independent testimony given in Geneva and Amman. Heck, if they have such amazing powers as your allegations would entail, maybe they could’ve just hypnotized Goldstone and his whole team…

    C’mon folks, get real! Look at Justice Goldstone’s record (Rwanda, Yugoslavia) — the guy has more real-world experience with the credibility of witnesses from war zones than the whole bunch of arm-chair investigators reading this blog put together. He has seen a few witnesses before, including those who may fear reprisals, and knows when a witness account really needs corroboration, and he backed up his findings accordingly.

    Stop grasping at straws — there is real weight of evidence, carefully gathered and examined, behind these findings. Deal with it.