Guilty Until Proven Innocent

by Ted Belman
October 30, 2009 at 5:30 am

http://www.gatestoneinstitute.org/885/guilty-until-proven-innocent

The Goldstone Commission Inquiry reported that “Israel was guilty of war crimes and possibly crimes against humanity.” But I thought it was a fact finding inquiry only.

The Forward reports Goldstone: ‘If This Was a Court Of Law, There Would Have Been Nothing Proven.’.

 What an admission.

Tellingly, in an interview with the Forward on October 2, Goldstone himself acknowledged the tentative nature of his findings.

“Ours wasn’t an investigation, it was a fact-finding mission,” he said, sitting in his Midtown Manhattan office at Fordham University Law School, where he is currently visiting faculty. “We made that clear.”

 

For all that gathered information, though, he said, “We had to do the best we could with the material we had. If this was a court of law, there would have been nothing proven.”

Goldstone emphasized that his conclusion that war crimes had been committed was always intended as conditional. He still hopes that independent investigations carried out by Israel and the Palestinians will use the allegations as, he said, “a useful road map.”

Even the ICC holds the accused, innocent until proven guilty. Goldstone reverses this, holds Israel guilty, and requires her to prove her innocence.

He recalled his work as chief prosecutor for the international war crimes tribunal in Yugoslavia in 1994. When he began working, Goldstone was presented with a report commissioned by the U.N. Security Council based on what he said was a fact-finding mission similar to his own in Gaza.

“We couldn’t use that report as evidence at all,” Goldstone said. “But it was a useful roadmap for our investigators, for me as chief prosecutor, to decide where we should investigate. And that’s the purpose of this sort of report. If there was an independent investigation in Israel, then I think the facts and allegations referred to in our report would be a useful road map.”

Nevertheless, the report itself is replete with bold legal conclusions seemingly at odds with the cautious and conditional explanations of its author.

“But above all,” Goldstone attested, “I accepted because I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm.”

 

But the law prohibits “intentional killing” of protected persons. His language ignores this prohibition and uses language that mandates a duty to protect. There is no such duty.

 

“Many civilians unnecessarily died and even more were seriously hurt,” Goldstone continues. Once again he invents a new, and probably unverifiable, standard, namely whether civilian deaths were “necessary.” This is not part of the language of war crimes: the only question is whether civilians were targeted intentionally.

 

To some extent the law demands that you attack your military object in the way that minimizes civilian casualties -- if you had options. If you failed to avail yourself of convenient alternatives, it might be said that the ensuing deaths were “unnecessary”. But how, in the heat of a war, especially one in which no one side does not wear uniforms, and uses mosques, schools and hospitals as weapons depots, can one determine who are civilians and who military?

 

Reading Goldstone carefully, it appears he wanted to make Israel carry on an investigation to avoid the ICC. If so, the inquiry can be seen not so much a fact finding mission as a prod to force Israel to hold its own investigation - so it would not have to be sent to the International Criminal Court. This may have been why he said Israel was guilty: had he only said Israel might have been guilty, the need for Israel to investigate would have been much reduced.

 

The ICC itself says that all accused are to be considered innocent until proven guilty beyond a reasonable doubt. This is a basic human right. Too bad that the HRW and the others, could not care less.

 

Too bad Goldstone cannot be sued for libel: he made an allegation that Israel is guilty that even he says was proven.

 

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