Palestine – Gaza, Goldstone and Gallstones
By: David Singer
There is no doubt that the Goldstone Commission Report will have political ramifications for Israel but very little legal effect.
From a legal perspective Israel is not subject to the jurisdiction of the International Criminal Court nor do the provisions of the Geneva Convention apply to Gaza since it is not part of the territory of any state signatory – called a â€œHigh Contracting Partyâ€ – to the Convention.
Gaza still is â€œno mansâ€™ landâ€ under international law where sovereignty is yet to be decided.
It should be remembered that Israel officially only evacuated Gaza in 2005. It has not ceded any claim to Gaza or parts of Gaza under the rights conferred on the Jewish people pursuant to the Mandate for Palestine and article 80 of the United Nations Charter to reconstitute the Jewish National Home in any part of that territory.
Israel had the inherent right of self defence under Article 51 of the United Nations Charter if an armed attack was made on it. That it absorbed 7000 rocket and mortar attacks after evacuating Gaza in 2005 before undertaking the invasion of Gaza last December would not have been endured for such a lengthy period by any other member of the United Nations had they been the recipient of such a barrage of rockets and mortars indiscriminately fired into civilian population centres.
There may well be some rotten eggs in Israelâ€™s basket. War is a great dehumaniser and soldiers can act in inhuman ways under the stress of war – and can be very trigger happy especially when the enemy you are confronting does not wear uniforms and hides among the civilian population. Israel has and is still continuing its ongoing investigations into the invasion of Gaza and will no doubt bring to justice those whose conduct is found to be unacceptable. The Goldstone Commissionâ€™s dismissal of these investigations as â€œpusillanimousâ€ is made without a scintilla of evidence in support .
The Report will be extensively used and quoted to beat Israel over the head in a multitude of UN forums and in the General Assembly as part of the campaign by the 56 members of the Organisation of the Islamic Conference to delegitimize Israel.
The Report will be used to support new calls for:
(i) economic and political boycotts of Israel
(ii) disinvestment in Israel and
(iii) for outlawing Israel as a pariah state in the international community
The Goldstone Commission came about as a result of a Mandate given to it by the UN Human Rights Council on 12 January 2009 by a vote of 33 to 1 with 13 abstensions. 15 of the 33 affirmative votes were from members of the Organization of the Islamic Conference and the remainder included countries with disgraceful human rights records like Angola, Cuba, China, Nigeria, the Russian Federation and Nicaragua.
The Commission was appointed on 3 April 2009 and its members comprised Richard Goldstone, Christine Chinkin, Hina Jalani and Desmond Travers.
Goldstone, Jalani and Travers had signed an open letter, published 16 March 2009, addressed to United Nations Secretary-General Ban Ki-moon and the United Nations Security Council Ambassadors. It stated:
“…we believe there is an important case to be made for an international investigation of gross violations of the laws of war, committed by all parties to the Gaza conflict…A prompt, independent and impartial investigation would provide a public record of gross violations of international humanitarian law committed and provide recommendations on how those responsible for crimes should be held to account…We urge world leaders to send an unfaltering signal that the targeting of civilians during conflict is unacceptable…The events in Gaza have shocked us to the core…We must also establish the truth about crimes perpetuated against civilians on both sides.”
Christine Chinkin had signed a letter dated January 11, 2009, which appeared in The Times, stating:
“Israel’s bombardment of Gaza is not self-defence – it’s a war crime.”
In addition, the letter stated:
“The rocket attacks on Israel by Hamas deplorable as they are, do not, in terms of scale and effect amount to an armed attack entitling Israel to rely on self-defence…Israel’s actions amount to aggression, not self-defence”.
All of the appointed Commissioners had therefore begun this inquiry with their minds made up. Israel was to be hung drawn and quartered. Any semblance of impartiality or lack of bias among the Commission members went out the window before the Commission had even started its proceedings. In failing to disqualify themselves they totally negated the validity of their findings.
Hamas violence against its own Gazan citizens during Israelâ€™s invasion was apparently not deemed to be part of the Commissionâ€™s mandate.
A report prepared by Human Rights Watch dated 9 April 2009 alleged that during Israelâ€˜s invasion:
â€œHamas security forces or masked gunmen believed to be with Hamas extra-judicially executed 18 people, mainly those accused of collaborating with Israel. Masked gunmen also beat and maimed by shooting dozens of Hamasâ€™s political opponents, especially members and supporters of its main political rival, Fatah.
The internal violence in Gaza has continued since Israel withdrew its forces. Palestinian human rights groups in Gaza have reported 14 more killings between January 18 and March 31, 2009.
So far, this violence has gone mostly unpunished. Despite promises to investigate unlawful killings and other abuses, Hamas authorities, to Human Rights Watchâ€™s knowledge, have only investigated one alleged killing by members of their security forces or armed wingâ€¦
Hamas security forces have also used violence against known Fatah members, especially those who had worked in the Fatah-run security services of the Palestinian Authority (PA). Of particular concern is the widespread practice of maiming people by shooting them in the legs, which Hamas first used in June 2007, when it seized control inside Gaza from Fatah. According to the Independent Commission for Human Rights (ICHR), the human rights ombudsman organization of the Palestinian Authority, unidentified gunmen in masks deliberately inflicted bullet wounds to the legs of at least 49 people between December 28, 2008 and January 31, 2009.
The Goldstone Report will not have anything like the political affect that the infamous â€œZionism is Racismâ€ resolution had in the aftermath of its passing by the UN General Assembly on 10 November 1975 until it was subsequently revoked on 16 December 1991.
Israelâ€™s then Ambassador to the United Nations – Chaim Herzog described that resolution in the following terms:
“For us, the Jewish people, this resolution based on hatred, falsehood and arrogance, is devoid of any moral or legal value. For us, the Jewish people, this is no more than a piece of paper and we shall treat it as such.”
Israel should adopt the same view in relation to the Goldstone Report.
Israelâ€™s response should be to proceed apace to build up the state by the ingathering of Jews from around the world and to continue with its brilliant technological , medical and scientific successes, whilst holding its head high among the nations of the world as a true democracy among a sea of repressive and oppressive regimes. It should make sure that the security of its 7.5 million citizens (including 1.5 million Arabs) is guaranteed from anyone who would seek to attack it and ensure it maintains defensible borders to enable this to happen.
This is the best route for Israel to take to avoid any attack of gallstones caused by Goldstone and his kangaroo court.