UN’s softer Gaza accusations may end up more damaging for Israel

Report lacks the unfiltered biases of the Goldstone report from the 2008-2009 war, and thus will be harder to criticize. Jerusalem should have seen it coming

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

(Lto R) Member of the Commission of Inquiry on the 2014 Gaza conflict Doudou Diene, Chairperson of the Commission Mary McGowan Davis and Information Officer for the Office of the High Commissioner for Human Rights Rolando Gomez attend a press conference on June 22, 2015 at the United Nations Office in Geneva.  (AFP/FABRICE COFFRINI)
(Lto R) Member of the Commission of Inquiry on the 2014 Gaza conflict Doudou Diene, Chairperson of the Commission Mary McGowan Davis and Information Officer for the Office of the High Commissioner for Human Rights Rolando Gomez attend a press conference on June 22, 2015 at the United Nations Office in Geneva. (AFP/FABRICE COFFRINI)

During a recent conversation about the United Nations report on last year’s Gaza war that came out Monday, a senior Israeli official was surprised to hear this reporter call it “Goldstone II.”

The Israeli official, who is intimately familiar with the inner workings of the UN’s human rights apparatus, felt that the inquiry into last summer’s war could not be equated with the so-called Goldstone Report launched by the UN Human Rights Council six years earlier, after a similar round of violence with Gaza.

Goldstone’s report was met with vociferous and angry Israeli denunciations. But Monday, when jurist Mary McGowan Davis released her findings, the official reaction in Jerusalem, while unhappy, was more muted.

The new report, it seems, is not just another Goldstone.

When the Goldstone report was published in September 2009, Israel was “appalled and disappointed.” The document “effectively ignores Israel’s right of self-defense, makes unsubstantiated claims about its intent and challenges Israel’s democratic values and rule of law,” Jerusalem stated. But the cherry on top was Goldstone’s (later retracted) accusation of intentionality — deliberate killing of civilians — on Israel’s part.

McGowan Davis’s effort relating to the 2014 conflict, though — despite its risible empathy for Hamas’s terror tunnels, and its absurd conclusion that advance threats by Hamas to fire rockets constituted warnings — presents a more nuanced view.

Israeli officials will not (yet) state this explicitly, but despite the political echelon’s ferocious attacks on the Human Rights Council and its biased mandate, the professionals at Israel’s Foreign Ministry were much more reserved in their initial response to the 180-page document than they were in their reaction to Goldstone.

Because Goldstone’s findings were so grossly unfair to Israel, it took no great effort to discredit his report, the senior official told me.

“What was so ‘great’ about the Goldstone report was that it was so easy to criticize,” the official said, arguing that, methodologically, it was a “disaster.”

“Paradoxically, the fairer the report, the more damaging it can be — because it will be harder to discredit it,” the official mused, and this was ahead of the publication of the McGowan Davis report.

Judge Richard Goldstone (second from right) at public hearings in 2009 about alleged Israeli violations committed during Operation Cast Lead (photo credit: UN/Flash 90)
Judge Richard Goldstone (second from right) and Christine Chinkin (right) at public hearings in 2009 about alleged Israeli violations committed during Operation Cast Lead. (photo credit: UN/Flash 90)

Some of the damage could have been mitigated if Israel, following the removal of original chair William Schabas — had realized that the new author of the report had no track record of anti-Israel bias; thus, Jerusalem might have had some success in explaining the facts to her.

In its initial response to the McGowan Davis report on Monday, the ministry refrained from making substantial claims against the report’s accuracy, but stated that the commission of inquiry “lacked the necessary tools and expertise to conduct a professional and serious examination of armed conflict situations.”

This is due, at least in part, to Jerusalem’s own refusal to cooperate with the inquiry. With headlines accusing Israel of war crimes once again swirling around the globe, an internal discussion might be warranted on whether the policy of not cooperating with the council’s investigations makes sense.

Officials in Jerusalem argue that the inquiry’s very mandate made plain that Israel would not get a fair hearing. Indeed, the Human Rights Council resolution that established the fact-finding mission, approved in July, condemned “in the strongest terms the widespread, systematic and gross violations of international human rights and fundamental freedoms arising from the Israeli military operations” in Gaza.

Israel cooperated with UN Secretary-General Ban Ki-moon’s own inquiry into Operation Protective Edge, but officials in Jerusalem felt that any possible gains Israel could score by explaining its point of view to the UNHRC inquiry would not be sufficient to offset the damage caused by lending credence to a hopelessly biased Human Rights Council.

“Given the nature of this body and the mandate it gave the commission of inquiry, we felt that the value of giving it legitimacy would be [worse for us] than [what we might gain from] the hope to improve the report,” a senior Israeli official said.

Furthermore, many in Jerusalem argued, Israel’s version of events is publicly available, explained in great detail on the Foreign Ministry website, so if the “fact-finders” really wanted to take it into consideration they could do so easily without Israel directly interacting with the commission.

This line of argumentation was cogent as long as Schabas headed the commission. His antipathy toward Israel and its current leadership was clear and documented. But as soon as he stepped down amid allegations of bias and McGowan Davis took over, it might have been a good idea to reassess Israel’s position.

Israeli officials were clearly hoping that the information it had put out would suffice to convince her that Israel acted according to international law. They also wished for her to learn from Goldstone’s mistake and admit that her lack of access precluded her from judging events in which Palestinians were harmed but whose circumstances were unclear.

These wishes or assumptions turned out to be misplaced. Throughout the report, McGowan Davis describes various such instances, and then wonders why Israel didn’t take what she considers the legally required precautions to prevent them.

Her report states that the panel examined several instances where “there is little or no information available as to why residential buildings, which are prima facie civilian objects immune from attack, were considered to be legitimate military objectives.”

In every attack on a residential building, the report continues, “the onus is on Israel” to explain why it was considered a legitimate target. If a strike intentionally targeted a house without a specific military objective, the report muses, “this would amount to a violation of the principle of distinction” and thus may constitute a war crime.

In “most of the incidents” during which residential buildings were attacked, it could expected that “most family members would be at home,” the report claims. Therefore, “a reasonable commander must have been aware that such an attack was likely to result in a high number of civilian casualties.” But since Israel failed to explain why each case was militarily advantageous, the document continues, “there are strong indications that these attacks could be disproportionate, and therefore amount to a war crime.”

It is hard to dismiss the notion that Israeli official cooperation could have helpfully impacted such conclusions.

Absurdly, the report also declines to accept the assertion that rockets fired from Gaza at Israel were aimed at civilians, quoting Israel’s refusal to say where exactly they landed. While McGowan Davis writes that she understands that Israel might not divulge such information for security reasons, she argues that in the absence of it the commission is unable to “determine the extent to which attacks [were] directed at the civilian population in Israel.” Again, would Israeli official input not have made a difference here?

On an emotional level it is not difficult to understand Jerusalem’s refusal to cooperate with a fact-finding mission that it saw as pre-written and biased.

But given the actual outcome — a UN report putting Hamas and Israel on the same moral plane — it might be time to learn the lessons of 2009. It’s possible that McGowan Davis will retract some of her assertions a few years from now. But the damage will have been done.

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