SOURANI & MACHOVER: Accountability for war crimes remains the priority after Goldstone’s ‘rethink’ 6Apr11 April 8, 2011

by Raji Sourani and Daniel Machover  -  Foreign Policy -  6 April 2011

An April 1 article in the Washington Post by Justice Richard Goldstone has generated massive comment across the internet and the media. The focus of this debate, however, is misguided, concentrating on political considerations, perceived bias, and the overall legitimacy of the ‘Goldstone report’ itself. In fact, for the most part, current debate has ignored the content of the op-ed itself, which speaks of one specific element of the report, the intentional targeting of civilians, and leaves unchallenged the remainder of the Fact-Finding Mission’s findings.

The correct question now is whether Justice Goldstone’s ‘reconsideration’ of one finding in  the September 2009 UN Fact-Finding Mission Report (UNFFM) into the December 2008-January 2009 conflict in Gaza and Israel that he chaired affects the recommendations in the March 21 resolution by the UN Human Rights Council (UNHRC), including the proposed Security Council referral of those events to the International Criminal Court.

It was the focus on criminal accountability, with clear recommendations to involve the International Criminal Court (§1969) and for national courts to exercise universal jurisdiction over suspects (§1975), which was notable about the UNFFM Report. Indeed, it is this focus that has generated significant controversy in political circles notwithstanding the clear requirements of international law.

The Israeli government is reportedly “planning to launch an international campaign to persuade the United Nations to retract” the report. While the timing of Justice Goldstone’s opinion piece is fortuitous for the Israeli government, nothing in it provides the basis for any UN body to ‘retract’ the report or ignore the UNHRC’s resolutions.

In fact, Justice Goldstone’s April 1 op-ed does not comment on the report’s substantive findings. Serious allegations of international crimes, in particular the choice of targets, widespread indiscriminate attacks, and the systematic destruction of civilian property are raised by the UNFFM and highlighted by Justice Goldstone in the Jerusalem Post in September 2009. In his recent op-ed, the judge has not ‘reconsidered’ any of these findings. More to the point, Israel has failed to investigate these allegations.

Justice Goldstone was right in his op-ed to express concern about double standards vis-à-vis the UN’s reaction to varying conflicts around the world. This record undermines the pursuit of human rights. We too would like to see the UN investigate conflicts that result in significant loss of civilian life, be they in Sri Lanka, Ivory Coast, Bahrain, or the Gaza Strip. While the Human Rights Council has not been consistent in this regard, this is a negative trend that thankfully appears to be reversing.

What is required is the equal application of the law. The speedy referral of Libya to the ICC contrasts starkly with the Security Council’s failure even to debate the question of an Israel/Palestine referral. The history of bias in favor of Israel at the UNSC significantly degrades the concept of universal justice and civilians’ faith in the rule of international law. Given the key role of the UNSC, this preferential treatment for Israel and other close allies of veto-holding members needs to be addressed more urgently than bias within other UN organs.

Sadly, representatives of the victims, and the international community as a whole, do not know much more now regarding the war crimes allegedly committed by the IDF than two years ago. What we do know with absolute certainty, however, is that over two years since Operation Cast Lead, one Israeli soldier has served 7.5 months in jail for the theft of a credit card and two others received three-month suspended sentences for using a child as a human shield. We also know that over 1,400 individuals were killed, the overwhelming majority of whom were civilians, including upwards of 300 children. Yet these three convictions, and the ongoing trial of a fourth soldier, have been the only concrete judicial outcomes from Israeli investigations. The majority of those investigations have been closed upon reaching the IDF’s apparently preordained conclusion that: “[t]hroughout the fighting in Gaza, the IDF operated in accordance with international law.”

Due to both a lack of political will and inherent structural flaws, the Israeli military and judicial systems are collectively incapable of conducting effective investigations into such alleged crimes. Numerous international and national human rights organisations, including Amnesty International, Human Rights Watch, B’Tselem and the Palestinian Centre for Human Rights have reached a similar conclusion. Indeed, the UN Committee of Independent Experts mandated to monitor Israel and the Palestinians’ domestic investigations, highlighted this incapacity on the part of the Israeli investigative system, noting that “there is no indication that Israel has opened investigations into those who designed, planned, ordered and oversaw ‘Operation Cast Lead’”.

Crimes committed by both sides have not been subject to any effective independent, let alone judicial, scrutiny. The allegation that both sides launched indiscriminate attacks and directly targeted civilians cannot be dismissed on the basis of any evidence presented to-date. Consequently, Justice Goldstone’s apparent re-evaluation, made on the basis of Israeli reports regarding the attacks on the Samouni family, appears bizarre from an objective legal standpoint; as recognised by the Committee of Experts, such Israeli reports emanate from inherently flawed investigative procedures, while no relevant evidence or information has been communicated to the legal representatives of the victims. To the contrary, strong evidence on the ground supports both those findings, and there has been no judicial scrutiny capable of disproving this (or any other) initial finding. There is thus no basis to retract the UNFFM report or any part of it — a fact apparently since acknowledged by Justice Goldstone.

Effective scrutiny must become the priority. It has been proven that this is impossible domestically. The ICC is undoubtedly now the appropriate forum to investigate these cases and, if the evidence exists, to put named suspects on trial for specific offences.

The equal application of the law is the very least that victims on both sides deserve. Justice Goldstone will hopefully join the call of the Human Rights Council, supported by human rights NGOs globally, in asking the Security Council to refer the situation in Israel and the Occupied Palestinian Territory to the ICC. All parties to the events in the region must be held to universal standards so that the law proves capable of protecting civilians from future atrocities. Victims of past crimes also need to finally achieve accountability and justice.

Raji Sourani is director of the Palestinian Centre for Human Rights which is located in Gaza. He is the recipient of the Robert F. Kennedy award for human rights and was twice named as an Amnesty International prisoner of conscience. Daniel Machover is a lawyer with London firm Hickman and Rose, specializing in international human rights law. He co-founded Lawyers for Palestinian Human Rights in 1988.

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