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UN Fact-Finding Mission releases its Report on the Gaza Conflict

The Report of the UN Fact-Finding Mission on the Gaza Conflict headed by Justice Richard Goldstone was released on 15 September 2009 together with a set of recommendations by the mission’s experts for the way forward in bringing justice to victims and perpetrators to justice (our previous coverage of the fact-finding mission’s work can be found here). The report concludes that there is strong 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. It also concludes that there is 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.

Not apart from its conclusions with regard to the violations of jus in bello in the conduct of specific attacks throughout the war, the Report also notes, concerning the justification of the war itself, that ““While the Israeli Government has sought to portray its operations as essentially a response to rocket attacks in the exercise of its right to self defence, the Mission considers the plan to have been directed, at least in part, at a different target: the people of Gaza as a whole.” This is a particularly consequential conclusion as far as the interaction between jus ad bellum and in bello are concerned and the (rather theoretical) debate that has gone on about the effect of the violation of one, namely jus ad bellum, upon the variation of the normative threshold for the violation of a rule of jus in bello (see this article in the recent issue of the IRRC, inter alia).

From a methodological viewpoint, the report is based on an impressive extent of ground-work and research conducted by the mission itself and the diverse group of individuals and bodies who contributed to its work. The 574-page report contains detailed analysis of 36 specific incidents in Gaza, as well as a number of others in the West Bank and Israel, namely on the grave violations of the freedom of expression and the numerous arrests and violence of police forces towards protesters. Notably, 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.

Remarkably, Israel’s conduct before, during and after the Gaza conflict reflected a clear lack of readiness to cooperate or facilitate the work of independent bodies who have come from outside in order to either supervise or conduct separate investigations of the war. A statement made by Israeli NGOs immediately following the release of the report notes that “the organizations have written to Israel’s Attorney General to demand that he establish such an independent body to investigate the military’s activities during “Cast Lead”, but he rejected their request.” Furthermore, the UN press release notes that “[the mission’s] 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.” Non-cooperation on behalf of Israel is unquestionably one of the major impediments to the achievement of justice in this post-conflict climate, as much as it has been during the 42 year long occupation of the Palestinian territories.

In this light, it should be recalled that a crucial question, which has arisen many a time, is whether a national investigation would, in the eyes of the law, suffice to fulfill the obligation to investigate and prosecute individuals allegedly responsible for violations of international humanitarian law. In fact, the Israeli government’s conduct proves that it would be incredibly difficult to adhere to an interpretation of the law that would be satisfied with such an approach. Israel has conducted itself in a self-assured manner by upholding unequivocally that it has not erred and therefore it does not need to account for its conduct to any other state, non-state or international body. “Although the report addresses all sides of the conflict, its overwhelming focus is on the actions of Israel,” spokesman Ian Kelly of the Israeli State Department told reporters. With a death toll of roughly 1400 (1000 civilian) Palestinians to 13 (3 civilian) Israelis, wouldn’t it make sense to focus on the actions of the side responsible for the most killing?! This clearly does not go to say that the actions of the Hamas should be sidestepped or mitigated in any way.

In the same tone, following the release of the Report, the Israeli government has commenced a ‘diplomatic war’ over what it sees as a biased UN Gaza report. Firstly, the day after the Report was released  the Israeli government took active steps to prevent the report from being brought before the UN Security Council and from there to the International Criminal Court in The Hague. The plan is that Netanyahu, Lieberman, President Shimon Peres and Defense Minister Ehud Barak will telephone many of their counterparts around the world. They will stress that the Goldstone report is one-sided, that it rewards terrorism and that it sets a precedent which will make it difficult for any country in the world to defend itself against terror (See the news article in Haaretz).

Concurrently, the Israeli Ministry of Foreign Affairs launched a new website on ‘Gaza Facts-The Israeli Perspective’ a day before the report was officially released. This account presents a number of the main arguments of the state with regard to the background to the conflict, the operation itself and the legal framework for the use of force, legal and operative issues concerning civilians, the applicable law and the investigations conducted by the Israeli system. Some of these criticisms with regard to the bias of the report have even brought the daughter of Justice Goldstone to state in an interview with the Israeli Army radio that her father’s direction of the mission “wasn’t easy [for him],” Nicole Goldstone said. “My father did not expect to see and hear what he saw and heard.”

Soon after, Justice Goldstone’s reactions to the effects of the publication of the Report were published in the New York Times. There, he notes inter alia, that “[t]he 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.” Moreover, he emphasizes that “[a]bsent 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.”

There is sufficient precedent to prove that Israel’s comportment during the Gaza conflict has been, in the case of the Gaza conflict as in many others, below any standard of transparency. It has exemplified great reluctance in opening investigations on alleged military misconduct of particular incidents, and proceeded rashly to abrogate and deny the actual violation of any laws of war (nothing beyond a ‘bad apples’ approach to specific so-called ‘mistakes’ or ‘miscalculations’ that had taken place in the heat of the moment). In such a reality, as Palestinian human rights NGOs stress, there is nothing more to demand but for States’ adherence to their responsibility to the victims of these atrocities and to the rule of law, which requires that they “re-evaluate their relationship with Israel; normal relations cannot be conducted with States that have committed and continue to commit serious violations of international human rights and humanitarian law, including crimes against humanity… [and] exert real pressure on Israel to ensure its compliance with international law.”

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