Posted by: theoptimisticconservative | April 3, 2011

Goldstone Rethinks Smear Job against Israel

Retired South African judge Richard Goldstone, whose name graces the infamous “Goldstone Report” on Israeli Operation Cast Lead (December 2008-January 2009), has an op-ed in the 1 April Washington Post that opens with the following statement:

We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.

Shocked, Shocked: Hamas Doesn’t Investigate Itself

Goldstone implies he was urged to this view by the independent committee that reviewed the Goldstone Report – produced for the UN Human Rights Council (UNHRC) – for the UN.  He has this to say about that:

The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

(Full text of independent committee report here.)

How about that.  Hamas, the terrorist organization with extensive ties to Iran, hasn’t conducted any investigations into its launching of rockets and mortars “purposefully and indiscriminately … at civilian targets.”  Meanwhile, regarding the Goldstone Report’s allegations that Israel targeted civilians indiscriminately, Goldstone has this to say:

The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy. (Emphasis added)

In the first sentence, Goldstone acknowledges that his report’s allegations of intentional targeting of civilians were based on a lack of evidence – not positive evidence.  Another way of putting his proposition is that the investigators assumed intentionality unless positive evidence proved the converse.  That’s one thing for a bull session at the local pub, but it’s entirely another for an international proceeding whose outcome is intended by the parties to result in a non-consensual referral of Israel to the International Criminal Court (ICC) (a body to which Israel is not a State Party).

Goldstone goes on to acknowledge that where internal Israeli investigations found wrongdoing, commanders were subject to punishment.  Read, as they say, the whole thing. 

Ex Post Facto Quarterbacking and End-Running the Rules

Objections to the methods and conclusions of the Goldstone Report have been many and varied.  This website is a one-stop venue in which a number of them are captured (see especially the Procedural Flaws page).  I will highlight just a couple.

One form of criticism has come from experienced military officers, the most vocal of whom is Colonel Richard Kemp, CBE, a retired infantry officer of the British army who served in Afghanistan and Bosnia.  He testified against the tendentious conclusions of the Goldstone Report before the UNHCR in October 2009, starting with this statement:

The IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.

Kemp can be seen here making similar points to a BBC anchor (h/t: Solomonia). He acknowledges that in the chaos of war, any commander – British, Israeli, or any other nationality – can inflict inadvertent damage or even simply make mistakes. But as he observes in this June 2009 address to the Jerusalem Center for Public Affair, “Mistakes are not war crimes.”

That point begs the question of how the two are distinguished, as a matter of international law.  The second major form of criticism applied to the Goldstone Report is its cavalier treatment of that overriding question. In the Berkeley Journal of International Law’s “Publicist” forum, Army JAG LTC Chris Jenks and South Texas College of Law Professor Geoffrey Corn basically dismantle the Goldstone Report in that regard.  In a section entitled “Ex Post Facto Analysis,” the authors say:

The [Goldstone investigative] Mission claimed it was “not attempting to second-guess with hindsight the decisions of commanders.”  But lacking relevant and sufficient information, the Goldstone Report does just that—it applies a retrospective approach to targeting decisions made during armed conflict.

In failing to view the events through the eyes of a “reasonable military commander” and at the time the targeting decisions were made, the Goldstone Report errs as a matter of law. More problematic for future military operations, and the military leaders that plan and execute those operations, is the risk that the Goldstone Report will set a flawed precedent which may intellectually corrupt future investigations of targeting decisions during armed conflict. Ultimately, such a flawed precedent risks producing a chilling effect on military commanders responsible for the violent execution of combat missions against belligerent opponents, thereby compromising the effectiveness of such operations as well as any investigations as to the manner by which they were conducted.

According to Jenks and Corn:

… the Goldstone report … overtly substitutes its Mission members’ post hoc judgment for those of military commanders on the ground at the time … despite lacking relevant information concerning the commander’s mission, tactical assessment, threats posed, and weapon systems and support available (or not), in reviewing one attack, the Goldstone Report “found it difficult to believe that mortars were the most accurate weapons available at the time.” Labeling the use of mortars “reckless,” the report suggests that “helicopter and fighter jets” would have been more appropriate without any information as to whether those assets were even available to the military commander on the ground.

The Jenks/Corn piece goes on to point out serious – and, from a precedential standpoint, dangerous – flaws in the jurisdictional reasoning behind the Goldstone Mission. Its implication that Israel was “unwilling” to investigate alleged war crimes by the IDF was invalid; Israel had opened dozens of investigations by the summer of 2009.  Charging Israel with “unwillingness to investigate” as a trigger for international intervention was unwarranted, by any credible understanding of international law.

Equally questionable was a separate but related matter: the ICC’s handling of a declaration by the Palestinian Authority, in January 2009, that it sought (or “accepted”) ICC jurisdiction over PA territories – a move made for the purpose of involving the ICC in a war crimes investigation.  As Jenks and Corn point out, ICC jurisdiction over non-States Parties (such as the PA, which is not a state, or Israel, which is not a party) can only be conferred by an ad hoc decision of the UN Security Council (UNSC).  The ICC is not empowered to accept or reject “applications” from whoever wants its jurisdiction.  That the ICC did not immediately, on that basis, deny the appeal and direct the PA to the UNSC, in the view of Jenks and Corn sets a very bad precedent.

The US and the Goldstone Report

The UNHCR – that body enriched by the membership of Angola, Libya, China, and Cuba, among others – approved the Goldstone Report in October 2009, although US diplomats had requested the Council to postpone its vote until 2010.  The UN General Assembly then endorsed the report in November 2009, requesting the Secretary General to refer it to the UNSC and demanding that Israel and the relevant Palestinian “authorities” (presumably Hamas) respond to and demonstrate cooperation with the report (the US joined 17 other nations in voting No).

The US House of Representatives, recognizing the report’s flaws, voted the same week to condemn it.  In the Senate, 30 senators signed a letter to Hillary Clinton in late September 2009 asking her to block any punitive action envisioned by the UN based on the Goldstone Report.

Congress and the president should now join the Netanyahu government in calling for the UN General Assembly to repeal its endorsement of the Goldstone Report.  The report is deeply flawed, as was its premise and its process.  The General Assembly vote in November 2009 was in itself an indication of that: although 114 nations voted to endorse the report, that tally fell short of the usual zeal for condemning Israel, and reflected a high number of abstentions along with the 18 No votes (scroll to the bottom at the link to see the voting details). Among those abstaining were Russia, the UK, Spain, Sweden, and quite a few other European, Latin American, and Asian delegations.  Recognition is widespread that the Goldstone Report’s flaws carry menacing implications for national sovereignty and the manufacturing of “war crimes.”

The US should lead the effort to withdraw UN endorsement of the Goldstone Report, and should state clearly our intention to veto any UNSC consideration of proposals based on it.  Israel has been the target of this assault on national sovereignty and the integrity of UN-chartered processes; the next assault could be mounted against any other nation.  If the precedent of delegitimization through extra-legal machinations is allowed to be set, no one will be immune.

J.E. Dyer blogs at Hot Air’s Green Room and Commentary’s “contentions.”  She writes a weekly column for Patheos.


Responses

  1. Yes, I suppose we “should” do what you say. But wouldn’t it be more economical to simply accept that the UN is beyond redemption, to stop legitimizing it, start moving whatever useful functions it serves (I look forward to finding out what they are) into other fora, and just leave it and kick it out. Of course I know that this isn’t in the immediate future, but who knows what might be possible in the next few years? Is there any reason why we shouldn’t start working on creating a new “common sense” on this issue?

    • I’m with you, Adam – cut the crap! What the UN was in 1945 after WW2 bears absolutely NO resemblance to what it’s become in 2011! Not that the world stands still – in fact, the Continent of Africa has gone through so many nations and nationalities that it’s both the dream AND the bane of ordinary stamp collectors! (I started collecting stamps in the old colonial period, so you know what I mean!!) But the worse thing that’s happened (and I wonder if any great political or historical seer saw this coming?) is the rise of Islam and its current domination of the UN. In fact, if those bozos want a world Caliphate, why not just let do with the UN and pretend that Islam Rules on the East River and be done with trying to take over all our other institutions instead?! But, joking aside, turning that perfectly excellent building (with its GREAT location and fabulous views) into fancy high-end condos would make all the sense in the world. Move the UN to Europe and let Eurabia handle – and pay for! – it!!

  2. or we could simply improve the UN through meaningful participation and constant pressure.

    http://www.ncr-iran.org/en/ncri-statements/human-rights/10200-iranian-resistance-calls-for-attention-to-dire-situation-of-iranian-refugees-in-baku

    • Yes, by pressuring the UN to attend to the needs of those brutalized by regimes that we should be trying to overthrow instead of hosting their crackpot leaders every few years and participating with those same leaders on the very UN Human Rights committees that we can pressure to attend to the aforementioned needs.

      • adam, old man, who says that we should be trying to overthrow regimes? and why isn’t using international institutions as a lever to move those regimes not a good idea?

        • If we’re already in the institutions, we should try to use their levers; but effective levers are almost (I’m being generous–I think completely) non-existent within the UN. Being outside would ultimately give use more freedom of movement.

          As for why we should be trying to overthrow regimes–it’s a good approach to regimes that have sworn, and indeed practice, enmity towards us (especially of the absolute kind of the mullahs). We’re not obliged to recognize the legitimacy of anyone wishing us harm. It’s not the only thing we should have been doing towards Iran these past few decades, and especially the last one. It’s just something that should have been foremost in our minds, and we should have been seeking out and where possible creating opportunities. But if we’re preoccupied with finding levers within bankrupt institutions, we will never get around to developing that kind of focus on the regime’s weak points.

          • adam, we don’t recognize their “legitimacy” as much as we recognize their existence in fact. our recognition is NOT a means of affixing a seal of approval, just an official notice of a fact of life.

            we spent a long time pretending that the gangsters on Taiwan were still in charge of China, but that accomplished nothing except making us look silly.

            I’m all in on seeing the rather vile regime in Tehran being expunged from the looseleaf of history, and you seem to be ignoring the rather blatant evidence that we’ve used the UN Security Council and the IAEA to pressure Iran at their weak points.

            Sanctions are hurting them and their economy is shaky, propped only by a single pillar.

            We’re now looking to turn the rather slimy UNHRC toward the desirable direction of publicizing Iran’s hideous human rights abuses. It’s a fairly good idea to use this as a way into garnering international aid for the Iranian protesters through a vehicle that’ll make it difficult for the theocrats to trumpet as American/colonialist interference in their internal affairs.

  3. I suppose sanctions are hurting, but sanctions could be arranged between states that see Iran (or any other terrorist state) as a threat. The UN isn’t necessary.

    In order to make it sufficiently difficult to trumpet attempts to undermine the regime as American/colonialist interference in their internal affairs we have to really desist from interfering in their internal affairs. E.g., by refusing to help, or even speaking particularly convincingly on behalf of masses of protesters being brutalized by the regime’s thugs. As long as they know we won’t get too into their faces, they can hold on until they get nukes, and once they get nukes, they can convince enough of their neighbors, and the Europeans, that it’s better to play ball with them because, after all, the U.S. is too concerned about being called “imperialist” or “racist” or whatever to do anything about it. Whereas they mean business.

  4. As an American I am constantly amazed at the obsessive interest of the far-right in the foreign ethnocracy of Israel. I mean, Israel doesn’t observe our norms or values any more than do her Arab neighbours. The place is a total strategic liability for the US. I have never heard any convincing argument that the place has any strategic value for the US. Israel has never fought alongside the US (Unlike many of the Arab nations in the Middle East). In fact, everytime the US is embarking on some military misadventure in the region, we have to bribe the Israelis to keep out of the way and not act as a spoiler to putting together a coalition that will work with us. It exists on a multibillion dole provided by the US taxpayer (while it provides a socialist health service to its Jewish population – but not to the Arabs under its control). When we ask it to stop stirring up unrest and instability by stealing land and water from non-Jews, this foreign outfit takes our money and thumbs its nose at our interests and values. It’s latest stunts have managed to seriously impair the relationship between the US and Turkey – a vital regional ally whose troops have actually fought alongside ours. Israel is a major nuisance to our country and its vital interests.

    Goldstone has apparantly had second thoughts on some of his conclusions. These relate principally to procedural matters, and modalities of the co-operation provided by the protagonists. Of course, neither Hamas nor the Israelis helped the investigators. Neither is there any evidence that either side credibly investigated accusations of atrocities against their own combattants or disciplined anyone. Neither did the Croats, Serbs, and Bosnians who Goldstone and Travers also accused of atrocities. Quel surprise!
    Goldstone has not questioned any of the substantive findings of the report. Moreover, the three other members – Travers, Chinkin, and Jilani have gone on record to stand over the entirety of the report – including its procedures and conclusions.
    To refresh everyone’s memories. here are the undenied facts: The Israelis used cluster weaponary, tungsten and ‘dime’ munitions, white phosphorous, and (most outrageously) flechette munitions, in a densly populated urban area. No wonder most of the victims were civilians, and that children were disproportionately vivctimized (Al Jazeera’s English language service did a programme on the effects of white phosphorous and flechettes on the children of Gaza. Not very nice, folks).
    The Israelis targeted Mosques, the food-supply, and the water and educational infrastructure. The investigation found no evidence that any of these places had been used for military purposes by Hamas. Goldstone has not disputed any of this. Goldstone’s volte-face relates solely on whether the Israelis “intended” to target civilians. Well, he has a point. No one can look into the minds of the IDF or Hamas commanders. As Colonel Travers (The only military person of the four rapoteurs) said in an exchange with Kemp on BBC 2 – If you use white phosphorous, flechettes, and cluster-weapons in a densly populated urban area, what do you think will be the result? Kemp didn’t give an audible answer. Travers then asked Kemp (who had experience of serving in the British Army in Northern Ireland) “Did you consider using this sort of weaponary in the Catholic enclaves in Nothhern Ireland? and If not, why not? Kemp merely responded by saying “No”. I should remind you at this stage that the IRA were far more efficient and deadly users of rockets than the hapless Hamas (they almost succeeded in dispatching the entire British government in one attack). The real reasons, of course (had Kemp been of a mind to answer) were that Britain is a civilized western country, and the Northern Irish catholics are white people, and not Arab and Moslem untermenschen whose kids can be incinerated and maimed with impunity.

    The upshot of all of this is predictable. The Serbs are now calling for the abandonment of the Bosnian War Trials Tribunal because Goldstone and Travers were involved in exposing Serbian war-crimes, and they say (with some justification) that if the Gaza inquiry is flawed, so too must be the investigation of the crimes of the Serbs.

    This is wishful thinking by the Serbs. The fact is that the substantive findings of the Goldstone report have not been questioned by Goldstone.

    By the way, the flechettes and cluster-weapons came with “made in the USA” labels. Makes you proud, doesn’t it?

    • Yes, the Paulites never understand why Americans support Israel. (Or, rather, how the “far right” manages to drag the majority along into its obsessions.) I’m sure you’ve been exploring the dark mysteries of the subject avidly. I’m not sure there’s a way to destroy, or even seriously set back Hamas, without causing lots of civilian casualties; it may be that Israel’s half-way measures include the worst of both worlds (public image and effectiveness). But, ultimately, Hamas must be destroyed as they will eventually get the weapons that make containment impossible. The Israelis will be called war criminals no matter what they do, so they should just get it over with. Unless they can build a missile defense system that really works–perhaps they’re waiting for that. But what happens when Hamas gets missiles that can beat the system? At any rate, I hope Obama will keep obsessing (the Left has its obsessions too) over Jews living in East Jerusalem–that seems to be helping him enormously politically.

      • No, the Israelis will not be “called war-criminals no matter what they do”. They will be called war-criminals only when they commit war-crimes. Ditto the Serbs. Ditto the Somalis etc. etc.

        And I certainly have no problem with Jews living in East Jerusalem, the Bronx, downtown Phoenix, or anywhere. I have a big problem with Jews or anyone else living in property they have stolen from someone else.

        • Since the PA imposes (or did–I’m not up to date on current PA law) the death penalty on Palestinians who sold land to Jews, at least some of the land wasn’t stolen.

          More broadly, though, the anti-Israel narrative is easy to recognize–the Israelis do nothing but commit one depraved act after another against utterly innocent victims who, if they perchance act out every once in a while in less than optimal ways, it could only be because they were left absolutely no other choice. There’s no dialogue here, and I think I can trust the Israelis to at least not submit themselves to the tender mercies of the currently constituted international legal authorities. Let them issue their rulings with the defendant in abstentia.

          Less broadly, the role of the Paulites as the defenders of the anti-Islamophobic position is a fascinating one. I’m entertaining a few hypotheses.

          • The populations of occupied territory have always imposed the “death penalty” on collaborators. This practice has been carried out by such notoriously fanatical Moslem peoples as the Irish and French. Moreover, there is no contractual equality between the occupier and the occupied. This is why we made the settlement of occupied land by occupiers a war-crime. This was done in the light of the Nazi policy of “living space”.

            As for the support for Israel in the US: There is no evidence whatever that support in the US for the state of Israel extends to the robbery of Arab land, homes, and water, or to the use of trench-clearing weapons like flechette-rounds (paid for and supplied by us) against civilians.

            In any case I take it that you are in agreement with me in relation to the vast perponderance of the “settled” lands which has been forcably cleared of its non-Jewish residents and seized by the Israelis.

            Two of the pillars upon which our US system of laws and values stand are non-discrimination on grounds of religion and the sanctity of private property. As an American I believe in the universality of these fundamentals.

            • Yes, I know, everything the Palestinians do is justified and in the best historical traditions. The ancient Greeks probably blew themselves up on buses. And everything Israel does is wicked for the sake of wickedness. It’s all very predictable–you say y about the Palestinians, but the Israelis really do x; you say y about the Palestinians but someone else did y, so it’s perfectly fine. Meanwhile, American principles are universal except for the occupied, who need recognize no moral restraints (“it’s really Israel that recognizes no moral restraints…”). The Palestinians believe all this as well, which is why they never get either what they pretend to want (a state alongside Israel) or what they actually want (to kill and drive out all the Jews). But this means that the Israelis have nothing to do but protect themselves from their maniacal neighbors, continually egged on by their international friends to commit enormities. Well, it’s all about to get more serious–my only interest is in whether the Israelis have the strength to value their own lives over those who want to slaughter them.

    • Israel has always been a challenge to the practical business of getting along with the despotic regimes that have oil for sale, Paulite.

      the rest of your comment was not real correct, real well thought out, or real.

      • I don’t really know what oil or despotic regimes (the ones other than Israel) has to do with the ongoing robbery of the land, homes, and water- resources of non-Jews in Israel/Palestine? Perhaps you might enlighten me in your usual real, well thought out manner…..

        By the way, do you think that the use of US-supplied flechette-rounds in densly populated urban areas is OK?

        • only during wartime.

          • “only in wartime”

            That is the exact response the Nazis would have given to complaints about their methods in suppressing the revolt in Warsaw in final months of WWII (In which battlefield weapons were also used, and in which most of the casualties were also civilians)

            Flechette-rounds were devised as a (very cruel) means of clearing enemy trenches. I cannot think of any nation, other than Israel, that has employed these things in a densly populated urban area (particularly where the beseiged civilian population was corralled and confined by the assailants and had nowhere to flee or hide). We introduced these things in Vietnam. My neighbour – who served there – says that we never ever used them against villages or in areas where there were civilians.

            Shame. Shame on you.

            • p.s. I presume your answer was thoughtless rather than deliberately callous.

              regards.

              • you may presume as you like, but my answer wasa reaction to a leading question asked without sufficient detail.

                when and if you produce some information of the circumstances under which you presume that the IDF elected to use flechettes rather than other things, I might be able to offer an intelligent response.
                An intelligent question would lead me in that direction.

                In any case, I would suggest that a circumstance under which military operations are undertaken in the expectation that they will require killing folks generally entails the use of things designed to kill folks.
                Choosing what is basically an anti-personnel agent that likely will cause less damage to the area than would be caused by high explosives doesn’t, by itself, strike me as necessarily untoward.

                Get back to me will something specific, if you wish to continue.

              • Specifically:

                Civilized nations apply a principle of proportionality in their use of weaponary. The British in Northern Ireland, and we in Iraq, tried (not always successfully) to avoid civilian casualties and the destruction of the education, health, and civil infrastructure upon which civilized existence depends. We are civilized nations and we try to observe civilized norms. I am unaware of any western democracy ever having used white-phosphorous and flechette-rounds in urban areas. Ever. The Gaza ghetto is one of the most densly populated places on earth.
                Flechette-rounds are designed to clear trenches of enemy troops. They are dreadful and cruel things. They ‘tumble’ when they impact on human flesh and inflict terrible wounds which are particularly prone to scepticaemia. This latter fact is relevant because Goldstone found (and didn’t subsequently recant) that the Israelis prevented ambulances picking up the wounded and taking them for medical treatment – even injured children.
                I cannot believe that any civilized person would agree that the use of these things in a densly populated urban setting is an excusable tactical option. Nor can I believe that the US should supply these weapons to an assailant who would use them in circumstances in which we would never use them ourselves. That is what I was saying.
                Goldstone did not retract any of the substantive findings of his team. His ‘retraction’ related to two peripheral things:
                1. He said there was no proof that the Israelis ‘intended’ to kill civilians or destroy the civilian infrastructure. But, of course, as Col. Travers pointed our to Kemp on the BBC – short of looking inside someone’s mind, we can only deduce intention from actions. Under most legal systems, including ours, one is taken to have intended the natural and probable consequences of ones actions. The consequences of using flechette-rounds and phosphorous in a densly populated urban area is exactly what you would expect from what was witnessed in Gaza – a large number of civilians – including children – killed or terribly mutilated.
                2. That the Israelis subsequently held inquiries into the atrocities for which they were found responsible by the Goldstone Report. Roger Cohen (Usually no slouch when it comes to defending Israel) utterly demolishes this part of Goldstone’s ‘volte-face’ in his opinion piece in today’s New York Times. In fact, Cohen’s piece is a rare thing in the compliant and cowardly hand-wringing apologia that passes for journalism in the US. (You will remember that all the big US networks meekly obeyed the Israeli embargo on access to Gaza during “Cast Lead”, and we had to rely on Al Jazeera and some European networks to witness the truth of what happened)

                I trust this is sufficiently specific for you.

  5. You’re trust is misplaced, Paulite. When I requested specificity, I meant for you to detail when and where and what.

    stuff used in a “densely populated area” does cut it. at all.

    fletchette rounds usually aren’t aimed at an area as much as they’re brought to bear upon a target and oft-times during times of combat areas that are usually “densely populated” have undergone a dramatic decrease in population.

    • The Goldstone Report specifies that during the attack on Gaza known by its IDF codename “cast lead” the Israelis used these weapons. The Report specifies that 6 children were incinerated by white phosphorous in one incident. The report also details the extensive use of flechette and dime munitions by the Israelis, and the catastrophic injuries inflicted. The Goldstone report also specifies the Israeli practice of preventing ambulances from trying to assist the wounded, and the use by the IDF of Palestinians (including children) as human shields. The Report specifies one incident in which the IDF machinegunned and killed an entire Palestinian family of 29 people in the courtyard of their home – grandparents to infants. All were killed. None survived. None of these “specifics” were subsequently denied by Goldstone.
      Gaza is one of the most densly populated areas on the planet. It is fenced in by the Israelis, blockaded, and under perpetual IDF siege. Its civilian population had nowhere to flee to or hide during “cast lead”.
      Flechette rounds are normally exploded about 25 – 30 ft in the air above enemy trenches. I am unaware of this sort of weaponry ever having being used in a place where civilians might be present. When we used these things against the Vietcong it was procedure to fire off a special flare to warn our own troops to take cover because everything above ground in the target area would be indiscriminately shredded. As I have previously mentioned, my neighbour who served in Vietnam is certain that we never used them in the vicinity of villages or other concentrations of civilians.

      I trust this is sufficiently “specific”.

      You should read Roger Cohen’s op-ed piece in yesterday’s New York Times for a rather more accurate account than that of Opticon as to what Goldstone did or didn’t retract.

      • I read Roger Cohen’s piece. I might even have reas one or two other things about it, P.

        and again, unless I read something specific about the circumstances that lead to the choice of flechettes instead of HEs your trust is still misplaced.

        actus reus and mens rea, eh?

        I’ve got quite definite opinions as to what the Israelis meant to accomplish with the ground invasion and my opinions are quite far from the opticon’s, possibly a little closer to your own, but suspicion isn’t proof and the Goldstone Report is more suspicion and re-telling of tales than it is objective proof of anything.

        • The “actus reus” is ‘fact found’ by the Goldstone Report. It is undenied by Goldstone and the Israelis. It is the use of these weapons in densly populated, besieged, Gaza.

          The “mens rea” is the issue of “intention” which Goldstone (but not the other three rapoteurs) now says is “unproven”.
          Given that we cannot look into the minds of the IDF perpetrators or their political masters, let us apply the usual US test of mens rea for murder to the issue of “intention”.
          In most US states an accused in a homicide trial is “presumed to have intended the natural and probable consequences of his actions”.

          The natural and probable consequences of using these weapons in a densly populated urban area are exactly what was witnessed in Gaza.

          One last thought: “objective” proof of intention is a contradicton in terms. “Intention”, as such, is in the mind of the perpetrator. Unless the accused admits intention, it has to be inferred from the circumstances.

          I presume that answers your question.

  6. P, you’re probably trying, but not getting much closer. We can stipulate that the IDF intended/ were willing to inflict injury or death when firing munitions.

    That is not a crime.

    Keep at it and get more specific and you’ll have a start toward a satisfactory answer.


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