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.”
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
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. 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.” 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.” 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.”
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.” 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.
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. 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.
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. 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. The
Special Rapporteur, concluded that the Israeli policy of refuge
denial was an “inhuman action” against the Palestinian civilian
population. 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. 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.” 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; 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.
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. 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. 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.
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.
Endontes