UN-Truth

The U.S. State Department spokesman very deliberately made a statement on Friday about the 574-page report delivered on Tuesday to the UN Human Rights Council in Geneva by a team led by South Africa’s Justice Richard Goldstone. For the past two and a half days, the U.S. has been studying the report, but the U.S. statements all pointed in this direction.

What the State Department spokesman said was:
“MR. KELLY: Okay. So I have a reaction to the report of the fact-finding mission of Justice Goldstone. As President Obama made clear at the time of the events covered by the report, we are deeply concerned about the loss of life and humanitarian suffering in both Israel and Gaza. As we’ve said previously, prior to U.S. membership, the UN’s Human Rights Council set forth a one-sided and unacceptable mandate for this fact-finding investigation. Although the report addresses all sides of the conflict, its overwhelming focus is on the actions of Israel…

The State Department spokesman continued: “While the report makes overly sweeping conclusions of fact and law with respect to Israel, its conclusions regarding Hamas’s deplorable conduct and its failure to comply with international humanitarian law during the conflict are more general and tentative. We also have very serious concerns about the report’s recommendations, including calls that this issue be taken up in international fora outside the Human Rights Council and in national courts of countries not party to the conflict. We note in particular that Israel has the democratic institutions to investigate and prosecute abuses, and we encourage it to use those institutions. We believe this report should be discussed within the Human Rights Council, and we look forward to participating in that discussion. We will approach discussions on the report keeping in mind the underlying causes of the tragic events in Gaza earlier this year – the lack of a peace agreement between the Israelis and the Palestinians, and the attacks by Hamas against innocent civilians. Our focus right now, as I’ve said before, is to get all sides to take steps to re-launch Israeli-Palestinian negotiations so we can end this conflict and the humanitarian suffering it has caused. We will move forward in discussions of the report while keeping that overriding goal at the forefront. We hope efforts related to the Middle East at the Human Rights Council and other international bodies will look to the future and how we can support the goal of a two-state solution”.

Let’s take a look at these remarks.

(1) The spokesman said that the “overwhelming focus is on the actions of Israel“: the massive three-week Israeli military attack on Gaza was unprecedented in the Israeli-Palestinian conflict — as Israeli military and political leaders had threatened in advance it would be. The scale of Israeli military operation, and the type of attacks the IDF launched in Gaza were extraordinary by any measure — as they were intended to be. It is only natural that the overwhelming focus of the Goldstone report is on the actions of Israel. They were horrifying, as were also the rocket, mortar and missile attacks from Gaza on surrounding Israeli territory. Goldstone dealt with both — and with more. But they cannot be put on a scale of equality — or equivalence.

(2) The spokesman continued: “We also have very serious concerns about the report’s recommendations, including calls that this issue be taken up in international fora outside the Human Rights Council and in national courts of countries not party to the conflict. In this, the U.S. statement conforms most closely with Israel’s position. Whether or not the U.S. was a member of the Human Rights Council when this fact-finding mission was mandated, the U.S. should take a deep breath and step back, and take a look at what really happened in Gaza. This is its responsibility.

(3) And, the spokesman said: “We note in particular that Israel has the democratic institutions to investigate and prosecute abuses, and we encourage it to use those institutions”. As we have reported every day since the report was released on Tuesday, the Israeli Government is continuing these investigations, and some of them may indeed reveal that serious wrongs occurred. It would be astonishing if any war ever occurred without any serious wrongs. The only way to avoid terrible errors and even terrible war crimes in any war is to not have a war in the first place. Those who are so eager to go to war should think many, many times before they start — and taking a close look at the wrongs that have occurred in last winter’s war in Gaza, including prosecuting those who may eventually be found responsible, is one way to bring justice to the innocent who suffered so terribly, and perhaps even to help stop it from ever happening again, at least not quite like this.

(4) The spokesman also tried to say that more importance should be paid to: “the underlying causes of the tragic events in Gaza earlier this year – the lack of a peace agreement between the Israelis and the Palestinians, and the attacks by Hamas against innocent civilians. Our focus right now, as I’ve said before, is to get all sides to take steps to re-launch Israeli-Palestinian negotiations so we can end this conflict and the humanitarian suffering it has caused”. But that does not mean that either the Palestinians who suffered this war in Gaza, or the Israeli civilians in the Gaza periphery, are to blame, or that they should have paid this terrible price for the failure to reach any Israeli-Palestinian peace agreement.

The Friday Lunch Club blog has picked this up, from a post by Laura Rozen on her blog here:
“This is probably not quite as full-throated a condemnation of the Gaza commission’s report as the Israeli government would have preferred, but would seem to serve to indicate that the Obama administration will not refrain from using its power at the UN to try to prevent additional action based on the report’s recommendations from going forward in New York. Israel is also apparently lobbying governments in Europe to distance themselves from the Gaza report, saying it sets a precedent that would make democracies fighting terrorism in urban areas subject to possible war crimes prosecutions. That’s an argument that certainly has strong resonance in the United States, in the aftermath of the invasions of Iraq and Afghanistan and Predator drone attacks that have killed civilians in Afghanistan and Pakistan. But the episode also demonstrates the degree to which Israel relies on good will and protection from Washington in the international diplomatic environment even while Jerusalem has resisted requests by Washington to take significant steps towards a settlement freeze that would help facilitate the resumption of peace negotiations”.

On her blog here, Helena Cobban writes about a post by Phil Weiss on his Mondoweiss.net blog on the Ground Zero of the Gaza war, the Hamas police acadamy whose graduates were slaughtered at their graduation ceremony in the first strikes of the Israeli military operation at mid-day on 27 December.

Phil Weiss wrote here that: highlighting “the thunderclap that started the Gaza onslaught” is one of the major achievements of the Goldstone report: “The mission reports that 99 policemen and 9 civilians were killed in the first minutes of the slaughter. Overall, 240 policemen were killed during the war– a sixth of the Gaza casualties. Police were ‘deliberately’ targeted. And on what basis? Well, Israel regards the police institutionally– or in large part individually– as part of the Gazan military. The [Goldstone] mission analyzed the history of the Gaza police since the Hamas takeover in 2007. While policemen were recruited from Hamas followers, Goldstone found that the police are a ‘civilian law-enforcement agency’ and that the police targets of Dec. 27 were none of them taking part in hostilities and had not lost their ‘civilian immunity’. Yes ‘individual’ policemen were surely members of armed groups and can be considered combatants. But the Israeli attacks failed to strike an acceptable balance, between anticipated military advantage of destruction and civilian damage. The great majority of these policemen were civilians. So the mission concludes,This was a violation of international humanitarian law. Under Goldstone’s legalistic words, I read anguish and passion. Who was not moved by the wanton murders of 400 of New York’s finest on 9/11–out of a city of 7 million? And who cannot be moved by the wanton murders of 240 of Gaza’s finest? The UN was. Now think of the justice that America demanded for its Ground Zero: our long arm going into Afghanistan (in a war the world approved) and then Iraq. Meantime we fight even recognition of the atrocities at Gaza’s Ground Zero, let alone any motion of justice”.

Helena Cobban comments: “Now, Phil makes some very important points in that post. But he – and we – should note that a ‘civilian’ is not the same as a ‘noncombatant’.
A noncombatant is a person whom, under international humanitarian law [IHL], it is forbidden to target, and who is therefore ‘protected’ by IHL. This includes civilians but it also includes members of a military formation who are not currently fighting. Hence the specificity of the term ‘noncombatant’. This class of persons includes all civilians. It also includes members of military formations who are ‘hors de combat‘ because of injuries– along with members of military formations who are not ‘on duty’ in the military at the time. It would include, for example, even senior officers in the IDF or any other military (or of Hamas’s military formations) who are off duty– sleeping in their homes, or whatever. And it includes the many members of Israel’s reserve forces who, during the Gaza war or at any other time, might have been sleeping at home and going about their normal family and professional lives. Many members of the police force in a place like Sderot may, for example, have also been reserve officers in the IDF. But at any time that they are not actually engaged in combat as part of the IDF – or, I think, in military training, which is a preparation for combat – they are considered noncombatants, and therefore have all the IHL protections of noncombatants. Thus, for a Gazan, simply being a member of an armed group does not make a person into a ‘combatant’, that is, a legitimate target of Israeli fire. Unless he is currently engaged in combat, which the cadets at a police academy graduation ceremony evidently weren’t. That’s the great thing about international humanitarian law: it applies to everyone in the same way”.

Meanwhile, the Jerusalem Post published an account of an interview its military correspondent, Yaakov Katz, had with the IDF’s Advocate-General Brigadier-General Avichai Mandelblit. In the interview, Katz reports, Mandeblit said that the IDF is still at war: “The war that Mandelblit refers to is being fought on a new battlefield which he calls the ‘legal front’ and is the place where the IDF meets dozens of NGOs and countries that are out to deter Israel from defending itself in the future. ‘There is definitely a strategic decision that was made by different organizations and even above them to attack Israel on the legal front’, Mandelblit, soon to be promoted to the rank of general, told The Jerusalem Post in a revealing and exclusive interview. ‘They want to deter IDF legal experts and officers from acting next time around, but I assure you that they will not succeed. We are comfortable with the way we acted and are determined, since we understand that this is part of the war, and we will carry on fighting’ … While refusing to provide details so as not to expose classified operations, Mandelblit revealed that there were several targets which legal advisers said were forbidden to attack during the Gaza operation. At the same time, he said, there were targets they said the IDF was permitted to bomb, but were not hit due to operational and moral considerations. ‘Theoretically every target that is usually protected because it is of a civilian nature but is now used for military purposes – to store weapons, snipers or conduct surveillance – loses its protection for the time period that it is being used for military purposes’, he explained. A lot of these issues, he admitted, fall into a ‘grey zone’ and are not easily defined. Asked about IDF claims that the Hamas leadership hid in Shifa Hospital during the operation, Mandelblit said that theoretically ‘when there are terrorists, and especially the terror leadership, in a place then it becomes a legitimate target’ … Mandelblit rejected criticism – that also came up in the Goldstone report – that he is not objective and that as a general he is incapable of effectively prosecuting soldiers who have committed war crimes. As proof of his capabilities, he points to decisions he made to launch investigations based on testimonies from NGO reports, including one investigation that was based on the controversial anonymous testimonies published by Breaking the Silence … The close relationships cultivated between Israel and the European governments have also succeeded in curtailing some investigations, most recently in Spain, where in July the National Court decided to close a judge’s investigation of the 2002 IAF bombing in Gaza City that killed leading Hamas terrorist Salah Shehadeh. Mandelblit explained that most European countries first ask Israel for information regarding a case they have received a private complaint about or are considering investigating. While refusing to divulge numbers, he said that there have been several requests from European governments on specific IDF operations during Cast Lead … ‘we provided answers which satisfied them’, he said. He also said that some countries and NGOs have forgotten that while international law can be restricting, it is not supposed to prevent a country from winning a war. ‘War is horrible and painful and international law comes to set things in order’, he said. ‘But is not meant to tie our hands behind our backs. You are still supposed to win the war’.” [But maybe not at any cost...] This interview can be read in full here.

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