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On the Goldstone Report - Curtis F.J. Doebbler

Sept. 22, 2009 3:14 P.M. (Updated: Sept. 23, 2009 12:21 P.M.)
On 15 September 2009 the UN-mandated Fact Finding Mission on Palestine under justice Richard Goldstone released its meticulously documented report concluding that Israel 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 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 on 19 January 2009. It is a request that the Prosecutor of the Court is has been considering for more than none 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 which have refused to act. Within hours of the report’s release the Israeli government publicly disregarded any suggestion that it would act and the US Ambassador to the UN in New York arrogantly dismissed the reports explicit call for follow-up action.

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

The 575-page report, with a 33-page Executive Summary, begins by outlining its methodology; 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 analyzed, they were put in the broader context including the Israeli 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 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 in the report is not always complete. Although an obvious effort was made to hear both the Palestinian and Israeli points of view on all events, equally apparent is the 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.

Bias toward Hamas

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 and Fatah leader Mahmoud Dahlan, acting ostensibly with the support of the Fatah authorities who had lost the election, to oust the 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 criticizing Israel.

The most technical part of the report is the outline of the international law that applies to the violations that occurred in Gaza. While the discussion of the law was 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 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 Mission concludes:

“[t]he right to self-determination has an erga omnes character whereby all States have the duty to promote its realization ... [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.

Wide scope

The report’s sections 5 through 29 (V-XXIX) details the evidence on 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 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 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 MISSION report painstaking 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 criticized non-state actors such as the Hamas authorities in Gaza and Palestinian Authority more generally for carrying out actions whose perpetrators should also be investigated for having committed international crimes.

Hamas is criticized for inter-Palestinian violence as well as indiscriminate attacks on Israel through the firing of rockets and mortars. The Palestinian Authority based in Ramallah and exercising some control over the occupied West Bank is criticized for its 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 Mission, Judge Richard Gold stone, and the Israeli authorities that shed light both on the painstaking effort that Israel made to block this UN mandated Mission and the effort that the 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 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.

Issues with follow-up

Given this situation, why does the report focuses 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, but it has the most explicitly 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 up the action of one of its subsidiary bodies. There is no reason the GA cannot create 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.

Impact of the report at the General Assembly meeting

At the UN in Geneva, where the report will be discussed next week in the UN Human Rights Committee, a body which is 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 the mind bogglingly inhumane aggression against the Palestinian people of Gaza. Instead of confronting the United States, Abbas has been more cozy 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 that is 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 Palestinians people?

Unfortunately the position of the Palestinian authorities based in Ramallah and the diplomats who represent these authorities, and not the elected government of Palestine, is not new. In January 2009 as the aggression against Gaza took place 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, the indifference towards Palestinian life.

***Professor Curtis Doebbler, teaches in the Faculty of Law at An-Najah National University in Nablus, Palestine
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