The Goldstone Report documents in detail Israel's attacks on Palestinian life in Gaza. If nothing is done, the indifference of the international community will also be evident, writes Curtis Doebbler*



October 3, 2009



On 15 September 2009, the Independent Fact Finding Mission on Palestine released its meticulously documented report concluding that Israel between December 2008 and January 2009 in Gaza had not only carried out atrocities but had done so intentionally. The extent of the atrocities documented in the report, which was based on thousands of documents and interviews, according to the Fact Finding Mission were acts whose perpetrators should be investigated as responsible of war crimes and crimes against humanity.



In one of the best documented reports on Israeli violence against Palestinians to ever appear, the Fact Finding Mission concluded not only that in "all of the cases described... both the act and the consequence were intended," but also that action should be taken to prosecute the perpetrators. The suggested action included referring the case to the International Criminal Court; something that the Palestinian Authority requested after the ceasefire was announced in January 2009. It is a request that the prosecutor of the court has been considering for more than nine months without a reply.



It is disappointing that the report focuses on action that should be taken by Israel and the UN Security Council, both entities that have refused to act. Within days of the report's release, the Israeli government publicly dismissed any suggestion that it would act and the US ambassador to the UN in New York arrogantly rebuked the report's explicit call for follow-up action.



The report documents, on the basis of eyewitness reports, photographs and interviews with Israelis, Palestinians and international aid workers, the allegations of international crimes that were committed in Gaza and brought to the Fact Finding Mission's attention. Much of the evidence was accumulated during site visits by the Fact Finding Mission to Gaza during the summer months, approximately six months after the cessation of major hostilities.



The 575-page report, which contains an executive summary of 33 pages, begins by outlining its methodology that consisted of considering all relevant events since 19 June 2008 and the acts of all parties related to the treatment of the Palestinian people living in Gaza. Not only are these events analysed, they were put in the broader context that included the blockade of humanitarian aid to Gaza as well as inter-Palestinian violence. The events occurring between 18 June 2008 and 27 December 2008, for example, are thus outlined in detail in the report, as is the history of Israel's policies and treatment of the Palestinian people. The value of the contextual description is that it provides convincing evidence that Israel's aggression against the people of Gaza was not an isolated instance, but part of a longstanding oppression of the Palestinian people.



The description of facts is not always complete. Although an obvious effort was made to hear both the Palestinian and Israeli side of all events, equally apparent is the Fact Finding Mission's concern with giving too much attention to the views of the Hamas government, which is the entity perhaps most affected by these events, after the civilian victims. For example, while the report mentions that "Hamas forces and armed groups had seized all Palestinian Authority security installations and government buildings in the Gaza Strip" in June 2007, no mention is made of the widely known efforts of Palestinian strongman Mohamed Dahlan, acting ostensibly with the support of Fatah authorities who had lost the 2006 election, to oust elected Hamas government officials in Gaza. The lack of views by Hamas officials is perhaps part of the Commission's effort to mitigate the political controversy that it was aware would inevitably surround any report criticising Israel.



The most technical part of the report is the outline of the international law that applies. While the discussion of the law has been noticeably abbreviated, it makes some important points that are usually not included in UN reports on Palestine. For example, the discussion begins with an important, albeit brief, statement about the applicability of the right to self-determination of the Palestinian people. In one of its most important and succinct statements of the law, the Fact Finding Mission concludes that "[t]he right to self- determination has an erga omnes character whereby all States have the duty to promote its realisation... [moreover] ... peoples who resist forcible action depriving them of their right to self- determination have the right to seek and receive support from third parties." Critics of the report have cited the reports' statement that "[t]hose who take action amounting to military force must comply with IHL [international humanitarian law or the laws of war]" as implicitly supporting Palestinian violence against Israel. Such criticism misunderstands the nature of the law, which applies without prejudice to whether the initiation of the use of force is legal or illegal. Moreover, the consensus of the majority of states reflected in UN resolutions acknowledges the right of people striving for their self-determination against an oppressive foreign occupying power to use force.



The report, in sections five through 29, details the evidence that exists of violations of these laws in Gaza. These details include evidence that the blockade imposed on Gaza by Israel is illegal and that Israel's "military hostilities were a culmination of the long process of economic and political isolation imposed on the Gaza Strip by Israel."



In its main findings on Israel's use of force in Gaza, the report details Israel's deliberate attacks on civilians, on humanitarian aid workers, on government buildings and police as well as Israel's use of prohibited weapons and the use of civilians as human shields, their arbitrary detention and their inhumane treatment. In one section of the report, the Fact Finding Mission details the accumulative effect of Israel's attacks on "the foundations of civilian life in Gaza" which include the "destruction of industrial infrastructure, food production, water installations, sewage treatment plants and housing". In each case the Fact Finding Mission report painstakingly describes the situation, the evidence or facts, and its legal perspective on the facts.



While the overwhelming focus of the report was on Israel's more numerous and more deadly acts of aggression, the report also criticised non- state actors such as the Hamas authorities in Gaza and Palestinian authorities more generally for carrying out actions whose perpetrators should also be investigated for having committed international crimes. Hamas is criticised for inter- Palestinian violence as well as indiscriminate attacks on Israel through the firing of rockets and mortars. The Palestinian authorities based in Ramallah and exercising some control over the occupied West Bank are criticised for their detention and harassment of Hamas affiliated officials in the West Bank.



The conclusions of the report make it clear that follow-up action is expected and necessary. The report suggests first giving Israel and the Palestinians the opportunity to search for, take into custody, and prosecute the perpetrators of international crimes. If this fails, the report then suggests that the UN Security Council should act. And finally if this also fails the report suggests that the UN General Assembly can act.



The report also includes copies of the correspondence between the head of the Fact Finding Mission, Judge Richard Goldstone, and the Israeli authorities that sheds light both on the painstaking effort that Israel made to block this UN mandated mission and the effort that the Fact Finding Mission made to ensure that only reliably documented allegations are mentioned in its report.



While the report provides incontrovertible evidence of Israel's illegal treatment of the Palestinian people, it also raises some uncomfortable questions.



Most knowledgeable observers of Palestine -- surely all 15 members of the UN Security Council -- know that Israel has been mistreating Palestinians for the best part of a century. Why has no meaningful action been taken to protect Palestinians? Despite the well-documented evidence of serious international crimes committed on a large scale by Israeli forces it is unlikely that a Security deadlocked for the better part of a century will be convinced to act now. Given this situation, why does the report focus its call for action on the Israeli government and the UN Security Council? Both have made it clear that they will not act, both before and after the report appeared.



Why wasn't more attention given to the role of the world's more legitimate international body, the UN General Assembly? Not only was this body the most proactive body in reacting when the fighting broke out in Gaza in late December, but it has the most explicit mandate for taking action. According to Article 22 of the Charter of the United Nations the General Assembly has an explicit mandate to create bodies, including international courts of tribunals, to follow-up the report's recommendations on prosecutorial action. Unfortunately, the report merely gives a very weak nod to this power by mentioning the "Uniting for Peace" process, which means little to most people.



In fact the mention of this extraordinary procedure by which the General Assembly may act when the Security Council does not act on a matter related to the maintenance of peace and security is misplaced. This matter is already one on which the General Assembly may act. The Human Rights Council, which is a subsidiary body of the General Assembly and under whose auspices the report was produced, has already acted on this matter of human rights and humanitarian law. The General Assembly needs no additional arguments or mandate to follow-up on the action of one of its subsidiary bodies. There is no obstacle to the General Assembly creating a special international tribunal with judges to deal with the violations of international law that took place in Gaza. The Assembly's authority to do so is clearer than that of the Security Council that has repeatedly created such bodies.



Perhaps the most difficult and still unanswered questions are those created by Palestinian leaders and diplomats. There is almost complete silence in New York and Geneva, and what is being said is perhaps even more frightening. At the UN in Geneva, where the report will be discussed this week in the UN Human Rights Committee, a subsidiary body of the UN General Assembly, the Palestinian Permanent Mission appears to be trying to limit the impact of the report. The Palestinians began discussing the resolution on the report not with Arab or even African delegates, who are their natural and longstanding allies, but with the United States and the Europeans. The situation has reached such absurd proportions that Arab diplomats talk about the possibility of voting against a Palestinian proposed resolution for the sake of the Palestinian people.



At the UN in New York, Palestinian President Mahmoud Abbas played down the report, instead relying on the mediation of the United States government, whose weapons and financing Israel used to carry out its mind bogglingly inhumane aggression against the Palestinian people of Gaza. Instead of confronting the United States, Abbas has been more concerned to cosy up with them, expressing his humble appreciation for the new administration's willingness to speak with him and the Israeli leader, who not only supported the slaughter in Gaza but who has threatened to repeat it again and again if need be.



Is negotiating a surrounded Palestinian state on a fraction of the territory decreed by the UN in the same resolutions that created Israel the best way to achieve justice and to represent the Palestinian people?



Unfortunately, the position of the Palestinian authorities based in Ramallah and the diplomats who represent these authorities is not new. In January 2009, as the aggression against Gaza took place, the same diplomas in New York tried to block the General Assembly from taking timely and strong action to stop the slaughter in Gaza.



In the end, the report of the UN's Independent Fact Finding Mission may have exposed, even more than the atrocities committed against the Palestinian people in Gaza, indifference towards Palestinian life.



* The writer is an international human rights lawyer and professor of law at An-Najah National University, Nablus, Palestine.









