An Open letter to Justice Arthur Chaskalson and Advocate George Bizos SC By Maurice Ostroff 01/27/2010 2nd-Thoughts.org Original Source: http://www.2nd-thoughts.org/id261.html Copy to Judge Goldstone From Maurice Ostroff January 27, 2010 Your defence of Judge Richard Goldstone dated January 21, 2010 Kudos for defending Judge Goldstone's personal reputation; in particular against accusations that he collaborated with the apartheid regime. These accusations are not only irrelevant they are grossly wrong as confirmed by Judge Goldstone's regular visits to political prisoners during the dark days of apartheid. As a low-key anti-apartheid activist when I lived in South Africa, I followed with interest the immensely valuable work of Nicro and I have great admiration for Judge Goldstone's activity for more than 20 years as chairman and president of that organization which provides an invaluable social service. The ad hominem attacks on the judge don't contribute one iota towards a rational evaluation of the Goldstone Report. However, although you stated that it was not your intention to express a view on the findings of the commission, your strong defence of Judge Goldstone's character may be interpreted by readers as endorsement of the report that goes under his name. But we must be aware that there are times when the quality of a document does not always correlate with the reputation of its author. Even Einstein, mistakenly denied the quantum revolution and in his own words he admitted to frequently making a sacrifice on the altar of stupidity.” Similarly, despite Judge Goldstone's eminence, the Goldstone Report is seriously flawed in numerous respects. I quote one example of many The Report refuses to recognize that among the reasons for civilian casualties in Gaza was the difficulty in distinguishing between combatants and civilians as well as the use by the Gazans of human shields. Paragraph 477 of the report acknowledges that no less than Mr. Fathi Hammad, a Hamas member of the Palestinian Legislative Council had said publicly that the Palestinian people formed human shields. It would therefore have been imperative that, while conducting hearings in Gaza, the Fact-finding Mission live up to its name and do its best to establish the facts, at least by interviewing Mr. Hammad about this claim. Instead, the Mission astonishingly acted as his defending counsel in absentia. The Report states 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. In paragraphs 479 to 481, the Report acknowledges that in general members of Palestinian armed groups did not wear military uniforms, that members of al-Qassam Brigades abandoned military dress and patrolled streets in civilian clothes and that members of the Palestinian armed groups mixed with the civilian population. It then offers the exculpatory qualification on behalf of the Palestinians there is no evidence that they did so with the intent of shielding themselves”. And although the Report had made clear that the Israel Government did not cooperate, paragraph 481 makes the unsurprising revelation on this issue, it is relevant to mention that the Israeli Government has produced no visual or other evidence to support its allegation that Palestinian combatants mingle routinely with civilians in order to cover their movements”. Similarly, although paragraph 482 states that the Mission found indications that Palestinians launched rockets from urban areas, the Report attempts to mitigate this obvious war crime by stating. The Mission has not been able to obtain any direct evidence that this was done with the specific intent of shielding the rocket launchers from counterstrokes by the Israeli armed forces. This mitigation of Palestinian sins appears throughout the Report. In paragraph 483 the Mission finds the presence of Palestinian armed fighters in urban residential areas during the military operations is established ..While reports reviewed by the Mission credibly indicate that members of Palestinian armed groups were not always dressed in a way that distinguished them from civilians, the Mission found no evidence that Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack. Several of your statements that reflect directly on the Mission deserve a right of reply by interested persons. As a citizen of Israel, I am an interested person, directly affected by the outcome of the report and I therefore ask you to please comment publicly on the following observations 1. Members of the mission. In listing members of the Mission you avoid the objections that have been raised to Professor Christine Chinkin's apparent bias as expressed in a letter published in The Times on January 11, 2009. The letter stated, Israel's bombardment of Gaza is not self-defence - it's a war crime. and 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...Israel's actions amount to aggression, not self-defence. Surely you will agree with Lord Hewart that justice should not only be done, but should manifestly and undoubtedly be seen to be done and that having publicly pronounced Israel's guilt before any evidence was heard, Professor Chinkin was not eligible to sit on this panel. She would most certainly have been recused from a judicial enquiry and although this Mission was not defined as a judicial enquiry, it most certainly made many judgments on purely legal issues. 2 .Other representations Your statement that despite Israel’s refusal to make representations, the mission considered statements made among others by various NGO’s is only partially correct. The impression is created that the Mission did not welcome evidence that conflicted with the preconceived opinions of its members. For example, Judge Goldstone had stated at an early press conference that the Mission would need to rely heavily on expert military opinion. Nevertheless, despite his experience in the type of warfare that took place in Gaza, the Mission rejected my suggestion that Colonel Richard Kemp CBE, former Commander of British forces in Afghanistan, and a senior adviser on army issues to the British government, be invited to give evidence. However, at the invitation of the NGO UN Watch, Colonel Kemp gave evidence at the UNHRC and from the evidence he presented, there can be no doubt that the Mission's Report would have been substantially enhanced if it had addressed his professional observations, even if it disagreed with them. See http://www.youtube.com/watch?v=NX6vyT8RzMo In addition, credible memoranda that the Mission received, containing highly relevant evidence contradicting the findings of the Mission were not addressed in the report, nor were their contents made known to the UNHRC, nor to the GA when these bodies voted on the report. The undisclosed memoranda included video clips showing scenes in Gaza that directly contradict statements in the Report as well as memoranda by Take-a-Pen, Yvonne Green , NGO Monitor, Dr. Elihu Richter, Attorney Ian Lacey, Bnai Brith, Jerusalem Center for Public Affairs and a detailed document carefully prepared by a group of 15 eminent Australian lawyers. See http://www.youtube.com/watch?v=Rx-CW3UKoIg&feature= and http://www.youtube.com/watch?v=HLFAJK5LtwY Even if the members of the mission disagreed with the withheld memoranda, they owed a duty to the UN body to whom they were reporting as well as to the public to address their contents and make the evidence available to whoever may be interested in evaluating it. I trust that as jurists, you will agree that it was not possible for either the UNHRC or the GA to make valid judgments on the Report in the absence of an opportunity to examine all the relevant evidence. More egregiously, although Judge Goldstone had agreed to support my request that all memoranda from the public be made available on the Mission's web site, the Mission's secretariat has refused to do so for the reason stated in the following email dated October 24, 2009 In relation to your query as to whether the submissions made to the United Nations Fact Finding Mission on the Gaza Conflict in response to the Mission's call of 8 June 2009 would be posted on the UNFFMGC webpage, after further reviewing the material, we have concluded that it would not be appropriate to post them. The reason is that some of the submissions include names of individuals who are indicated as sources of some of the information provided, without indication of their consent to be named publicly. In doubt, and out of respect for those individuals, it would not be possible to make such information public. In the circumstances, doing otherwise would be contrary to established practice with regard to source protection. Rather than being selective in posting information, we have preferred to adopt one standard and all submissions will be retained in the Mission's archives, together with all other documentation received by the Mission. It goes without saying that it remains the prerogative of the authors of the submissions that do not present such problems to publicize them as they consider most appropriate. We have already indicated so to those submitting organizations who have inquired about the same matter. The reason given above by the secretariat directly conflicts with the Mission's public call for submissions which states unambiguously Unless otherwise indicated by the author, the Mission will assume that submissions can be made public. 3. Evaluating the Report For any person who is seriously interested in evaluating the entire Report, I strongly recommend the web site Understanding the Goldstone Report initiated by Professor Richard Landes of Boston University. http://www.goldstonereport.org/ As eminent jurists you will certainly appreciate the web site's rational approach viz. In all our analyses and conclusions, we have adhered to principles of empirical evidence and consistent reasoning. Since the sceptical reader might well accuse us of making up our mind in advance, we emphasize that one should not agree or disagree with us because of how one feels about Israel or the Palestinians, but because of the evidence. We invite readers to examine our arguments without prejudice, make up their own minds and, where they see problems, challenge our arguments. Sweeping and inflammatory rhetoric not welcome. This letter is being published and I would very much appreciate a considered response which will be similarly published Sincerely, Maurice Ostroff