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UN Probe of Israel Will Increase Hamas Violence

Friday, 25 July 2014 08:27 AM EDT

"There you go again,” as Ronald Reagan said to Jimmy Carter. Once again the United Nations Human Rights Council has voted — with the United States dissenting — to conduct a so-called investigation of Israel’s military responses to Hamas’s double war crimes.

Once again Israel will have to decide whether to feed the kangaroos that make up this court by cooperating with yet another phony investigation whose outcome is predetermined.

Yet again Israel is presented with a Hobson’s choice: If it refuses to cooperate, it will blamed for denying the investigatory commission relevant information; if it cooperates it will lend credibility to a conclusion that has already been reached.

This Hamas-inspired investigation is an important part of Hamas’s double war crime strategy: By firing its rockets from civilian areas and buildings – even Ban Ki-moon acknowledges that it does – Hamas seeks to have Israel kill as many Palestinian civilians as possible. This Hamas-designed body count, and the accompanying photographs, inevitably leads to the kind of one-sided investigation in which the UNHRC specializes.

The resulting one-sided condemnation, which Hamas can always count on, then helps it win support in Europe, South America and other parts of the world, as well as in the media and universities.

By joining in this Hamas strategy, indeed becoming a central part of it, the UNHRC encourages Hamas to repeat its rocket fire against Israeli civilians, its tunneling into Israel to kill and kidnap Israelis and its placement of its rockets and tunnel entrances in civilian areas.

The countries voting for this investigation are fully aware of what they are encouraging. They have the blood of future innocent Palestinians and Israelis on their hands.

Last time around the commission found a willing dupe in Richard Goldstone, who was prepared to put his personal ambition to elevate his status within the international community above any commitment to truth.

Because Goldstone is Jewish and has spent time in Israel, his name attached to the commission’s report gave it a air of credibility. His dual conclusions — that Israel deliberately targeted Palestinian civilians and that Hamas did not use human shields — were so thoroughly discredited that they destroyed Goldstone’s career, and even his prospects of elevation within the international community.

Eventually even Goldstone had to acknowledge his mistake and indicate that there was no evidentiary support for his widely cited conclusions.

This time around it will not be easy for the commission to find an ambitious dupe like Goldstone, because potential commission members now understand that their conclusions, methodologies and biases will be scrutinized with care and exposed for all to read.

The council will probably have to satisfy itself with a group of overtly anti-Israel zealots who don’t care about their reputations and who are willing to go through the motions of an investigation and come to the conclusion that the commission has anointed them to reach.

It would be useful to have a real investigation of both sides to the conflict conducted by objective experts. I would welcome such an investigation, as I suspect Israel would.

Objective investigators would seek hard evidence, such as real-time videos, communications within the military, forensic evidence and other information that would allow open-minded investigators to find the facts wherever the facts take them.

The problem is Hamas would never consent to such an investigation and would refuse to allow objective investigators into Gaza.

Indeed, the best proof of the pro-Hamas bias of any investigation is the fact that Hamas, which rules Gaza with an iron fist, would welcome these phony investigators with open arms, the way it welcomed Goldstone and his biased lackeys.

Despite the unwillingness of Hamas to allow objective investigators into Gaza, the world should demand a full and unbiased investigation by experienced, professional investigators, unconnected to the United Nations, whose sole responsibility should be to get at the truth, no matter how complex and nuanced it may turn out to be.

Such an independent, real investigation could be conducted at the same time that the phony UNHRC investigation is being conducted. Then the world would have a sound basis on which to compare the methodologies, factual findings and conclusions of the two investigations.

It would also have a sound basis on which to compare Hamas’s actions with Israel’s — and Israel’s to what other democratic countries have done and would do when faced with comparable situations.

Any such investigation would also apply the rules of proportionality to the facts it found concerning Israel’s military actions. Even Navi Pillay, who runs the UNHRC, has acknowledged that proportionality permits a nation that has been attacked to counterattack enemy military targets so long as the military value of the target is important enough to justify the anticipated civilian casualties.

This rule was not designed for situations in which the enemy deliberately uses civilians to shield its military operations. In any event, the targets Israel has attacked — rockets aimed at civilians, and terrorist tunnels built to kill and kidnap Israelis — are extremely important military targets that should not be immunized against counterattacks by deliberate use of human shields.

Were the UNHRC to rule that the presence of human shields precludes a democracy from counterattacking important military targets — even after warning the civilians, as Israel does — this would encourage the widespread use of human shields by all terrorist groups around the world, and put democracies at great peril.

But the UNHRC is likely to ignore that point, as it did in the Goldstone Report, and simply respond as Ms. Pillay has already responded with the following cliché: “The actions of one party do not absolve the other party of the need to respect its obligations under international law.”

This cliché — which is wrong, as a matter of both law and common sense, when the offending party deliberately uses human shields — is an invitation to Hamas and other terrorist groups to continue its double war crimes.

Israel should have nothing to fear from an objective investigation. It should also have nothing to fear from the UNHRC investigation  — if its biases are exposed for all to see.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School. He is a graduate of Brooklyn College and Yale Law School. His latest book is his autobiography, "Taking the Stand: My Life in the Law." Read more reports from Alan M. Dershowitz —
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Yet again Israel is presented with a Hobson’s choice.
Friday, 25 July 2014 08:27 AM
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