From Maurice Ostroff
September 18, 2009
Dear Judge Goldstone,
Part 1 - The evidence
I feel it important to address some glaring shortcomings in your 500 plus page report, but as
it took several months to prepare the report, it is impossible to respond effectively in a period of days. I shall therefore
do so in several parts, each dealing with a different aspect. I trust you will
find this more convenient than receiving one very lengthy all-embracing document.
In this Part 1, I address the question of the nature of evidence presented and the manner in
which it was dealt with as well as available evidence that was ignored.
At a press conference last April you said that submissions from all relevant persons would be
sought and taken into account. This statement was encouraging in that it recognized the duty of a FACT-FINDING mission, to
actively seek out and examine all possible evidence even when not readily available and even when contradicting preconceived
opinions.
Sadly, the report falls short in meeting these ideals. For example, the matters raised
in the professionally prepared document submitted by a group of fifteen eminent Australian lawyers deserved to be addressed
seriously in your report and your readers deserve the courtesy of being provided with an internet address where the contents
of this serious document can be viewed. e.g https://maurice-ostroff.tripod.com/id222.html
Similarly the two serious memoranda from Take-a-pen with their links to concrete evidence
deserve more than a mere mention in a footnote. http://www.takeapen.org/index.asp
Indeed, your report states simply that the Mission
mostly reviewed the allegations made in reports by the Government of Israel, by private individuals and organizations
and by NGOs that are listed only in a footnote. (Note the use of the word "allegations')
Your Mission has patently arrived
at its conclusions and made far-reaching recommendations in the full knowledge that it has not pursued all the available evidence
despite the danger that conclusions based on incomplete information have, in many cases, led to disastrous consequences such
as sentenced prisoners who have been pardoned on production of evidence unavailable earlier. These unfortunate episodes are
excusable where there were no indications of withheld evidence at the time sentence was passed, but in this case, you are
fully aware of available evidence that you have not examined.
It
is difficult to understand why, despite your acknowledgment at the press conference that the Mission would be heavily dependent
on advice on military aspects, you ignored recommendations to invite Colonel Richard Kemp the former commander of British
forces in Afghanistan and an adviser to the UK cabinet, who has expert knowledge of warfare in conditions similar to that
in Gaza. He does not even earn a mention in your report.
Even
if you disagree with Colonel Kemp's authoritative views, your responsibility to provide an educated balanced report imposes
a duty to at least advise your readers of their existence, so that they can judge for themselves. Failure to even mention
the existence of opinions on the Cast Lead operation of an expert of Colonel Kemp's stature suggests suppression of evidence.
If your esteemed panel has judged Colonel Kemp's views as irrelevant or unimportant, the least your readers and the HRC to
whom you are reporting are entitled to receive is an explanation of your reasons.
Intellectual
honesty requires that, in evaluating evidence about situations they have never personally experienced, non-military investigators
should not ignore key practical military aspects like those enumerated by experts like Colonel Kemp. The credibility of your report would certainly have been enhanced had you referred to his undeniable remarks
that the battlefield - in any kind of war - is a place of confusion, chaos and fast-moving action.
Your
report has sadly ignored the context explained by Colonel Kemp that in the type of conflict that the IDF fought in Gaza and
in Lebanon, and that Britain and America are still fighting in Iraq and Afghanistan, these age-old confusions and complexities
are made one hundred times worse by the fighting policies and techniques of the enemy.
Islamist
fighting groups study the international laws of armed conflict carefully and they understand it well. They know that a British
or Israeli commander and his men are bound by international law and the rules of engagement that flow from it. They then do
their utmost to exploit what they view as one of their enemy's main weaknesses.
Their
very modus operandi is built on the correct assumption that Western armies will normally abide by the rules, while these insurgents
employ a deliberate policy of operating consistently outside international law.
Civilians
and their property are routinely exploited by these groups, in deliberate and flagrant violation of international laws or
reasonable norms of civilized behavior.
Protected
buildings, mosques, schools, and hospitals are used as strongholds. Legal and proportional responses by a Western army will
be deliberately exploited and manipulated in order to produce international outcry and condemnation.
Hamas'
military capability was deliberately positioned behind the human shield of the civilian population. They also ordered, forced
when necessary, men, women and children from their own population to stay put in places they knew were about to be attacked
by the IDF. Israel was fighting an enemy
that is deliberately trying to sacrifice their own people, deliberately trying to lure you into killing their own innocent
civilians.
And
Hamas, like Hizbullah, is also highly expert at driving the media agenda. They will always have people ready to give interviews
condemning Israeli forces for war crimes. They are adept at staging and distorting incidents.
When
possible the IDF gave at least four hours' notice to civilians to leave areas targeted for attack. The IDF dropped over 900,000
leaflets warning the population of impending attacks to allow them to leave designated areas. The IDF phoned over 30,000 Palestinian
households in Gaza, urging them in Arabic to leave homes where
Hamas might have stashed weapons or be preparing to fight.
Many
attack helicopter missions that could have taken out Hamas military capability were cancelled if there was too great a risk
of civilian casualties in the area. During the conflict, the IDF allowed huge amounts of humanitarian aid into Gaza, even though delivering aid virtually into your enemy's hands is to the military tactician
normally quite unthinkable.
Surely
Colonel Kemp's summation that by taking these actions the IDF did more to safeguard the rights of civilians in a combat zone
than any other army in the history of warfare, deserved a mention and a link. e.g. https://maurice-ostroff.tripod.com/id199.html
The
relative importance placed by the panel on different aspects of the evidence may be gauged by the close attention it paid
to a lengthy presentation by Israeli witness Shir Hever, as seen on your webcast, who said almost nothing about the Gaza operation
and instead of being asked to keep to relevant matter, was encouraged to go into great detail about irrelevancies like conscription
laws in Israel. Professor Chinkin found this subject so important that she asked
him to elaborate on how the legal system in Israel responds to these conscription laws that have no relevance whatsoever to the Cast Lead operation. Evidently, the Mission considered time spent listening to these irrelevancies, more important than addressing
the views of Colonel Kemp.
Your mission also knows that some witnesses have withdrawn because of fears of retribution
and the very reason for their withdrawal raises a red flag, indicating that their evidence could be critical. It is incongruous that your report refers to unjustified fears that Israel may penalize witnesses despite
the well known freedom of activists and the media to severely and even viciously criticize the Israel government, in marked
contrast to the widely known strict control of the media and the vicious punishment of dissenters in Gaza.
In these circumstances I believe that your fact-finding mission was remiss in failing
to exert every effort to obtain their evidence by all possible means including offering anonymity and protection. Such witnesses could be readily traced from the abundance of textual and visual evidence available on the
Internet demonstrating how Hamas behavior left the IDF with no alternative but to react as it did.
The video presentations I sent to the Mission
contain details of Palestinians who fled from Hamas describing the abuse of hospitals and ambulances, a named member of the
Hamas legislative council boasting on TV about the use of civilian shields and examples of the continuing blatant incitement
in mosques and schools. One cannot but be disappointed that none of this highly relevant information was followed up by the
Mission.
See https://www.youtube.com/watch?v=Rx-CW3UKoIg&feature=related and
https://www.youtube.com/watch?v=HLFAJK5LtwY
I believe you will agree that it is desirable to avoid the impression that your mission has
imposed its subjective opinion of the evidence it received, This can be easily avoided by placing all memoranda that you received
in an archive on a web site accessible by the public, as is done for example by the UK Parliamentary Committees (See https://maurice-ostroff.tripod.com/id18.html )
Your considered response will be appreciated
Sincerely
Maurice Ostroff
