Richard Goldstone / The Washington Post & Jonathan Cook / AntiWar.com & Noura Erekat / Al Jazeera – 2011-04-06 02:58:06
Reconsidering the Goldstone Report on Israel and War Crimes
Richard Goldstone / The Washington Post
(April 4, 2011) — We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the UN Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.
The final report by the UN committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”
Our report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying — its rockets were purposefully and indiscriminately aimed at civilian targets.
The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion.
While the investigations published by the Israeli military and recognized in the UN committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack.
While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
While I welcome Israel’s investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum.
Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.
Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).
As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within.
Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of even-handedness at the UN Human Rights Council, whose history of bias against Israel cannot be doubted.
Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government.
Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.
Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks.
Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The UN Human Rights Council should condemn these heinous acts in the strongest terms.
In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.
I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous “lessons learned” and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas.
The Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions — perpetrated by Fatah in the West Bank, especially against members of Hamas.
Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.
Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.
The writer, a retired justice of the Constitutional Court of South Africa and former chief prosecutor of the UN International Criminal Tribunals for the former Yugoslavia and Rwanda, chaired the UN fact-finding mission on the Gaza conflict.
Jonathan Cook / AntiWar.com
(April 5, 2011) — Israeli leaders have barely hidden their jubilation at an opinion article in last Friday’s Washington Post by the South African jurist Richard Goldstone reconsidering the findings of his United Nations-appointed inquiry into Israel’s attack on Gaza in winter 2008.
For the past 18 months the Goldstone Report had forced Israel on to the defensive by suggesting its army — as well as Hamas, the ruling faction in Gaza — had committed war crimes and crimes against humanity during Israel’s three-week Operation Cast Lead. Some 1,400 Palestinians were killed, including hundreds of women and children.
Goldstone’s report, Israeli officials worried, might eventually pave the way to war-crimes trials against Israeli soldiers at the International Criminal Court in The Hague.
In what appeared to be a partial retraction of some of his findings against Israel, Goldstone argued that he would have written the report differently had Israel cooperated at the time of his inquiry.
Benjamin Netanyahu, the Israeli prime minister, immediately called on the United Nations to shelve the Goldstone Report; Ehud Barak, the defense minister, demanded an apology; and Avigdor Lieberman, the foreign minister, said Israel’s actions in Gaza had been “vindicated.”
Israel would certainly like observers to interpret Goldstone’s latest comments as an exoneration. In reality, however, he offered far less consolation to Israel than its supporters claim.
The report’s original accusation that Israeli soldiers committed war crimes still stands, as does criticism of Israel’s use of unconventional weapons such as white phosphorus, the destruction of property on a massive scale, and the taking of civilians as human shields. Instead, Goldstone restated his position in two ways that Israel will seek to exploit to the full.
The first was an observation that since his report’s publication in September 2009 “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct.”
In the past, Goldstone has made much of the need for Israel and Hamas to investigate incidents where civilians were targeted, saying that otherwise his report should be transferred to the ICC. In his article, he favorably compared Israel’s investigations to the failure by Hamas to carry out any probes.
The significance of Goldstone’s reassessment from Israelâ€™s point of view was underlined this week by comments to the Jerusalem Post from a senior unnamed legal official in the Israeli military. He said Goldstone’s professed confidence in Israel’s investigatory system would help to forestall future war crimes probes by the UN.
That will be cause for Palestinian concern at a time when, in response to renewed hostilities between Israel and Hamas, some Israeli government ministers have called for a Cast Lead 2.
Another unnamed commander told the popular Israeli news website YNet yesterday that Goldstone’s change of tack might lift the threat of arrest on war crimes charges from Israeli soldiers traveling abroad.
However, according to both Israeli human rights groups and a committee of independent legal experts appointed by the UN to monitor implementation of the report, Goldstone’s applause for Israel’s investigations is unwarranted.
Sarit Michaeli, a spokeswoman for B’Tselem, an Israeli organization monitoring human rights in the occupied territories, said Israel had failed to conduct a prompt, independent, or transparent inquiry. “The materials on which Israel has relied have not been made available to us, so we are not in a position to judge the quality of the investigations or the credibility of the findings.”
Likewise, the UN committee of experts, led by a New York judge, Mary McGowan-Davis, has complained that the Israeli army is probing itself and questioned the effectiveness of the investigations following “unnecessary delays” in which evidence may have been “lost or compromised.”
Human rights groups have pointed out that, despite the large number of deaths in Gaza, only three of the 400 investigations cited by Goldstone have so far led to indictments. One of those cases involved the theft of a credit card. Another, in which two soldiers used a 9-year-old boy as a human shield, led to their being punished with three-month suspended sentences and demotion.
The second, more significant reassessment by Goldstone is that he was wrong to conclude in his report that Israel intentionally targeted civilians “as a matter of policy.”
Despite Goldstone’s misleading wording in the article, he is referring not to an Israeli order to intentionally murder civilians but a policy in which indiscriminate attacks were undertaken with a disregard to likely casualties among civilians.
Strangely, he appears to base his revised opinion on Israel’s own military investigations, even though no evidence from them has yet been made public.
Rina Rosenberg, the international advocacy director of the Adalah legal center in Israel, which has been monitoring Israel’s investigations on behalf of Palestinian legal groups, said Goldstone had given Israel a “gift” with this observation:
“Israel has tried to focus the debate entirely on whether it intended to kill civilians, as though a war crime depends only on intentionality. Israel knows that intention — outside a policy like targeted assassinations — is very difficult to prove.”
She pointed out that there were other important standards in international law for assessing war crimes, including negligence, disregard for the safety of civilians, and indiscriminate use of force.
Also, observers have wondered what new information has emerged since Goldstone published his report to justify a rethink on whether Israeli policy left civilians in the line of fire.
His original conclusion drew in part on public statements by Israeli military commanders that in Gaza they had applied the Dahiya Doctrine — an Israeli military strategy named after a suburb of Beirut that Israel leveled during its 2006 attack on Lebanon. In his article, Goldstone cast no fresh doubt on his earlier premise that such a strategy would by definition endanger civilians.
In addition, the Israeli group Breaking the Silence has collected many testimonies from soldiers before and since publication of the Goldstone Report indicating that they received orders to carry out operations with little or no regard for the safety of civilians. Some described the army as pursuing a policy of “zero-risk” to soldiers, even if that meant putting civilians in danger.
Similarly, leaflets produced by the military rabbinate — apparently with the knowledge of the army top brass — urged Israeli ground troops in Gaza to protect their own lives at all costs and show no mercy to Palestinians.
The timing of Goldstone’s article has raised additional concern among Israeli and Palestinian human rights groups that he may have succumbed to political pressure.
Late last month, the UN’s Human Rights Council, which set up the fact-finding mission, recommended that the General Assembly refer the Goldstone Report to the Security Council — the decisive stage in moving it to the International Criminal Court.
It is expected that the US, which has consistently opposed such a referral, will block the report’s progress to the ICC — further embarrassing Washington after its recent veto at the UN of a Palestinian resolution against Israeli settlements.
Shawan Jabareen, director of the Palestinian legal rights group al-Haq, said Goldstoneâ€™s article had provided Israel and the US with a “new weapon” to discredit the report even before it reached the Security Council.
Goldstone: An Act of Negligence
Noura Erekat / Al Jazeera
(April 4, 2011) — In the wake of a monumental victory in the human rights community to move the Goldstone Report out of the Human Rights Council (HRC) to the General Assembly where it can be underpinned by actionable follow up, Justice Richard Goldstone’s recent editorial makes some human rights practitioners wish it had been left to languish in the HRC.
Goldstone sought to do two things in his op-ed: to amend the record by stating that Israel’s attacks may not have been deliberate and second, to emphasize Hamas’s culpability under the laws of war. In the best-case scenario, Goldstone’s intervention is a problematic attempt to cajole Israel to participate in the international process for accountability.
However, even in that case, the editorial is counterproductive, shortsighted, and casts Goldstone’s attempts as no less than curious.
Just last week, I had the chance to speak to Goldstone at Stanford Law School where I participated in a debate on the report featuring him as a discussant. Goldstone seemed struck by recent revelations made in Israel’s investigation of itself that its murder of 29 civilians in the Sammouni home, where approximately 120 civilians had taken refuge, was the result of negligence and not a deliberate attack.
He emphasized that had Israel participated in the investigatory process rather than boycott it, it would have been able to contest the mission’s findings before the report’s release thereby correcting its alleged bias. He echoes this sentiment in his op-ed where he writes:
“I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.”
Goldstone should have known better: on the one hand, he accepts Israel’s investigatory findings at face value notwithstanding the Independent Committee of Experts’ conclusions that they are structurally flawed and unlikely to yield effective measures of accountability and justice.
Second, and perhaps more importantly, Goldstone takes for granted that Israel preemptively rejected the report precisely because the mission treated Hamas evenhandedly rather than dismiss it as a terrorist organization whose annihilation is justified by any means necessary.
That is why it should come as no surprise that rather than respond to his proclamations with a renewed faith in international legal mechanisms, Israel’s staunchest allies are opportunistically characterizing Goldstone’s editorial as an attitudinal shift towards Israel in the West while its prime minister has called on the UN to retract the report all together.
The Goldstone Report documents eleven incidents where the Israeli military directly targeted civilians. Four other fact-finding missions underscore these findings: Human Rights Watch, Amnesty International, Physicians for Human Rights-Israel, and the National Lawyers Guild.
‘No Humanitarian Consideration’
In a report conducted by Israeli war veterans, 26 Israeli soldiers who participated in the Operation confirm that there were no clear rules of engagement.
One soldier laments:
“There was a clear feeling that no humanitarian consideration played any role in the army at present. The goal was to carry out an operation with the least possible casualties for the army, without its even asking itself what the price would be for the other side.”
Together, the four investigations and the soldiers’ testimonies, demonstrates an Israeli policy of targeting of civilians and/or negligent behavior that amounts to the direct targeting of civilians according to Article 51 of the First Additional Protocol.
This comports with a policy adopted by Israel since 2006, known as the Dahiyeh Doctrine. As captured by the Goldstone Report itself, according to Major General Gadi Eiskenot:
“What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. We will apply disproportionate force on it and cause great damage and destruction there. From our perspective, these are not civilian villages, they are military bases.”
Israel’s perspective however is not what matters — according to the twin linchpins of humanitarian law, namely the principles of distinction and proportionality, civilian villages are not to be targeted, are to be protected, and are to be spared excessive loss unless they directly partake in the hostilities.
Arguably therefore, no mission could have written a report to Israel’s liking unless it accepted this perversion of humanitarian law casting villages as bases.
In fact, after the report’s dissemination, Prime Minister Netanyahu requested “the facilitating of an international initiative to change the laws of war in keeping with the spread of terrorism throughout the world.”
Accordingly, Goldstone’s painstaking efforts to highlight Hamas’s culpability, which he already makes plain in paragraph 108 of the report, are futile because the controversy has not been over the reportâ€™s inequitable application of the law but rather over Israel’s insistence that it should be freed from the laws’ restraints in order to have its way with its “terrorist” adversaries.
Goldstone also miscalculates the value of Israelâ€™s domestic investigations. To date, the Independent Committee of Experts, chaired by New York Judge Mary McGowan Davis, has reviewed the domestic investigations process twice, and both times it found Israel’s investigations to be inadequate. Whereas Goldstone applauds Israel for “dedicating significant resources to investigating 400 incidents of operational misconduct,” he does not mention the rest of the committeeâ€™s findings.
‘No’ Israeli Investigatory Initiative
In particular, it took issue with the fact that “there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead.”
The committee goes onto note that “more than one-third of the 36 incidents in Gaza are still unresolved or unclear. [And] Finally, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report — over two years since the end of the Gaza operation — could seriously impair their effectiveness and, therefore, the prospects of ultimately achieving accountability and justice.”
In light of these conclusions, it is perplexing that Goldstone would accept Israel’s assertion that its attack on the Sammouni home was a regrettable act of negligence by those commanders “making difficult battlefield decisions.” Consider also that this is the home where emaciated children were rescued four days after the attack because Israel prevented access to the Red Cross.
What kind of remorseful military commander negligently orders an air strike on a home full of civilians and then prevents humanitarian relief to its victims for four days? At most, Israel’s conflicting investigatory findings should have buttressed the report’s recommendation for an international judicial enquiry.
Perhaps Goldstone sincerely believes that Israel’s boycott of the mission was a function of remedial short-sightedness. Arguably then, his willingness to overlook a compelling record is an effort to lure Israel to the table of multilateral reconciliation.
In fact, his endorsement of “applying international law to protracted and deadly conflicts” for the sake of making warfare more humane indicates his enduring faith in the mission’s mandate as well as the need for accountability, rather than a disavowal of the report and the exoneration of Israel for its alleged crimes.
If this is indeed the case, the Justice exercised excessive good faith and poor judgment to believe that Israel would accept his gesture as an opportunity to reconcile with the UN-investigatory process, rather than cast the final blow against the report and the HRC.
Regardless of what may have been his best intentions, Goldstone has negligently, one hopes not deliberately, undermined the laws of armed conflict and emboldened those states, like Israel, who believe that it is a surmountable nuisance.
Noura Erekat is a Palestinian human rights attorney and activist. She is currently an adjunct professor at the Center for Contemporary Arab Studies in Georgetown University. She is also a co-editor of Jadaliyya.com.
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