Will Goldstone 2 be as bad as the first one?

Some experts expect war crime accusations and law suits to emerge from new UN inquiry into Gaza conflict

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

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

Besides the very real fighting currently taking place in Gaza, the United Nations this week opened another front against Israel, a diplomatic and legal front some people call “lawfare” — using international courts and commissions to accuse Israel of war crimes and other misdeeds.

The UN Human Rights Council on Wednesday decided to “urgently dispatch an independent, international commission of inquiry” to investigate possible violations of international humanitarian and human rights law that occurred in Israel and Gaza over the last weeks. Observers and officials say the results of the new inquiry are already a done deal: ‘Goldstone 2’ — the first Goldstone report, after the 2008-09 Operation Cast Lead, was hugely critical of Israel — will slam Israel for its conduct during Operation Protective Edge.

“Like the investigation that led to the infamous Goldstone report, a report which was ultimately renounced by its own author, this investigation by a kangaroo court is a foregone conclusion,” a statement from Prime Minister Benjamin Netanyahu’s office declared Wednesday night.

Politicians from across the political spectrum are outraged over the creation of a new mission of inquiry into what they consider to be a legitimate military operation, intended to protect Israeli civilians from terrorist rocket fire and tunnel attacks. “It is hard to fathom how a council which bears the words ‘human rights’ in its name decided to establish a committee to investigate who is right. Is it the murderers or those who refuse to be murdered?” outgoing president Shimon Peres said during his farewell speech in the Knesset Thursday.

Several questions remain: Which mandate is the inquiry going to have? Will Israel this time cooperate with the fact-finding mission? Is the report that it will pen reason for concern, or can it be dismissed as yet another document issued by a council “whose history of bias against Israel cannot be doubted,” as Richard Goldstone himself admitted three years ago? Experts agree that the council unfairly singled out Israel, but argue whether Goldstone 2 is just a nuisance or if it could spell real trouble.

As a reminder: After Operation Cast Lead, the UN Human Rights Council established a “Fact Finding Mission on the Gaza Conflict,” headed by retired South African judge Goldstone. Israel refused to cooperate with the mission, saying that its results were a foregone conclusion.

In the subsequent report, released in September 2009, the mission wrote that it found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. Examining several Israeli attacks on targets in Gaza, and claiming to lack any evidence to the contrary, the report concluded that “Israeli armed forces had carried out direct intentional strikes against civilians.”

On April 1, 2011, Goldstone partially retracted — not repudiated, as some pro-Israel advocates like to say — his report. “If I had known then what I know now, the Goldstone Report would have been a different document,” he wrote in the Washington Post. “The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion.” But investigations subsequently conducted by the IDF “indicate that civilians were not intentionally targeted as a matter of policy,” he admitted.

Israel celebrated Goldstone’s about-face, but the damage to Israel’s reputation had been done.

“We already know how this will go,” said Abraham Foxman, the chair of the Anti-Defamation League, referring to the new fact-finding mission created Wednesday. “The inquiry will be staffed by individuals with a long record of bias and criticism of Israeli policies. Israel, understandably, will refuse to cooperate. A harsh, biased and fundamentally flawed report will be issued. The only lasting impact will be the further undermining of the cause of protecting international human rights.”

‘A lot of work lies ahead of us,” a senior diplomatic official said. ‘We have to try to defuse the explosives, or at least minimize the damage’

Jerusalem has not yet announced that it will refuse to cooperate with the inquiry. The decision lies in the hands of the cabinet ministers and it seems unlikely that they will vote in favor of working with a panel everyone agrees is going to write an exceedingly unfair report. Even Justice Minister Tzipi Livni — the government’s most dovish member — is likely to oppose (She was the foreign minister at the time Israel decided not to cooperate with the Goldstone mission).

One could argue that if the Goldstone report and his subsequent turnabout taught Israel one thing, it is that presenting its side of the story will result in a more sympathetic outcome. If not presented with evidence to the contrary, the yet-to-be appointed members of the new commission might make the same mistake Goldstone made, and assume intentionality for attacks that led to civilian casualties.

On the other hand, “anyone who thinks the fact that Israel claims to be operating solely against military targets will absolve it of responsibility is deluding himself,” according to Aeyal Gross, an expert on international law at Tel Aviv University. While the simple number of Palestinian casualties doesn’t say anything about the legality or illegality of Israel’s operation per se, the Human Rights Council, though “biased” against Israel, does have a point when it wonders whether Israeli committed crimes, he opined.

“It’s not just the deliberate targeting of civilians that’s prohibited; so are attacks that by nature indiscriminately harm civilians, or civilian property, in addition to their military targets,” Gross wrote in Haaretz. Destroying the houses of Hamas commanders and even attacks on military targets could be considered war crimes if many civilians are being hurt, according to Gross. If Goldstone 2 were to accuse Israel of prima facie war crimes, the Palestinians will feel emboldened to sue Israeli leaders at the International Criminal Court in the Hague, he warned. (The PA has already filed a complaint with the ICC; it is not clear how this will be handled.)

And yet, some pro-Israel advocates refuse to get worked up about the prospects of a new Goldstone report. “It should be ignored,” said Alan Baker, a former legal adviser and deputy director-general at the Foreign Ministry. “Nothing will come if it. It is completely and utterly unrealistic. It’s so disconnected from reality. It’s clear that Hamas is committing grave war crimes and crimes against humanity… The fact that the Human Rights Council wants to send a commission of inquiry against Israel is just comical and absurd.”

Alan Baker (photo credit: courtesy
Alan Baker (photo credit: courtesy

Israel doesn’t have anything to fear from the outcome of this inquiry, asserted Baker. Even UN Secretary-General Ban Ki-moon and the European Union have, in the course of Operation Protective Edge, affirmed Israel’s right to defend itself and condemned Hamas rocket fire on Israel, which runs counter to the council’s resolution, he said.

“If this report actually materializes, which is highly unlikely, it won’t be taken seriously,” Baker promised. Certain Arab and Muslim countries will automatically accept any text that condemns Israel, even if it has no connection to the truth, he said. “That always happens and will continue to happen. But the moderate international community apart from them knows exactly what the situation is and won’t be influenced by such one-sided biased exercises.”

Still, for Israeli officials and diplomats the new fact-finding mission is a huge headache. “A lot of work lies ahead of us,” a senior diplomatic official said. “We have to try to defuse the explosives, or at least minimize the damage.”

The official took little comfort in the fact that the new fact-finding mission was tasked to “investigate all violations of international humanitarian law and international human rights law in the Occupied Palestinian Territory.” This means that not only Israel’s misdeeds will be scrutinized but also possible war crimes by Hamas and other Gaza-based terror groups (For the EU, this was an important factor in its decision not to oppose the creation of the inquiry, European diplomats told The Times of Israel).

“An inquiry of war crimes by the other side — by whom? Hamas is not mentioned in the Human Rights Council resolution” that set up the fact-find mission, the official fumed.

He predicted that Israel would wait to see the exact language of the mission’s mandate. If it’s anything like the one Goldstone was given, he said, Israel will be declared guilty even before the inquiry begins. “There’s no reasons to think that this time it’s going to be different. Of course we’re going to fight it, but that’s what it’s going to be.”

But Foreign Ministry spokesman Yigal Palmor said that even if Goldstone 2 surprisingly turns out to be balanced, the countries that voted for its creation will disregard whatever they don’t like and cherry pick points that would allow them to lambaste Israel.

“The Goldstone report’s content didn’t mean anything to them. It was a politicized effort to blast Israel no matter what the findings would be. Why would we think that this time it’s going to be different? It will be exactly as the last time, and the time before that, and the time before that. This body [the Human Rights Council] is damaged, skewered and slanted beyond repair.”

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