By email to coigaza@ohchr.org

From Maurice Ostroff
email mostroff2015@gmail.com

February 10, 2015

Dear Judge Mary McGowan Davis:

The sixth amendment and the UN Commission on the Gaza 2014 conflict

First of all, please allow me to congratulate you on your appointment as head of the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict.

As an Israeli citizen with relatives and friends serving in the IDF, I am directly affected by the Commission and I’m anxious to know that the events you are examining are brought to your attention in their context. In this connection, I am seriously concerned that unlike the hearings of the Goldstone mission, which were televised on the internet and in which submissions by the public were made available on the web, neither of these important democratic essentials are provided by the current Commission.

Not only is the public deprived of information about the witnesses and the evidence they provided, the public is left unaware of the existence of the vast body of credible submissions which the Commission has received including the several cogent, authoritative submissions listed here.

I would be surprised if, as a New York  Supreme Court judge, you feel comfortable with this violation of the right to public hearings enshrined in the sixth amendment, which I believe is fundamental in the legal systems of all Western democracies. While the Commission is not a U.S. trial court, it seems logical that the principles ensuring open justice apply equally to the taking by the Commission of evidence relating to allegations of criminality.

I realize of course that this right is not absolute and that closed proceedings are occasionally allowed in special circumstances for example to protect the identity of minors or on grounds of national security, but these considerations do not apply to the Commission. So important is this principle that in June 2014 when, for the first time in British legal history the prosecution asked for the press and public to be excluded from the trial of two men charged with serious terrorism offences, civil rights campaigners called it an “outrageous assault” on the principles of open justice.

I am concerned too, by the fact that your mandate to investigate violations of law appears to relate to the large body of legislation passed in the wake of the horrors of World Wars I and II and does not take account of the type of asymmetric guerilla warfare that has since taken center stage and in which civilians are often indistinguishable from combatants

In his book “Moral Dilemmas of Modern War” Michael L. Gross argues that as many of today’s wars are fought in dense urban environments between uniformed state militaries and guerrillas in civilian clothing, the Geneva Conventions unfairly favor insurgents. He points out that many civilians in modern wars are not just bystanders. They aid combatants by storing their weapons, producing their propaganda, providing them with food and shelter, and even agreeing to act as civilian shields. [In Gaza they lent their houses for firing of missiles and as entrances to tunnels]. He believes that the rules are based on the outdated mistaken assumption that civilians are always innocent bystanders, as does B’Tselem one of your main providers of statistics on casualties. 

As it is impossible for civilians in our air conditioned offices to attempt to evaluate the circumstances in which a soldier needs to make a life or death decision in the fog of a cruel war, it is essential to invite evidence from experienced military men like General Dempsey, the highest ranking US military officer and retired British army Colonel Richard Kemp CBE who has experience commanding front-line troops in fighting terrorism and insurgency in Iraq, the Balkans, South Asia and Northern Ireland and was head of the anti terrorism team at the Joint Intelligence Committee of the British Prime Minister’s Office.

I appeal to you to please ensure full disclosure of all the evidence submitted so that

justice is not only done, but is manifestly and undoubtedly seen to be done”

This letter is being publicized as will the response I hope to receive from you.

Sincerely,

Maurice Ostroff

ACKNOWLEDGMENT OF RECEIPT

Coi-Gaza OHCHR <coigaza@ohchr.org>
to: M Ostroff <mostroff2015@gmail.com>
cc: Judge Mary McGowan Davis <coigaza@ohchr.org>
date: Wed, Feb 11, 2015 at 3:20 PM
subject: Re: An open letter re transparency of proceedings
mailed-by: gmail.com

Re: An open letter re transparency of proceedings

Coi-Gaza OHCHR via gmail.com
3:20 PM (1 hour ago)

Dear Mr. Ostroff,

This is to acknowledge receipt of you e-mail. Your letter has been transmitted to the Chair of the United Nations Commission of Inquiry on the 2014 Gaza Conflict.

Best regards,

Secretariat of the United Nations Independent Commission of Inquiry on the 2014 Gaza Conflict.