Judge Goldstone addressing the UN in Geneva, 2009 (UN Archives) Judge Goldstone addressing the UN in Geneva, 2009 (UN Archives)

Impunity continues to prevail in the Occupied Palestinian Territory (OPT), a state of affairs clearly evident in the international response to Israel’s military offensive in the occupied Gaza Strip between 27 December 2008 – 18 January 2009 in which more than  1,400 Palestinians and 14 Israelis were killed.[1]  83% of the Palestinian victims were Geneva-Convention protected civilians, most of them Palestinian refugees who had been forcibly displaced from their homes and properties to the Gaza Strip as a result of Israel's ethnic cleansing operation (the Nakba) of 1948.

Two years on from Israel's military assault on the occupied Gaza Strip, domestic investigations have failed to meet international standards; those responsible for war crimes and crimes against humanity have not been prosecuted, and no reparations have been provided to the victims. This section will give an overview of the Goldstone Report, explaining how it was initiated, the processes through which it has passed, and how the findings of the report can be taken forward to ensure justice for the victims.
 
The Findings of the Goldstone Report
 
During the attack on Gaza, the UN Human Rights Council (HRC) passed resolution number "Symbol"A/HRC/S-9/L.1[2] which condemned Israeli aggressions and called on the United Nations High Commissioner for Human Rights to report on alleged war crimes which occurred during the Israeli attack. On 3 April 2009, the HRC established an international independent Fact Finding Mission 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.”[3]
 
On 29th September 2009, the UN Fact Finding Mission on the Gaza Conflict, composed of South African Judge Richard Goldstone and his 3 person team, submitted its report to the Human Rights Council  (12th session). The “Goldstone Report” entitled Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact Finding Mission on the Gaza Conflict[4] confirmed that both Israeli forces and Palestinian armed groups had committed grave violations of international law, including war crimes and possible crimes against humanity.
 
The Goldstone Report documented Israel's attacks on UN facilities, mosques and schools and the use of Palestinians as human shields. It also gave details of particularly horrific incidents, such as one in the Zeitoun district of Gaza in which Israeli soldiers gathered over a hundred members of the Samouni family into one house before opening fire with rockets and artillery shells, killing 29 members of the family and injuring dozens more. Alongside the documentation of killings, the report also verified reports of the wanton Israeli destruction of civilian infrastructure and private property in Gaza including the razing of a chicken farm and 31,000 chickens and the destruction of one of the raw sewage lagoons of the Gaza Waste Water Treatment plant, leading to the outflow of 200,000 cubic meters of raw sewage onto the neighboring farmland.
 
The Goldstone Report found that, in the lead up to the Israeli military assault on Gaza, Israel imposed a blockade amounting to collective punishment and carried out a systematic policy of progressive isolation and deprivation of the Gaza Strip. During the military operation, houses, factories, wells, schools, hospitals, police stations and other public buildings were destroyed, with families, including the elderly and children, left living amid the rubble of their former dwellings long after the attacks ended, as no reconstruction has been possible due to the continuing blockade. Significant trauma, both immediate and long-term, has been suffered by the population of Gaza. The Gaza military operations were directed by Israel at the people of Gaza as a whole, in furtherance of an overall policy aimed at punishing the Gaza population, and in a deliberate policy of disproportionate force aimed at the civilian population.
 
The “Roadmap to Accountability”
 
The significance of the Goldstone Report's findings is the unprecedented “Roadmap of Accountability” which sets clear guidelines for achieving justice for war crimes victims. The Report noted with concern that the repeated publication of human rights reports and the lack of subsequent follow-up had created a situation which “emboldens Israel and her conviction of being untouchable” and had created a “justice crisis” for Palestinians, and committed itself to providing a framework to ensure that its findings were followed up on.
 
To do this, the Goldstone Report gave Israel and the Palestinian authorities six months to conduct domestic investigations into war crimes and possible crimes against humanity committed during Israel's assault and to prosecute those responsible. If after 6 months these domestic investigations did not meet the international standards of independence and impartiality, then the Goldstone report recommends a number of alternative avenues for ensuring accountability of those responsible:
 
·                    UNHRC and the UN Security Council to submit the report for investigation to the ICC
·                    UN General Assembly to establish a reparation fund to provide compensation for Palestinians who had suffered damage or loss as a result of the Israeli assault
·                    UN General Assembly to ask the Government of Switzerland to convene a conference of the high contracting parties to the Fourth Geneva Convention of 1949 on measures to enforce the Convention in the Occupied Palestinian Territory
·                    UN General Assembly to ask the UN Security Council to report on the measures taken to ensure accountability for serious violations of international humanitarian law and human rights and to consider what other action it might wish to take to ensure justice, such as that provided by UN Resolution 377, Uniting for Peace.
·                    State parties to the Geneva Conventions of 1949 to start criminal investigations in national courts, using universal jurisdiction, and where warranted to arrest and prosecute perpetrators, significantly strengthening the legitimacy of lawsuits brought by Palestinian victims against Israeli suspects in courts abroad.  
 
In addition to activating mechanisms for international justice, the Mission also recommends a number of other practical recommendations as a result of their findings including:
 
·                    A recommendation that the UN General Assembly promote an urgent discussion on the future legality of the use of certain munitions referred to in the report, in particular white phosphorous, flechettes and heavy metal such as tungsten.
·                    Calling on the Government of Israel to end the blockade on Gaza, to review its rules of engagement to bring them in line with international law, release political prisoners and cease the restrictions on Palestinian travel in the West Bank and between the West Bank, the Gaza Strip, East Jerusalem and the outside world.
·                    Calling on all Palestinian parties to respect international law
·                    Recommending that international law and human rights assume a central role in internationally-sponsored peace initiatives.
 
What has happened to the Goldstone Report and what are the next steps?
 
After its release on 29th September 2009, a vote on the report's findings was due to come up for discussion at the 12th session of the Human Rights Council on October 2nd 2009 but was deferred at the request of the PLO/PA, under heavy international pressure. At the time BADIL and a number of other human rights organizations issued a statement entitled: Justice delayed is Justice Denied[5] which condemned the decision of the Palestinian leadership to delay the vote and thereby put political considerations before the pursuit of justice for the victims of Israeli crimes. This intervention was part of a wider grassroots opposition to the PLO's decision which eventually lead to the PLO, on 11th of October 2009, to ask for the Goldstone Report to be brought before a special session of the UNHRC. At its 12th Special Session on October the 16th, the UNHRC resumed debate of the Report passing Resolution A/HRC/S-12/1[6] which endorsed the report and condemned Israeli actions in the West Bank, Gaza and East Jerusalem as well as criticizing Israel for failing to cooperate with the UN mission.
 
As a result, the Goldstone Report was then brought before the General Assembly which passed resolution A/Res/64/10[7] endorsing the report of the UNHRC, requesting that the UN Secretary General transmit the Goldstone Report to the Security Council, calling for independent inquiries by both Palestinians and Israelis and asking that the UN Secretary General report back within 3 months on the progress of the implementation of the resolution. The resolution also repeated the recommendation made in the Goldstone Report, that the Government of Switzerland, as the depository of the Geneva Convention reconvene a Conference of High Contracting Parties to the Fourth Geneva Convention to discuss measures to enforce the Convention in the Occupied Palestinian Territory. Support for the Goldstone Report and its implementation was again affirmed on 26th February 2010 by another UN General Assembly Resolution[8] which reiterated the demands of the previous resolution and asked the Secretary General to again report, within 5 months, on the progress made towards the implementation of the resolution. The demand for accountability was reaffirmed by another UNHRC resolution, Resolution 13/9[9], which called for the establishment of an independent commission of human rights experts to review the progress made in implementing the recommendations of the Goldstone Report.
 
At its Fifteenth Session, the UNHRC received the report by the independent committee of legal experts[10] which concluded that domestic investigations, on both sides, had failed to meet international standards of impartiality and promptness. The committee also criticized Israel for its lack of cooperation with the committee in its investigations, for ignoring the testimony of Palestinian witnesses  and for failing to conduct any serious investigation into the conduct of the war. BADIL, as part of its work in the Human Rights Council of Palestine, insisted that international criminal justice be pursued[11] and called on the UN Security Council to refer the situation to the ICC and reminded all states of their obligation to investigate and prosecute those suspected of perpetrating grave breaches of the Geneva Convention.
 
In response to the experts report, the Human Rights Council adopted a resolution, drafted by the PA/PLO,[12] which once more extended the mandate of the experts' committee to report about the progress of the domestic investigation undertaken by Israel and the Palestinian authorities and failed to call for the activation of the international accountability mechanisms as recommended in the Goldstone Report. At this stage, the question of whether Israel's can be held accountable for crimes committed against the occupied and blockaded Palestinian people of Gaza will be answered in March 2011, when the Human Rights Council will decide in its seventeenth session whether to request action by the UN General Assembly and/or the Security Council. Palestinian and international human rights organizations, including BADIL, are calling for public pressure on all states, as well as the PA/PLO, to support a Human Rights Council resolution which affirms support for international accountability.
 
Calls for Public Action
 

  • Raise public awareness about the lack of access to justice by the Palestinian people and the need to hold Israel accountable to international law in domestic courts abroad, as well as in the United Nations system.
  • Inform and lobby decision makers to support international accountability mechanisms, as well as the rapid convening by the Government of Switzerland of a Conference of the High Contracting Parties to the Fourth Geneva Convention, which will determine ways to enforce Israel's respect of the Convention in the occupied West Bank, including Jerusalem, and the Gaza Strip.
  • Raise awareness and take action to end Israel's illegal blockade of the Gaza Strip.

 
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For further links to BADIL statements and relevant UN documents please visit the BADIL website: http://www.badil.org/prevalenttopics

Endnotes:
[1]    http://image.guardian.co.uk/sys-files/Guardian/documents/2009/09/15/UNFFMGCReport.pdf 
[2]    http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/A-HRC-S-91-L1.doc
[3]    http://image.guardian.co.uk/sys-files/Guardian/documents/2009/09/15/UNFFMGCReport.pdf
[4]    http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/9/docs/UNFFMGC_Report.pdf
[5]    http://www.badil.org/en/press-releases/50-press-releases-2009/1699-justice-delayed-is-justice-denied
[6]    http://daccess-dds-ny.un.org/doc/RESOLUTION/LTD/G09/168/07/PDF/G0916807.pdf?OpenElement
[7]    http://unispal.un.org/UNISPAL.NSF/0/C00AAE566F6F9D7485257664004CFF12
[8]    http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/477/07/PDF/N0947707.pdf?OpenElement
[9]    http://domino.un.org/UNISPAL.NSF/0/7d3f137e67d203ab8525770d005b7996?OpenDocument
[10]  http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.50_en.pdf
[11]  http://www.badil.org/en/badil-news/1683-story-1
[12] http://unispal.un.org/unispal.nsf/47d4e277b48d9d3685256ddc00612265/eb7608650c5309bb852577ad0069e713?OpenDocument