On 3 April 2009, the President of the Human Rights Council established the United Nations Fact Finding Mission on the Gaza Conflict with the mandate “to investigate all violations of international human rights law and international humanitarian law” during the military operation referred to by the Israeli government, and most of the mainstream media as “Operation Cast Lead”.
The Mission comprised of a panel of 3 respected experts, as described in the report:
- “Professor Christine Chinkin, Professor of International Law at the London School of Economicsand Political Science, who was a member of the high-level fact-finding mission to Beit Hanoun(2008)”
- “Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan and former SpecialRepresentative of the Secretary-General on the situation of human rights defenders, who was amember of the International Commission of Inquiry on Darfur (2004)
- “Colonel Desmond Travers, a former Officer in Ireland’s Defence Forces and member of the Board of Directors ofthe Institute for International Criminal Investigations”
The Mission was chaired by a prominent and respected South African jurist, Judge Richard Goldstone. Judge Goldstone was widely known for his role as “chief prosecutor of the U.N. International Criminal Tribunals for the former Yugoslavia and Rwanda”.
The report it produced found that both the Israeli and Palestinian sides had committed possible war crimes and crimes against humanity. The 22 day assault itself was almost completely one-sided, with most of the violence being meted out by Israel’s armed forces and so unsurprisingly, the report reflects that insomuch as Hamas barely featured in the conflict.
Violations of international humanitarian and human rights law committed by Israel were generally divided into two classes; individual instances of possible crimes such as the use of human shields or the targeting of civilians by individual soldiers, and evidence of high-level criminal policies such as the targeting of civilian infrastructure or the use of White Phosphorous in civilian areas. Israel refused to cooperate with the Mission from the outset, blocking access of the investigators to Israeli officials.
There have been numerous reports into the assault on Gaza by international humanitarian organisations such as Amnesty International and Human Rights Watch. These reports not only confirmed the Mission’s findings, but often went further in terms of the depth of investigation and the conclusions they drew. In fact, of all the independent reports into the conflict, the U.N.’s Fact Finding Mission (FFM) was by far the tamest and the most cautious of them all.
When published, the report was widely condemned and/or dismissed by Israel’s supporters as biased. What was particularly interesting in the response to the FFM was the level of attack it sustained from the Israeli-right. If it was the tamest and most cautious of all the reports, why did it attract the most attention?
The answer lies in the chair of the Mission, Judge Goldstone. With international humanitarian organisations such as Amnesty or Human Rights Watch, Israel’s Ministry of Foreign Affairs simply dismisses them as biased then ignores them. But it was very hard for Israel to make this accusation against Goldstone since he is a proud Zionist Jew who comes from a family of Zionist activists and who has, in his words “lived his entire life for Israel”. In other words, he was propaganda proof. Web sites sprang up dedicated to attacking the report, op-eds were written. The knives were out. He lost his honorary membership of the Board of Governors of Hebrew University, he was even forced not to attend his own grandson’s bar mitzvah because South African Zionists had threatened to picket the occasion if he was there. He has been comprehensively vilified by the Israel-right.
In spite of all the attacks he has suffered on his character, his commitment to Israel hasn’t wavered. He said from the outset that he hoped to be proven wrong. A couple of days ago, against this backdrop of vilification, the beleaguered Goldstone wrote an op-ed for the Washington Post which I suspect he hopes will bring an end to his excommunication. The piece has been seized upon by the Israeli-right, announcing that he has “admitted he was wrong” and also that Israel would launch a new initiative to have the FFM withdrawn.
With Israel’s supporters joyous, and their detractors puzzled, it’s important to see what impact, if any this has on the documentary record, especially since virtually no attention has been given by the corporate media to what he has actually said.
I will now review his op-ed, and contrast his statements with the documentary record:
The final report by the U.N. 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.”
The U.N. Committee was set up, on the recommendation of the FFM to “to establish a committee of independent experts in international humanitarian and human rights laws to monitor and assess any domestic, legal or other proceedings undertaken by both the Government of Israel and the Palestinian side, in the light of General Assembly resolution 64/254, including the independence, effectiveness, genuineness of these investigations and their conformity with international standards”. The report is available here – and I encourage you to read it to form your own opinions on whether it backs up Goldstone’s claims.
His comments on Hamas are spot on, they have not lifted a finger to take seriously the grave crimes of which they were accused of committing. And whilst Israel has indeed dedicated significant resources to the report, it is the independence, effectiveness and genuineness of the investigations which the Committee is mandated to assess.
While the investigations published by the Israeli military and recognized in the U.N. 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.
This is a clever sleight-of-hand by the South African. A casual reader would come away from reading this paragraph thinking that the U.N. Committee had indicated that civilians were not intentionally targeted as a matter of policy. This is not the case – a careful reading indicates that he is referring to reports published by the Israeli military, not by the Committee. In fact, the Committee found evidence of high-level decisions to target areas in which civilians were known to be.
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 al-Simouni killings were among the most serious incidents in investigated by the FFM. It is very concerning that Judge Goldstone has chosen to misrepresent the Committee’s report in such a dishonest fashion. Not only was the Military Advocate General’s (MAG) decision to investigate opposed by the then Head of the IDF Southern Command, the report indicates that there is evidence to suggest that the officer who called in the strike was well aware of the presence of civilians, notably because the same unit had already warned the civilians in the area. The Committee also stated that the same officer gave the order to prevent ambulances from tending the wounded, a fact neglected by Judge Goldstone in his op-ed.
Goldstone’s faith in Israel to “respond accordingly” is not shared by the Committee, which expressed concern over Israel’s lack of appropriate response across the board. For example, when considering the case of the IDF’s use of Palestinian children as human shields, it noted the cases of two soldiers who were convicted, demoted and given a 3 months suspended sentence. The judge in their cases apparently took into account that “the soldiers did not seek to degrade or humiliate the boy” – a notion, the Committee went on to say, that was difficult to square with his deliberate use as a human shield by the soldiers. The Committee went on to contrast the punishment for human shielding (3 months suspended sentence) with the punishment of a soldier who stole a credit card in Gaza, who received seven and a half months. A disparity which casts doubt on Judge Goldstone’s “faith” in Israel’s justice system where Palestinians are involved – unless we can honestly claim that stealing a credit card is more serious than using a terrified 9 year old boy as a human shield.
Goldstone then indulges in what can be best described as more sleight-of-hand, by borrowing from a more recent bit of hasbara that I have covered previously:
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)
He is referring to a statement by Fathi Hammad (a senior Hamas member) who said that many of the members of the police force in Gaza were members of Hamas and other factions. As I wrote when I covered it here, the fact that members of the Gaza police are often policemen by day, militants by night in no way green-lights Israel to attack the entire of the Gazan police force. Additionally, under international humanitarian law, specifically article 51(3) of Additional Protocols I of the Geneva Conventions (the temporality clause), people that have dual function (civilian and combatant) are classed and protected as civilians while discharging their civilian duties, and only become legitimate military targets when in their combatant role. Israel’s decision to assault Gaza’s civilian police force shows clear intentionality in this respect.
It is worth noting that the Israeli Supreme Court as already upheld the notion that this law (specifically the temporality clause) applies to 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.
I have consistently maintained that in ignoring the illegality of Israel’s assault, and ignoring the point that as belligerent occupier Israel has only the right of belligerent reprisals (as opposed to blanket assaults), the FFM was systematically biased in Israel’s favour as it served to shift the focus onto the proportionality of Israel’s assault, rather than its right to that assault in the first instance. This further debate on proportionality and intentionality only serves to enforce that bias. Put bluntly, Israel has the right to eliminate specific threats, but it does not have the right to launch assaults against civilians and civilian infrastructure.
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
Goldstone’s charge that the Committee believes to a “significant degree” that Israel has investigated its conduct “transparently and in good faith” is a flat out lie, there’s no other way of representing it.
With regards to transparency, the Committee specifically said that the “issue of the transparency of Israel’s investigations is a concern that has been highlighted by a number of different sources and appears to be a matter of some dispute.” Further, the Committee’s report continues – “the Committee received detailed, case-specific information concerning requests for information by different organizations – the great majority of which have gone unanswered. This situation raises serious questions concerning the effective implementation of the MAG’s reported policy to assure transparency into the investigation process.”
With regards to the Committee’s view on Israel’s “good faith”, the Committee’s report specifically noted that the Military Advocate General’s “dual responsibilities as legal advisor to the Chief of Staff and other military authorities, and his role as supervisor of criminal investigations within the military, raise concerns in the present context given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations.” The report also recalls “that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions.” Is this what Judge Goldstone refers to as “good faith” investigations?
There is a reason why issues such as this are investigated and reported on by committees, rather than individuals. Assembling a team of experts forces the committee to act out of consensus, it drastically reduces the possibility that a member can make unsubstantiated claims, or go off on a partisan tangent. The requirement for committee reporting has been ably demonstrated by Judge Goldstone who has tarnished his record by indulging in what can best be described as self-serving propaganda.
I remain convinced that Goldstone was the right man to chair the FFM. His record spoke for itself. As his excommunication and vilification at the hands of his fellow Zionists has taken its toll, we’ve seen him gradually shifting away from the report assembled by him and the expert panel. He openly stated that he wanted to be proved wrong, and there is nothing wrong with that. It speaks volumes of the man that as a “proud Zionist Jew”, he was able to document Israel’s crimes in Gaza impartially. In the end, the vilification seems to have been too much to bear. He has waited and waited to be proved wrong, and when no such proof arose, he resorted to dishonesty. Although whether he is deceiving himself or the corporate media is for him to decide. In the end, he wanted to believe.
I’ve seen nothing in the corporate media to suggest that anyone is looking into his baseless claims. The story is worth too much to be untrue.
The real sadness will come if pressure is lifted on Israel (and Hamas) to conduct credible investigations into what happened in Gaza, in what Amnesty International described as “22 days of death and destruction”. The Committee whose report Goldstone wilfully distorts notes with sadness the case of “one family that had learned in an official government report that the criminal investigation into the killing of their young children had been closed without elucidation of the circumstances that led to such a tragedy.” – Let’s hope that the demand for justice will not be undone by one man’s dishonesty, and that stories like these are not told in vane.