The United Nations has often been tested in the course of its history, and once again it is facing a major challenge directed at its capacity to serve the cause of peace, security and justice through respect for the rule of law.
The test involves the treatment given to the Goldstone Report, so named after the distinguished jurist, Richard Goldstone, former judge of the South African Constitutional Court, who headed a fact-finding mission on behalf of the UN Human Rights Council. The focus of the mission was on alleged war crimes committed by Israel and Hamas during the 22 days of attack on Gaza last winter.
On September 15, the Goldstone Report was released. It is 575 pages in length, relying on 188 interviews, more than 10,000 pages of reports and documents, and 1,200 photos. There is nothing really new in the report as far as substance is concerned, but it has caused quite a stir. Earlier respected human rights organisations, including Amnesty International and Human Rights Watch, as well as Israeli and Palestinian groups, had confirmed the main allegations against Israel. The Goldstone Report is more comprehensive and in one sense, enjoys a greater credibility because of the eminence of the four mission members.
Ironically, Israel could not have hoped for a more sympathetic chair for such an inquiry. Goldstone, a lifelong Zionist with strong family ties and institutional affiliations in Israel, as well as an impeccable reputation as a non-partisan devotee of the rule of law, should have put the issue of balance and fairness to rest. If Goldstone can be attacked as biased, which Israel had done with great fury, then there is no one on the planet that could have proved acceptable! Any commission with a truth-telling commitment would have reached the same conclusions as the Goldstone Report if its members had even a 30 per cent open mind.
Indeed, what makes the Goldstone Report an historic document is precisely its status as a record of Israeli war crimes resulting in massive Palestinian suffering that cannot be responsibly disregarded or discredited. The report also makes recommendations for implementation that will help the world better understand whether the UN stands behind the rule of law or remains a plaything of the rule of force. What makes the report difficult to ignore is the call for an end to impunity, tasking the UN Security Council, the General Assembly and ultimately the International Criminal Court with the job of moving forward with investigating whether criminal prosecutions should be forthcoming in relation to Israeli and Hamas political and military leaders for the attacks between December 27, 2008, and January 18, 2009, against the essentially defenceless society of Gaza, whose population was already severely weakened by a blockade of food, fuel and medicine that had then been maintained for 18 months.
The report also recommends reliance on “universal jurisdiction”, that is on national courts with the capacity to prosecute for international crimes where sufficient evidence exists.
Several constitutional democracies in Western Europe claim this authority. Israel itself invoked universal jurisdiction back in the early 1960s when it prosecuted Adolf Eichmann for crimes committed in Nazi Germany years before the state of Israel even existed. Such a basis for attaching criminal law to foreign acts has a long history, mainly associated with the practice of apprehending pirates and their ships wherever found.
The Goldstone Report considers in detail the Israeli claims that their attacks were a defensive response to the rocket attacks, and agrees that these Hamas rockets were indiscriminate weapons aimed mainly at Israeli residential communities near the Gaza border. It considers these rocket attacks to be war crimes, and urges comparable action to be taken by the UN to impose accountability. Nevertheless, the overwhelming emphasis of the report is upon alleged Israeli practices during the Gaza war that amounted to war crimes, which cumulatively appear to constitute crimes against humanity.
Both Israel and Hamas are given up to three months to investigate these charges in a manner that meets international standards (rather than self-congratulatory investigations that have been so far conducted by the Israeli Defence Forces), and another three months to follow up with appropriate action against any perpetrators. If this does not happen, the scene for implementation is supposed to shift to the International Criminal Court, with the expectation that steps to impose accountability would follow.
From the outset, Israel refused to cooperate with the Goldstone fact-finding mission, claiming that the UN Human Rights Council was biased. It contended that nothing worthwhile could result from such a mission even if led by Richard Goldstone. Now that the report has been issued, the top Israeli officials have vented their fury: Israel’s Prime Minister Benjamin Netanyahu said that report was “a perversion of truth”, Shimon Peres, the president of Israel, called it “a mockery of history” and Defence Minister Ehud Barak called it a “shameful document” whose only message was that “terrorism pays”.
How can we explain such a hysterical reaction from top leaders to such a sober, fact-based, truth-telling report? It illustrates the politics of deflection, diverting attention from the message to the messenger.
Would it not have been more effective for the Israeli leaders to turn their backs and leave it to their many defenders to respond?
This is the standard Israeli response to strong criticism. Why treat the Goldstone Report so differently?
Will the politics of deflection work? Time will tell. It is disappointing, yet not surprising, that the Obama presidency, despite its broad promises to uphold the rule of law in foreign policy, has seconded the Israeli effort to bury the report. It has officially called the report one sided and pleads with all parts of the UN to reject its recommendations.
For most of the world, the Palestinian struggle has become the successor to the anti-apartheid campaign, as the primary moral battleground in the world today. To stand in support of Israeli tactics in Gaza is seen outside of the United States as little different from what support for the racist regime in South Africa would have seemed in the 1980s. It is the wrong side of history as far as human rights and global justice are concerned.
Even if the United States cannot manage it, let’s us hope that the UN, at this symbolic moment, seizes the opportunity to convey two messages: there is no longer impunity for war crimes, regardless of the identity of the perpetrator, and the UN refuses to remain a footstool of geopolitics.
The writer is professor emeritus of international law, Princeton University, and special rapporteur for the UN Human Rights Council for Occupied Palestine. His most recent book is “Achieving Human Rights” (2009). He contributed this article to The Jordan Times.
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