Why The Goldstone Report Matters

"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 Aftica's Constitutional
Court, the first prosecutor at The Hague on behalf of the International
Criminal Court for Former Yugoslavia, 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 what
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 supposedly
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 bullsye!

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 Israelis 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.