Review Roundtable Part II: Goldstone and Accountability

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May 13, 2011 Palestine-Israel
Review Roundtable Part II: Goldstone and Accountability

Review Roundtable Part II: Goldstone and Accountability

By : Noura Erakat

On December 27, 2008, Israel began aerial strikes on the Gaza Strip, home to 1.5 million Palestinians, three-quarters of whom are refugees, who could not, because of Gaza’s sealed borders, become refugees of war. Within a week, amidst the rubble of hospitals, mosques, government ministries, factories, and schools, Israel initiated a ground offensive that no more distinguished between civilians and combatants than did its “smart” bombs. On the fourteenth day of the offensive, in the run up to a buoyant inauguration for the United States’ first African-American President, the House of Representatives passed Resolution 34 “[r]ecognizing Israel`s right to defend itself against attacks from Gaza, reaffirming the United States` strong support for Israel, and supporting the Israeli-Palestinian peace process.” And so the offensive continued. By its close on January 18, 2009, nearly 1,400 Palestinians had been killed, no less than 400 of them children.

Israeli officials glowed in the success of Operation Cast Lead. Unlike their thirty-four-day attack on Lebanon that resulted in death of 120 Israeli soldiers, a resilient Hezbollah movement, and the ire of Israeli society, in Gaza, only nine Israeli soldiers were killed, four of them by friendly fire, and a pummeled Gaza left Israel’s western front eerily calm. The military strategy to “shoot at anything that looks suspicious” had proven successful — or so thought the State.

In April 2009, the UN Human Rights Council, an inter-governmental body comprised of forty-seven member states and distinct from the treaty-making bodies that oversee compliance with particular Conventions, established a fact-finding Mission to investigate alleged war crimes committed by Israel during its offensive. Israel rejected the Mission’s mandate, accusing it of bias for only investigating Israeli and not Hamas war crimes. However, even after Justice Richard Goldstone, the head of Mission, insisted on expanding the mandate to include alleged crimes committed by Hamas as well, Israel’s protests did not abate.

In light of Israel’s broader battle against the existing legal order, which regulates the methods and means of warfare and the application of the laws of occupation, Israel’s obstinate rejection makes perfect sense. The largest nuclear power in the Middle East has never signed nor ratified the Additional Protocols (1977) to the Geneva Conventions that extend the laws of war to armed conflicts involving non-state actors. Israel’s flagrant violations of said Amendments, ratified by 163 states, are deliberate attempts to challenge the laws of armed conflict, which Israel believes are not mature enough to handle its security concerns. Consider the statement made by the former head of the International Law Division of the Israeli Military Advocate General:

If you do something for long enough, the world will accept it. The whole of international law is now based on the notion that an act that is forbidden today becomes permissible if executed by enough countries…international law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into legal moulds. Eight years later it is at the center of the bounds of legitimacy.

The Human Rights Council’s establishment of a fact-finding mission is therefore a direct confrontation to Israel’s systematic challenge to the legal order. Accordingly, Israel has made the Mission, the Council, the Report, Justice Goldstone, and his counterparts — as opposed to the substance of the final Report itself — the site of conflict. Israel seeks to so malign the process in order to establish that only it can fairly judge itself. The Goldstone Report has withstood these challenges, including the most recent one presented by Justice Goldstone himself. Although none of its substantive recommendations have been applied, especially its most significant recommendation that the matter be referred to the International Criminal Court for a judicial investigation, the Report’s enduring relevance alone has become a measure of accountability. 

The Goldstone Report at the UN: Trans-Atlantic Ping-Pong

After its initial release in September 2009, Israel together with the US, have made several attempts to bury the Goldstone Report. Their attempts have mirrored more successful efforts in the late 1990s, when the US shelved a UN investigation of Israel’s 1996 bombing of a UNIFIL compound in Qana, commissioned by then Secretary-General Boutros Boutros Ghali. In 2002, Israel rebuffed attempts by Secretary-General Kofi Annan to investigate the April 2002 raid on Jenin refugee camp by initially agreeing to cooperate fully with the investigation and then, after a significant lapse of time, rescinding its commitment, forcing Annan to disband the mission.

Chronology of Survival: The Goldstone Report between October 2009 and April 2011

October 1, 2009: Attempts to bury the report began by targeting the PLO, chaired by Mahmoud Abbas, and coercing it to rescind the Report from the Geneva-based Human Rights Council in October 2009. Overwhelmed by an indignant response from Palestinian civil society the world over, the PLO resubmitted the Report for consideration by the Council, where it received twenty-five endorsements.

November 5, 2009: A month later, in November 2009, the New York-based General Assembly endorsed the Report by a vote of 114-18 with 44 abstentions.

December 3, 2009: Accordingly, Secretary General Ban-Ki Moon requested that Israel and Palestinian parties investigate the alleged war crimes against them.

April 14, 2010: The Report was thereafter returned to Geneva, where the Human Rights Council passed a resolution to establish the Independent Committee of Experts to assess the adequacy of the domestic investigations.

September 23, 2010: The Independent Committee of Experts reviewed the domestic investigations of all parties and found that none are sufficient. Israel and Palestinian parties are given six more months to correct the shortcomings of their investigations.

March 21, 2011: The Human Rights Council held an interactive dialogue with the Independent Committee of Experts, which determined that notwithstanding the investigatory extension, the investigations are still lacking. The Human Rights Council thereafter voted to move the Goldstone Report out of Geneva and back to the General Assembly in New York for actionable follow-up, namely referral to the Security Council for referral to the ICC, by a vote of 27-3, with sixteen abstentions.

April 1, 2011: Justice Richard Goldstone published an editorial in the Washington Post suggesting that the Report would have been a different document had he known during the investigation what he knew now, causing renewed controversy over the Report.

April 14, 2011: In a bi-partisan led effort, the US Senate passed a resolution that “calls on the United Nations Human Rights Council members to reflect the author’s repudiation of the Goldstone report’s central findings, rescind the report, and reconsider further Council actions with respect to the report’s findings.”

After nearly two years of painstaking advocacy by the human rights community, especially Palestinian human rights organizations, and at the very moment when the Human Rights Council returned the Goldstone Report to the General Assebly in New York where the UN Security Council could refer it to the International Criminal Court, Justice Goldstone’s editorial provided another last-ditch opportunity for the US and Israel to bury the Report. Considering that the Human Rights Council, as well as the Mission’s other members, have affirmed their support for it, the Goldstone Report will mostly likely survive these attempts, but will emerge enfeebled and bruised. Regardless of its condition, the Report would not have survived the next ring of fire in the hands of the politicized Security Council, where the US can exercise its veto power.

Even if Justice Goldstone had not published his provocative editorial, the Security Council would in all likelihood have failed to exercise its Chapter VII authority and refer the Report to the ICC. Short of such a referral, several other means of accountability are available within the UN, including the convening of a conference for the High Contracting Parties to the Geneva Conventions by its depository state, Switzerland. However, according to Swiss and Palestinian diplomatic representatives, the US and several of its European allies have put a tremendous amount of pressure on Switzerland to refrain from doing so. For a more thorough discussion on these options, see BADIL`s Roadmap to Accountability. It would seem that with or without the Goldstone Report, US and Israeli checkpoints have policed all roads to legal accountability.

Extra-Legal Methods of Accountability: Taking It to the Streets

Aware of these insurmountable hurdles, international civil society has not held its breath, and in fact has been waging a battle for accountability outside of multilateral and governmental fora since Israel’s offensive began in December 2008. First in the form of mass street protests calling for a cease fire, then, since the end of the operation, in the form of boycott, divestment, and sanctions, civil disobedience, and the exercise of universal jurisdiction across Europe, civil society has worked to challenge Israel’s affront to the international legal order.

Whereas states, especially those High Contracting Parties to the Geneva Conventions, are in a much better position to hold Israel to account, civil society has acted with much more clarity about the proper scope of the laws of war. Accordingly, advocates from the UK and Spain have issued arrest warrants for alleged Israeli war criminals forcing said individuals to restrict their own travel. According to the Boycott National Committee, BDS activity spiked after the Gaza offensive and redoubled since Israel’s fatal attack on the Mavi Marmara because “Cast Lead marked a turning point in public opinion reminiscent of the international reaction to the 1960 Sharpeville massacre in apartheid South Africa.”

Civil society BDS and legal efforts have borne considerable fruit, as is evidenced by the newly ascribed monikers of “lawfare,” to describe efforts to prosecute Israeli officials for war crimes in third party jurisdictions, and “de-legitimization,” to describe the rising relevance and efficacy of BDS campaigns. Israeli Ambassador Michael Oren has described BDS as one of the most serious threats facing Israel today and Zionist organizations have invested no less than $6 million USD to counter the decentralized and predominantly volunteer-campaign in the US.

The Goldstone Report has been a monumental tool in the battle for accountability for breaking with the UN’s historical failure to produce an investigation that can withstand political assault. Still, the Report never had the potential to deliver on its promises of justice and accountability absent significant political will among states. As evidenced by its beleaguered journey through the UN and its stymied potential by the US and Israel, such political will is sorely lacking. The same cannot be said for grassroots activists globally who, with few resources, have caused Israel and her hawkish advocates to take serious pause. Similar to the International Court of Justice’s Advisory Opinion on the Separation Wall, the Goldstone Report may help their cause, but ultimately, Israel’s gruesome follies are providing the momentum and inspiration for this people power movement.    

Part III, "Goldstone in Political Context" by Mouin Rabbani, can be found here.
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May 13, 2011 Lebanon
Mouin Rabbani By :
Mouin Rabbani

Review Roundtable Part III: Goldstone in Political Context

The political dymamics surrounding the report of the United Nations Fact Finding Mission on the Gaza Conflict (commonly known as the Goldstone Report) provide a number of interesting insights into the recent evolution of the Israeli-Palestinian conflict.

It bears recollection that the report was produced during a period when the Palestinian leadership was engaged in what has been characterized as serious permanent status negotiations with Israel. Yet the vast majority of Palestinians seemed more interested in the deliberations of Judge Richard Goldstone than those of President Mahmoud Abbas.

This reflected more than widespread Palestinian indifference to diplomacy after two decades of consistent failure. Against the background of the unsuccessful uprising of 2000-2005, growing numbers of Palestinian activists were seeking alternatives to both armed struggle and negotiations. In the context of the PLO’s refusal to promote the 2004 International Court of Justice advisory opinion on the West Bank Wall, the Fatah-Hamas schism that erupted in 2007, and popular suspicions (later confirmed) that the leadership of the Fatah-dominated West Bank Palestinian Authority (PA) was implicated in Israel’s 2008-2009 assault on the Hamas-controlled Gaza Strip, such activists also sought to formulate approaches that could be pursued independently of their formal representatives. Thus the anti-Wall and BDS movements as well as the Gaza Freedom Flotillas, for example, instead sought to mobilize Palestinians directly and/or capitalize upon global public support for Palestinian rights. 

In the larger scheme of things the Palestinian agenda is being reformulated from one in which agreement with Israel forms the framework for Palestinian statehood, to one in which confronting and reversing Israeli impunity, and activating the principle of Israeli accountability for its actions towards the Palestinian people, forms the core of a new strategic approach to achieve self-determination.

While UN inquiries are not – at least formally – established by popular demand, it is beyond doubt that the Goldstone Commission was formed in response to outrage at Israel’s actions on a planetary scale rather than – as in the case of the ICJ – the efforts of Palestinian officials who at crucial junctures enjoyed the support of their leadership. 

In this regard the Goldstone Commission also exposes the limitations of independent activism. This was demonstrated most forcefully in late 2009, when the PLO successfully sabotaged consideration of the Report by the UN Human Rights Council. The same observation arguably applies to the Commission’s peculiar terms of reference, which left out the core question of the conflict’s legality but included detailed consideration of Hamas conduct. Negotiating for Palestinian statehood, and pursuing the application of Palestinian rights as codified in international law are, it seems, irreconcilable modus operandi.

The latter points raise the pertinent question of the efficacy of operating outside of the political system. Can one simply ignore it because it is too compromised, or is change at the top ultimately a prerequisite for effectiveness from below? A partial yet inconclusive answer to this question was provided in February 2011, when the PLO insisted on going forward with a UN Security Council resolution confirming the illegality of Israeli settlement activity in the occupied territories. Successfully bullied by Washington and its allies into withdrawing the initiative on several previous occasions, this time Abbas felt even more threatened by the prospect of ‘another Goldstone’ (i.e. another betrayal) so soon after Ben Ali, Inc. had relocated to Jeddah and Mubarak was being hounded out of power.

It also needs to be asked whether the recent emphasis on the enforcement of international law and associated campaigns to hold Israel accountable for its conduct reflects the weakness of not only the Palestinian national movement but that of the Arab state system more generally. If so, it would be a strategic error to relinquish the initiative in this vital arena at a time when Palestinians and Arabs generally are feeling a growing sense of empowerment on account of growing challenges to the regional order, and perhaps reviving hopes of salvation through more traditional methods.

Despite its shortcomings, the squandering of those opportunities it did present, and Justice Goldstone’s subsequent (and in part resultant) bogus recantation, the Goldstone Report remains a milestone at many levels. Inadvertently, one of its primary achievements is that it helped expose the thorough bankruptcy of the political process, and contributed to removing negotiations about negotiations as the sole strategic option countenanced by the Palestinian leadership.

The severity and success of the backlash against Goldstone and his report demonstrates not only how much ground remains to be covered, but also the fertility of the soil being tilled. On balance, it is a case of two steps forward and one step back. We are better off today than if this entire saga had never transpired. And if the regional environment continues to develop in a positive direction, more such opportunities will be forged, and not less importantly will be deployed more effectively. Particularly when they come to complement rather than contradict the policies of a more responsive leadership.