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January 16, 2011
Dear Judge Goldstone,
It has been a considerable
time since I last wrote an open letter to you, but I believe that you will not only be willing but anxious to clarify questions
that have arisen as a result of the widely publicized statement by Hamas interior minister Fathi Hammad in his interview with
Al-Hayat last November 1. The Minister quoted figures of combatant casualties in the Cast Lead Operation that according to
Islamic News 'roughly match the 709 "terror operatives" that the military of Israel said it had killed
during the fighting which included members of the Hamas-run police force'
Fathi Hammad's figures contradict
the ratio of one in five of the persons killed being a combatant as reported by PCHR and Al Mezan that was accepted seriously
by your Mission as stated in clause 361 of the Report. It is now obvious that your Mission was mistaken in accepting
the reports of various NGO's while summarily rejecting the detailed counterclaims by the Government of Israel that has now
been vindicated, namely, that at that stage Israel had recorded the names of 1,166 Palestinians killed, 709 of them identified
as operatives of Hamas and various other terror organizations and that 295 uninvolved Palestinians were killed during
the operation, 89 of them under the age of 16, 49 of them women and that in addition, there were 162 names of men that had
not yet been attributed to any organization.
You have said in the past that the information the Mission received
would not be admissible as evidence in a criminal court and I have difficulty in reconciling this with the statement in clause
361 of your report which states "The counterclaims published by the Government of Israel fall far short of international
law standards". In the circumstances it is fair to ask whether the claims by the NGO's which the Mission accepted and
which have since proved to be unreliable, met these law standards.
The realization that the mission was very
mistaken in its belief that statistics from non-governmental sources are generally consistent, as stated in clause 361, should
raise a red flag in evaluating other claims made by them, which should now be re-examined.
The analysis of the
role of the Gaza police force in Chapter 7 of your report is commendably realistic and it is difficult to understand why the
police casualties are regarded by some as civilians. There is no doubt that the Gaza police incorporates the Executive Force
(al-Quwwa al-Tanfiziyya) which, according to a Reuters report of June 20, 2007 numbered 6,000 men and was outlawed
by Mahmoud Abbas. It has been described by The Telegraph and others as a paramilitary police force and even the Hamas
interior minister acknowledged that when Israel targeted the police stations, "250 martyrs were killed, from Hamas and
other factions".
An ICRC document "Interpretive Guidance on the notion of direct participation in hostilities
under international humanitarian law" published in May 2009 concludes that "..even under the terms of the Hague Regulations
and the Geneva Conventions, all armed actors showing a sufficient degree of military organization and belonging to a party
to the conflict must be regarded as part of the armed forces of that party". This certainly includes the Gaza police force
and justifies the attacks on the police stations.
While writing, I must mention that I am bothered by an aspect
of the methodology used by B'Tselem whose reports greatly influenced your final report. In an explanatory note on its web site B'tselem states "Persons who do not fulfill a 'continuous combat function' are a legitimate object of attack only when taking a
direct part in hostilities (for example, on their way to fire a rocket, during the firing of the rocket, and on the way back)"
and B'Tselem adds that wherever there is a doubt regarding the actions of a person, the doubt works in the individual's favor,
and it is forbidden to target the person for attack.
Does this imply that for example, a combatant who has fired fifty rockets into civilian areas of Israel,
and who does so on a regular basis but is killed during a lull while enjoying a cup of coffee in a restaurant, is treated
in B'Tselem's records and in your report as a civilian casualty?
During the Ta'anit Tzedek's rabbical conference
call with you in October 2009 you said that if some of the allegations that the Mission found to be true were not proven beyond
a reasonable doubt, you would absolutely accept that and it wouldn't be surprising. Well the aforementioned public statement
by Hamas interior minister convincingly shows that the "disproportionate" civilian casualties cited in the Report and which
form a significant portion of the grounds on which Israel has been subjected to international vilification, have been proven
beyond doubt to be inaccurate. In the circumstances I and my readers look forward to your acknowledgment of this error.
Sincerely
Maurice
Ostroff
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