|
... more
Reconsidering the Goldstone Report on Israel and War Crimes
We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.
The final report by the U.N. committee of independent experts -- chaired by former New York judge Mary McGowan Davis -- that followed up on the recommendations of the Goldstone Report has found that "Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza" while "the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel."
Our report found evidence of potential war crimes and "possibly crimes against humanity" by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying -- its rockets were purposefully and indiscriminately aimed at civilian targets.
The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee's report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander's erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
While I welcome Israel's investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel's inquiries have been concluded and believe that the proceedings should have been held in a public forum. Although the Israeli evidence that has emerged since publication of our report doesn't negate the tragic loss of civilian life, 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.
Israel's lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military's numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).
As I indicated from the very beginning, I would have welcomed Israel's cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.
Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government. Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.
Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.
In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.
I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous "lessons learned" and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas. The Palestinian Authority established an independent inquiry into our allegations of human rights abuses -- assassinations, torture and illegal detentions -- perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.
Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.
The writer, a retired justice of the Constitutional Court of South Africa and former chief prosecutor of the U.N. International Criminal Tribunals for the former Yugoslavia and Rwanda, chaired the U.N. fact-finding mission on the Gaza conflict.
[ Published: April 1, 2011 ]
In Depth Analysis
Where is Palestine?
Where, exactly, might another Palestinian state arise? "Another," because Jordan, constituting two-thirds of Mandatory Palestine, with a "Palestinian" majority population, already is a de facto Palestinian state. And although several international documents clearly state the boundaries of Israel, Netanyahu seems more than happy to change them and give land to Israel's sworn enemies.
Israeli Attack on Iran Won't Follow the American Script
Since Israel's exact capabilities are known only to a handful of senior government officials, it's impossible to predict exactly what an Israeli strike against Iran would look like. But based on past experience, one can confidently predict that it won't resemble the US blueprint. Israel is quite capable of dealing with situations with its limited resources and without provoking massive retaliation.
Is the Peace Treaty Between Israel and Egypt Finished?
The deterioration in relations between Israel and Egypt should serve as a reminder to all that the new generation in the Arab world is not marching toward moderation, particularly when it comes to making peace with Israel or even recognizing its right to exist.
Emet Blog
Benzion Netanyahu and the All Important UN Clause to Save the Jewish State
Benzion Netanyahu, (father of the current Israeli prime minister) who recently died in Jerusalem at the age of 102, along with Irgun activist Peter Bergson (nephew of Mandatory Palestine Chief Rabbi Abraham Isaac Kook), and liberal US Rabbi Stephen S. Wise, drafted an article for inclusion in the United Nations Charter that could yet save the Jewish state. Benzion helped to write the fundamental principle of Zionism — the right of Jewish settlement throughout the Land of Israel — into the United Nations Charter.
Bin Laden Lessons for Israel
The US assassinated bin Laden, tried to kill Hitler, and also hunted and eliminated Saddam Hussein, yet nobody said a word. For every targeted elimination carried out by Israel, it was hit with numerous condemnations and protests, yet the daily US surgical strikes in Yemen, Afghanistan, Pakistan, Libya, and Iraq are met with silence. Every time Israel unintentionally harm civilians, the world raises a hue and cry, yet if it happens in Libya, Iraq, Serbia, or Kosovo nobody protests.
Murder at Tomb Illustrates the Future of Jewish Holy Sites in a Palestinian State
On April 24, 2011 Jewish worshipers at Joseph's Tomb were attacked by members of the US-trained PA/PLO police. One person was murdered and several others wounded. Rather than keep the peace and root out the terrorists who are a threat to the safety of both Jews and Arabs, the PA/PLO police have yet again proven themselves to be a group that is willing to commit acts of terrorism themselves. And this is not the first time they have done this at Joseph's Tomb.
Views/Commentary
Those Contradictory Militants
The mainstream media, politicians, and others, prefer to use the term "militant" instead of "terrorist," especially in the case of the Israeli-Arab conflict. Doing so fulfills many different agendas, in addition to furthering the user's cause. Whatever the case may be, the usage generally distorts the story and causes confusion for the reader, which many times is its exact intention. As with much post-1970s journalism, the longer news media use such language, the less they sound like journalists and the more they are heard as political partisans.
Who Will Teach Tolerance to the Muslims?
There was a time when police officers told battered wives that they had to be more understanding of their husbands. Today they tell Americans to be more understanding of Muslims. They do work hard you know. And if they try to car bomb you sometimes, maybe it's because you don't please them anymore.
But There is a G‑d in Israel
The Jewish exiles shall be ingathered only through faith. If they have it, if they truly believe in the existence of the Creator and Guider of history, the G‑d of Israel, they can bring the final redemption today. Far from fearing what the Gentile will do if they do such a thing, let the Jew tremble as he considers the anger of the Almighty if he does not.
Selected Reading
Reconciliation (Unity) Agreement Between Fatah and Hamas
Under the auspices of Egypt, delegations from the Fatah and Hamas terrorist groups met in Cairo on April 27, 2011 to discuss the issues concerning ending the political division and the achievement of national unity. Both political parties mutually agreed that the basis of understanding made during the meeting are committing to both parties in the implementation of the Palestinian National Reconciliation Agreement. This is the basis of understanding agreed upon by Fatah and Hamas.
The Arab Pulse: What Policymakers Can Learn From "Palestinian" Social Media 
The Foundation for Defense of Democracies (FDD) has released the first-ever study mining the Arabic-language "Palestinian" social media environment to determine Arab public sentiment and its potential impact on US foreign policy. At FDD's direction, the Washington, D.C.-based Web analysis company Constrat viewed approximately 10,000 Arab social media entries between May 3 and August 3, 2010, of which it analyzed approximately 20 percent for relevancy. In the end, the company analyzed 1,788 statements contained within 1,114 unique posts across 996 threads written by 699 authors.
Why Is Israel's Presence in the Territories Still Called "Occupation"?
When an armed force holds territory beyond its own national borders, the term "occupation" is usually used to describe its holding on the land. However, not all the factual situations that we commonly think of as "occupation" fall within the limited scope of the term "occupation" as defined in international law.
Commentaries, Documents, Booklets, and Miscellaneous Materials Relating to the Gaza Strip
These commentaries, documentation, and booklets provide much otherwise unknown information regarding the truth ("emet") about what is really happening in the Arab-occupied/Hamas-controlled Gaza area. Included are weekly and monthly summaries of humanitarian assistance, as well as the infamous Goldstone Report, Israel-related United Nations Resolutions, and miscellaneous materials providing information and analysis of the situation in Gaza.
The History and Meaning of "Palestine" and "Palestinians"
Palestine has never existed . . . as an autonomous entity. There is no language known as Palestinian. There is no distinct Palestinian culture. There has never been a land known as Palestine governed by Palestinians. Palestinians are Arabs. PDF Format