"Keeping Afloat"

Arlene Kushner

Last night I attended a multi-part event at the Menachem Begin Heritage Center, with the theme "Defending Israel and International Law":

It was, first, a book launch, as NGO-Monitor introduced its new book, "The Goldstone Report 'Reconsidered' -- A Critical Analysis."

Professor Gerald Steinberg -- NGO-Monitor Director and co-editor, with Anne Herzberg, of the book -- explained the genesis of this work, which has been three years in the making.
As it was also a panel discussion, the experts gathered provided additional information regarding the situation that Israel regularly confronts with regard to international law -- the situation that made the writing of this book so very important.

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The war in Gaza known as Cast Lead was initiated by Israel at the very end of 2008, and ran into the first weeks of 2009. It was a necessary response to the barrage of rockets -- each a human rights violation if not a war crime in and of itself -- being launched by Hamas against Israeli civilians.

As Major General Avichai Mandelblit, outgoing Military Advocate General of the IDF, explained, in this war Israel confronted asymmetric warfare. This does not mean that one side was more powerful or better equipped than the other. Rather, it means that one side played by the rules of international law and the other did not. This places the law-abiding side, in this instance Israel, in a very difficult if not impossible situation.

Flash 90

Hamas put civilians in the way of military targets. Either the IDF refrains from firing at the targets, or fires and runs the risk of also hitting civilians. Hamas is likely to come out a winner whatever Israel does.

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If Israel does fire, accusations are then leveled against Israel: Israel is aiming at civilians and is guilty of war crimes! Israel deliberately hit a UN school that had students inside! Says General Mandelblit, a war can be lost this way, whatever victories are achieved in the field. For, today fighting a war has to include the legal and media fronts as well as the military and the political.

Because of experiences in the past with regard to this sort of thing, the situation was anticipated. And so, the general, in consultation with appropriate persons within the government, made the decision that every single incident during Cast Lead in which an accusation against Israel was made had to be checked.

Said General Mandelblit last night, "This was first for ourselves, to be sure we are what we claim to be." Please mark this well, as it's a point of enormous pride and should be understood by all.

And then, of course, it's a matter of defense with regard to the legal and media fronts. The investigations prepared Israel to fight the accusations.

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After the war, the notoriously anti-Israel UN Human Rights Council mandated a mission to investigate the charges against Israel; South African Justice Richard Goldstone accepted the role as head of this mission. After an "investigation" was held, a major report was released under the aegis of the Human Rights Council.

In a word, it was horrendous. Politicizing international law, the report accused Israel of deliberately targeting civilians, while it made no charges of war crimes against Hamas. Often there was not even an attempt to verify or document charges against Israel made in large part by hostile NGOs.

Professor Avi Bell, who was a member of the panel last night and is a contributor to the book, said that this report infuriates him as a Jew and an Israel. But also as a professor of law. The evidence it presented was turned upside down and great damage was done to the rule of justice.



Professor Bell said he is asked what Israel might do to forestall such situations as this in the future.

His answer: Nothing. When you look at the institution that mandated the report and those who headed and participated in its mission, that becomes clear.

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Professor Steinberg pointed out that Goldstone had prior connections with Kenneth Roth, who heads the NGO Human Rights Watch.

(The founder of Human Rights Watch, Robert L. Bernstein, no longer with the agency, went public in 2009, in the NY Times, with his criticism of what HRW under Roth had become: "with increasing frequency, [HRW] casts aside its important distinction between open and closed societies... The region is populated by authoritarian regimes with appalling human rights records. Yet in recent years Human Rights Watch has written far more condemnations of Israel for violations of international law than of any other country in the region.")

In addition, members of the commission, before they were appointed, had signed a letter spearheaded by Amnesty International accusing Israel of war crimes; their bias was apparent but did not disqualify them.

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The government of Israel, understanding that no justice would derive from the Goldstone investigation, officially declined to participate. However, NGO-Monitor did submit information, all of which was ignored.

Richard Goldstone, in a Washington Post op-ed in April of this year, was said to have submitted a "retraction," but it was highly qualified. What is more, his excuse for why there were inaccuracies was disingenuous: he claimed that the report erred in some measure because Israel had not provided necessary information. But, as mentioned above, there was information provided that was completely ignored.

The members of the Goldstone Commission -- Christine Chenkin, Desmond Travers, and Hina Jilani -- totally disassociated themselves from the Goldstone op-ed and declared that no changes in the report could be made.

The UN did not retract the report or any part of it. It stands on the record.

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Thus is the NGO-Monitor book -- which examines the process of the Goldstone investigation and provides a step-by-step rebuttal -- so important. It is now part of the historical record and will be placed in law libraries for reference. Professor Steinberg speaks about restoring morality to human rights activism. He advocates speaking truth to power.

See here for more information on the book including a list of its contributors, their subjects, and how it can be ordered:

http://www.ngo-monitor.org/article/the_goldstone_report_reconsidered_a_critical_analysis

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Also a member of the panel last night was Alan Dershowitz, Felix Frankfurter Professor of Law at Harvard Law School and a contributor to the book.


I have saved mention of him for last because he played two roles during the evening, as he was also the recipient of the Begin Award of Honor for his work on behalf of Israel. He actually spoke twice -- and about various matters (such as his recollections of Menachem Begin's strong defense of human rights) and not just about the Goldstone report.

A staunch defender of human rights himself during the course of his career as an attorney, he shared several observations. Some I will write about here, others I hope to return to at another time.

The issue of human rights, he said, is used as a weapon against democracies that adhere to human rights. And the biggest censors of free speech are on the left.

He expressed particular scorn for the International Court of Justice, which dispenses nothing resembling justice.

(The Court is the primary judicial organ of the UN, and its judges are elected by the Security Council and the General Assembly. It is supposed to settle legal disputes between states and provide advisory opinions on various questions.)

The Justices, said Professor Dershowitz, make decisions in accordance with the foreign policy of their respective nations. This is so blatant that the way a particular judge will rule can be predicted by considering the stance of the country he comes from.

(Some seven years ago, the Court provided an advisory opinion on the matter of the Security Fence built by Israel to keep out terrorists, calling it a violation of international law. This despite the fact that Israel's High Court had ruled that the fence was legal according to international law and consistent with Israel's security needs, that Israel had not consented to the involvement of the court, and that fences are built in many places in the world. While the ruling of the Court is not binding, it influences international public opinion.)

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The International Criminal Court (ICC) is different, however, says Professor Dershowitz, and he himself argues before it.

(The ICC, established by Statute in 2002, is a permanent tribunal that can prosecute individuals for genocide, crimes against humanity and war crimes.)

In the case of this court, there is no jurisdiction in states where there is an independent judiciary that will handle the situation. In fact, the most important weapon in defending Israelis in this venue is Israel's strong judiciary.

(I am not a human rights lawyer, but I find his comments here surprising in light of what I know is Israeli concern about the ICC -- concern, for example, about the intention of certain parties to attempt to prosecute in the ICC for war crimes those who fight Israel's wars. I will check further.)

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As to Alan Dershowitz's defense of Israel, it is clear that he is a passionate and very articulate advocate of Israel -- something greatly to be valued. I acknowledge much appreciation for his efforts, even as I do not agree with several of the positions he holds, as, by his own definition, someone who is "center-left."

To be a supporter of Israel is to never rest, he says.

He does not believe that democracy in Israel is threatened by some of the legislation now being proposed. And I will come back to this. Some of the limits being proposed, he observed, would bring Israel in line with practices of countries such as the US and Canada.

Lastly, he observed that no issue in Israel is domestic. The world holds such a magnifying glass to our actions, that everything becomes the subject of international comment. He mentioned Secretary of State Clinton in this regard, and this, as well, I would like to return to.

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© Arlene Kushner. This material is produced by Arlene Kushner, functioning as an independent journalist. Permission is granted for it to be reproduced only with proper attribution.


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