by Jonathan Dahohah Halevi for Yediot Ahronot
Israel has recently delivered to the United Nations Secretary-general Ban Ki-moon its official response to the UN’s fact finding mission to Operation Cast Lead, headed by Judge Richard Goldstone. Hamas’ government is also preparing to submit its official response before the grace period of six months set to the parties by the Goldstone committee is overIn sharp contrast to the genuine fears expressed by Israel, Hamas does not seem to feel any threat in the legal arena. On the contrary, Hamas demonstrates self-confidence based on the understanding that the Goldstone committee strived only to incriminate Israel and all other limited references to the other side were just for lip service without any legal significance.
Musa Abu Marzouq, Hamas’ second in command, said in this regard in an interview to al-Mashahid al-Siyasi newspaper (December 8, 2009) that “All paragraphs in the Goldstone report convict Israel and totally exonerate Hamas from any misconduct... Likewise, the (Goldstone) report exonerated Hamas from all other accusations mentioned by Israel and even when the (Goldstone) report is dealing with the rockets which were launched from the Gaza Strip it speaks about military groups without naming Hamas.”
Hamas’ line of defense vis-à-vis the Goldstone report has been shaped by a group of Palestinian jurists headed by Diya Al-Din Muhsin Al-Madhoun, former legal adviser to Ismail Haniyeh (Hamas prime minister) and today chairman of the Tawtheeq (documentation) organization that was the key factor assigned by Hamas’ government, on which the Goldstone committee relied for sources of information in its fact finding mission. In series of interviews to the media, Madhoun elaborated as follows Hamas’ main legal arguments of its would-be response to the Goldstone report assumed to be delivered in the near future to the UN secretary general.
The armed struggle is legitimate
Madhoun asserts that all historic Palestine is an occupied land and that the international law legitimizes the right of self defense and resistance of the Palestinian people, who are living under 61 years of occupation. Therefore, Madhoun argues that “resistance operations conducted by the Palestinian resistance organizations, including launching rockets and mortar shells at the occupying Zionist forces, and all other military operations, are legitimate according the international law under the principle of defending our people and liberating our occupied land.”
Israel has no right to self defense
Madhoun entirely rebuts Israel’s claim for self defence, arguing that it constitutes a grave violation of the Palestinian people’s right for self defence as reflected in its armed struggle to liberate the land of Palestine. And in his words (translated from Arabic): “the war against Gaza was illegitimate... as the international law rules that there isn’t legitimate defence (of the occupier) against the legitimate defence (of the occupied) embodied in the defence through struggle.”
Hamas didn’t want to kill Israeli civilians
According to Madhoun, Hamas and the other “Palestinian resistance organizations” were systematically prudent in implementing the international law and avoided intentionally targeting Israeli civilians. Referring to the many hundreds of rockets which struck Israeli communities during the war, Madhoun explained that the Palestinian organizations launched the rockets only at “military targets,” such as tanks positions, military airports and concentrations of Israeli military forces on their way to invade the Gaza Strip. He finds evidence in the low number of Israeli fatalities totaling only three people who were killed by the “inaccurate rockets when they missed their original targets.” Furthermore, Madhoun stressed that Hamas spared the lives of Israeli civilians, claiming that if they were targeted dozens of them may have been killed.
Rockets were launched only at occupied territories
Madhoun argues that Israel’s claim that Hamas and other Palestinian terrorist organizations launched rockets at its sovereign territory is groundless. Relying on UN resolution 181 (known as the Partition Plan for Palestine), but without accepting it, Madhoun said that all rockets targeted only areas which were designated to the “Arab state” by the UN resolution, and as Israel has no internationally recognized borders with the Palestinian territories, their areas are still under conflict. Consequently, he concludes that Israel violated the rights of the Israeli civilians for security in settling them illegally in this military disputed area and thus risking their life.
No legitimate targets in Gaza
Madhoun unconditionally negates justification for any Israeli military operation in the Gaza Strip. In addition to the aforementioned arguments denying Israel’s right for self defence, Madhoun noted that t international law prohibits attacks on any target when there is a doubt whether it is combatant or civilian. “My stand is that all targets bombed in the Gaza Strip are under the category of doubt”, he said.
Goldstone’s accusations against Hamas are meaningless
Madhoun regards the Goldstone report as a one sided document against Israel, saying that more than 500 pages were dedicated to describing a myriad of widely documented accusations against Israel, while for the Palestinian side only 10 pages were allocated and even they didn’t include any evidence or documentation. Confidently, he asserts: “I can say as a jurist that all allegations mentioned in the (Goldstone) report do not mount to significant accusations of violating the humanitarian international law and the (Hamas) independent investigative committees will prove it.”
War criminals only in Israel
Madhoun boasted of Hamas’ cooperation with international jurists, human rights organizations, the Goldstone committee and UN delegates, which helped in establishing the argument that Israel committed war crimes. The next stage in Hamas’ strategy, according to Madhoun, is prosecuting Israeli “war criminals” worldwide and submitting lawsuits to the International Criminal Court against Israel.
Tawtheeq organization, headed by Madhoun, is backed by the Law Committee of the Palestinian parliament and its Hamas members include Dr. Yunis al-Astal who advocates the extinction of all the Jewish people, Dr. Ahmad Abu Halabia, who urged suicide attacks in Jerusalem, and Jamila al-Shanti, who identifies with terrorist attacks against Israel.
The reality is illusive and strikes time and time again in our faces. A declared terrorist organization, which adheres to the Islamic law (sharia) as the only source of legitimacy and promotes ideology of genocide, receives legal support from human rights organizations and internationally respected jurists in its lawfare waged against a democratic state.
Even more peculiar is Judge Richard Goldstone’s decision to rely without reservations on Tawtheeq and its experts in preparing its report, while they publicly make a travesty of the international law and argue that Israel violated the Palestinians’ rights to kill Israelis in the armed struggle for the liberation of the land of Palestine and to destroy Israel.
Lt. Col. (res.) Jonathan Dahoah-Halevi is a senior researcher of the Middle East and radical Islam at the Jerusalem Center for Public Affairs. He is a co-founder of the Orient Research Group Ltd. and is a former advisor to the Policy Planning Division of the Ministry of Foreign Affairs.