4 April 2011, by
In the wake of a monumental victory in the human rights community to move the Goldstone Report out of the Human Rights Council (HRC) to the General Assembly where it can be underpinned by actionable follow up, Justice Richard Goldstone’s recent editorial makes some human rights practitioners wish it had been left to languish in the HRC.
Goldstone sought to do two things in his op-ed: to amend the record by stating that Israel’s attacks may not have been deliberate and second, to emphasise Hamas’s culpability under the laws of war. In the best case scenario, Goldstone’s intervention is a problematic attempt to cajole Israel to participate in the international process for accountability.
However, even in that case, the editorial is counterproductive, short-sighted, and casts Goldstone’s attempts as no less than curious.
Just last week, I had the chance to speak to Goldstone at Stanford Law School where I participated in a debate on the report featuring him as a discussant.
Goldstone seemed struck by recent revelations made in Israel’s investigation of itself that its murder of 29 civilians in the Sammouni home, where approximately 120 civilians had taken refuge, was the result of negligence and not a deliberate attack.
He emphasised that had Israel participated in the investigatory process rather than boycott it, it would have been able to contest the mission’s findings before the report’s release thereby correcting its alleged bias.
He echoes this sentiment in his op-ed where he writes:
I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.
Goldstone should have known better: on the one hand, he accepts Israel’s investigatory findings at face value notwithstanding the Independent Committee of Experts’ conclusions that they are structurally flawed and unlikely to yield effective measures of accountability and justice.
Second, and perhaps more importantly, Goldstone takes for granted that Israel preemptively rejected the report precisely because the mission treated Hamas evenhandedly rather than dismiss it as a terrorist organisation whose annihilation is justified by any means necessary.
That is why it should come as no surprise that rather than respond to his proclamations with a renewed faith in international legal mechanisms, Israel’s staunchest allies are opportunistically characterising Goldstone’s editorial as an attitudinal shift towards Israel in the West while its prime minister has called on the UN to retract the report all together.
The Goldstone Report documents eleven incidents where the Israeli military directly targeted civilians. Four other fact-finding missions underscore these findings: Human Rights Watch, Amnesty International, Physicians for Human Rights-Israel, and the National Lawyers Guild.
’No humanitarian consideration’
In a report conducted by Israeli war veterans, 26 Israeli soldiers who participated in the Operation confirm that there were no clear rules of engagement.
One soldier laments:
There was a clear feeling that no humanitarian consideration played any role in the army at present. The goal was to carry out an operation with the least possible casualties for the army, without its even asking itself what the price would be for the other side.
Together, the four investigations and the soldiers’ testimonies, demonstrates an Israeli policy of targeting of civilians and/or negligent behaviour that amounts to the direct targeting of civilians according to Article 51 of the First Additional Protocol.
This comports with a policy adopted by Israel since 2006, known as the Dahiyeh Doctrine. As captured by the Goldstone Report itself, according to Major General Gadi Eiskenot:
What happened in the Dahiya quarter of Beirut in 2006 will happen in every village from which Israel is fired on. We will apply disproportionate force on it and cause great damage and destruction there. From our perspective, these are not civilian villages, they are military bases.
Israel’s perspective however is not what matters - according to the twin linchpins of humanitarian law, namely the principles of distinction and proportionality, civilian villages are not to be targeted, are to be protected, and are to be spared excessive loss unless they directly partake in the hostilities.
Arguably therefore, no mission could have written a report to Israel’s liking unless it accepted this perversion of humanitarian law casting villages as bases.
In fact, after the report’s dissemination, Prime Minister Netanyahu requested "the facilitating of an international initiative to change the laws of war in keeping with the spread of terrorism throughout the world".
Accordingly, Goldstone’s painstaking efforts to highlight Hamas’s culpability, which he already makes plain in paragraph 108 of the report, are futile because the controversy has not been over the report’s inequitable application of the law but rather over Israel’s insistence that it should be freed from the laws’ restraints in order to have its way with its "terrorist" adversaries.
Goldstone also miscalculates the value of Israel’s domestic investigations.
To date, the Independent Committee of Experts, chaired by New York Judge Mary McGowan Davis, has reviewed the domestic investigations process twice, and both times it found Israel’s investigations to be inadequate.
Whereas Goldstone applauds Israel for "dedicating significant resources to investigating 400 incidents of operational misconduct", he does not mention the rest of the committee’s findings.
’No’ Israeli investigatory initiative
In particular, it took issue with the fact that "there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead".
The committee goes onto note that "more than one-third of the 36 incidents in Gaza are still unresolved or unclear. [And] Finally, the Committee is concerned about the fact that the duration of the ongoing investigations into the allegations contained in the FFM report - over two years since the end of the Gaza operation - could seriously impair their effectiveness and, therefore, the prospects of ultimately achieving accountability and justice".
In light of these conclusions, it is perplexing that Goldstone would accept Israel’s assertion that its attack on the Sammouni home was a regrettable act of negligence by those commanders "making difficult battlefield decisions". Consider also that this is the home where emaciated children were rescued four days after the attack because Israel prevented access to the Red Cross.
What kind of remorseful military commander negligently orders an air strike on a home full of civilians and then prevents humanitarian relief to its victims for four days? At most, Israel’s conflicting investigatory findings should have buttressed the report’s recommendation for an international judicial enquiry.
Perhaps Goldstone sincerely believes that Israel’s boycott of the mission was a function of remedial short-sightedness. Arguably then, his willingness to overlook a compelling record is an effort to lure Israel to the table of multilateral reconciliation.
In fact, his endorsement of “applying international law to protracted and deadly conflicts” for the sake of making warfare more humane indicates his enduring faith in the mission’s mandate as well as the need for accountability, rather than a disavowal of the report and the exoneration of Israel for its alleged crimes.
If this is indeed the case, the Justice exercised excessive good faith and poor judgement to believe that Israel would accept his gesture as an opportunity to reconcile with the UN-investigatory process, rather than cast the final blow against the report and the HRC.
Regardless of what may have been his best intentions, Goldstone has negligently, one hopes not deliberately, undermined the laws of armed conflict and emboldened those states, like Israel, who believe that it is a surmountable nuisance.