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Richard Falk
Richard Falk
Richard Falk is the United Nations Special Rapporteur on Palestinian human rights.
Goldstone breathes new life into Gaza report
The Goldstone Report fails to justly present the facts about Israel's war crimes in Gaza.
Last Modified: 20 Apr 2011 14:21
Critics say the Goldstone Report's emphasis on Hamas violations of international humanitarian law in Gaza unfairly compares war crimes by Palestinians to those of Israel [EPA]

Ever since it first struck the raw nerve of Israeli political consciousness, I thought it misleading to associate the Goldstone Report so exclusively with its chair, Judge Richard Goldstone. After all, despite his deserved prominence as an international jurist, he was the least substantively qualified of the four members of the mission.

Part of the intensely hostile Israeli reaction undoubtedly had to do with the sense that Goldstone - a devoted Zionist - had been guilty of betrayal. Perhaps even the betrayal of 'a blood libel,' because he seemed to be elevating his fidelity to the 'law' above tribal loyalties; he should never have been mixed up with such a suspect entity as the UN Human Rights Council in the first place.

What should be observed - and what stands out over time - is the degree of importance that even the extremist Israeli leadership attaches to avoiding stains on its reputation as a law-abiding political actor. This seems true even when the assessing organisation is the UN Human Rights Council, which Israel, as well as the US government, never misses a chance to denounce and defame.

Implicit in their fury is a silent acknowledgement that the UN is a major site of struggle in the ongoing war of legitimacy being fought against Palestinian claims of self-determination.

This assessment was embarrassingly confirmed by the US senate's reaction to the Goldstone retreat. The senate unanimously passed a resolution on April 14 calling on the UN "to reflect the author's repudiation of the Goldstone report's central findings, rescind the report, and reconsider further council actions with respect to its findings." It also called on the UN secretary general, Ban Ki-moon, "to do all in his power to redress the damage to Israel's reputation."

This ill-informed and inflammatory wording is quite extraordinary, starting with the reference to Goldstone as 'the author' of the report, thereby overlooking the reality that it was a joint effort. His input was probably the smallest, and the other authors have reaffirmed their support for the entire report.

What is revealed by this senate initiative is the degree of partisanship now present in official Washington, which should - at the very least - lead the Palestinian Authority to seek venues for future negotiations with Israel other than those provided by the US government.

It is probably true that, if Goldstone had not been so vilified for his association with the report, it would have experienced the same fate as thousands of other well-documented UN reports on controversial issues. By lending his name to the fact-finding mission and its outcome, Goldstone became the lightning rod - and the target of vicious attacks.

But he was also heralded at the time by fair-minded persons around the world for his integrity in the face of such hostile fire. In this regard, Goldstone became the sacrificial scarecrow; he failed in his appointed role of keeping the birds of prey at a safe distance.

Studies and Israel's premeditation

There is a double irony present: Goldstone was partly selected to head this sensitive undertaking because, as a known supporter of Israel, he would make it harder for Israel to complain about bias. Yet - precisely because of the difficulty Goldstone's credibility posed for Israel's propaganda machine - the level of attack on him reached hysterical heights, and exerted such intense pressure that he eventually retreated.

Two other aspects of the situation are often neglected or misstated. First of all, several other respected international studies had already confirmed most of the conclusions reached before the Goldstone Report was released in September 2009. Other prior reports highlighting the international law issues were published by Human Rights Watch, Amnesty International, B’Tselem, Al Haq, and especially the comprehensive report of an earlier detailed and authoritative fact-finding team. The team was composed of internationally respected international law experts under the leadership of John Dugard, a leading South African jurist and former UN special rapporteur for Occupied Palestine; its work was carried out on behalf of the Arab League.

Against such a background, in a substantive sense, the Goldstone Report did not say anything that had not already been established by a community of NGOs, journalists, UN humanitarian workers and civilians who were on the scene during the attacks. Such an overwhelming and informed consensus is what makes mockery of the effort by the US state department and the senate to repudiate the report.

The second element that should be kept in mind, but is rarely ever acknowledged even by those who stand 100 per cent behind the report, is that it was not - as the media claimed - unduly critical of Israel. On the contrary, in my view, the report was one-sided - but to the benefit of Israel.

Let me mention several evidences of leaning toward Israel: the report proceeds on the basis of Israel's right to self-defense. It does not bother to decide whether, in a situation of continuing occupation, a claim of self-defense is available under international humanitarian law. Furthermore, the report did not examine whether the factual conditions prior to the attacks supported even modest Israeli security claims - considering that a truce had been working until Israel provocatively broke it on November 4, 2008 by conducting a lethal attack within Gaza.

Beyond this, the claimed security justification seemed artificially fashioned to serve as a rationalisation for an aggressive and unlawful all-out military assault against Gaza. The assault sought to destroy Hamas; induce the return of the captured Israeli soldier Gilad Shalit; and punish Gazans for voting for Hamas back in 2006.

In addition, there was evidence that the Israeli army had been planning Operation Cast Lead for six months prior to launching the attack on December 27, 2008. There were a variety of justifications aside from securing southern Israel: striking at Gaza before Obama took office; influencing - in Kadima's favor - the Israeli domestic elections that were about to take place; restoring confidence in the army after its failures in the Lebanon war of 2006; and sending a message to Iran that Israel would not hesitate to use overwhelming force whenever its interests dictated.

Mortalities and scars of war

The Goldstone Report did appropriately emphasise the severe Israeli departures from the law of war by attacking with disproportionate and indiscriminate force against a crowded, mainly urbanised society. But it failed to emphasise a distinctive feature of the attacks: that Israel denied the civilian population of Gaza the option to leave the war zone and become refugees, at least temporarily.

To keep civilians - especially children, the elderly, and the disabled - so confined leaves permanent psychic wounds, as has been reported by many post-attack studies and residents of Gaza. Aside from the psychiatric casualty, the casualty figures that count the dead and the wounded must also be considered: part of the public horror of Operation Cast Lead resulted from the 100:1 ratio of war dead, a measure which further casts light on the defenseless of the Gazan population. At the same time, it dramatically understated the real losses to the Palestinians.

If the psychologically damaged are added to the Palestinian total and the friendly-fire victims are subtracted from the Israeli side, reducing their total deaths from thirteen to six or seven, the ratio becomes more grotesquely one-sided.

In view of this one-sidedness, together with Israel's initiation of the attacks and its role as the occupying power, the report gave excessive emphasis to Hamas violations of international humanitarian law, which should have been noted, but not treated (as was the case) as virtually symmetrical with those of Israel.

As has been pointed out in the media, including by Goldstone, his retraction was limited to the admittedly important issue of whether Israel intentionally targeted civilians as a matter of policy. Even this limited retraction is unconvincing because it rests so heavily on Israel's self-investigations, which the post-Goldstone UN fact-finding mission jointly headed by an American judge, Mary McGowan Davis and the Swedish judge, Lennart Aspergen, found in their recent report failed to meet international standards. As mentioned previously, the retraction by Goldstone was also seriously undermined by the joint statement of the three other members of the Goldstone mission who publically reaffirmed the report in its totality.

Only half satirically, I would think that the Goldstone Report might be better rechristened now as the Chinkin Report or blandly become known as the 'Report on Israeli and Hamas War Crimes during Operation Cast Lead.'

Whatever the name, the main allegations have been confirmed over and over again, and it is now up to the governments making up the UN General Assembly and Security Council to show the world whether international criminal accountability and the International Criminal Court is exclusively reserved for sub-Saharan African wrongdoing!

Goldstone defined

Many have asked whether the Goldstone retraction will doom the future of the report. In my view, rather than performing a funeral rite, Goldstone miscalculated; he has given the report a second life. It may still languish in the UN system, thanks to the geopolitical leverage being exerted by the United States to ensure that Israeli impunity is safeguarded once more. But this new controversy surrounding the report has provided civil society with renewed energy to push harder on the legitimacy agenda which is animating the growing Palestinian solidarity movement.

Never before has the Goldstone Report received such affirming attention even from American mainstream sources. Astonishingly, even the New York Times columnist Roger Cohen chided Goldstone for trying belatedly to distance himself from the report, going so far as to suggest that he is responsible for a new verb: 'to Goldstone'.

"Its meaning: to make a finding, and then partially retract it for uncertain motive." Cohen’s formal definition - "to 'Goldstone': (Colloq.) To sow confusion, hide a secret, create havoc."

History has funny ways of reversing expectations. Just as most of the world was ready to forget the allegations against Israel from the ghastly 2008-09 attacks on Gaza and move on, Richard Goldstone inadvertently wakes us all up to a remembrance of those morbid events, and in the process, does irreparable damage to his own reputation.

It is up to persons of conscience to seize this opportunity, and press hard for a more even handed approach to the application of the rule of law in world politics. There is much righteous talk these days at the UN and elsewhere about the 'responsibility to protect,' contending that the Qaddafi threats directed at Libyan civilians justified a No Fly Zone and a full-fledged military intervention from the air undertaken with UN blessings and NATO bombs and missiles. But, not even a whisper of support was provided for the still beleaguered people of Gaza with a No Fly Zone, despite a debilitating unlawful blockade that has lasted almost four years - a severe form of collective punishment that directly violates Article 33 of the Fourth Geneva Convention.

This blockade continues to block the entry of building materials needed in Gaza to recover from the devastation caused more than two years ago.

Richard Falk is Albert G. Milbank Professor Emeritus of International Law at Princeton University and Visiting Distinguished Professor in Global and International Studies at the University of California, Santa Barbara. He has authored and edited numerous publications spanning a period of five decades, most recently editing the volume International Law and the Third World: Reshaping Justice (Routledge, 2008).

He is currently serving his third year of a six year term as a United Nations Special Rapporteur on Palestinian human rights.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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