Terror Tunnels: The Case for Israel's Just War Against Hamas Read online

  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.

  Almost no reasonable observers, who are knowledgeable of Israeli and Hamas policies and actions, credit these conclusions. Even Israel’s most strident internal critics—and there are many, and they are quite vocal—disbelieve these extreme exaggerations.

  The only reason the Goldstone Report has been given any credibility by anyone is because Goldstone himself is Jewish and purports to be a Zionist. Indeed those seeking to rehabilitate his reputation constantly point to his Jewish background.

  Consider a recent article by Letty Pogrebin in the Forward,14 which appears to be an opening salvo in the battle to rehabilitate Goldstone. It is part of a forthcoming book being published by—you guessed it—The Nation Press. She argues that Israeli efforts to “bury” the report have been “complicated” from the start by “an inconvenient truth: Goldstone was one of them—a Jew, and not just any Jew, an exemplary one.” But the fact that Goldstone is a Jew is not simply a passive “truth.” Instead the decision to hire Goldstone precisely because he is a Jew was a critical tactical decision made by the United Nations Human Rights Council, whose long history of applying a double standard to Israel has denied it any credibility.

  Pogrebin’s defense of Richard Goldstone is as factually inaccurate as the Goldstone Report itself. Pogrebin’s thesis can be summarized in her own words, “Rather than discuss the contents of the report—which concluded that during the 2008–2009 Gaza War, Israel, as well as Hamas, may have committed war crimes—Israel’s defenders launched an all-points campaign to bury it.” She claims that “almost no one is talking about his findings.” She is dead wrong. Within days of the report’s publication, there were numerous discussions of the contents and findings of the report. I myself published a forty-nine-page point-by-point specific criticism of the report’s contents entitled “The Case against the Goldstone Report: A Study in Evidentiary Bias.”15 In it I focused on the report’s main findings that 1) the Israeli government had a policy of targeting civilians; and 2) that Hamas did not have a policy of hiding behind civilians. I proved that both these findings were contradicted by the evidence. Goldstone has never responded to my substantive criticism.

  The Israeli government issued very specific point-by-point rebuttals of Goldstone’s findings, to which he has never responded. Moreover, when students at the Fordham Law School invited Goldstone and me to discuss the contents of the report, Goldstone declined, even though he was teaching at Fordham at the time. I accepted and presented a specific response to the contents of the report. Most recently, I wrote an op-ed showing that an important Hamas leader had made admissions undercutting the report’s findings.16 Again, no response from Goldstone. So Pogrebin simply makes it up when she says that Israel’s defenders refuse to “discuss the contents of the report.”

  Richard Goldstone can be rehabilitated only if he comes forward and acknowledges that the totality of the evidence—including the recent admissions of the Hamas leader—demonstrates that the central conclusions of the Goldstone Report were wrong. Goldstone has said that he hopes that new evidence proves them wrong. Now is the time for him to show whether he is mensch enough to step forward and set the record straight. So far he has been silent. The world is waiting to hear what he has to say.

  5

  How Goldstone Is Making Peace More Difficult

  January 9, 2010

  Whenever efforts are made to bring about a peaceful resolution of the Israeli-Palestinian conflict, the eight-hundred-pound gorilla in the room is Richard Goldstone. His notorious report sends the following message to the Israeli government: If you end your military occupation of the West Bank, and the Palestinians use their new territory to launch rockets and other attacks against Israel, you will not be able to defend yourself without Goldstone and his colleagues condemning you for taking actions in self-defense.

  This is a realistic threat, as evidenced by what happened after Israel ended its military occupation of the Gaza Strip. Hamas took over by military force and used the newly liberated lands not to build a civil society but to attack Israel. They fired hundreds of rockets at Israeli civilians and made life impossible for nearly a million Israelis living in the south of Israel. After enduring these rockets for years, and futilely seeking help from the international community, Israel did what any democracy would do: they defended their civilians against the war crimes being perpetrated by Hamas. But Hamas poses a difficult military target since it deliberately hides its fighters among civilians and fires its rockets from schoolyards, hospitals, and mosques. Considering these difficulties, Israel did a commendable job at stopping most of the rockets while minimizing civilian casualties.

  Nonetheless, Richard Goldstone issued a blood libel against Israel, accusing its leaders of deliberately setting out to maximize civilian deaths. It also exculpated Hamas from the war crime of using civilians as human shields. The Palestinian Authority—yes, the Palestinian Authority, not Hamas—filed formal charges against Israel in the International Criminal Court. This, despite the fact that President Abbas and his subordinates urged Israel to be even more aggressive against Hamas in Gaza so that the Palestinian Authority could regain its lawful power. Enemies of Israel throughout the world have used the notorious Goldstone Report in an effort to delegitimize the Jewish state.

  When I was recently in Israel for a month, I spoke to all of its political and military leaders. The Goldstone Report was very much on their minds as they contemplated the possibility of withdrawal from the West Bank. I also discussed the Goldstone Report with Palestinian Prime Minister Salam Fayyad, who acknowledged to me that by demanding that criminal charges be brought against Israel in the International Criminal Court he was simply “playing a card.” Well, if there is to be an end of Israel’s occupation of the West Bank, the Palestinian Authority will have to stop playing the delegitimation card. It will have to work together with Israel to prevent a repeat in the West Bank of what happened in Gaza. The recent claim of responsibility by Hamas for the murder of four Israelis in the West Bank does not bode well for the peace process. It demonstrates that the Palestinian Authority has only limited control over Hamas, and that Hamas can play its “violence card” any time it chooses.

  For the peace process to have any chance of success, the international community must categorically reject the Goldstone Report and what it represents. It must reaffirm Israel’s right to defend itself against attacks from territory it cedes to the Palestinians. To its credit, the Obama administration has rejected the Goldstone Report, but it must go even further. It must assure Israel—publically and unequivocally—that it will vigorously defend Israel’s right to protect its civilians from rocket attacks, suicide bombings, and roadside shootings.

  Barak Obama’s statement when he visited Sderot—that he “wo
uld expect Israel to do” everything in its power to stop the rocket attacks—must become a firm basis of American policy, if and when Israel leaves the West Bank.

  So, thank you Richard Goldstone for making peace more difficult. There are some who are proposing Goldstone for a Nobel Peace Prize. Were he to win it, he would be in the company of Yasser Arafat, who also won the prize, before he rejected the Clinton/Barak offer that would have created a Palestinian state, with its capital in Jerusalem and with a $35 billion reparation package for the so-called refugees. Prince Bandar of Saudi Arabia was more prescient than the Nobel committee when he accused Arafat of committing a crime against peace and warning him that he was rejecting the best offer the Palestinians would ever get. Both Goldstone and Arafat deserve a prize, but it should be awarded by Hamas and Ahmadinejad rather than by the Nobel committee.

  Let us hope that the barriers to peace erected by Richard Goldstone and Yasser Arafat can be overcome at the ongoing meetings convened by the Obama Administration. It won’t be easy.

  Author’s Note:

  On April 1, 2011, Richard Goldstone wrote an op-ed in the Washington Post in which he admitted that “if I had known then what I know now, the Goldstone Report would have been a different document.” In particular, he backed away from allegations that Israel had committed war crimes and crimes against humanity by intentionally targeting civilians.17 He also explicitly recognized the long-standing anti-Israel bias of the UN Human Rights Council. Unfortunately, but perhaps unsurprisingly, the other members of the Goldstone Commission refused to reconsider their conclusions, even in light of the new evidence. Accordingly, the report retains its status as the official conclusion of the United Nations Council on Human Rights, despite its demonstrable factual falsity and the rejection of its most important conclusions by its chairman.

  6

  The Phony War Crimes Accusation Against Israel

  January 26, 2009

  Every time Israel seeks to defend its civilians against terrorist attacks, it is accused of war crimes by various United Nations agencies, hard left academics, and some in the media. It is a totally phony charge concocted as part of Hamas’s strategy—supported by many on the hard left—to delegitimate and demonize the Jewish state. Israel is the only democracy in the world ever accused of war crimes when it fights a defensive war to protect its civilians. This is remarkable, especially in light of the fact that Israel has killed far fewer civilians than any other country in the world that has faced comparable threats. In the most recent war in Gaza, fewer than a thousand civilians—even by Hamas’s skewed count—have been killed. This, despite the fact that no one can now deny that Hamas had employed a deliberate policy of using children, schools, mosques, apartment buildings, and other civilian areas as shields from behind which to launch its deadly antipersonnel rockets. The Israeli Air Force has produced unchallengeable video evidence of this Hamas war crime.

  Just to take one comparison, consider the recent wars waged by Russia against Chechnya. In these wars, Russian troops have killed tens of thousands of Chechen civilians, some of them willfully, at close range and in cold blood. Yet those radical academics who scream bloody murder against Israel (particularly in England) have never called for war crime tribunals to be convened against Russia. Nor have they called for war crimes charges to be filed against any other of the many countries that routinely kill civilians, not in an effort to stop enemy terrorists, but just because it is part of their policy.

  Nor did we see the Nuremberg-type rallies that were directed against Israel when hundreds of thousands of civilians were being murdered in Rwanda, in Darfur, and in other parts of the world. These bigoted hate-fests are reserved for Israel.

  The accusation of war crimes is nothing more than a tactic selectively invoked by Israel’s enemies. Those who cry “war crime” against Israel don’t generally care about war crimes, as such; indeed, they often support them when engaged in by countries they like. What these people care about, and all they seem to care about, is Israel. Whatever Israel does is wrong regardless of the fact that so many other countries do worse.

  When I raised this concern in a recent debate, my opponent accused me of changing the subject. He said we were talking about Israel, not Chechnya or Darfur. This reminded me of a famous exchange between Harvard’s racist president, Abbott Lawrence Lowell, and the great American judge Learned Hand. Lowell announced that he wanted to reduce the number of Jews at Harvard, because “Jews cheat.” Judge Hand replied that “Christians also cheat.” Lowell responded, “You’re changing the subject. We are talking about Jews.”

  Well, you can’t just talk about Jews. Nor can you just talk about the nation-state of the Jewish people. Any discussion of war crimes must be comparative and contextual. If Russia did not commit war crimes when its soldiers massacred tens of thousands of Chechens (not even in a defensive war), then on what basis could Israel be accused of accidentally killing a far fewer number of human shields in an effort to protect its civilians? What are the standards? Why are they not being applied equally? Can human rights endure in the face of such unequal and selective application? These are the questions the international community should be debating, not whether Israel, and Israel alone, violated the norms of that vaguest of notions called “international law” or the “law of war.”

  If Israel, and Israel alone among democracies fighting defensive wars, were ever to be charged with war crimes, that would mark the end of international human rights law as a neutral arbitrator of conduct. Any international tribunal that were to charge Israel, having not charged the many nations that have done far worse, will lose any remaining legitimacy among fair-minded people of good will.

  If the laws of war in particular, and international human rights in general, are to endure, they must be applied to nations in order of the seriousness of the violations, not in order of the political unpopularity of the nations. The worst must be charged first. If the law of war were applied in this manner, Israel would be among the last, and certainly not the first, charged.

  7

  The Case Against “Universal Jurisdiction”

  October 6, 2009

  In September of 2009, Israeli Defense Minister Ehud Barak—the former dovish prime minister who offered the Palestinians a state on all of the Gaza Strip, 95 percent of the West Bank, and a capital in East Jerusalem—was arrested when he set foot in Great Britain. (He was quickly released on grounds of diplomatic immunity because he was an official visitor.)18 After that, Moshe Yaalon, an Israeli government minister and former army chief of staff, was forced to cancel a trip he was scheduled to make in London on behalf of a charity, for fear that he too would be arrested.

  The charges against these two distinguished public officials are that they committed war crimes against Palestinian terrorists and civilians. Yaalon was accused in connection with the 2002 targeted killing of Salah Shehadeh, a notorious terrorist who was responsible for the deaths of hundreds of Israeli civilians and was planning the murders of hundreds more. As a result of faulty intelligence, the rocket that killed Shehadeh also killed several civilians who were nearby, including members of his family. Barak is being accused of war crimes in connection with Israel’s recent military effort to stop rockets from being fired at its civilians from the Gaza Strip.

  The British government and British prosecutors have not supported the arrests of Barak and Yaalon. Those demanding the arrest of these Israelis are hard-left political activists who are seeking to invoke so-called “universal jurisdiction” against those whom they consider guilty of war crimes and genocide. They have absolutely zero interest in human rights, in the laws of war, or in preventing genocide. Indeed, many of them supported the Cambodian genocide and have refused to condemn the Rwanda and Darfur genocides. They would never dream of demanding the arrest of Hamas murderers who target Israeli schoolchildren for suicide bombings or rocket attacks. They are willfully misusing these concepts—human rights, universal jurisdiction—to serve their anti-Israel and anti-Western ideology. What they are doing undercuts the neutrality and value of these protections.