UN-Truth

In an OpEd piece published yesterday in the New York Times — thanks to Sam Bahour for the tip — South Africa’s Justice Richard Goldstone wrote that he accepted “with hesitation” the appointment to lead the UN Human Rights Council’s Fact-Finding mission on the “Israel’s three-week war in Gaza last winter”.

The strong Israeli reaction to the report cannot have been unexpected, but it still must be difficult to bear.

The article signed by Goldstone is contradictory: he  seems to stand up for his report, and gives this response: “Western governments in particular face a challenge because they have pushed for accountability in places like Darfur, but now must do the same with Israel, an ally and a democratic state.  Failing to pursue justice for serious violations during the fighting will have a deeply corrosive effect on international justice, and reveal an unacceptable hypocrisy”.

Goldstone makes an attempt to respond to some of the specifics in the Israeli criticism:, “The issue is deeply charged and politically loaded. I accepted because the mandate of the mission was to look at all parties: Israel; Hamas, which controls Gaza; and other armed Palestinian groups. I accepted because my fellow commissioners are professionals committed to an objective, fact-based investigation. But above all, 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. In the fighting in Gaza, all sides flouted that fundamental principle. Many civilians unnecessarily died and even more were seriously hurt … Israel is correct that identifying combatants in a heavily populated area is difficult, and that Hamas fighters at times mixed and mingled with civilians. But that reality did not lift Israel’s obligation to take all feasible measures to minimize harm to civilians”. At a later point, he adds: “Repeatedly, the Israel Defense Forces failed to adequately distinguish between combatants and civilians, as the laws of war strictly require”.

Then, Goldstone’s piece takes a funny turn — he suggests that Israel’s Operation Cast Lead — which his report stated seems to have been designed to punish Gazans — had “legitimate aims”.  He writes that “Our fact-finding team found that in many cases Israel could have done much more to spare civilians without sacrificing its stated and legitimate military aims. It should have refrained from attacking clearly civilian buildings, and from actions that might have resulted in a military advantage but at the cost of too many civilian lives.  In these cases, Israel must investigate, and Hamas is obliged to do the same. They must examine what happened and appropriately punish any soldier or commander found to have violated the law. Unfortunately, both Israel and Hamas have dismal records of investigating their own forces”.  What Israel stated in advance of the attack was that it was preparing a big surprise for Hamas, and warned about a massive and fearsome  and unprecedented military strike.  Can Goldstone really agree that this is a legitimate aim?

Goldstone accused Israel of “disproportionate attacks on legitimate military targets and from attacks on hospitals and other civilian structures”. But he does not clarify what were the “legitimate military targets”.

He added that hundreds of civilians “died from precision weapons like missiles from aerial drones as well as from heavy artillery. Repeatedly, the Israel Defense Forces failed to adequately distinguish between combatants and civilians, as the laws of war strictly require”.

He did not dwell on insulting or dismissing the weapons fired from Gaza into Israeli areas. The very imprecision of these attacks is what makes them indiscriminate, and therefore war crimes, and, as he earlier suggested, “possible crimes against humanity” . And, Goldstone wrote, “I am unaware of any case where a Hamas fighter was punished for deliberately shooting a rocket into a civilian area in Israel — on the contrary, Hamas leaders repeatedly praise such acts”.  Goldstone’s OpEd piece can be read in full here.

In remarks he made at a press briefing at UNHQ/NY when his report was published on 15 September, Goldstone stated that “We chose to investigate incidents that appeared to the mission to be reckless, disproportionate or deliberate … What we are talking about is a much broader aspect of the deliberate policies that were adopted and the military actions that were taken not in urgent situations”.

The UN press release that summarized the press conference says that the mandate of the Goldstone fact-finding mission was to look at “all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 to 18 January 2009, whether before, during or after”. The UN press release adds that “The mission had also scrutinized the statements by Israel’s leadership saying they were to hit at ‘the Hamas infrastructure’. In the mission’s view, that might have been a political policy aimed at destroying support for Hamas among Gaza’s population, but it was not a justification for military operations under international law “’If infrastructure is understood to include civilian targets, civilians themselves or civilian objects, that would completely subvert the whole purpose of humanitarian law that was built up over the last hundred years’, he said. It would make civilians justifiable targets because there was a political, and not military, advantage to be gained”.

The problem with the Israeli response, Goldstone said, was that “the Israeli investigations to date had been conducted secretly by the military and had relied only on evidence provided by soldiers. Only now, seven months later, and only in a few cases, were they talking to anyone affected by those actions”.

Goldstone told journalists that “the report also detailed the mission’s investigation into the many human rights violations that had been perpetrated in Israel, the West Bank and Gaza. There, it dealt with the intra-Palestinian struggle among various factions, as well as political assassinations and torture against Hamas and Fatah supporters”.

He said that his fact-finding mission “had decided to give full recognition to the concept of complementarity … It had been recognized by the Rome Statute that the first choice in an incident was domestic investigation. It was only where such domestic activity was not possible that the International Criminal Court could accept jurisdiction. While the mission was critical of both sides for having done far too little in that regard, it had concluded that, although there might be unwillingness, there was ability. Israel was clearly able to hold open, transparent investigations. In Gaza, courts and lawyers were operating, and if there was a will, investigations could be held … He went on to explain that the concept of proportionality was not a comparison of one side’s actions versus those of the other, but referred to action taken by one side to achieve a legitimate military purpose. It also related to the number of civilians killed and force used in achieving that objective. It was possible for the killing of one person to be disproportionate, and the killing of 1,000 to be proportionate”.

When, in his press conference, Goldstone was asked how quickly the Secretary-General should proceed to the Security Council with the report, and when the International Criminal Court Prosecutor should take action, he replied that he hoped “it would be as soon as possible … Still, he said, the Security Council would need to trigger the six-month period under Chapter VII. The committee it established would then report back to the Council within six months, after which the Court might be involved … [H]e said the Security Council had the power under Chapter VII of the United Nations Charter and article 13 of the Rome Statute to refer any situation to the Criminal Court. Its jurisdiction would in turn apply to those responsible for the war crimes. The mission had not named a single person as responsible parties for the crimes, but had simply evaluated if those crimes had been committed. Naming them was work for a prosecutor … Pressed on whether the General Assembly had the legal ability to ask for a war crimes tribunal separately from the Security Council, he clarified that the General Assembly should request the Security Council to report to it on the matter”.

the Israeli investigations to date had been conducted secretly by the military and had relied only on evidence provided by soldiers. Only now, seven months later, and only in a few cases, were they talking to anyone affected by those actions.

The UN press release report on the Goldstone press conference can be read in full here.

The Israeli Ministry of Foreign Affairs (MFA) today issued a “status report” on the investigations being conducted in Israel on Operation Cast Lead. The “status report” repeats that “The State of Israel is fully committed to its obligations under International Humanitarian Law, including the investigation of any credible complaint regarding the violation of the Laws of Armed Conflict”.

Despite all the defensive, offensive, and in some cases downright ugly bombast out there on the internet, and in every possible publication, this Israeli government “status report” suggests that something more may, indeed, be on the way.

It says that “following the end of the Gaza Operation in January 2009, the Israel Defense Forces conducted five major ‘command investigations’ in response to complaints and allegations raised regarding IDF’s conduct during the Operation. The investigations dealt with five broad areas: allegations of attacks on UN facilities, allegations of attacks on medical facilities and staff, incidents with a large number of civilian casualties, use of munitions containing white phosphorus, and allegations regarding the destruction of private property for military needs. The findings of these investigations are currently being examined by the Military Advocate General in order to determine whether their findings give cause for the opening of criminal investigations by the Military Police. The conclusions and decisions of the Military Advocate General in this regard are subject to the review of Israel’s Attorney General and the ultimate review of Israel’s Supreme Court. Within the framework of these five broad investigations, 20 specific incidents were examined including four incidents that appear in the Goldstone Report. In addition to these broad investigations, 80 other incidents have been investigated. Some of these investigations are the result of complaints directly presented to the Military Advocate General or to Israel’s Attorney General by Israeli non-governmental organizations including B’tselem and Adalah. Other investigations were opened based upon reports prepared by international human rights NGO’s such as Human Rights Watch and Amnesty International and international organizations such as the International Committee of the Red Cross and the Arab League. Four incidents that appear in the Goldstone report have already appeared in those reports and are currently under investigation within this framework. Of the more than 100 incidents that have been investigated so far, 15 Military Police criminal investigations were opened almost immediately after their submission, without being referred to preliminary field investigations, since they dealt with suspected acts which were outside the course of operational military activities, such as the mistreatment of prisoners and theft. One case, thus far, dealing with theft, has already led, in July 2009, to an indictment and conviction. All of the findings within the procedures detailed above, including the decision not to open a criminal investigation, are subject to the judicial review of Israel’s Supreme Court. Recently, eight additional criminal investigations by the Military Police were ordered regarding matters more closely connected to ‘operational activities’, including allegations of shooting towards civilians carrying white flags and directing flechette munitions towards civilians or civilian targets. In total, so far, 23 criminal investigations have been opened. Seven incidents that appear in the Goldstone report are currently under Military Police criminal investigation. Dozens of incidents, within the 100 cases noted above, have been examined by field level investigations, and based upon these findings decisions are being reached regarding the need to open Military Police investigations. In a typical Military Police investigation, evidence is taken from Palestinian and other complainants who may have witnessed the events. In such cases, the investigative office of the Military Police approaches the complainant to assist in contacting potential witnesses. For example, the investigative office of the Military Police has approached human rights NGO’s for assistance regarding currently ongoing cases. Additionally, the investigative office of the Military Police has, via Israel’s Ministry of Foreign Affairs, approached the Office of the High Commissioner for Human Rights to receive additional information regarding an incident where claims of use of human shields were raised. That incident remains under investigation.” This statement can be viewed on the Israeli MFA website
here.

Filed under: Gaza, Human Rights, International Humanitarian Law, International Law, International Tribunals, Israel, Palestine & Palestinians