An Open response to Justice Arthur Chaskalson
Advocate George Bizos SC
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
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
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.
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
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