The Honorable Howard Berman Chairman, House Committee on Foreign Affairs

The Honorable Ileana Ros-Lehtinen Ranking Member, House Committee on  
Foreign Affairs

October 29, 2009

Dear Chairman Berman and Ranking Member Ros-Lehtinen,

It has come to my attention that a resolution has been introduced in  
the Unites States House of   Representatives regarding the United  
Nations Fact Finding Mission on the Gaza Conflict, which I led earlier  
this year.

I fully respect the right of the US Congress to examine and judge my  
mission and the resulting  report, as well as to make its  
recommendations to the US Executive branch of government.  However, I  
have strong reservations about the text of the resolution in question  
– text that includes serious factual inaccuracies and instances where  
information and statements are taken grossly out of context.

I undertook this fact-finding mission in good faith, just as I  
undertook my responsibilities vis à vis the South African Standing  
Commission of Inquiry Regarding Public Violence and Intimidation, the  
International War Crimes Tribunal on the former Yugoslavia, the  
InternationalCriminal Tribunal for Rwanda, the International Panel of  
the Commission of Enquiry into the Activities of Nazism in Argentina,  
the Independent International Commission on Kosovo, and the Volker  
Committee investigation into the UN’s Iraq oil-for-food program in  
2004/5.

I hope that you, in similar good faith, will take the time to consider  
my comments about the resolution and, as a result of that  
consideration, make the necessary corrections.


Whereas clause #1: “Whereas, on January 12, 2009, the United Nations  
Human Rights Council passed Resolution A/HRC/S-9/L.1, which authorized  
a `fact-finding mission’ regarding Israel’s conduct of Operation Cast  
Lead against violent militants in the Gaza Strip between December 27,  
2008, and January 18, 2009;”

This whereas clause ignores the fact that I and others refused this  
original mandate, precisely because it only called for an  
investigation into violations committed by Israel. The mandate given  
to and accepted by me and under which we worked and reported reads as  
follows:

“. . .to investigate all violations of international human rights law  
and international humanitarian law that might have been committed at  
any time in the context of the military operations that were conducted  
in Gaza during the period from 27 December 2008 and 18 January 2009,  
whether before, during or after”.

Whereas clause #2: “Whereas the resolution pre-judged the outcome of  
its investigation, by one-sidedly mandating the `fact-finding mission’  
to `investigate all violations of international human rights law and  
International Humanitarian Law by . . . Israel, against the  
Palestinian people . . . particularly in the occupied Gaza Strip, due  
to the current aggression’”

This whereas clause ignores the fact that the expanded mandate that I  
demanded and received clearly included rocket and mortar attacks on  
Israel and as the report makes clear was so interpreted and  
implemented. It was the report carried out under this broadened  
mandate – not the  original, rejected mandate – that was adopted by  
the Human Rights Council and that included the  serious findings made  
against Hamas and other militant Palestinian groups.

Whereas clause #3: “Whereas the mandate of the `fact-finding mission’  
makes no mention of the relentless rocket and mortar attacks, which  
numbered in the thousands and spanned a period of eight years, by  
Hamas and other violent militant groups in Gaza against civilian  
targets in Israel, that necessitated Israel’s defensive measures;”

This whereas clause is factually incorrect. As noted above, the  
expanded mandate clearly included the rocket and mortar attacks.  
Moreover, Chapter XXIV of the Report considers in detail the  
relentless rocket attacks from Gaza on Israel and the terror they  
caused to the people living within their range. The resulting finding  
made in the report is that these attacks constituted serious war  
crimes and possibly crimes against humanity.

Whereas clause #4: “Whereas the `fact-finding mission’ included a  
member who, before joining the mission, had already declared Israel  
guilty of committing atrocities in Operation Cast Lead by signing a  
public letter on January 11, 2009, published in the Sunday Times, that  
called Israel’s actions `war crimes’;”

This whereas clause is misleading. It overlooks, or neglects to  
mention, that the member concerned, Professor Christine Chinkin of the  
London School of Economics, in the same letter, together with other  
leading international lawyers, also condemned as war crimes the Hamas  
rockets fired into Israel.

Whereas clause #5: “Whereas the mission’s flawed and biased mandate  
gave serious concern to many United Nations Human Rights Council  
Member States which refused to support it, including Bosnia and  
Herzegovina, Cameroon, Canada, France, Germany, Italy, Japan, the  
Netherlands, the Republic of Korea, Slovakia, Slovenia, Switzerland,  
Ukraine, and the United Kingdom of Great Britain and Northern Ireland;”

This whereas clause is factually incorrect. The mandate that was given  
to the Mission was certainly not opposed by all or even a majority of  
the States to which reference is made. I am happy to provide further  
details if necessary.

Whereas clause #6: “Whereas the mission’s flawed and biased mandate  
troubled many distinguished individuals who refused invitations to  
head the mission;”

This whereas clause is factually incorrect. The initial mandate that  
was rejected by others who were invited to head the mission was the  
same one that I rejected. The mandate I accepted was expanded by the  
President of the Human Rights Council as a result of conditions I made.

Whereas clause #8: “Whereas the report repeatedly made sweeping and  
unsubstantiated determinations that the Israeli military had  
deliberately attacked civilians during Operation Cast Lead;”

This whereas clause is factually incorrect. The findings included in  
the report are neither “sweeping” nor “unsubstantiated” and in effect  
reflect 188 individual interviews, review of more than 300 reports, 30  
videos and 1200 photographs. Additionally, the body of the report  
contains a plethora of references to the information upon which the  
Commission relied for our findings.

Whereas clause #9: “Whereas the authors of the report, in the body of  
the report itself, admit that `we did not deal with the issues . . .  
regarding the problems of conducting military operations in civilian  
areas and second-guessing decisions made by soldiers and their  
commanding officers `in the fog of war.’;”

This whereas clause is misleading. The words quoted relate to the  
decision we made that it would have been unfair to investigate and  
make finding on situations where decisions had been made by Israeli  
soldiers “in the fog of battle”. This was a decision made in favor of,  
and not against, the interests of Israel.

Whereas clause #10: “Whereas in the October 16th edition of the Jewish  
Daily Forward, Richard Goldstone, the head of the `United Nations Fact  
Finding Mission on the Gaza Conflict’, is quoted as saying, with  
respect to the mission’s evidence-collection methods, `If this was a  
court of law, there would have been nothing proven.’”

The remark as quoted is both inaccurate and taken completely out of  
context. What I had explained to The Forward was that the Report  
itself would not constitute evidence admissible in court of law. It is  
my view, as jurist, that investigators would have to investigate which  
allegations they considered relevant. That, too, was why we  
recommended domestic investigations into the allegations.

Whereas clause #11: “Whereas the report, in effect, denied the State  
of Israel the right to self- defense, and never noted the fact that  
Israel had the right to defend its citizens from the repeated violent  
attacks committed against civilian targets in southern Israel by Hamas  
and other Foreign Terrorist Organizations operating from Gaza;”

It is factually incorrect to state that the Report denied Israel the  
right of self-defense. The report examined how that right was  
implemented by the standards of international law. What is commonly  
called ius ad bellum, the right to use military force was not  
considered to fall within our mandate. Israel’s right to use military  
force was not questioned.

Whereas clause #12: “Whereas the report largely ignored the  
culpability of the Government of Iran and the Government of Syria,  
both of whom sponsor Hamas and other Foreign Terrorist Organizations;”

This whereas clause is misleading. Nowhere that I know of has it ever  
been suggested that the Mission should have investigated the  
provenance of the rockets. Such an investigation was never on the  
agenda, and in any event, we would not have had the facilities or  
capability of investigating these allegations. If the Government of  
Israel has requested us to investigate that issue I have no doubt that  
we have done our best to do so.

Whereas clause #14: “Whereas, notwithstanding a great body of evidence  
that Hamas and other violent Islamist groups committed war crimes by  
using civilians and civilian institutions, such as mosques, schools,  
and hospitals, as shields, the report repeatedly downplayed or cast  
doubt upon that claim;”

This is a sweeping and unfair characterization of the Report. I hope  
that the Report will be read by those tasked with considering the  
resolution. I note that the House resolution fails to mention that  
notwithstanding my repeated personal pleas to the Government of  
Israel, Israel refused all cooperation with the Mission. Among other  
things, I requested the views of Israel with regard to the  
implementation of the mandate and details of any issues that the  
Government of Israel might wish us to investigate.

This refusal meant that Israel did not offer any information or  
evidence it may have collected regarding actions by Hamas or other  
Palestinian groups in Gaza. Any omission of such information and  
evidence in the report is regrettable, but is the result of Israel’s  
decision not to cooperate with the Fact-Finding mission, not a  
decision by the mission to downplay or cast doubt on such information  
and evidence.

Whereas clause #15: “Whereas in one notable instance, the report  
stated that it did not consider the admission of a Hamas official that  
Hamas often `created a human shield of women, children, the elderly  
and the mujahideen, against [the Israeli military]’ specifically to  
`constitute evidence that Hamas forced Palestinian civilians to shield  
military objectives against attack.’;”

This whereas clause is misleading, since the quotation is taken out of  
context. The quotation is part of a section of the report dealing with  
the very narrow allegation that Hamas compelled civilians, against  
their will, to act as human shields. The statement by the Hamas  
official is repugnant and demonstrates an apparent disregard for the  
safety of civilians, but it is not evidence that Hamas forced  
civilians to remain in their homes in order to act as human shields.  
Indeed, while the Government of Israel has alleged publicly that Hamas  
used Palestinian civilians as human shields, it has not identified any  
cases where it claims that civilians were doing so under threat of  
force by Hamas or any other party.

Whereas clause #16: “Whereas Hamas was able to significantly shape the  
findings of the investigation mission’s report by selecting and  
prescreening some of the witnesses and intimidating others, as the  
report acknowledges when it notes that `those interviewed in Gaza  
appeared reluctant to speak about the presence of or conduct of  
hostilities by the Palestinian armed groups . . . from a fear of  
reprisals’;”

The allegation that Hamas was able to shape the findings of my report  
or that it pre-screened the witnesses is devoid of truth. I challenge  
anyone to produce evidence in support of it.

Sincerely,

Justice Richard J. Goldstone

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