On 29 September 2009, Judge Richard Goldstone submitted a report to the UN Human Rights Council in his capacity as the head of the UN Fact Finding Mission on the Gaza Conflict (“Goldstone Mission”).1 The 575 page report was the result of thorough and meticulous research and resulted in a flurry of activity and controversy that included deferring endorsement of the report, civil society mobilization protesting the deferral, and a special session of the Human Rights Council in which the the report and its recommendations were adopted.
As the report makes its way to the UN General Assembly and other arenas of law and politics, it is important that we understand the content of the report, the significance of its recommendations, and how it can potentially make a difference in the quest for accountability of those who have perpetrated serious violations of international human rights and humanitarian law.
The Goldstone Mission was established on 3 April 2009 by the President of the Human Rights Council – following the Council’s Resolution S-9/1 – with the mandate “to investigate 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 and 18 January 2009, whether before, during or after.”2
The Goldstone Mission was composed of four highly qualified experts, the first being Justice Richard Goldstone, a former judge of the Constitutional Court of South Africa and former Prosecutor of the International Tribunals for the former Yugoslavia and Rwanda. The three other members of the Mission were Professor Christine Chinkin, a professor of international law at the London School of Economics who was a member of the High Level Fact Finding Mission to Beit Hanoun (2006); Ms. Hina Jilani, an advocate of the Supreme Court of Pakistan and former Special Representative of the Secretary General on Human Rights Defenders and a member of the 2004 International Commission of Inquiry on Darfur; and Colonel Desmond Travers, a former officer in the Irish Armed Forces and member of the Board of Directors of the Institute for International Criminal Investigations.
Although the Goldstone Mission was charged with investigating allegations of war crimes committed not only in the OPT but also in southern Israel, the government of Israel refused to cooperate with the Mission and prevented it from traveling to the occupied West Bank and Israel to meet Palestinian and Israeli officials and victims. The main plausible explanation of Israel’s refusal to cooperate with a UN fact-finding mission with such mandate was that “it had nothing to tell that could hope to overcome the overwhelming evidence of the Israeli failure to carry out its attacks on the Gaza Strip in accordance with international law of war. No credible international commission could reach any set of conclusions other than those reached by the Goldstone report on the central allegations,” as noted by Professor Richard Falk 3
The Mission carried out a thorough and inclusive investigation which addressed the human rights violations committed by Israel, Palestinian armed groups, and the Palestinian National Authority both in the OPT, including the West Bank and East Jerusalem, and in Israel.4 The Mission conducted 188 individual interviews, reviewed more than 300 reports and documentation amounting to 10,000 pages, over 30 videos and 1,200 photographs. It also conducted field visits, including investigation of incident sites in the occupied Gaza Strip (entering through Egyptian borders), and held public hearings for Palestinian and Israeli victims in the Gaza Strip and Geneva.
The findings of the Mission were unsurprising in terms of substance. They confirmed the findings and reports of other human rights organizations that Israel had indeed committed war crimes and crimes against humanity in addition to other serious violations of international human rights and humanitarian law. While the government of Israel tried to portray the military operation on the occupied Gaza Strip as “essentially a response to rocket attacks in the exercise of its right to self-defense,” the Mission found that these operations“have been directed, at least in part, at a different target: the people of Gaza as a whole.”5 The Mission confirmed that the deliberate use of disproportionate force, attacks on civilian population and destruction of civilian property by Israel was designed to achieve political objectives, that is, “punishing the Gaza population for its resilience and for its apparent support for Hamas, and possibly with the intent of forcing a change in such support.”6 As to the longstanding Israeli blockade of the Gaza Strip, the Mission has confirmed that it constitutes an instance of collective punishment, explicitly prohibited by Article 33 of the Fourth Geneva Convention. It also noted that:
“[T]he series of acts [including the blockade] that deprive Palestinians in the Gaza Strip of their means of subsistence, employment, housing and water, that deny their freedom of movement and their right to leave and enter their own country, that limit their rights to access a court of law and an effective remedy, could lead a competent court to find that the crime of persecution, a crime against humanity,has been committed.”7
The Goldstone Mission also concluded that by launching rockets and mortars, which cannot be aimed with sufficient precision at military targets, Palestinian armed groups in the Gaza Strip had breached the fundamental principle of distinction. These groups failed to distinguish between military targets and civilian population and objects in southern Israel as a result. “These actions would constitute war crimes and may amount to crimes against humanity.”8 Thus, a fair reading of the report reveals that the report is impartial, balanced, and took full account of Israel’s arguments relating to security, and gave Israel the “benefit of the doubt” on key matters.9
Although there are many reasons to applaud the Goldstone Report, it still falls short of meeting Palestinian expectations. The report takes for granted dubious proposition that Israel was entitled to act against the Gaza Strip in self-defense, avoiding making a finding of aggression by the launching of the attack on the Gaza Strip.10 The report also ignores Hamas’ repeated efforts to extend the ceasefire indefinitely provided Israel lifted its blockade of the occupied Gaza Strip. These efforts constitute a diplomatic alternative to war to achieve security for Israel’s borders. Israel, on the other hand, disregarded these efforts and resorted to war knowing that recourse to war should be a last resort under international law. 11
Moreover, the Goldstone Report failed to draw any legal conclusions with regard to the unprecedented belligerent Israeli policy of denying an option of refuge to the entire civilian population of the occupied Gaza Strip.12 This policy was discussed thoroughly in a previous report of the Special Rapporteur on the Situation of Human Rights in the OPT, Richard Falk, following Operation Cast Lead.13 The Special Rapporteur, concluded that the Israeli policy of refuge denial was an “inhuman action” against the Palestinian civilian population.14 All crossings from Israel were kept closed during the attacks, with minor exceptions. By so doing, civilians, particularly children, women, invalids and disabled persons were unable to avail themselves of the refugee option to flee from the locus of immediate harm resulting from the Israeli military operations. This condition was aggravated by the absence of places to hide from the ravages of war in Gaza, given its small size, dense population, and absence of natural or man-made shelters.15 Recalling that “international humanitarian law has not specifically and explicitly at this time anticipated such an abuse of civilians,” the Special Rapporteur called for an impartial investigation of this policy “to determine whether such practices of ‘refugee denial’ constitute a crime against humanity as understood in international criminal law.”16 Alas, the UN Fact Finding Mission to the Gaza Conflict did not take this investigation upon itself and failed to address this issue.
While the findings of the Goldstone Report were not new or surprising in substance, its recommendations go beyond previous reports of other UN Fact-Finding Missions to the OPT. The report of the 2006 Mission to Beit Hanoun, for instance, included similar findings to those of the Goldstone Report, but the recommendations of the 2006 report relating to holding perpetrators accountable were general and, for the most part, ambiguous;17 Israeli authorities and other UN Charter-based bodies have yet to take action to pursue investigation, prosecution and punishment of the Israeli perpetrators of the shelling of Beit Hanoun. Palestinian victims, in turn, have been left without remedy or redress. The Goldstone Report, on the other hand, makes strong and practical recommendations that firmly answer questions of what actions should be taken, who is responsible for each type of action, and when these actions should be taken. The report draws up a “Plan of Action” that aims to effectively prevent the longstanding impunity and the recurrence of serious human rights violations in the OPT through the promotion of criminal accountability. The report recommends that if, within six months, Israel and Hamas do not discharge their legal obligation to investigate, prosecute and convict the perpetrators according to international standards of impartiality, independence, promptness and effectiveness, then the UN Security Council should consider referring the whole issue of Israeli and Hamas accountability to the International Criminal Court.
Israel is unwilling to establish judicial accountability over its military actions in the OPT, as manifested in the pattern of delays, inaction or otherwise unsatisfactory handling by Israeli authorities of criminal investigations, prosecutions and convictions of military personnel. Therefore, the Goldstone Report called on States other than Israel to exercise universal jurisdiction to enforce international human rights and humanitarian law, combat impunity, promote international accountability and seek justice for victims. Certain conventions, particularly the Fourth Geneva Convention (1949), establish universal jurisdiction as an obligation of States parties. It requires each signatory “to search for persons alleged to have committed, or to have ordered the commission of, such grave breaches” and to bring such persons, regardless of their nationality, before its own courts.18
In its “Plan of Action,” the Goldstone Mission recommends not only that the international community provide for alternative accountability mechanisms, but also for an additional or alternative mechanism of compensation for damage or loss incurred by Palestinian civilians during the Israeli military operations.19 Whenever a violation of an international obligation occurs, an obligation to provide reparation arises. The current constitutional structure and legislation in Israel, however, leaves very limited possibilities, if any, for Palestinians to seek compensation and reparation.20 The Mission went one step further to recommend that the UN General Assembly establish an escrow fund to be used to pay adequate compensation to Palestinians who have suffered loss and damage as a result of unlawful acts attributable to the State of Israel during Operation Cast Lead. The Mission also noted that the government of Israel should pay required amounts into this fund in accordance with its international legal obligations. The importance of this recommendation is highlighted by the fact that for many years, the international community has relieved Israel from the economic burden of its military aggression and occupation.21
One of the functions of reports such as the Goldstone Report is to attempt to pave the way for bringing remedy and redress to the victims of serious violations of international human rights and humanitarian law. The denial or deferral of criminal accountability and reparation amounts to the denial of justice and the restoration of dignity to victims. It reinforces the culture of impunity and has a negative impact on the credibility of the United Nations, and of the international community. If the recommendations of the Goldstone Report are not adopted by State Members and UN bodies and action taken accordingly, serious human rights violations in the OPT seem doomed to reoccur. Once again, the “Never Again” slogan will be hollowed of its meaning.