Goldstone’s bias pt 2: intentionality and evidence

In his op-ed for the Washington Post, Goldstone made the remarkable claim that if he had known during his investigations ‘what I know now, the Goldstone Report would have been a different document’. This was supported by two primary claims in support.

The first: ‘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.’ He supported this by reference to the notorious murder of 29 members of the al-Samouni family. Goldstone says: ‘The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack.’ He is confident the issues will be appropriately resolved: ‘While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly.’

The second primary claim was that ‘our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing’.

Now to consider the evidence for these claims.

The al-Samouni Family

The most obvious place to examine Goldstone’s claims about the revelations of Israel’s investigations of the alleged al-Samouni atrocities would be the UN Report, which investigated how Palestinian and Israeli authorities responded to charges made in the Goldstone Report.

Considering that it is this report which allegedly caused Goldstone to radically rethink his views, it is worthwhile to let it speak for itself (emphasis mine):

The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern: reportedly 24 civilians were killed and 19 were injured in the related incidents on 4 and 5 January 2009. Furthermore, the events may relate both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG’s decision to investigate was opposed by the then Head of the IDF Southern Command. Media reports further inform that a senior officer, who was questioned ‘under caution’ and had his promotion put on hold, told investigators that he was not warned that civilians were at the location. However, some of those civilians had been ordered there by IDF soldiers from that same officer’s’ unit and air force officers reportedly informed him of the possible presence of civilians. Despite allegedly being made aware of this information, the officer apparently approved air strikes that killed 21 people and injured 19 gathered in the al-Samouni house. Media sources also report that the incident has been described as a legitimate interpretation of drone photographs portrayed on a screen and that the special command investigation, initiated ten months after the incidents, did not conclude that there had been anything out of the ordinary in the strike. As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial. The same officer who assertedly called in the strike reportedly insisted that ambulances not enter the sector under his control, fearing attempts to kidnap soldiers.

Putting it mildly, it is difficult to understand how this could have inspired in Goldstone new confidence in the Israeli army. It is worth reminding readers that the Goldstone Report did not just address the air strikes on the building. As the report is rarely quoted, it may be worth quoting it at length; after all, Goldstone put his name to these facts:

70.9. During the morning of 4 January 2009, Israeli soldiers entered many of the houses in al-Samouni area. One of the first, around 5 a.m., was the house of Ateya Helmi al-Samouni, a 45-year-old man. Faraj, his 22-year-old son, had already met Israeli soldiers some minutes earlier as he stepped outside the house to warn his neighbours that their roof was burning. The soldiers entered Ateya al-Samouni’s house by force, throwing some explosive device, possibly a grenade. In the midst of the smoke, fire and loud noise, Ateya al-Samouni stepped forward, his arms raised, and declared that he was the owner of the house. The soldiers shot him while he was still holding his ID and an Israeli driving licence in his hands. The soldiers then opened gunfire inside the room in which all the approximately 20 family members were gathered. Several were injured, Ahmad, a boy of four, particularly seriously. Soldiers with night vision equipment entered the room and closely inspected each of those present. The soldiers then moved to the next room and set fire to it. The smoke from that room soon started to suffocate the family. A witness speaking to the Mission recalled seeing ‘white stuff’ coming out of the mouth of his 17-month-old nephew and helping him to breathe.

710. At about 6.30 a.m. the soldiers ordered the family to leave the house. They had to leave Ateya’s body behind but were carrying Ahmad, who was still breathing. The family tried to enter the house of an uncle next door, but were not allowed to do so by the soldiers. The soldiers told them to take the road and leave the area, but a few metres further a different group of soldiers stopped them and ordered the men to undress completely. Faraj al-Samouni, who was carrying the severely injured Ahmad, pleaded with them to be allowed to take the injured to Gaza. The soldiers allegedly replied using abusive language. They also said ‘You are bad Arabs’. ‘You go to Nitzarim’.

711. Faraj al-Samouni, his mother and others entered the house of an uncle in the neighbourhood. From there, they called PRCS. As described below, at around 4 p.m. that day a PRCS ambulance managed to come in the vicinity of the house where Ahmad was lying wounded, but was prevented by the Israeli armed forces from rescuing him. Ahmad died at around 2 a.m. during the night of 4 to 5 January. The following morning those present in the house, about 45 persons, decided to leave. They made themselves white flags and walked in the direction of Salah ad-Din Street. A group of soldiers on the street told them to go back to the house, but the witness said that they walked on in the direction of Gaza. The soldiers shot at their feet, without injuring anyone, however. Two kilometres further north on Salah ad-Din Street, they found ambulances which took the injured to al-Shifa hospital in Gaza.

In relation to the attempted ambulance rescue, the report said:

717. PRCS had made its first attempt to evacuate the injured from the al-Samouni area on 4 January 2009 around 4 p.m. after receiving a call from the family of Ateya al-Samouni. PRCS had called ICRC, asking it to coordinate its entry into the area with the Israeli armed forces. A PRCS ambulance from al-Quds hospital managed to reach the al-Samouni area. The ambulance had turned west off Salah ad-Din Street when, at one of the first houses in the area, Israeli soldiers on the ground and on the roof of one of the houses directed their guns at it and ordered it to stop. The driver and the nurse were ordered to get out of the vehicle, raise their hands, take off their clothes and lie on the ground. Israeli soldiers then searched them and the vehicle for 5 to 10 minutes. Having found nothing, the soldiers ordered the ambulance team to return to Gaza City, in spite of their pleas to be allowed to pick up some wounded. In his statement to the Mission, the ambulance driver recalled seeing women and children huddling under the staircase in a house, but not being allowed to take them with him.

And more. The Samouni family was not impressed with Goldstone’s new position, even if he does make allowance for an Israeli commander’s ‘erroneous interpretation of a drone image’. Mona Talal Samouni said, ‘When he came here, he told them he was in solidarity with the Samouni family and he really appreciates to help them and to prove to the world what happened here. But he was lying.’

It is also worth remembering paragraph 731:

On 9 January 2009, an Israeli army spokesman, Jacob Dallal, reportedly told the Reuters news agency that ‘the IDF did not mass people into any specific building. […] Furthermore, we checked with regard to IDF fire on the 5th. The IDF did not target any building in or near Zeitun on the 5th.

However, Ha’aretz reported: ‘Pressure from the UN following the Goldstone report led to the appointment of another team of investigators, headed by Col. Erez Katz, in November 2009.’ That led to the new position, which Goldstone purports to be so impressed by.

Israel has to a significant degree investigated Goldstone’s charges

Goldstone is correct in noting the Committee found that Israel devoted ‘significant resources’ to investigating ‘over 400 allegations’ of war crimes and other misbehaviour. The report continues:

Given the scale of this undertaking, it is unsurprising that in 2011, much remains to be accomplished. The Committee is able to report that, to the best of its knowledge, nineteen investigations into the serious violations of international humanitarian law and international human rights law reported by the FFM have been completed by the Israeli authorities with findings that no violations were committed. Two inquiries were discontinued for different reasons. Three investigations led to disciplinary action. Six investigations reportedly remain open, including one in which criminal charges have been brought against an Israeli soldier. The status of possible investigations into six additional incidents remains unclear.

The report expressed concern that ‘there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead’. Furthermore, concerns ‘related to transparency and the participation of victims and witnesses in investigations reported by the Committee in its previous report continue to be relevant. NGOs, victims and their legal representatives …report that the majority of their requests for information go unanswered.’ It further reports that ‘more than one-third of the 36 incidents’ investigated by the Goldstone Mission ‘in Gaza are still unresolved or unclear’ – and that the manner in which investigations were conducted was unsatisfactory:

the Committee remains of the view that an independent public commission – and not the MAG’s office – is the appropriate mechanism for carrying out an independent and impartial analysis, as called for in the FFM report, into allegations that high-level decision-making related to the Gaza conflict violated international law.

Goldstone presumably knows this perfectly well. It is again worth noting what he has himself said in a debate on the report:

the military is investigating itself behind closed doors! That’s not a legal system! That’s not a judicial system. That’s not justice at all. And what’s the result been? In nine months after the allegations made not only by our report. Allegations were made by Israeli, by Palestinian, by international organisations for the last ten months since Operation Cast Lead began. What’s been the result? One conviction, for the theft of a credit card! I mean, that’s demeaning of the victims in Gaza.

So, what has changed since then? Let us return to the committee’s follow-up on the two additional convictions:

two soldiers forced a boy to search bags suspected of being booby trapped and were convicted of offenses including inappropriate behavior and overstepping authority. Both soldiers were demoted and received suspended sentences of three months each.

31. It should be noted that while some media reports described the conviction as a credit to the IDF, a former IDF deputy chief of staff reportedly said that the soldiers’ criminal records should be cleared and that such events should be probed inside the units and not in interrogation rooms. The boy’s mother apparently indicated her disappointment over the decision to suspend the prison terms and expressed concern at the message that such a lenient sentence would send to IDF soldiers. Reportedly, in the ruling, the actions of the soldiers were condemned by the judges, but they also gave weight to issues such as the contribution of the soldiers to Israel’s security and their personal circumstances, as well as to their fatigue at the time, the unprecedented nature of the case, and that the soldiers did not seek to degrade or humiliate the boy. Evidently the court also indicated that any future such incidents would be dealt with more severely.

32. The Committee does not have sufficient information to comment definitively on this judgment, although it is hard to square the apparent finding that the soldiers ‘did not seek to degrade or humiliate the boy’ with evidence that they intended to put him directly in harm’s way at grave risk to his life. The Committee is likewise mindful of other judicial decisions, such as the case of the soldier who was sentenced to a prison term of seven and a half months for stealing a credit card during the operation in Gaza, where a harsher penalty was imposed for acts that did not entail danger to the life or physical integrity of a civilian, much less to a nine year old child.

Through the views Goldstone has put his name to in the past, and the evidence on which he says his recent assessments are based, it should be clear that there are more plausible explanations for his new position. Which I’ll elaborate on in my final post.

Michael Brull

Michael Brull is a columnist at New Matilda. He’s written for other publications including Fairfax, the Guardian, Crikey, Tracker and the Indigenous Law Bulletin.

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