Friday, October 9, 2009

The Goldstone Report: An Explicit Critique of Israel and Its Military Policy in Gaza

Justice Richard Goldstone formally presented to the Human Rights Council his Report of the United Nations Fact Finding Mission on the Gaza Conflict, released on Sept. 15, 2009 (click here to read the 600-page report: The Report related to the conflict between Israel and Hamas over a three-week period in Dec. 2008-Jan. 2009; it explicitly criticizes both Israel and Hamas for violations of human rights law and international humanitarian law. The Report, however, is widely seen as a condemnation of a long-lasting Israeli policy of military offensive against the civilian population of Gaza. The fact that the Report was drafted by Justice Goldstone, a prominent international jurist and a long-time supporter of Israel lends even more credence to some of the Report's allegations. The Report concludes that both Hamas and Israel committed international humanitarian law violations, but the majority of the Report's 20 + chapters focus on Israel. In particular, Israel is criticized for a range of acts, including abusive detentions, repression of dissent, a policy of indiscriminate military offensive against the people of Gaza, and many such acts, according to the Report, amount to violations of IHL and war crimes. The Report concludes that Israel is unlikely to establish any sort of a domestic accountability mechanism to punish perpetrators of these offenses; thus it recommends several international accountability measures. First, the Report calls for the UN Security Council to establish an independent committee of experts to monitor the situation. Second, the Report recommends that the UN Security Council refer this situation to the International Criminal Court, for a possible investigation. Finally, the Report urges other states to exercise universal jurisdiction and to indict perpetrators of the detailed offenses in their own domestic courts.
The implications of the Report are important and cause a serious risk for Israel. In fact, Israel has refused to cooperate with the Goldstone Mission, and has been issuing a series of answers and criticisms to the Report itself. This kind of behavior may be troubling for Israel, as it eliminates the possibility of seriously considering Israel as the proper forum to address any claims of IHL violations in Gaza. Moreover, European countries, some of which have already indicated a willingness to indict foreign leaders, may now have a complete evidentiary record of alleged violations in Gaza and may thus go forward with indictments and investigations of senior Israeli leaders and military commanders. It may be a better idea for Israel to seriously consider some of the Report's allegations and to provide an appropriate domestic alternative for possible investigations and prosecution. Such an approach by Israel would earn it international respect and credence for the claim that it's merely fighting terrorists in Gaza.
The Report certainly has its shortcomings too. First, any attempt to use the UN Security Council, as the Report speculates, will certainly fail as the United States has already expressed its unhappiness with the Report and unwillingness to allow for a Security Council probe into Gaza (click here to read the United States' response to the Report: Second, the Report fails to address a serious issue: the fact that Isreal has been engaged in so-called asymmetrical warfare in Gaza, and the fact that this new type of warfare calls for a modification of traditional IHL rules. Hamas has firmly embedded itself within the Gaza population, making it virtually impossible for Israeli military commanders to discriminate between military and civilian objectives. Any application of traditional IHL rules would certainly lead toward establishing criminal responsibility for Israeli military commanders; yet, such a result is unfortunate because it effectively prevents militaries from fighting terrorists any time terrorist mesh with civilians. The situation in Gaza is similar to those existing in many other regions: NATO faced the same dilemma when it decided to bomb the former Yugoslavia; the U.S. forces do as well in their fight against the Taliban in Afghanistan. While I am sceptical about some of the Israeli tactics and am concerned about the over-aggressive policy of military offensive against Gaza, I recognize the difficulty of fighting nontraditional wars, where military and civilian objectives blend and where protecting soldiers' lives may imply many civilian deaths. The Goldstone Report should have also recognized this difficulty, while condemning some Israeli actions and presenting a coherent peace plan.

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