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The Goldstone Report: the Lack of International Accountability Continues

Written by  Simone O'Broin
USA, 31 May 2010.(© Robert Whitlock) USA, 31 May 2010.(© Robert Whitlock)

The Goldstone report1 was published in September 2009; the result of a fact-finding mission by four senior jurists to investigate violations of international humanitarian law and international human rights law during “Operation Cast Lead” in Gaza in December 2008 to January 2009. Its conclusions were that Israel had committed war crimes and possibly crimes against humanity2 and recommended that the situation be referred to the International Criminal Court (ICC) for judicial examination.3 The report’s progress to date in the arena of the Human Rights Council (HRC) was covered in our last update. 4

The Experts’ Assessment of Domestic Investigations

In our last update, the HRC had adopted a resolution5 to extend the mandate of the expert committee (the Committee) to assess domestic investigations by Israel and the Palestinian side for compliance with international standards of independence, impartiality, effectiveness, thoroughness and promptness. The Committee’s final report6 presented to the HRC during its sixteenth session in March 2011, states that Israel had conducted 400 command investigations into allegations by the fact-finding mission and other organizations. However, such command investigations were conducted by personnel from the same command structure as those under investigation and their investigations were operational, rather than legal, investigations.

The Committee found that of these 400 cases, 52 criminal investigations had been opened and, of these, 3 were submitted for prosecution with 2 resulting convictions and one ongoing trial.7 The Committee also reported that it had insufficient information to establish the status of investigations into the killing of 29 members of the Samouni family8 and no information whatsoever on several very serious allegations in the Goldstone report, including the attacks on the Al-Quds and Al-Wafa hospitals9. Attacks on the UNRWA headquarters, the Fakhoura school and the Arafat Police Compound had also not been effectively addressed.10

The Human Rights Council takes action

As a result of this report, on 25th March 2011, the HRC passed a resolution11 recommending that the General Assembly reconsider the Goldstone report at its sixty-sixth session,12 and urging the Assembly to submit the report to the Security Council for its consideration and appropriate action, including consideration of referral of the situation in the Occupied Palestinian Territory to the prosecutor of the International Criminal Court, pursuant to article 13 (b) of the Rome Statute.

The resolution also called upon all parties to implement the recommendations in the Goldstone report and recommended that the government of Switzerland convene a conference for the High Contracting Parties to the Geneva Conventions before September 2011, clarifying that the HRC does not consider the Israeli domestic investigations to meet the required international standards.

Goldstone’s “reconsideration.”

In the wake of this progress in the human rights community, exactly one week later, Richard Goldstone published an op-ed in the Washington Post, entitled “Reconsidering the Goldstone Report on Israel and war crimes”13 in which he wrote, “If I had known then what I know now, the Goldstone Report would have been a different document”. No new evidence was provided as to how he had arrived at this conclusion.

Israeli politicians14 and the US senate15 immediately reacted to the confusing and strange op-ed by suggesting that it somehow held the same weight as the nearly 600-page Goldstone report written and investigated by four distinguished experts. In response, the other 3 experts who wrote the report issued a statement making it clear that, since September 2009, the Goldstone report is an official UN document and that “any actions taken pursuant to its findings and recommendations fall solely within the purview of the United Nations General Assembly”.16 Their view was that many of the press articles were misrepresenting facts in order to delegitimize the findings of the Goldstone report. Instead they reaffirmed that “Nothing of substance has appeared that would in any way change the context, findings or conclusions of that report.”

It remains to be seen in September whether the General Assembly will refer the Goldstone report to the Security Council and, if so, whether there is sufficient political will to refer it to the ICC. If not, it can only be concluded that hypocrisy prevails at the international level and that world leaders remain highly selective in their application of human rights and international law.

Simone O’Broin is a human rights lawyer and activist

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Endnotes:
1. Report of the United Nations Fact-Finding Mission on the Gaza conflict, A/HRC/12/48 of 25 September 2009 (hereinafter Goldstone Report)
2. Ibid. para.1765
3. Ibid.
4. Al-Majdal, issue no.45 (Winter 2010), p.7
5. A/HRC/RES/15/6, 6th October 2010
6. Report of the Committee of independent experts in international humanitarian and human rights law established pursuant to Council resolution13/9 – A/HRC/16/24, 18th March 2011
7. Ibid. para.24
8. Ibid. para.27
9. Ibid. para.29
10. PCHR: "PCHR Highlight Key Issues relating to Report of UN Fact-Finding Mission on Gaza conflict (the Goldstone Report)", 4th April 2011
11. A/HRC/RES/16/32, 16th April 2011 (N.B. passed at a meeting of HRC on 25th March 2011)
12. Opening on 13th September 2011
13. Washington Post, "Reconsidering the Goldstone Report on Israel and war crimes." Richard Goldstone, 1st April 2011
14. See Haaretz, 'Lieberman lauds new Goldstone conclusions about Gaza war', 2nd April 2011; Haaretz, 'Netanyahu to UN: Retract Gaza war report in wake of Goldstone's comments', 2nd April 2011, Barak Ravid;
15. S.RES.138, 14th April 2011 states that “Justice Richard Goldstone publicly retracted the central claims of the report he authored in an op-ed in The Washington Post on April 2, 2011″ and “also conceded that the number of civilian casualties was far smaller than the report alleged”.
16. Goldstone report: Statement issued by members of UN mission on Gaza war, Hina Jilani, Christine Chinkin and Desmond Travers, guardian.co.uk, Thursday 14 April 2011