WHY THE GOLDSTONE REPORT MATTERS (IX/19/2009)
Richard Falk, 20th September
“So why did the Israeli government boycott the commission? The real answer is quite simple: they knew full well that the commission, any commission, would have to reach the conclusions it did reach.”
Uri Avnery (Israeli peace activist, and former Knesset member), “On the Goldstone Report” 19 Sept 2009
Richard Goldstone, former judge of South Africa’s Constitutional Court, the first prosecutor at The Hague on behalf of the International Criminal Court for Former Yugolavia, and anti-apartheid campaigner, reports that he was most reluctant to take on the job of chairing the UN fact-finding mission charged with investigating allegations of war crimes committed by Israel and Hamas during the three week Gaza War of last winter. Goldstone explains that his reluctance was due to the issue being “deeply charged and politically loaded,” and was overcome because he and his fellow commissioners were “professionals committed to an objective, fact-based investigation,” adding that “above all, I accepted because I believe deeply in the rule of law and the laws of war,” as well as the duty to protect civilians to the extent possible in combat zones. The four-person fact-finding mission was composed of widely respected and highly qualified individuals, including the distinguished international law scholar, Christine Chinkin, a professor at the London School of Economics. Undoubtedly adding complexity to Goldstone’s decision is the fact that he is Jewish, with deep emotional and family ties to Israel and Zionism, bonds solidified by his long association with several organizations active in Israel.
Despite the impeccable credentials of the commission members, and the worldwide reputation of Richard Goldstone as a person of integrity and political balance, Israel refused cooperation from the outset. It did not even allow the UN undertaking to enter Israel or the Palestinian Territories, forcing reliance on the Egyptian government to facilitate entry at Rafah to Gaza. As Uri Avnery observes, however much Israel may attack the commission report as one-sided and unfair, the only plausible explanation of its refusal to cooperate with fact-finding and taking the opportunity to tell its side of the story 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 Gaza last winter in accordance with the 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.
In substantive respects the Goldstone Report adds nothing new. Its main contribution is to confirm widely reported and analyzed Israeli military practices during the Gaza War. There had been several reliable reports already issued, condemning Israel’s tactics as violations of the laws of war and international humanitarian law, including by Amnesty International, Human Rights Watch, and a variety of respected Israeli human rights groups. Journalists and senior United Nations civil servants had reached similar conclusions. Perhaps, most damning of all the material available before the Goldstone Report was the publication of a document entitled “Breaking the Silence,” containing commentaries by thirty members of the Israel Defense Forces who had taken part in Operation Cast Lead (the Israeli official name for the Gaza War). These soldiers spoke movingly about the loose rules of engagement issued by their commanders that explains why so little care was taken to avoid civilian casualties. The sense emerges from these IDF soldiers who were in no sense critical of Israel or even of the Gaza War as such, that Israeli policy emerged out of a combination of efforts ‘to teach the people of Gaza a lesson for their support of Hamas’ and to keep IDF casualties as close to zero as possible even if meant massive death and destruction for innocent Palestinians.
Given this background of a prior international consensus on the unlawfulness of Operation Cast Lead, we must first wonder why this massive report of 575 pages has been greeted with such alarm by Israel and given so much attention in the world media. It added little to what was previously known. Arguably, it was more sensitive to Israel’s contentions that Hamas was guilty of war crimes by firing rockets into its territory than earlier reports had been. And in many ways the Goldstone Report endorses the misleading main line of the Israeli narrative by assuming that Israel was acting in self-defense against a terrorist adversary. The report focuses its criticism on Israel’s excessive and indiscriminate uses of force. It does this by examining the evidence surrounding a series of incidents involving attacks on civilians and non-military targets. The report also does draw attention to the unlawful blockade that has restricted the flow of food, fuel, and medical supplies to subsistence levels in Gaza before, during, and since Operation Cast Lead. Such a blockade is a flagrant instance of collective punishment, explicitly prohibited by Article 33 of the Fourth Geneva Convention setting forth the legal duties of an occupying power.
All along Israel had rejected international criticism of its conduct of military operations in the Gaza War, claiming that the IDF was the most moral fighting force on the face of the earth. The IDF conducted some nominal investigations of alleged unlawful behavior that consistently vindicated the military tactics relied upon and steadfastly promised to protect any Israeli military officer or political leader internationally accused of war crimes. In view of this extensive background of confirmed allegation and angry Israeli rejection, why has the Goldstone Report been treated in Tel Aviv as a bombshell that is deeply threatening to Israel’s stature as a sovereign state? Israel’s president, Shimon Peres, calling the report “a mockery of history” that “fails to distinguish the aggressor and a state exercising the right of self-defense,” insisting that it “legitimizes terrorist activity, the pursuit of murder and death.” More commonly Israel’s zealous defenders condemned the report as one-sided, biased, reaching foregone conclusions, and emanating from the supposed bastion of anti-Israeli attitudes at the UN’s Human Rights Council. This line of response to any criticism of Israel’s behavior in occupied Palestine, especially if it comes from the UN or human rights NGOs is to cry “foul play!” and avoid any real look at the substance of the charges. It is an example of what I call ‘the politics of deflection,’ attempting to shift the attention of an audience away from the message to the messenger. The more damning the criticism, the more ferocious the response. From this perspective, the Goldstone Report obviously hit the bullseye!
Considered more carefully, there are some good reasons for Israel’s panicked reaction to this damning report. First, it does come with the backing of an eminent international personality who cannot credibly be accused of anti-Israel bias, making it harder to deflect attention from the findings no matter how loud the screaming of ‘foul play.’ Any fair reading of the report would show that it was balanced, was eminently mindful of Israel’s arguments relating to security, and indeed gave Israel the benefit of the doubt on some key issues. Secondly, the unsurprising findings are coupled with strong recommendations that do go well beyond previous reports. Two are likely causing the Israeli leadership great worry: the report recommends strongly that if Israel and Hamas do not themselves within six months engage in an investigation and followup action meeting international standards of objectivity with respect to these violations of the law of war, then the Security Council should be brought into the picture, being encouraged to consider referring the whole issue of Israeli and Hamas accountability to the prosecutor of the International Criminal Court in The Hague. Even if Israel is spared this indignity by the diplomatic muscle of the United States, and possibly some European governments, the negative public relations implications of a failure to abide by this report could be severe.
Thirdly, whatever happens in the UN System, and at the Human Rights Council in Geneva, the weight of the report will be felt by world public opinion. Ever since the Gaza War the solidity of Jewish support for Israel has been fraying at the edges, and this will likely now fray much further. More globally, a very robust boycott and divestment movement was gaining momentum ever since the Gaza War, and the Goldstone Report can only lend added support to such initiatives. There is a growing sense around the world that the only chance for the Palestinians to achieve some kind of just peace depends on the outcome over the symbols of legitimacy, what I have called the Legitimacy War. Increasingly, the Palestinians have been winning this second non-military war. Such a war fought on a global political battlefield is what eventually and unexpectedly undermined the apartheid regime in South Africa, and has become much more threatening to the Israeli sense of security than has armed Palestinian resistance.
A fourth reason for Israeli worry stemming from the report, is the green light given to national courts throughout the world to enforce international criminal law against Israeli suspects should they travel abroad and be detained for prosecution or extradition in some third country. Such individuals could be charged with war crimes arising from their involvement in the Gaza War. The report in this way encourages somewhat controversial reliance on what is known among lawyers as ‘universal jurisdiction,’ that is, the authority of courts in any country to detain for extradition or to prosecute individuals for violations of international criminal law regardless of where the alleged offenses took place. Reaction in the Israeli media reveals that Israeli citizens are already anxious about being apprehended during foreign travel. As one law commentator put it in the Israeli press, “From now on, not only soldiers should be careful when they travel abroad, but also ministers and legal advisers.” It is well to recall that Article 1 of the Geneva Conventions calls on states throughout the world “to respect and ensure respect” for international humanitarian law “in all circumstances.” Remembering the efforts in 1998 of several European courts to prosecute Augusto Pinochet for crimes committed while he was head of state in Chile, is a reminder that national courts can be used to prosecute political and military leaders for crimes committed elsewhere than in the territory of the prosecuting state.
Of course, Israel will fight back. It has already launched a media and diplomatic blitz designed to portray the report as so one-sided as to be unworthy of serious attention. The United States Government has already disappointingly appeared to endorse this view, and repudiate the central recommendation in the Goldstone Report that the Security Council be assigned the task of implementing its findings. The American Ambassador to the UN, Susan Rice, evidently told a closed session of the Security Council on September 16, just a day after the report was issued, that “[w]e have serious concerns about many recommendations in the report.” Elaborating on this, Ambassador Rice indicated that the UN Human Rights Council, which has no implementing authority, is the only proper venue for any action to be taken on the basis of the report. The initial struggle will likely be whether to follow the recommendation of the report to have the Security Council refer the issues of accountability to the International Criminal Court, which could be blocked by a veto from the United States or other permanent members.
There are reasons to applaud the forthrightness and comprehensiveness of the report, its care, and scrupulous willingness to conclude that both Israel and Hamas seem responsible for behavior that appears to constitute war crimes, if not crimes against humanity. Although Israel has succeeded in having the issue of one-sidedness focus on fairness to Israel, there are also some reasons to insist that the report falls short of Palestinian hopes. For one thing, the report takes for granted the dubious proposition that Israel was entitled to act against Gaza in self-defense, thereby excluding inquiry into whether crimes against the peace in the form of aggression had taken place by the launching of the attack. In this respect, the report takes no notice of the temporary ceasefire that had cut the rocket fire directed at Israel practically to zero in the months preceding the attacks, nor of Hamas’ repeated efforts to extend the ceasefire indefinitely provided Israel lifted its unlawful blockade of Gaza. Further it was Israel that had seemed to provoke the breakdown of the ceasefire when it launched a lethal attack on Hamas militants in Gaza on November 4, 2008. Israel disregarded this seemingly available diplomatic alternative to war to achieve security on its borders. Recourse to war, even if the facts justify self-defense, is, according to international law, a last resort. By ignoring Israel’s initiation of a one-sided war the Goldstone Report accepts the dubious central premise of Operation Cast Lead, and avoids making a finding of aggression.
Also disappointing was the failure of the report to comment upon the Israeli denial of a refugee option to the civilian population trapped in the tiny, crowded combat zone that constitutes the Gaza Strip. Israel closed all crossings during the period of the Gaza War, allowing only Gaza residents with foreign passports to leave. It is rare in modern warfare that civilians are not given the option to become refugees. Although there is no specific provision of the laws of war requiring a state at war to allow civilians to leave the combat zone, it seems like an elementary humanitarian requirement, and should at least have been mentioned either as part of customary international law or as a gap in the law that should be filled. The importance of this issue is reinforced by many accounts of the widespread post-traumatic stress experienced by the civilians in Gaza, especially children that comprise 53% of the population. One might also notice that the report accords considerable attention to Gilad Shalit, the one IDF prisoner held by Hamas in Gaza, recommending his release on humanitarian grounds, while making no comparable suggestion to Israel although it is holding thousands of Palestinians under conditions of harsh detention.
In the end, the Goldstone Report is unlikely to break the inter-governmental refusal to challenge the Israeli blockade of Gaza or to induce the United Nations to challenge Israeli impunity in any meaningful way. Depending on backroom diplomacy, the United States may or may not be able to avoid playing a public role of shielding Israel from accountability for its behavior during the Gaza War or its continuing refusal to abide by international humanitarian law by lifting the blockade that continues to impinge daily upon the health of the entire population of Gaza.
Despite these limitations, the report is an historic contribution to the Palestinian struggle for justice, an impeccable documentation of a crucial chapter in their victimization under occupation. Its impact will be felt most impressively on the growing civil society movement throughout the world to impose cultural, sporting, and academic boycotts, as well as to discourage investment, trade, and tourism with Israel. It may yet be the case that as in the anti-apartheid struggle the shift in the relation of forces in the Palestinian favor will occur not through diplomacy or as a result of armed resistance, but on the symbolic battlefield of legitimacy that has become global in scope, what might be described as the new political relevance of moral and legal globalization.
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United Nations Fact Finding Mission
on the Gaza Conflict
15 September 2009
UN Fact Finding Mission finds strong evidence of war crimes and crimes against humanity committed during the Gaza conflict; calls for end to impunity
NEW YORK / GENEVA – The UN Fact-Finding Mission led by Justice Richard Goldstone on Tuesday released its long-awaited report on the Gaza conflict, in which it concluded there is evidence indicating serious violations of international human rights and humanitarian law were committed by Israel during the Gaza conflict, and that Israel committed actions amounting to war crimes, and possibly crimes against humanity.
The report also concludes there is also evidence that Palestinian armed groups committed war crimes, as well as possibly crimes against humanity, in their repeated launching of rockets and mortars into Southern Israel.
The four members of the Mission* were appointed by the President of the Human Rights Council in April with a mandate to “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.”
In compiling the 574- page report, which contains detailed analysis of 36 specific incidents in Gaza, as well as a number of others in the West Bank and Israel, the Mission conducted 188 individual interviews, reviewed more 10,000 pages of documentation, and viewed some 1,200 photographs, including satellite imagery, as well as 30 videos. The mission heard 38 testimonies during two separate public hearings held in Gaza and Geneva, which were webcast in their entirety. The decision to hear participants from Israel and the West Bank in Geneva rather than in situ was taken after Israel denied the Mission access to both locations. Israel also failed to respond to a comprehensive list of questions posed to it by the Mission. Palestinian authorities in both Gaza and the West Bank cooperated with the Mission.
The Mission 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 Israeli military operation, code-named “Operation Cast Lead,” houses, factories, wells, schools, hospitals, police stations and other public buildings were destroyed. Families are still living amid the rubble of their former homes long after the attacks ended, as reconstruction has been impossible due to the continuing blockade. More than 1,400 people were killed during the military operation.
Significant trauma, both immediate and long-term, has been suffered by the population of Gaza. The Report notes signs of profound depression, insomnia and effects such as bed-wetting among children. The effects on children who witnessed killings and violence, who had thought they were facing death, and who lost family members would be long lasting, the Mission found, noting in its Report that some 30 per cent of children screened at UNRWA schools suffered mental health problems.
The report concludes that the Israeli military operation was directed at the people of Gaza as a whole, in furtherance of an overall and continuing policy aimed at punishing the Gaza population, and in a deliberate policy of disproportionate force aimed at the civilian population. The destruction of food supply installations, water sanitation systems, concrete factories and residential houses was the result of a deliberate and systematic policy which has made the daily process of living, and dignified living, more difficult for the civilian population.
The Report states that Israeli acts 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 report underlines that in most of the incidents investigated by it, and described in the report, loss of life and destruction caused by Israeli forces during the military operation was a result of disrespect for the fundamental principle of “distinction” in international humanitarian law that requires military forces to distinguish between military targets and civilians and civilian objects at all times. The report states that “Taking into account the ability to plan, the means to execute plans with the most developed technology available, and statements by the Israeli military that almost no errors occurred, the Mission finds that the incidents and patterns of events considered in the report are the result of deliberate planning and policy decisions.”
For example, Chapter XI of the report describes a number of specific incidents in which Israeli forces launched “direct attacks against civilians with lethal outcome.” These are, it says, cases in which the facts indicate no justifiable military objective pursued by the attack and concludes they amount to war crimes. The incidents described include:
- Attacks in the Samouni neighbourhood, in Zeitoun, south of Gaza City, including the shelling of a house where soldiers had forced Palestinian civilians to assemble;
- Seven incidents concerning “the shooting of civilians while they were trying to leave their homes to walk to a safer place, waving white flags and, in some of the cases, following an injunction from the Israeli forces to do so;”
- The targeting of a mosque at prayer time, resulting in the death of 15 people.
A number of other incidents the Report concludes may constitute war crimes include a direct and intentional attack on the Al Quds Hospital and an adjacent ambulance depot in Gaza City.
The Report also covers violations arising from Israeli treatment of Palestinians in the West Bank, including excessive force against Palestinian demonstrators, sometimes resulting in deaths, increased closures, restriction of movement and house demolitions. The detention of Palestinian Legislative Council members, the Report says, effectively paralyzed political life in the OPT.
The Mission found that through activities such as the interrogation of political activists and repression of criticism of its military actions, the Israeli Government contributed significantly to a political climate in which dissent was not tolerated.
The Fact-Finding Mission also found that the repeated acts of firing rockets and mortars into Southern Israel by Palestinian armed groups “constitute war crimes and may amount to crimes against humanity,” by failing to distinguish between military targets and the civilian population. “The launching of rockets and mortars which cannot be aimed with sufficient precisions at military targets breaches the fundamental principle of distinction,” the report says. “Where there is no intended military target and the rockets and mortars are launched into civilian areas, they constitute a deliberate attack against the civilian population.”
The Mission concludes that the rocket and mortars attacks “have caused terror in the affected communities of southern Israel,” as well as “loss of life and physical and mental injury to civilians and damage to private houses, religious buildings and property, thereby eroding the economic and cultural life of the affected communities and severely affecting the economic and social rights of the population.”
The Mission urges the Palestinian armed groups holding the Israeli soldier Gilad Shalit to release him on humanitarian grounds, and, pending his release, give him the full rights accorded to a prisoner of war under the Geneva Conventions including visits from the International Committee of the Red Cross. The Report also notes serious human rights violations, including arbitrary arrests and extra-judicial executions of Palestinians, by the authorities in Gaza and by the Palestinian Authority in the West Bank.
The prolonged situation of impunity has created a justice crisis in the Occupied Palestinian Territory that warrants action, the Report says. The Mission found the Government of Israel had not carried out any credible investigations into alleged violations. It recommended that the UN Security Council require Israel to report to it, within six months, on investigations and prosecutions it should carry out with regard to the violations identified in its Report. The Mission further recommends that the Security Council set up a body of independent experts to report to it on the progress of the Israeli investigations and prosecutions. If the experts’ reports do not indicate within six months that good faith, independent proceedings are taking place, the Security Council should refer the situation in Gaza to the ICC Prosecutor. The Mission recommends that the same independent expert body also report to the Security Council on proceedings undertaken by the relevant Gaza authorities with regard to crimes committed by the Palestinian side. As in the case of Israel, if within six months there are no good faith independent proceedings conforming to international standards in place, the Council should refer the situation to the ICC Prosecutor.
The full report can be found on the web page of the Fact Finding Mission:
For further media information: contact Doune Porter, Office of the UN High Commissioner for Human Rights, Tel: 1-917-367-3292 or +41-79-477-2576. Email: email@example.com
* The members of the Fact Finding Mission are:
Justice Richard Goldstone, Head of Mission; former judge of the Constitutional Court of South Africa; former Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.
Professor Christine Chinkin, Professor of International Law at the London School of Economics and Political Science; member of the high-level fact-finding mission to Beit Hanoun (2008).
Ms. Hina Jilani, Advocate of the Supreme Court of Pakistan; former Special Representative of the Secretary-General on the situation of human rights defenders; member of the International Commission of Inquiry on Darfur (2004).
Colonel Desmond Travers, former Officer in Ireland’s Defence Forces; member of the Board of Directors of the Institute for International Criminal Investigations.
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Adalah, The Association for Civil Rights in Israel, Bimkom B'Tselem, Physicians for Human Rights, Gisha, Yesh Din, Hamoked, The Public Committee Against Torture, Rabbis for Human Rights
Human rights organizations to Israeli government:
Don't silence "Breaking the Silence"
Ten human rights and social change organizations in Israel have publicly declared support for the organization "Breaking the Silence" (Shovrim Shtika). In a letter to the Prime Minister, the Minister of Defense and the Foreign Minister, the organizations protested the Israeli government's attack on the group, which reached its peak when the government attempted to prevent the group from receiving funding.
“Indeed, the soldiers' testimonies that were published by "Breaking the Silence" do not tell the 'official' story that the government of Israel wants to tell the public. They place a large question mark over the 'most moral army in the world.' image. They call on the Israel public to leave behind its illusions and participate in a meaningful discussion about the character of the society in which they live” say the organizations. “Unfortunately, instead of living up to the challenge set by this report, initiating a real public debate about the significance of the testimonies and holding a thorough investigation of the matter, those in power in the military and government preferred to wage a frontal assault on the organization through the publication of baseless accusations meant to challenge the authenticity of the organization and the report’s findings."
The organizations called on the Israeli government to participate in the public debate over the issues raised in the document released by "Breaking the Silence," and to deal with the content of the testimonies in a meaningful way. "The aggressive pressure employed by the Foreign Ministry and other governmental bodies in order to silence 'Breaking the Silence' is dangerous and troubling," said the organizations, who added that the health and proper functioning of democracy are expressed in, among other things, the legitimacy it grants to organizations who criticize the authorities.
Organizations that participated in the statement: The Association for Civil Rights in Israel, Bimkom, B’Tselem, Gisha, Physicians for Human Rights, Adalah, Yesh Din, HaMoked - Center for the Defence of the Individual, Public Committee Against Torture in Israel, Rabbis for Human Rights
For further information:
B'Tselem: Sarit Michaeli, 050-5387230
Association for Civil Rights in Israel (ACRI): Nirit Moskovitch, 073-7013233 052-3410631
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In wake of UN Gaza probe, how can Israel go to war again?
By Aluf Benn, Haaretz Correspondent, 16th September 2009
The United Nations fact-finding mission into the Gaza offensive describes Israel as perpetrating war crimes - a police state which persecutes minorities - and tars the Palestinian leadership in the Gaza Strip and West Bank with similar accusations.
If its findings and recommendations are accepted, the International Criminal Court in The Hague could call a summit meeting between the leaders of Israel, Hamas and the Palestinian Authority on the defendants' stand.
But the ultimate adjudicator on the report's fate will be Barack Obama, who now has another whip with which to flay Benjamin Netanyahu - if you don't freeze the settlements and agree to concessions, legal proceedings will commence against those responsible for Operation Cast Lead.
It's doubtful that Obama wishes to make such a threat, which would set a precedent against other militaries fighting terror in civilian areas, as is the U.S. army in Iraq and Afghanistan.
The report brings up a number of findings. First, then-prime minister Ariel Sharon erred in 2005 in not seeing the Gaza disengagement to its conclusion by asking the international community for recognition that the occupation of Gaza had ended. A significant portion of the crimes for which Israel is now blamed stemmed from its humanitarian responsibility for the residents of the Strip.
Second, Ehud Olmert and Ehud Barak (prime and defense ministers respectively during Cast Lead) erred in ignoring the Gazan population's suffering, and in allowing the death and destruction the IDF perpetrated during the Gaza campaign.
Lengthening the operation and choosing to send in ground forces - decisions which won widespread support among the Israeli public - wrought untold damage to Israel's international image, and bolstered the legitimacy of Hamas.
Third, Western governments may ignore this damning report, but it will now serve as the basis of criticism against Israel in public opinion, the media, on campuses and in think tanks, places where UN documents are still taken seriously.
Fourth, Israel decided to question the investigators' legitimacy and not cooperate with commission chair Richard Goldstone and his team. None of the defenses heard in Israeli media after the Gaza operation - that the IDF is "the most moral army in the world," that striking civilian-populated areas was necessary and proportional - were reported to the commission. To a university student in Britain or Spain, Israel's silence is perceived as an admission of guilt.
The appearance of Israeli "private citizens" before the panel proved its usefulness: Noam Shalit testified, and then Goldstone called for the release and return of his son.
Maybe it would have been better if the government had behaved as Shalit did, flooding Goldstone with information?
Last, and perhaps most important, the Goldstone report reinforces the most serious strategic threat Israel brought upon itself with the Gaza offensive, in that it saps international legitimacy for a similar operation in the future.
A country considering attacking the nuclear reactor in Iran, and then endangering itself to rocket fire from Lebanon and Gaza in response, will have to take into account whether the world will give Israel another opportunity for a severe, crushing response.
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The one thing worse than denying the Gaza report
By Amira Hass, Haaretz, 17th September 2009
On Friday an Israel Defense Forces soldier called to protest the publication of another story in Haaretz which in his words, tainted not only the troops' image but also his Sabbath day.
The soldier was referring to Gaza resident Zinat Samouni's account of how soldiers killed her 46-year-old husband and their 4-year-old son Ahmed - just two of the 29 people of the same family the army killed between January 4 and 5.
The soldier, who said he participated in the fighting, said he didn't believe the women's statements were true, though he did believe soldiers "scrawled stupid things on the walls, and that's really not right."
This is a common Israeli solution - in this case, to admit to the graffiti's existence, but downplay its seriousness or view it as everyday Israeli high jinks.
Everything else can be denied. It can always be said that photographs of civilians killed were fabricated. The Palestinians' accounts can be dismissed as lies, intrigues of Hamas, embellishment or, at best, facts taken out of context since Gazans are, after all, afraid of what Hamas would do to them if they told the truth.
Jurists will argue over the meaning of international law and will suggest contradicting analyses. Politicians will justifiably note that the United States does not have commissions of inquiry thrust upon it by the United Nations. Others will say that if Judge Richard Goldstone was reliable enough to be a prosecutor in the International Criminal Court cases on Yugoslavia and Rwanda, and his Pakistani colleague Hina Jilani was fit to participate in the international investigation into Darfur, there is no reason to suddenly cast doubt on their credentials now that they are examining Israel's deeds in Gaza. The Goldstone Commission's findings are in line with what anyone who didn't shut his or her eyes and ears to witness testimony already knows.
B'Tselem, Breaking the Silence, the Public Committee Against Torture in Israel, Amnesty International, Human Rights Watch, Haaretz and the international media - to Israelis, these have all fallen into the trash bin of the mendacious Palestinians. In the best case, they have become trapped in their own pure-hearted naivete, and in the worst, into collaborating with efforts to besmirch Israel and bolster prejudices against it. Like the Serbs of yore, we Israelis continue thinking it's the world that is wrong, and only we who are right.
Israel struck a civilian population that remains under its control, it didn't fulfill its obligation to distinguish between civilians and militants and used military force disproportionate with the tangible threat to its own civilians. Air Force drones and helicopters fired deadly missiles at civilians, many of them children; the Tank Corps and Navy shelled civilian neighborhoods with weapons not designed for precision strikes; soldiers received orders to fire on rescue crews; others fired on civilians carrying white flags; and others killed people in or near their homes. Troops used Gazans as human shields, soldiers detained civilians in abusive conditions, the army used white phosphorus shells in dense civilian areas and, on the eve of withdrawing, destroyed wide residential, industrial and agricultural areas.
There is only thing worse than denial - the admission that the IDF indeed acted as has been described, but that these actions are both normal and appropriate.
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The New York Times
Justice in Gaza
RICHARD GOLDSTONE, September 17 2009
I ACCEPTED with hesitation my United Nations mandate to investigate alleged violations of the laws of war and international human rights during Israel's three-week war in Gaza last winter. The issue is deeply charged and politically loaded. I accepted because the mandate of the mission was to look at all parties: Israel; Hamas, which controls Gaza; and other armed Palestinian groups. I accepted because my fellow commissioners are professionals committed to an objective, fact-based investigation.
But above all, I accepted because I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm.
In the fighting in Gaza, all sides flouted that fundamental principle. Many civilians unnecessarily died and even more were seriously hurt. In Israel, three civilians were killed and hundreds wounded by rockets from Gaza fired by Hamas and other groups. Two Palestinian girls also lost their lives when these rockets misfired.
In Gaza, hundreds of civilians died. They died from disproportionate attacks on legitimate military targets and from attacks on hospitals and other civilian structures. They died from precision weapons like missiles from aerial drones as well as from heavy artillery. Repeatedly, the Israel Defense Forces failed to adequately distinguish between combatants and civilians, as the laws of war strictly require.
Israel is correct that identifying combatants in a heavily populated area is difficult, and that Hamas fighters at times mixed and mingled with civilians. But that reality did not lift Israel's obligation to take all feasible measures to minimize harm to civilians.
Our fact-finding team found that in many cases Israel could have done much more to spare civilians without sacrificing its stated and legitimate military aims. It should have refrained from attacking clearly civilian buildings, and from actions that might have resulted in a military advantage but at the cost of too many civilian lives. In these cases, Israel must investigate, and Hamas is obliged to do the same. They must examine what happened and appropriately punish any soldier or commander found to have violated the law.
Unfortunately, both Israel and Hamas have dismal records of investigating their own forces. I am unaware of any case where a Hamas fighter was punished for deliberately shooting a rocket into a civilian area in Israel — on the contrary, Hamas leaders repeatedly praise such acts. While Israel has begun investigations into alleged violations by its forces in the Gaza conflict, they are unlikely to be serious and objective.
Absent credible local investigations, the international community has a role to play. If justice for civilian victims cannot be obtained through local authorities, then foreign governments must act. There are various mechanisms through which to pursue international justice. The International Criminal Court and the exercise of universal jurisdiction by other countries against violators of the Geneva Conventions are among them. But they all share one overarching aim: to hold accountable those who violate the laws of war. They are built on the premise that abusive fighters and their commanders can face justice, even if their government or ruling authority is not willing to take that step.
Pursuing justice in this case is essential because no state or armed group should be above the law. Western governments in particular face a challenge because they have pushed for accountability in places like Darfur, but now must do the same with Israel, an ally and a democratic state.
Failing to pursue justice for serious violations during the fighting will have a deeply corrosive effect on international justice, and reveal an unacceptable hypocrisy. As a service to the hundreds of civilians who needlessly died and for the equal application of international justice, the perpetrators of serious violations must be held to account.
Richard Goldstone, the former chief prosecutor for war-crime tribunals on Rwanda and the former Yugoslavia, is the head of the United Nations Fact-Finding Mission on the Gaza Conflict. http://www.nytimes.com/2009/09/17/opinion/17goldstone.html?_r=1&ref=opinion