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The Goldstone Report: It's right but won't work - Riziq Sammoudi

Sept. 29, 2009 3:38 P.M. (Updated: Oct. 2, 2009 2:49 P.M.)
The incidents of Israel’s twenty-two day war on Gaza war have been the focus of commentators, publicists, and national and international politicians. Many are trying to clarify issues around legal accountability in response to war crimes allegations.

The disagreement between parties over the culpability of sides for the devastation of the war should have become clear on 15 September 2009 when Richard Goldstone published the findings of the United Nations Fact Finding Mission on Gaza Conflict.

As a basis for its work, the mission considered only actions classified as violations of human rights and/or humanitarian law by all state parties (par.11), including the United Nations Charter, international law, international human rights law and international humanitarian law (par.15). The mission relied mainly on first-hand accounts, generally understood to be “highly-credible” sources of information (par.24). The field workers collected detailed information despite total Israeli non-cooperation (p.558 of the report).

The mission took a broad look at the war, investigating the then two-year Israeli blockade of the area as well as interviewing residents of the Israeli town of Sderot, a target for many of the projectiles launched from Gaza.

The report’s findings dealt with both Palestinian and Israeli stresses and causalities. On the Palestinian side the key findings were as follows: 1,300 killed during the war, a deliberate destruction of public buildings, killing of policemen (par. 33, 34), at least 13 incidents where Israeli forces targeted civilian deliberately (par.37), the refusal of the evacuation of wounded civilians (par.43), deliberate attacks against mosques during prayer (par.43), the use of white phosphorous missiles in built up areas causing ‘untreatable’ burns (par.48), and a collective punishment of civilians for the capture by militants of Israeli soldier Gilad Shalit (par.78).

On the other side, as a consequence of the projectiles fired by Palestinian armed groups, 3 Israelis were killed and 918 Israeli civilians were physically injured in the year preceding the declaration of war, another 82 were injured during the war (par.104). Approximately 50 percent Sderot residents suffered Post-Traumatic Stress Disorder (par.105) [no number for PTSD suffers in Gaza was given], and the Sderot economy was stifled (par.107).

In response to all these violations of international human rights and/or international humanitarian law standards, the Goldstone report recommended investigations be carried out in each region to ensure that those who violated rights were held accountable. The report said the Israeli military report that found “throughout the fighting in Gaza, the IDF [Israeli military] operated in accordance with international law” to be inefficient (par. 119). The report concluded that there was no legal infrastructure for such an investigation in Gaza.

International Criminal Court

Given the inability of both sides to conduct a full investigation of the incidents, and that the crimes were violations of international criminal law, the report suggested the investigations be conducted by the International Criminal Court.

The Goldstone report said the ICC could be, at least theoretically, a competent authority over the crimes given its historical role in the enforcement of International Humanitarian Law as well as International Human Rights Law, the Rome Statute of the International Criminal Court, in particular article 8 (2) (a) (“grave breaches”) and 8 (2) (b) (“other serious violations of the laws and customs applicable in international armed conflict”) (par.290). The report also found that the ICC could ensure accountability for its findings.

Israel, however, is not a member of the International Criminal Court, so the body cannot bring the case forward without the agreement of the government. International war crimes prosecutor Luis Moreno Ocampo explained that his court lacks the jurisdiction to investigate possible Israeli war crimes in Gaza.

Nonetheless, Palestinian human rights organizations have called for UN Secretary General Ban Ki Moon to request that the Security Council order the Court to open such an investigation. This is the only other option for bringing a case forward in the body, since it is not likely Israel will agree to come forward for the case of its own volition.

The worry, of course, is that a member of the Security Council, likely America, would veto the request and prevent the body from ordering a case.

Riziq Sammoudi is a Palestinian PhD candidate in International Law, studying in Belgium
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