Key Issues Relating to Report of UN Fact-Finding Mission on Gaza Conflict (the 'Goldstone Report')

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Apr 5, 2011 Palestine-Israel
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Key Issues Relating to Report of UN Fact-Finding Mission on Gaza Conflict (the "Goldstone Report")

By : Jadaliyya Reports

[The below press release was issued by the Palestine Center for Human Rights (PCHR) on April 4, 2011.]

In light of the media debate and confusion triggered by Justice Richard Goldstone’s 1 April opinion piece in the Washington Post, the Palestinian Centre for Human Rights (PCHR) wishes to highlight a few key issues regarding the current status of the UN Fact-Finding Mission’s Report, and the search for accountability in the aftermath of Israel’s 27 December 2008 – 18 January 2009 offensive on the Gaza Strip.

PCHR represent 1,046 victims of the offensive, and have submitted 490 criminal complaints to the Israeli authorities on behalf of these individuals.

As noted by Justice Goldstone, the UN Fact-Finding Mission was not a judicial body. Rather, it was a fact-finding mission mandated to conduct initial investigations on the ground, and to make recommendations on this basis. The Mission found sufficient evidence to indicate the widespread commission of war crimes, and possible crimes against humanity. This finding was consistent with the result of investigations conducted by other organisations, including PCHR, Amnesty International, Human Rights Watch, the UN Board of Inquiry, and the Fact-Finding Mission of the Arab League.

Appropriately, and consistent with the requirements of international law, the Fact-Finding Mission recommended that these allegations be investigated. The Mission noted that if domestic authorities failed to conduct effective investigations, the International Criminal Court became the most appropriate forum to investigate these serious charges. Responsibility would thus fall on the Security Council to activate the jurisdiction of the International Criminal Court,in accordance with Article 13(b) of the Court’s statute. According to the timeline established by the Mission, this referral should have taken place approximately one year ago. The Security Council took such action most recently with respect to the current situation in Libya.

The most serious allegations regarding Israel’s conduct of hostilities during the offensive relate to the direct targeting of civilians, widespread indiscriminate attacks, the choice of targets and methods of combat, and the extensive destruction of public and private infrastructure, including the total or partial (rendered uninhabitable) destruction of 7,872 civilian housing units. A few significant cases in this regard include the attack on UNRWA headquarters, the attack on Fakhoura school, the Abdul Dayem case, the Al-Daia case, the Abu Halima case, and the attack on Arafat Police compound. Policies including those related the conduct of hostilities, the choice of targets, the use of white phosphorous, and the artillery bombardment of civilian areas may also give rise to individual criminal responsibility. None of these cases have been effectively addressed, and have not been ‘reconsidered’ by Justice Goldstone.

International law clearly requires that allegations of international crimes, as detailed in the Fact-Finding Mission’s Report and elsewhere, must be subject to genuine investigation, and if appropriate, those responsible prosecuted.

International jurisprudence has consistently identified four components essential to conducting a genuine investigation.[1] An investigation must be: effective (capable of leading “to the identification and punishment of those responsible”[2], and “undertaken in a serious manner and not as a mere formality preordained to be ineffective”[3]); independent (based on, inter alia, “the existence of guarantees against outside pressures”,[4] specifically “the persons responsible for the injuries and those conducting the investigations should be independent of anyone implicated in the events”[5]); prompt;[6] and involve an element of public scrutiny.[7] Significantly, the whole operation must also be analysed, and not merely the immediate specifics of any one incident; the overall plan and its implementation must be analysed.[8]

In the over two years that have passed since the offensive, all parties have failed to conduct investigations complying with these standards. Most recently, the UN Committee of Independent Experts mandated to monitor Israel and the Palestinians’ domestic investigations found that “there is no indication that Israel has opened investigations into those who designed, planned, ordered and oversaw ‘Operation Cast Lead’.” The Committee also noted significant problems with respect to the role of the Military Advocate General.

The overwhelming majority of investigative procedures initiated by Israel have been closed on reaching the IDF’s apparently preordained conclusion that: “[t]hroughout the fighting in Gaza, the IDF operated in accordance with international law.”

In the 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. These three convictions, and the ongoing trial of a fourth soldier, have been the only concrete judicial outcomes from Israeli investigations. It is noted that these indictments fail to reflect the gravity of the actual crimes committed, as does the exceptionally lenient sentence in the human shields case.

PCHR have concluded that the Israeli investigative system as a whole, including as this relates to civilian supervision, is flawed, either in law, in practice, or both.

In light of the domestic systems now proven inability and unwillingness to conduct genuine investigations, it is imperative and appropriate that these allegations be investigated by the International Criminal Court. On 25 March 2011, the Human Rights Council made precisely this recommendation, recommending that the General Assembly submit the UN Fact-Finding Mission’s Report to the Security Council, to consider referring the situation in the occupied Palestinian territory to the International Criminal Court.

The current debate must focus on the relevant core issues. Significant evidence indicates that widespread war crimes were committed in the context of Operation Cast Lead. These have not been subject to genuine judicial scrutiny. This situation must be remedied by a referral to the International Criminal Court.

All political considerations must be put aside, and the rule of international law upheld. There is no basis to retract or reconsider the Report of the UN Fact-Finding Mission on the Gaza Conflict. The equal application of the law is the very least that victims on all 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 OccupiedPalestinian Territory to the International Criminal Court.

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, and so that those victims of past crimes can finally achieve accountability and justice.

--------------------------------------------

[1] See further, PCHR, Genuinely Unwilling: An Update, Section 2.4.
[2] Hugh Jordan v. the United Kingdom, ECtHR, Application No. 24746/94, 4 August 2001, §107.
[3] Chumbivilcas v. Peru, Inter-American Commission on Human Rights, Case 10.559, 1 March 1996.
[4] Findlay v. the  United Kingdom, ECtHR, Application No. 22107/93, 25 February 1997, §73.
[5] Bati v. Turkey, ECtHR, Application No. 33097/96, 57834/00, 3 September 2004, §135.
[6] Ibid. §136.
[7] Finucane v. the United Kingdom, ECtHR, Application No. 29178/95, 1 October 2003, §213.
[8] McCann and Others v. the United Kingdom, ECtHR, Application No. 18984/91, 27 September 1995.
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Jadaliyya Reports By :
Jadaliyya Reports

Past is Present: Settler Colonialism Matters!

On 5-6 March 2011, the Palestine Society at the School of Oriental and African Studies (SOAS) in London will hold its seventh annual conference, "Past is Present: Settler Colonialism in Palestine." This year`s conference aims to understand Zionism as a settler colonial project which has, for more than a century, subjected Palestine and Palestinians to a structural and violent form of destruction, dispossession, land appropriation and erasure in the pursuit of a new Jewish Israeli society. By organizing this conference, we hope to reclaim and revive the settler colonial paradigm and to outline its potential to inform and guide political strategy and mobilization.

The Israeli-Palestinian conflict is often described as unique and exceptional with little resemblance to other historical or ongoing colonial conflicts. Yet, for Zionism, like other settler colonial projects such as the British colonization of Ireland or European settlement of North America, South Africa or Australia, the imperative is to control the land and its resources -- and to displace the original inhabitants. Indeed, as conference keynote speaker Patrick Wolfe, one of the foremost scholars on settler colonialism and professor at La Trobe University in Victoria, Australia, argues, "the logic of this project, a sustained institutional tendency to eliminate the Indigenous population, informs a range of historical practices that might otherwise appear distinct--invasion is a structure not an event."[i]

Therefore, the classification of the Zionist movement as a settler colonial project, and the Israeli state as its manifestation, is not merely intended as a statement on the historical origins of Israel, nor as a rhetorical or polemical device. Rather, the aim is to highlight Zionism`s structural continuities and the ideology which informs Israeli policies and practices in Palestine and toward Palestinians everywhere. Thus, the Nakba -- whether viewed as a spontaneous, violent episode in war, or the implementation of a preconceived master plan -- should be understood as both the precondition for the creation of Israel and the logical outcome of Zionist settlement in Palestine.

Moreover, it is this same logic that sustains the continuation of the Nakba today. As remarked by Benny Morris, “had he [David Ben Gurion] carried out full expulsion--rather than partial--he would have stabilised the State of Israel for generations.”[ii] Yet, plagued by an “instability”--defined by the very existence of the Palestinian nation--Israel continues its daily state practices in its quest to fulfill Zionism’s logic to maximize the amount of land under its control with the minimum number of Palestinians on it. These practices take a painful array of manifestations: aerial and maritime bombardment, massacre and invasion, house demolitions, land theft, identity card confiscation, racist laws and loyalty tests, the wall, the siege on Gaza, cultural appropriation, and the dependence on willing (or unwilling) native collaboration and security arrangements, all with the continued support and backing of imperial power. 

Despite these enduring practices however, the settler colonial paradigm has largely fallen into disuse. As a paradigm, it once served as a primary ideological and political framework for all Palestinian political factions and trends, and informed the intellectual work of committed academics and revolutionary scholars, both Palestinians and Jews.

The conference thus asks where and why the settler colonial paradigm was lost, both in scholarship on Palestine and in politics; how do current analyses and theoretical trends that have arisen in its place address present and historical realities? While acknowledging the creativity of these new interpretations, we must nonetheless ask: when exactly did Palestinian natives find themselves in a "post-colonial" condition? When did the ongoing struggle over land become a "post-conflict" situation? When did Israel become a "post-Zionist" society? And when did the fortification of Palestinian ghettos and reservations become "state-building"?

In outlining settler colonialism as a central paradigm from which to understand Palestine, this conference re-invigorates it as a tool by which to analyze the present situation. In doing so, it contests solutions which accommodate Zionism, and more significantly, builds settler colonialism as a political analysis that can embolden and inform a strategy of active, mutual, and principled Palestinian alignment with the Arab struggle for self-determination, and indigenous struggles in the US, Latin America, Oceania, and elsewhere.

Such an alignment would expand the tools available to Palestinians and their solidarity movement, and reconnect the struggle to its own history of anti-colonial internationalism. At its core, this internationalism asserts that the Palestinian struggle against Zionist settler colonialism can only be won when it is embedded within, and empowered by, the broader Arab movement for emancipation and the indigenous, anti-racist and anti-colonial movement--from Arizona to Auckland.

SOAS Palestine Society invites everyone to join us at what promises to be a significant intervention in Palestine activism and scholarship.

For over 30 years, SOAS Palestine Society has heightened awareness and understanding of the Palestinian people, their rights, culture, and struggle for self-determination, amongst students, faculty, staff, and the broader public. SOAS Palestine society aims to continuously push the frontiers of discourse in an effort to make provocative arguments and to stimulate debate and organizing for justice in Palestine through relevant conferences, and events ranging from the intellectual and political impact of Edward Said`s life and work (2004), international law and the Palestine question (2005), the economy of Palestine and its occupation (2006), the one state (2007), 60 Years of Nakba, 60 Years of Resistance (2009), and most recently, the Left in Palestine (2010).

For more information on the SOAS Palestine Society 7th annual conference, Past is Present: Settler Colonialism in Palestine: www.soaspalsoc.org

SOAS Palestine Society Organizing Collective is a group of committed students that has undertaken to organize annual academic conferences on Palestine since 2003.

 

[i] Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event, Cassell, London, p. 163

[ii] Interview with Benny Morris, Survival of the Fittest, Haaretz, 9. January 2004, http://cosmos.ucc.ie/cs1064/jabowen/IPSC/php/art.php?aid=5412