‘Are you God?” is an appropriate question to ask someone who takes on the role of judge, jury, and executioner. That is exactly what South African jurist Richard Goldstone — who was chief prosecutor for the U.N.’s International Criminal Tribunals on Yugoslavia and Rwanda — did in leading an “independent fact-finding mission” to investigate the Gaza conflict between Israel and Hamas last December and January.
Goldstone is formally presenting his blistering 575-page critique of Israel to the U.N. Human Rights Council (UNHRC) in Geneva this week. The UNHRC — the successor body to the U.N. Human Rights Commission, which orchestrated the infamously anti-Israel Durban Conference in 2001 — has sought to demonize Israel from the start. The Goldstone mission’s original mandate was to investigate only crimes committed by the “occupying power, Israel” (although that mandate was later broadened to include crimes committed by Hamas). One person chosen to serve on the mission, Prof. Christine Chinkin, had earlier co-signed an open letter condemning Israel’s “war crimes.” But other members of the mission, particularly Goldstone himself, continue to insist that the report was objective and that its conclusions were not pre-determined.
Goldstone is an accomplished and respected legal practitioner. As such, he is very familiar with the difference between conclusions of fact
and conclusions of law
. The UNHRC’s mandate to the Goldstone mission was to engage in fact finding. In a court of law, that’s what a jury does. Instead, Goldstone decided to become jury, judge, and executioner.
His report repeatedly takes alleged “facts” — which were gleaned from highly unreliable third-party sources — and then draws legal conclusions. Not only was this beyond the mission’s mandate, but the report consistently misstates legal standards on the basis of insufficient factual evidence.
For instance, the report states that “the Mission believes that Israel has violated its obligation to allow free passage of all consignments of medical and hospital objects, food and clothing (Article 23 of the Fourth Geneva Convention).” However, the report fails to explain that the obligation to allow humanitarian aid under Article 23 is “subject to the condition that . . . there are no serious reasons for fearing: (a) that the consignments may be diverted from their destination, (b) that the control may not be effective, or (c) that a definitive advantage may accrue to the military efforts or economy of the enemy. . . . ”
Given that Hamas repeatedly stole humanitarian aid intended for civilians, the obligation on Israel to continue allowing such aid was mitigated. Nonetheless, Israel still facilitated significantly increased humanitarian assistance. The Goldstone mission also accuses Israel of targeting civilians and violating the principle of distinction, when in fact the “civilians” in question were part of the armed “police” wing of Hamas.
Furthermore, the fact finding was to pertain to Operation Cast Lead (as the Israeli attack on Hamas rocket-launching installations was codenamed). Instead, the mission engages in a rambling analysis of the Israeli-Palestinian conflict generally (omitting the crucial context of terrorism) and discusses the legalities of “Israeli occupation” and the Israeli wall, all items well beyond the stated scope of the mission.
Finally, Goldstone felt compelled to issue a verdict — that Israelis are guilty and should be prosecuted — which was based on the mission’s most misguided conclusion of all: that Israel is incapable of conducting fair and honest investigations internally. The mission recommended that the Security Council, the International Criminal Court, or a state that exercises universal jurisdiction, such as Australia or Belgium, take up the matter.
There are simply no honest grounds for concluding that Israel is unwilling or unable to investigate or prosecute its own soldiers or officials. Israel is currently prosecuting a former prime minister, Ehud Olmert, for corruption. Why would it have any problem prosecuting military personnel? History shows that it does not. From 2002 through 2008, Israeli authorities opened 1,467 criminal investigations of alleged soldier misconduct, issued 140 indictments, and convicted 103 defendants. These decisions are subject to review at the highest level of the Israeli judicial system. That isn’t the case even in the United States.
In an op-ed last week in the Jerusalem Post, Richard Goldstone wrote: “The mission’s mandate . . . could have been used by Israel to encourage the U.N. and especially the Human Rights Council to move in a new direction beneficial to the interests of Israel.” The implications of that statement say a great deal. The mission was engaged not in fact finding but in political manipulation. Had Israel chosen to play along, maybe the “facts” in the final report would have looked different. When you’re playing God, you can make the facts look however you like.
– Brett Joshpe is an attorney and author in New York City.