Terror Tunnels The Case for Israel's Just War Against Hamas (3 page)

In contrast, the United Nations Fact Finding Mission on the Gaza Conflict decided that Hamas was not guilty of deliberately and willfully using the civilian population as human shields. It found “no evidence” that Hamas fighters “engaged in combat in civilian dress,” “no evidence” that “Palestinian combatants mingled with the civilian population with the intention of shielding themselves from attack,” and no support for the claim that mosques were used to store weapons.

The report is demonstrably wrong about both of these critical conclusions. The hard evidence conclusively proves that the exact opposite is true, namely that: 1) Israel did not have a policy of targeting innocent civilians for death. Indeed the IDF went to unprecedented lengths to minimize civilian casualties; and 2) that Hamas did have a deliberate policy of having its combatants dress in civilian clothing, fire their rockets from densely populated areas, use civilians as human shields, and store weapons in mosques.
⁹

What is even more telling than its erroneous conclusions, however, is its deliberately skewed methodology, particularly the manner in which it used and evaluated similar evidence very differently, depending on whether it favored the Hamas or Israeli side.

I have written a detailed analysis of the Goldstone methodology, which is now available online.
¹⁰
It is being sent to the Secretary General of the United Nations for inclusion in critiques of the
Goldstone Report
received by the United Nations. This analysis documents the distortions, misuses of evidence, and bias of the report and those who wrote it. It demonstrates that the evidence relied on by the report, as well as the publicly available evidence it deliberately chose to ignore, disproves its own conclusions.

The central issue that distinguishes the conclusions the
Goldstone Report
reached regarding Israel, on the one hand, and Hamas, on the other, is intentionality. The report finds that the most serious accusation against Israel, namely the killing of civilians, was intentional and deliberately planned at the highest levels. The report also finds that the most serious accusations made against Hamas, namely that their combatants wore civilian clothing to shield themselves from attack, mingled among the civilian populations, and used civilians as human shields, was unintentional. These issues are, of course, closely related.

If it were to turn out that there was no evidence that Hamas ever operated from civilian areas, and that the IDF knew this, then the allegation that the IDF, by firing into civilian areas, deliberately intended to kill Palestinian civilians, would be strengthened. But if it were to turn out that the IDF reasonably believed that Hamas fighters were deliberately using civilians as shields, then this fact would weaken the claim that the IDF had no military purpose in firing into civilian areas. Moreover, if Hamas did use human shields, then the deaths of Palestinian civilians would be more justly attributable to Hamas than to Israel.

Since intentionality, or lack thereof, was so important to the report’s conclusions, it would seem essential that the report would apply the same evidentiary standards, rules, and criteria in determining the intent of Israel and in determining the intent of Hamas.

Yet a careful review of the report makes it crystal clear that its writers applied totally different standards, rules, and criteria in evaluating the intent of the parties to the conflict. The report resolved all doubts against Israel in concluding that its leaders intended to kill civilians, while resolving all doubts in favor of Hamas in concluding that it did not intend to use Palestinian civilians as human shields.

Moreover, when it had precisely the same sort of evidence in relation to both sides—for example, statements by leaders prior to the commencement of the operation—it attributed significant weight to the Israeli statements, while entirely discounting comparable Hamas statements. This sort of evidentiary bias, though subtle, permeates the entire report.

In addition to the statements of leaders, which are treated so differently, the report takes a completely different view regarding the inferring of intent from action. When it comes to Israel, the report repeatedly looks to results and infers from the results that they must have been intended. But when it comes to Hamas, it refuses to draw inferences regarding intent from results.

For example, it acknowledges that some combatants wore civilian clothes, and it offers no reasonable explanation for why this would be so other than to mingle indistinguishably among civilians. Yet it refuses to infer intent from these actions. Highly relevant to the report’s conclusion that militants did not intend for their actions to shield themselves from counterattack is that the mission was “unable to make any determination on the general allegation that Palestinian armed groups used mosques for military purpose,” “did not find any evidence to support the allegations that hospital facilities were used by the Gaza authorities or by Palestinian armed groups to shield military activities,” did not find evidence “that ambulances were used to transport combatants or for other military purposes,” and did not find “that Palestinian armed groups engaged in combat activities from United Nations facilities that were used as shelters during the military operations.”

There is, however, hard evidence that Hamas did operate in mosques and, at the very least, near hospitals. Circumstantial evidence (precise weaponry) was used to prove Israeli intent. Regarding Hamas, the circumstantial evidence is even stronger in inferring intent. It is beyond obvious that militants do not fire rockets in the vicinity of mosques or hospitals because it is easier to launch rockets near community institutions. Rather, they do so only because of the special protections afforded to hospitals and religious centers in war.

The report—commissioned by an organization with a long history of anti-Israel bigotry, and written by biased “experts,” with limited experience—is one-sided and wrong in its fundamental conclusions. This should not be surprising since conclusions can be no better than the methodology employed, and the methodology employed in this report is fundamentally flawed.

So now it is up to Richard Goldstone to explain the evidentiary bias that is so obviously reflected in the report, and that is documented in my lengthier analysis available online. The burden is on him to justify the very different methodologies used in the report to arrive at its conclusions regarding the intentions of Israel and the intentions of Hamas. Failure to assume that burden will constitute an implicit admission that the conclusions reached in the
Goldstone Report
are not worthy of consideration by people of good will.

3

Finally, A Hamas Leader Admits that Israel Killed Mostly Combatants in Gaza

December 17, 2010

Since the end of the Gaza War in January 2009, Israel has stood accused of targeting civilians rather than terrorist combatants. The Israeli Defense Force has claimed that during Operation Cast Lead it targeted only combatants in its efforts to protect its civilians from rocket attacks. It has also claimed that most of the dead were combatants and issued lists of names of many of the combatants killed and identified them as members of the specific Hamas military units. Despite unprecedented efforts to avoid civilian casualties—including hundreds of thousands of leaflets, telephone calls, and nonlethal, noise-making warning bombs
¹¹
—some civilians were killed, because Hamas deliberately hid behind civilians, using them as shields, when they fired rockets at Israeli civilians.

Following the end of the Gaza War, which temporarily stopped Hamas rocket attacks against Israeli civilians, there was a great debate about the number of Gaza civilians actually killed, and the ratio of civilian to combatant deaths during this difficult military operation.

The Israel Defense Force put the total number of known combatants killed at 709 and the number of known civilian deaths at 295, with 162 (mostly men of fighting age) “unknown.”
¹²
Such a ratio, if true, would be far better than that achieved by any other nation in a comparable conflict. Not surprisingly, Israel’s enemies initially disputed this ratio and claimed that the number of combatants killed was far lower and the number of civilians far higher. The United Nations, the
Goldstone Report
, various human rights organizations, and many in the media automatically rejected Israel’s documented figures, preferring the distorted numbers offered by Hamas and other Palestinian sources.

But a statement recently made by a Hamas leader confirms that Israel was correct in claiming that approximately 700 combatants were killed.

First, a word about the context of the Hamas statement. In the aftermath of the war, Hamas has come under considerable criticism from rival terrorist groups for not doing enough to defend Gaza and for allowing so many civilian casualties. So, in a recent interview with a London paper, Al-Hayat, Fathi Hamad, Hamas’s Interior Minister, responded to these criticisms as follows:

It has been said that the people were harmed by the war, but is Hamas not part of the people? It is a fact that on the first day of the war Israel struck police headquarters and killed 250 members of Hamas and the various factions, in addition to the 200300 operatives from the [Izz al-Din] al-Qassam Brigades. In addition, 150 security personnel were killed, and the rest were from people.
¹³

This statement not only supports the Israeli numbers, but it also acknowledges what Israel has long said about the 250 policemen who were killed on the first day of combat: they were “members of Hamas and the various factions” and were indeed combatants by any realistic definition of that term.

Fathi Hamad’s figures are in striking contrast to those originally issued by Palestinian groups, which claimed that only forty-eight combatants were killed and that the total amounted to a mere 17 percent of all fatalities.

Because it uncritically accepted the original Hamas claims of very few combatant deaths, the
Goldstone Report
was able to reach its flawed conclusion that the
purpose
of the operation must have been to kill civilians, not combatants. This is what the
Goldstone Report
said:

The Mission notes that the statistics from non-governmental sources are generally consistent. Statistics alleging that fewer than one out of five persons killed in an armed conflict was a combatant… raise very serious concerns about the way Israel conducted the military operations in Gaza. The counterclaims published by the Government of Israel fall short of international law standards.

Now that the truth has been admitted by the Hamas leadership—that as many as seven hundred combatants were, in fact, killed—the Goldstone Commission is obliged to reconsider its false conclusion and correct its deeply flawed report.

Richard Goldstone himself has repeatedly said that he hoped that new evidence will prove his conclusions wrong. Well, this new evidence—a classic admission against interest—does just that!

The original false figures have also been submitted by the Palestinian Authority to the International Criminal Court. It too has an obligation to correct the record. It would be an outrageous miscarriage of justice for the International Criminal Court to open an investigation of a nation that, in actuality, had the
best
ratio of combatant to civilian deaths in any comparable war.

The admission by Fathi Hamad that Israel’s figures were correct and those originally offered by Palestinian groups were false exposes the rush to judgment against Israel that has stained the so-called human rights community so often in the past. It is essential that this new evidence be widely circulated, which it has not been to date, and that those who condemned Israel on the basis of false allegations correct the record. Don’t hold your breath! In today’s distorted world of human rights, truth takes a backseat to ideology, and false claims—especially those that support radical ideologies—persist even after they have been exposed.

4

Goldstone Needs to Recant in Light of the New Evidence

January 11, 2011

Can Richard Goldstone’s tarnished reputation be rehabilitated without him acknowledging that the evidence, including new information, proves he was wrong? There is a politically motivated effort under way to rehabilitate the tarnished reputation of Richard Goldstone. His reputation suffered not only from his association with the discredited
Goldstone Report
regarding the war in Gaza, but also from recent revelations of the ignoble role he played as a hanging and torturing judge while serving the apartheid regime in South Africa.

For strident enemies of Israel, such as the hard left
Nation
magazine, Goldstone was a hero. They couldn’t care less that the “findings” of the
Goldstone Report
were contradicted by the physical evidence, including video and audiotapes. They ignored the fact that a leading Hamas figure acknowledged that most of those killed by Israeli fire were combatants, including police officers trained to fight against Israel. They couldn’t be bothered by the disclosure that their hero had ordered the torture of black prisoners and the execution of black defendants who never would have been subject to whipping or capital punishment had they been white. “He was just doing his job,” his defenders claimed, an excuse reminiscent of even darker times. The
Nation
, and others who toe to their “Israel is always wrong” line, cared only that Goldstone, a Jew and a Zionist to boot, had concluded that it was Israeli policy—determined at the highest level—to target Palestinian civilians, and that it was not Hamas policy to fire their rockets at Israeli civilians while hiding among Palestinian civilians and using them as human shields.