Wiki Leaks and The Goldstone Report
by Alan M. Dershowitz
April 19, 2011 at 1:30 pm
A book about Wiki Leaks recently published in England by editors of The Guardian, sheds an entirely new light on the Goldstone report. Richard Goldstone has recently reconsidered his report's central conclusion, namely that Israeli political and military leaders specifically intended to kill innocent Palestinian civilians. But even before Goldstone's reconsideration, many objective readers of the report could not find any hard evidence to support that unlikely conclusion, for an obvious reason: No such evidence is cited in the body of the report. The best those who wrote the report could come up with was an inference that since so many civilians were killed, that result must have been intended. Recently a leader of Hamas in Gaza acknowledgedindeed boastedthat most of the Palestinians killed during Operation Cast Lead were Hamas fighters. The number of innocent civilians killed (depending on how one defines "innocent" and "civilian" in a war fought by people who are terrorists by night and civilians by day) now appears to be about 500-600. The number of combatants killed now appears to be in excess of 700. In other words, the ratio of combatants to civilians appears to be that slightly more combatants than civilians were killed. Even one civilian death is too many but such deaths are inevitable when combatants hide among civilians, fire rockets from civilian areas and use civilians as human shieldsas Hamas routinely does.
The Goldstone commission adamantly refused to accept testimony that would have shown that the Israeli army took greater care to reduce civilian deaths than any other armed forces fighting comparable wars. For example, they refused to hear the proffered testimony Colonel Richard Kemp, the former commander of British forces in Afghanistan and a recognized expert on asymmetric warfare, who would have testified that:
"[F]rom my knowledge of the IDF and from the extent to which I have been following the current operation, I don't think there has ever been a time in the history of warfare when any army has made more efforts to reduce civilian casualties and deaths of innocent people than the IDF is doing today in Gaza.
The recently published book about Wiki Leaks strongly confirms Colonel Kemp's assessment.
The Guardian summarized one Wiki Leaks disclosure about Afghanistan as follows:
"We today learn of nearly 150 incidents in which coalition forces, including British troops, have killed or injured civilians, most of which have never been reported ."
"The logs disclosed a detailed incident-by-incident record of at least 66,081 violent deaths of civilians in Iraq since the invasion. This figure, dismaying in itself, was nevertheless only a statistical starting point. It is far too low. The database begins a year late in 2004, omitting the high casualties of the direct 2003 invasion period itself, and ends on 31 December 2009. Furthermore, the US figures are plainly unreliable in respect of the most sensitive issuecivilian deaths directly caused by their own military activities.
For example, the town of Falluja was the site of two major urban battles in 2004, which reduced the place to near-rubble. Yet no civilian deaths whatever are recorded by the army loggers, apparently on the grounds that they had previously ordered all the inhabitants to leave. Monitors from the unofficial Iraq Body Count group, on the other hand, managed to identify more than 1,200 civilians who died during the Falluja fighting."
In another incident, not the subject of a Wiki Leak disclosure, German forces in Afghanistan called in an air strike against two fuel tankers captured by Taliban insurgents. Between 70 and 100 civilians, including 24 children, were killed. There was an immediate attempt by German authorities to cover up the civilian deaths, but ultimately they were revealed and nominal compensation was paid.
As to the investigation of alleged war crimes, the Wiki Leaks disclosures show that:
"US authorities failed to investigate hundreds of reports of abuse, torture, rape and even murder by Iraqi police and soldiers whose conduct appears to be systematic and normally unpunished The numerous reports of detainee abuse, often supported by medical evidence, describe prisoners shackled, blindfolded and hung by wrists or ankles, and subjected to whipping, punching, kicking or electric shocks. Six reports end with a detainee's apparent death .[T]he logs reveal that the coalition has a formal policy of ignoring torture allegations. They record "no investigation is necessary" and simply pass reports to the same Iraqi units implicated in the violence."
No "Goldstone Commissions" have ever been appointed to investigate the far greater number and proportion of civilian deaths caused by British, German and U.S. military actionsand the frequent lack of credible investigators.
Whenever efforts are made to put Israel's actions in a comparative context with other democracies, demonizers of Israel, who always impose a double standard on the Jewish state, respond by arguing "we're talking about Israel now; don't change the subject by talking about other democracies." That reminds me of a famous story about Harvard's notoriously anti-Semitic president, A. Lawrence Lowell, near the beginning of the 20th Century. In an effort to defend his decision to impose an anti-Jewish quota, he said, "Jews cheat." A distinguished Harvard alumnus, Judge Learned Hand, wrote President Lowell a letter saying that "Protestants also cheat," to which Lowell responded, "you're changing the subject; we're talking about Jews now."
You can't just talk about Jews, or about the Jewish state when making accusations of war crimes or violation of international law. Comparison is everything, especially since international humanitarian law is expressly based on how democratic nations customarily behave in comparable situations.
According to the materials disclosed by Wikileaks, Israel shines in comparison to other democracies. It has a significantly better ratio of combatant to civilian deaths; it takes greater steps to avoid such casualties, and it does a better job investigating negligent and criminal behavior on the part of its soldiers. Moreover, it is seeking to protect its own civilians directly from ongoing cross-border rocket attacks and other terrorist acts, whereas the other democracies are fighting wars of choice many miles from its civilian areas.
This is not to suggest the need for "Goldstone Reports" against Great Britain and Germany and the United States. It is to demand that a single standard be applied to all democracies.
** Alan Dershowitz is serving as an American legal consultant to Julian Assange's and Wiki Leaks British lawyers.