From Maurice Ostroff
July 17, 2009
To the members of the UN Human Rights Council Fact-finding Mission
This supplement to my
memorandum of June 21, 2009 and my video memorandum of June 25, 2009, relates to parts of the evidence that appear on the
webcasts of your public hearings in Gaza and Geneva. As Judge Goldstone said in his closing remarks at Gaza, that the mission
will take into account and will give careful consideration to all the information already received and still to be received,
I trust that this submission will fall into that category.
At the outset I must say
that it was very painful to listen to the agonized testimony of the victims who appeared before you, accentuating as it did,
the horrors of war.
Alleged crimes by Israeli soldiers
As an Israeli, I am shamed by the accusations that have been
leveled at the behavior of some of our troops. Since the locations, dates and
times of the alleged disgraceful acts are known, there should be no difficulty in insisting that the IDF identify the alleged
perpetrators, investigate the incidents and punish them if found guilty. On the other hand if the allegations are found to
be false, this result deserves to be given as much publicity as the allegations.
The IDF is a citizens’
army in which every physically fit adult male is obliged to serve. I have personal acquaintance with many soldiers who I know
behave impeccably. It has a proud legacy of a strict code of purity of arms, which is adhered to by the overwhelming majority
of soldiers. But, as in the case of every other country, our civilian population unfortunately also includes some undesirable
elements, that perforce, also serve in the IDF and if and when they disgrace their uniforms they need to be severely punished.
Unlike the PA and Hamas,
the IDF takes severe disciplinary action against violators of its code of conduct. According to a Bt’selem report, between
the years 2000 and 2006, 132 people were charged, of whom 110 were found guilty of various offences, four were acquitted,
eight indictments were annulled and the trials of 10 others were still under way, at the time of the report. While we are
dismayed that these trials become necessary, we are gratified that our open society ensures that neither rank nor position
protects culprits from the wheels of justice, as is evident from the recent sentencing of our former minister of finance.
In Israel’s democracy,
the high court may even overrule a military court. As recently as July 1, 2009, UPI reported that Israel’s High Court
of Justice ordered the military prosecutor to hand down stiffer sentences to soldiers involved in shooting at the toe of a
cuffed Palestinian.By comparison, I don’t
know of any action ever having been taken by the PA or Hamas against the perpetrators of flagrant murders of Israelis. A notable
example of a crime that has gone unpunished by the PA was the lynching of two Israelis by PA policemen in Ramallah. On October
12, 2000, two non-combatant Israeli reservists (serving as drivers), Vadim Nurzhitz and Yossi Avrahami, mistakenly entered
Ramallah. PA policeman took them to their local police station. A crowd of over 1,000 Palestinians gathered calling for the
death of the Israelis and rioters stormed the building, beating and stabbing the soldiers to death. One of the soldier's bodies
was then thrown out the window, stamped upon and beaten by the enraged mob, which soon afterwards dragged the two mutilated
bodies to Al-Manara Square in the city center as the crowd began an impromptu jubilant
victory celebration. The PA took no action, but Aziz Salha, one of the lynchers, was later arrested by Israel and sentenced
to life imprisonment.
Aziz Salha, one of the lynchers, waving his blood-stained hands
at the cheering mob , from the police station window
White Phosphorous in urban areas
There has been a great deal of uninformed opinion (some bordering
on hysteria) in the lay press about the use of white phosphorous. In his highly professional testimony, Professor Newton made
it absolutely clear that white phosphorous is a legal weapon. He dealt at length with the use of WP in urban areas saying
that the law is perfectly clear that there are some authorized perfectly valid uses of WP munitions in these circumstances,
for example as a marker or to shield troop movements. There is no evidence at all that Israel used WP for any other than legitimate
He categorically contradicted
claims by some that WP is a chemical or an incendiary weapon. It is neither. In the Convention on Certain Conventional Weapons,
Protocol III - Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, Article 1, clause 1(b) specifically
states that Incendiary weapons do not include munitions, which may have incidental incendiary effects, such as illuminants,
tracers, smoke or signaling systems.
Non-state actors and the obligation to protect
Professor Newton spent considerable
time explaining the obligations of both the attacker and defender to protect civilians and he emphasized more than once that
the defender (viz.Hamas) has an equally binding legal obligation in this respect. Certainly, in considering proportionality,
account must be taken of the fact that Hamas has been violating international law in firing thousands of rockets from civilian
areas indiscriminately into civilian areas continuously over a period of eight years.
The photos of Hamas weapons
operators below, show clearly, not only the impossibility of distinguishing between combatants and civilians, but the presence
of children in combat zones, in flagrant violation of the specific prohibition on mingling civilians with combatants as emphasized
by Professor Newton.
In its latest report, Amnesty International said it found no evidence of Palestinian
militants using human shields to stop Israeli attacks. They appear to have turned a blind eye to readily available evidence
of admissions by Palestinians that they used and continue to use human shields. It is surprising that investigative bodies
like Amnesty International and Human Rights Watch, avoid following up highly visible clues like Youtube videos in which a
Hamas member of the Palestinian Legislative Council, Fathi Hamad, declares proudly that Palestinians created a human shield
of women, children and the elderly and Mr. AbuBilal al Ja’abeer tells that when an Israeli security officer ordered
him to evacuate his house, which the Israelis claimed contained a store of weapons, he immediately called some friends on
his cellphone. They in turn used loudspeakers to call people to gather on the roof of his house to act as human shields. Extracts
from these video clips are included in Appendix A. http://www.youtube.com/watch?v=HLFAJK5LtwY
As the persons who made
these statements are readily identifiable, it would be valuable if your fact-finding mission would call upon them in order
to ascertain the facts.
Treatment of Protesters
Mohammed Srour, accompanied by Jonathan Pollack showed a video of what they called a "peaceful"
protest that included children. But the scenes in the video depicting violent stone and rock- throwing, completely contradict
the description “peaceful” protest. As is well known from many such incidents, stone and rock-throwing do kill
In many countries, including
Germany, South Africa and the USA, police are known to have fired on violent protesters and fatalities have resulted. Recently,
in Peru more than 30 police and protesters were killed and in South Africa last month a protester was killed in Piet Retief.
Many more instances can be cited. Why should Israeli police be expected to act differently in these circumstances?
In this particular case,
tragically a man and child were killed, but responsibility for the child’s death lies indisputably with those who allowed
him to participate in a stone and rock-throwing protest.
Intra-Palestinian warfare and casualty figures
The Intra-Palestinian warfare may appear on the surface to
be outside the scope of the Mission’s mandate, but it will be seen to be highly relevant in attempting to assess responsibility
for all the casualties suffered during the Cast Lead operation. As will be seen
from reports of the bitter fighting between Palestinian factions, it becomes obvious that included in the figures of dead
and wounded a significant number could have been the result of the internal fighting.
For example, on December
29, 2008 the NY Times reported that at Shifa Hospital armed Hamas militants in civilian clothes roved through the building with internal bloodletting under way. A woman asked a militant to let her see Saleh
Hajoj, her 32-year-old husband. She was turned away and left the hospital. Fifteen minutes later, Hajoj was carried out of
his room by young men pretending to transfer him to another hospital section. As he lay on the stretcher, he was shot in the
left side of the head. A bit of brain emerged on the other side of his skull. Five others were killed at the hospital in this
way in the previous 24 hours. A crowd at the hospital showed no pity after the shooting, which was widely observed.
The Christian Science
Monitor on August 4, 2008 reported at least nine people killed and 80 wounded
in a Saturday gun battle in Gaza between Hamas and Fatah after a week of violence escalated the conflict amid the rival Palestinian
factions, causing many to escape to Israel.
Eyad Sarraj, an independent
politician and the Gaza commissioner of the Palestinian Independent Human Rights Committee said that Hamas was trying to exercise
power. “At the end of the day, everybody – we Palestinians – have lost, but Hamas has won."
At Israel's Barzilai Hospital,
six miles north of the Gaza border, 11 Fatah fighters were being treated for wounds received in the round of fighting. At
least 100 Palestinians fled Gaza to the nearby Israeli crossing point. A video clip of some of those who fled is included
in Appendix A. http://www.youtube.com/watch?v=HLFAJK5LtwY
Some recounted having
come under rocket and mortar fire from Hamas, and their 300-yard dash to the Israeli border with Hamas gunfire at their backs.
"I never thought I would
live," said Midhat Shashar, a former PA security officer as he shifted uncomfortably in his hospital bed. "Hamas is in total
control of Gaza.... "I don't consider them a government. I consider them a mafia," said Mr. Shashar as a delegation of Fatah
officials filed in and out of the hospital rooms to shake hands with the wounded. "We asked not to be sent back to Gaza. If
we go back, they'll kill us," he said
In June 2007 Time magazine
reported that the unprecedented viciousness of the renewed fighting between the rival Palestinian factions in Gaza makes any
new cease-fire difficult to envisage. Gangs have tossed their enemies alive off 15-story buildings, shot down one another's
children, and burst into hospitals to finish off wounded foes lying helplessly in bed. Doctors reported that in 24 hours,
21 Palestinians have been killed and another 120 wounded in the fighting. Both Hamas and Fatah have vowed to kill each other's
political and military leaders, and have tried to do so with a vengeance.
It is mistaken to assume
that the Palestinians lack serious weapons. NPR reported on June 12, 2007 that Fatah loyalists were using heavy machineguns
and 27mm Egyptian-made light cannons. Hamas gunmen were returning fire with rocket-propelled grenades and automatic weapons.
Nearly two dozen people were killed in three days.
The Cruelties inflicted
by Palestinians on Palestinians are horrifying. Muhammad Sawirki was one of the casualties. Sawirki was delivering food to
soldiers when he was kidnapped by Hamas militants. They took him to the roof of the 18th floor al-Ghafari Tower and pushed him off. His legs had been tied together with his own belt and his hands had been tied.
Hamas gunmen dragged Abu
al-Jediyan into the street and shot him 45 times, according to witnesses and hospital officials.
Professor Newton’s crystal clear and professional explanation of the laws
governing proportionality was especially interesting in view of the loose manner in which this term is used to lambaste Israel
in the lay press.
If your mission pronounces
Israel to be guilty of disproportionality in the Cast Lead Operation, it will by implication, simultaneously judge NATO to
be guilty to an even greater degree, of the same crime in Serbia. The NATO “Operation Allied Force” deliberately aimed to destroy Serbian
military infrastructure, including dual-use facilities such as bridges, power plants, factories and telecommunications infrastructure.
The campaign involved 1,000 aircraft as well as the aircraft carrier USS Theodore Roosevelt. During the ten weeks of the conflict
NATO aircraft flew over 38,000 combat missions. Hundreds of civilians were killed and residential neighborhoods, old-age sanatoriums,
factories, hospitals, open markets, columns of fleeing refugees, civilian buses and trains on bridges, and even a foreign
embassy were bombed. Journalists and the driver of a journalist were among the victims.
The world is invariably skeptical
when Israel reports technical failure or human error to explain incidents in which unintended targets are hit, as happened
at Bet Hanoun. But technical errors do occur even in the most sophisticated fields like space travel and it is informative to compare the understanding with which technical errors that would have been
rejected if reported by Israel, were accepted as valid explanations of the killing of civilians by NATO in Serbia
In a BBC news report on
Monday, May 31, 1999 NATO spokesman Jamie Shea, said that civilian casualties in Yugoslavia were the price of defeating evil.
"There is always a cost to defeat an evil. It never comes free, unfortunately. But the cost of failure to defeat a great
evil is far higher”.
In the video appendix A, some scenes are shown of secondary and tertiary explosions
in buildings, including mosques that have been bombed, providing convincing evidence that large quantities of explosive materials
had been stored there. I suggest therefore that care be taken in assessing physical
damage to distinguish between direct damage and the indirect damage resulting from secondary and even tertiary explosions
caused by the stored materials. http://www.youtube.com/watch?v=HLFAJK5LtwY
1. Dehumanization and the other side of the dehumanization coin. Judge Goldstone made the penetrating and discerning statement during an interview
on Al Jazeera that dehumanization of the other is the primary factor leading to horrific acts like genocide. And the more
one thinks about it, the more one realizes that Judge Goldstone has put his finger on the root cause of tragedies like 9/11,
Gaza, Rwanda, Sri Lanka, Darfur and many more.
But having diagnosed the
problem, one must wonder why it doesn’t receive the kind of concerted attention given to eliminating polio and AIDS.
It is self-evident that people who are taught, by authoritative figures, to hate and vilify their neighbors will resort to
violence and it is disappointing that your mission did not thoroughly investigate the readily available evidence of the prevalence
of this phenomenon in Gaza that I presented in my earlier memorandum. Prevention is better than Cure.
The other side of the
coin is that, despite all the tragedy around us, there is a light at the end of the proverbial tunnel that would be reachable
if incitement and the accompanying dehumanization were to be eliminated. Individuals and organizations on both sides of the
divide are working tirelessly to find common ground for coexistence. A notable example is the Common Ground News Service (CGNews)
that seeks to promote mutual understanding and offer hope, opportunities for dialogue and constructive suggestions that facilitate
peaceful resolution of conflict. http://www.commongroundnews.org/
In the commercial world,
The Israeli-Palestinian Chamber of Commerce and Industry was launched on May 18, 2009.
In fact, business relations
already exist between Israelis and Palestinians despite all difficulties. Zvi Schreiber's Global Hosted Operating System,
pronounced, "ghost" is an example. The company's staff is made up of residents of both Israel and the PA who meet and collaborate
virtually, through video chats and on-line conferences. Their office in Ramallah has about 40 employees, while a smaller Israeli staff, working in Modiin, takes care of corporate and marketing duties for the
The chip manufacturer
Winbond is another example. While the thought of outsourcing work from Israel to Palestinians might not seem plausible, some
Israeli companies are doing just that. Jonathan Levy, Winbond’s, general manager has teamed up with Murad Tahboub, managing
director of Asal Technologies in Ramallah and today, seven Palestinian engineers work for Winbond out of Ramallah.
Israel's National Agency
for International Development Cooperation (MASHAV) carries out extensive training programs, in Israel and abroad and pays
special attention to cooperation with the Palestinians. During the course of 51 years, MASHAV has provided hands-on instruction
to over a quarter of a million professionals from all over the world including countries with whom Israel did not have or
does not diplomatic relations. In 2008, some 2,762 professionals from 110 countries participated in 142 courses in Israel,
while 5,594 took part in 84 on-the-spot courses (in host countries) offered in a total of 33 countries.
Cooperative efforts between
Palestinian and Israeli health professionals continue unabated in Israel. Israeli hospitals have a long history of providing
humanitarian outreach to Palestinians, especially children. Thousands of Palestinians receive free treatment, including life-saving
surgery at Israeli hospitals.
Recently Chelsea coach
Jose Mourinho and Brazilian football star Ronaldo came to Israel to further the Soccer Schools project sponsored by the Peres
Peace center to bring Israeli and Palestinian children from poor backgrounds
to play football together.
These are a few of many
examples of genuine efforts that could lead to a real peace, only in the absence of incitement and dehumanization.
2. Fact-finding. As a Fact-finding mission, Judge Goldstone’s remarks at the conclusion
of the Gaza hearing about potential witnesses who did not testify because they considered the risk too high are of the greatest
significance. Fact-finding implies an obligation to distinguish between facts on the one hand and perception or opinions on
the other, and in particular, to distinguish between facts and factoids, i.e. unverified or inaccurate information that is
commonly accepted and presented as factual.
Factoids are often created
when situations are examined out of context. All the examined evidence may lead to an apparently credible but false conclusion,
which would be significantly altered by examination of additional data. Nowhere has this happened more dramatically than in
the release of convicted prisoners on production of DNA evidence in recent years and I suggest, with great respect, that any
conclusions your esteemed mission may offer will be incomplete without the evidence of the persons who were afraid to testify.
For example there are substantial indications that persons are afraid to offer evidence of the alleged wide
usage by Hamas of human shields, booby-trapped premises, decoys and other factors that would explain actions by Israeli troops.
I suggest therefore that it is the duty of the UN to provide an opportunity for such persons to give evidence anonymously.
As Dominic Lawson wrote
in the Sunday Times of January 11, those who claim the IDF deliberately targets civilians don’t have to believe the
official spokesman’s denials: they could speak to someone such as Colonel Richard Kemp, who commanded British Army campaigns
in Afghanistan and Northern Ireland, and was most recently senior military adviser to the Cabinet Office. Kemp told Lawson
that Hamas deploys suicide attackers, including women and children, and rigs up schools and houses with booby-trap explosives.
Its leaders knew as a matter of certainty this would lead to civilian casualties if there were a ground battle. Virtually
every aspect of its operations is illegal under international humanitarian law – ‘war crimes’ in the emotive
language usually reserved for the Israelis.
Colonel Kemp points out
that if the IDF had no regard for civilian lives it would never have distributed leaflets and telephoned residents in Gaza,
warning them when it was about to attack their area: after all, that also gives Hamas notice – hardly the act of an
army devoted to military victory at all costs. Similarly, the IDF’s unilateral commitment to a daily three-hour ceasefire
to permit the evacuation (to Israel) of casualties, and for the passage of “humanitarian aid”, also allows Hamas
time to regroup and redeploy for future attacks.
Summing up. To sum up, I commend the exhausting and harrowing work performed by your mission
and I sincerely hope that this memorandum, with the video in Appendix A, will be of assistance in your deliberations. http://www.youtube.com/watch?v=HLFAJK5LtwY
Norman Mailer, in his 1973 biography
of Marilyn Monroe coined the word "factoid" by adding the suffix "oid" to the word "fact". Tagged on to the end of a word,
"oid" conveys the idea of resemblance to that word, for example asteroid means like a star; anthropoid apes are apes that
are most like humans.