Israel rejects independent inquiry into Gaza war

[BATMAN]

Israel rejects independent inquiry into Gaza war
By AMY TEIBEL (AP) – Sep 16, 2009

JERUSALEM — Israel on Wednesday rejected U.N. calls to open an independent inquiry into its conduct during last winter's Gaza Strip military offensive and said it would launch a diplomatic offensive to block any attempt to bring its soldiers before an international war crimes tribunal.

The defiant tone came a day after a U.N. investigation accused Israel and Palestinian militants of war crimes and possible crimes against humanity. While the report criticized rocket attacks by Hamas and other armed groups on Israeli towns, the bulk of the findings focused on Israeli actions.

The report, headed by South African jurist Richard Goldstone, said Israel used disproportionate firepower and disregarded the likelihood of civilian deaths in the offensive, which killed hundreds of civilians and caused widespread damage to Gaza.

It said that if Israel doesn't allow an independent investigation, the case should be referred to international war crimes prosecutors.

The report provoked a furor in Israel. The Foreign Ministry said it was "appalled and disappointed," and President Shimon Peres called it a "mockery of history." Radio stations devoted heavy chunks of air time to interviews with outraged officials and critical legal experts. "Classic Anti-Semitism," blared the headline of an opinion piece in the Israel Hayom daily.

The findings of the U.N. investigation echoed the conclusions of a string of human rights reports released in recent months. But the U.N. report could carry much more weight, both because it was authored by a widely respected former war crimes prosecutor and because it could ultimately lead to charges against Israel before the International Criminal Court.

Israel is not a member of the Netherlands-based ICC, but in theory the court could still attempt to prosecute its officials. To do so, it would need an order from the U.N. Security Council, but Israel's ally the United States would likely block any such request.

Alternatively, the Palestinian Authority has sought membership in the ICC, but since it is not a state, the court has not yet determined whether to accept the request. If the Palestinians are accepted, the ICC could proceed with prosecutions of Israeli and Hamas officials without a Security Council order since the alleged crimes took place in Gaza.

The ICC prosecutors office said Wednesday it was "examining all issues related to its jurisdiction" in the Gaza case, including the validity of the Palestinian membership.

Israeli Foreign Ministry spokesman Yigal Palmor said his country would take action to protect its soldiers and commanders from prosecution abroad and denounced the suggestion of an ICC jurisdiction. He said Israeli diplomats would lobby Security Council members against further action.

"Every time a democracy will want to take measures to defend itself from terror, it will have to take into consideration a wide international legal campaign against its leaders and officials, based on the propaganda of the terrorists," he said.

Israeli officials refused to cooperate with the five-month investigation, saying it was ordered by a U.N. body with a clear anti-Israeli bias. Israel's military has conducted its own inquiries, but so far has cleared itself of any systematic wrongdoing.

"This report was conceived in sin and is the product of a union between propaganda and bias," government spokesman Mark Regev said. "Israel is a country with a fiercely independent judiciary ... Everything done by the military in Israel is open to judicial review by the independent judiciary."

Goldstone is a former South African judge who prosecuted war crimes in Rwanda and the former Yugoslavia. Goldstone, who is Jewish and has close ties to Israel, was well aware that his work would draw fire. As a condition for heading the inquiry, he insisted that the panel look at the actions of Palestinian militants.

His daughter, Nicole, told Israel Army Radio in a telephone interview from her home in Canada that her father agonized over whether to take the assignment. She said her father's presence softened the report's observations on Israel.

"He thought that ... he did the best thing possible for everyone, including Israel," she said. "I have no doubt that whatever emerged would have been much worse if he had not been there." Speaking in halting Hebrew, she said she had great love for the country.

Israel launched the three-week war in late December to quash Palestinian militants in Gaza who had bombarded southern Israel for years with rocket and mortar fire.

Some 1,400 Palestinians were killed in the conflict, including hundreds of civilians, and thousands more were wounded. Thirteen Israelis also died, including four civilians.

Peres, who won the Nobel Peace Prize for helping craft an interim 1993 peace agreement with the Palestinians, said the Goldstone report "makes a mockery of history."

"It draws no distinction between the attacker and the attacked," Peres said. "The report essentially grants legitimacy to acts of terrorism, shooting and killing, and ignores the right and duty of any country to self defense, as outlined in the U.N. charter."

In Gaza, Hamas' prime minister, Ismail Haniyeh, welcomed the report's harsh condemnation of Israel and called on the U.N. to charge Israeli leaders with war crimes. At the same time, he rejected the accusations that his group was guilty of war crimes for firing rockets into civilian areas in Israel.

"The Palestinian people and resistance was in self-defense," he said.

The U.N. investigators recommended the Security Council require both sides to launch credible probes into the conflict within three months, and to follow that up with action in their courts.

If either side refuses, it said the U.N. should refer the evidence for prosecution by the International Criminal Court, a permanent war crimes tribunal, within six months.

Even if there is no legal action, the U.N. report could damage Israel's public image, with people linking the state of Israel and war crimes.

Pro-Palestinian activists have sought before to try Israeli military officials outside of their homeland on war crimes charges connected to operations in Gaza. A retired general dodged a British arrest warrant in 2005 by staying on his plane at London's Heathrow airport after a tip-off that police were waiting to detain him over a deadly Israeli air strike in Gaza.

Activists also tried to take legal action in Spain and New Zealand.

 

[gubbi]

Israel rejects independent inquiry into Gaza war
By AMY TEIBEL (AP) – Sep 16, 2009

JERUSALEM — Israel on Wednesday rejected U.N. calls to open an independent inquiry into its conduct during last winter's Gaza Strip military offensive and said it would launch a diplomatic offensive to block any attempt to bring its soldiers before an international war crimes tribunal.

The defiant tone came a day after a U.N. investigation accused Israel and Palestinian militants of war crimes and possible crimes against humanity. While the report criticized rocket attacks by Hamas and other armed groups on Israeli towns, the bulk of the findings focused on Israeli actions.

The report, headed by South African jurist Richard Goldstone, said Israel used disproportionate firepower and disregarded the likelihood of civilian deaths in the offensive, which killed hundreds of civilians and caused widespread damage to Gaza.

It said that if Israel doesn't allow an independent investigation, the case should be referred to international war crimes prosecutors.

The report provoked a furor in Israel. The Foreign Ministry said it was "appalled and disappointed," and President Shimon Peres called it a "mockery of history." Radio stations devoted heavy chunks of air time to interviews with outraged officials and critical legal experts. "Classic Anti-Semitism," blared the headline of an opinion piece in the Israel Hayom daily.

The findings of the U.N. investigation echoed the conclusions of a string of human rights reports released in recent months. But the U.N. report could carry much more weight, both because it was authored by a widely respected former war crimes prosecutor and because it could ultimately lead to charges against Israel before the International Criminal Court.

Israel is not a member of the Netherlands-based ICC, but in theory the court could still attempt to prosecute its officials. To do so, it would need an order from the U.N. Security Council, but Israel's ally the United States would likely block any such request.

Alternatively, the Palestinian Authority has sought membership in the ICC, but since it is not a state, the court has not yet determined whether to accept the request. If the Palestinians are accepted, the ICC could proceed with prosecutions of Israeli and Hamas officials without a Security Council order since the alleged crimes took place in Gaza.

The ICC prosecutors office said Wednesday it was "examining all issues related to its jurisdiction" in the Gaza case, including the validity of the Palestinian membership.

Israeli Foreign Ministry spokesman Yigal Palmor said his country would take action to protect its soldiers and commanders from prosecution abroad and denounced the suggestion of an ICC jurisdiction. He said Israeli diplomats would lobby Security Council members against further action.

"Every time a democracy will want to take measures to defend itself from terror, it will have to take into consideration a wide international legal campaign against its leaders and officials, based on the propaganda of the terrorists," he said.

Israeli officials refused to cooperate with the five-month investigation, saying it was ordered by a U.N. body with a clear anti-Israeli bias. Israel's military has conducted its own inquiries, but so far has cleared itself of any systematic wrongdoing.

"This report was conceived in sin and is the product of a union between propaganda and bias," government spokesman Mark Regev said. "Israel is a country with a fiercely independent judiciary ... Everything done by the military in Israel is open to judicial review by the independent judiciary."

Goldstone is a former South African judge who prosecuted war crimes in Rwanda and the former Yugoslavia. Goldstone, who is Jewish and has close ties to Israel, was well aware that his work would draw fire. As a condition for heading the inquiry, he insisted that the panel look at the actions of Palestinian militants.

His daughter, Nicole, told Israel Army Radio in a telephone interview from her home in Canada that her father agonized over whether to take the assignment. She said her father's presence softened the report's observations on Israel.

"He thought that ... he did the best thing possible for everyone, including Israel," she said. "I have no doubt that whatever emerged would have been much worse if he had not been there." Speaking in halting Hebrew, she said she had great love for the country.

Israel launched the three-week war in late December to quash Palestinian militants in Gaza who had bombarded southern Israel for years with rocket and mortar fire.

Some 1,400 Palestinians were killed in the conflict, including hundreds of civilians, and thousands more were wounded. Thirteen Israelis also died, including four civilians.

Peres, who won the Nobel Peace Prize for helping craft an interim 1993 peace agreement with the Palestinians, said the Goldstone report "makes a mockery of history."

"It draws no distinction between the attacker and the attacked," Peres said. "The report essentially grants legitimacy to acts of terrorism, shooting and killing, and ignores the right and duty of any country to self defense, as outlined in the U.N. charter."

In Gaza, Hamas' prime minister, Ismail Haniyeh, welcomed the report's harsh condemnation of Israel and called on the U.N. to charge Israeli leaders with war crimes. At the same time, he rejected the accusations that his group was guilty of war crimes for firing rockets into civilian areas in Israel.

"The Palestinian people and resistance was in self-defense," he said.

The U.N. investigators recommended the Security Council require both sides to launch credible probes into the conflict within three months, and to follow that up with action in their courts.

If either side refuses, it said the U.N. should refer the evidence for prosecution by the International Criminal Court, a permanent war crimes tribunal, within six months.

Even if there is no legal action, the U.N. report could damage Israel's public image, with people linking the state of Israel and war crimes.

Pro-Palestinian activists have sought before to try Israeli military officials outside of their homeland on war crimes charges connected to operations in Gaza. A retired general dodged a British arrest warrant in 2005 by staying on his plane at London's Heathrow airport after a tip-off that police were waiting to detain him over a deadly Israeli air strike in Gaza.

Activists also tried to take legal action in Spain and New Zealand.

Honestly, imho, for all their reputation Israeli forces really need to learn real proper COIN/Urban CQB techniques instead of simply bombarding civilians ruthlessly. May those responsible for knowingly inflicting civilian casualties be severely punished, either here or in afterlife.
So much for Mossad's credibility and mythical abilities, they cannot even find out where Pvt Shalit is, in all of GAZA strip!

 

[courageneverdies]

Israel thinks its above the law. UN will not do so now becuase US will **** their backs.All war laws and codes of conduct are for other nations except US and Israel.

KIT Out.

 

[Solomon2]

By Richard Goldstone, Friday, April 1, 8:42 PM

We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.

The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

Our report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying — its rockets were purposefully and indiscriminately aimed at civilian targets.

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. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.

While I welcome Israel’s investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum. Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.

Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).

As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.

Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government. Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.

Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.

In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.

I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous “lessons learned” and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas. The Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions — perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.

Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.

The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

Our report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying — its rockets were purposefully and indiscriminately aimed at civilian targets.

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. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.

While I welcome Israel’s investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum. Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regretCondemns PA, Hamas that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.

Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).

As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.

Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government. Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.

Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.

In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.

I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous “lessons learned” and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas. The Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions — perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.

Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.

The writer, a retired justice of the Constitutional Court of South Africa and former chief prosecutor of the U.N. International Criminal Tribunals for the former Yugoslavia and Rwanda, chaired the U.N. fact-finding mission on the Gaza conflict.


Comments?

 

[T-Rex]

By Richard Goldstone, Friday, April 1, 8:42 PM

We know a lot more today about what happened in the Gaza war of 2008-09 than we did when I chaired the fact-finding mission appointed by the U.N. Human Rights Council that produced what has come to be known as the Goldstone Report. If I had known then what I know now, the Goldstone Report would have been a different document.

The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

Our report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying — its rockets were purposefully and indiscriminately aimed at civilian targets.

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. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.

While I welcome Israel’s investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum. Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.

Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).

As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.

Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government. Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.

Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.

In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.

I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous “lessons learned” and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas. The Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions — perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.

Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.

The final report by the U.N. committee of independent experts — chaired by former New York judge Mary McGowan Davis — that followed up on the recommendations of the Goldstone Report has found that “Israel has dedicated significant resources to investigate over 400 allegations of operational misconduct in Gaza” while “the de facto authorities (i.e., Hamas) have not conducted any investigations into the launching of rocket and mortar attacks against Israel.”

Our report found evidence of potential war crimes and “possibly crimes against humanity” by both Israel and Hamas. That the crimes allegedly committed by Hamas were intentional goes without saying — its rockets were purposefully and indiscriminately aimed at civilian targets.

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. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.

For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.

While I welcome Israel’s investigations into allegations, I share the concerns reflected in the McGowan Davis report that few of Israel’s inquiries have been concluded and believe that the proceedings should have been held in a public forum. Although the Israeli evidence that has emerged since publication of our report doesn’t negate the tragic loss of civilian life, I regretCondemns PA, Hamas that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.

Israel’s lack of cooperation with our investigation meant that we were not able to corroborate how many Gazans killed were civilians and how many were combatants. The Israeli military’s numbers have turned out to be similar to those recently furnished by Hamas (although Hamas may have reason to inflate the number of its combatants).

As I indicated from the very beginning, I would have welcomed Israel’s cooperation. The purpose of the Goldstone Report was never to prove a foregone conclusion against Israel. I insisted on changing the original mandate adopted by the Human Rights Council, which was skewed against Israel. I have always been clear that Israel, like any other sovereign nation, has the right and obligation to defend itself and its citizens against attacks from abroad and within. Something that has not been recognized often enough is the fact that our report marked the first time illegal acts of terrorism from Hamas were being investigated and condemned by the United Nations. I had hoped that our inquiry into all aspects of the Gaza conflict would begin a new era of evenhandedness at the U.N. Human Rights Council, whose history of bias against Israel cannot be doubted.

Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government. Indeed, our main recommendation was for each party to investigate, transparently and in good faith, the incidents referred to in our report. McGowan Davis has found that Israel has done this to a significant degree; Hamas has done nothing.

Some have suggested that it was absurd to expect Hamas, an organization that has a policy to destroy the state of Israel, to investigate what we said were serious war crimes. It was my hope, even if unrealistic, that Hamas would do so, especially if Israel conducted its own investigations. At minimum I hoped that in the face of a clear finding that its members were committing serious war crimes, Hamas would curtail its attacks. Sadly, that has not been the case. Hundreds more rockets and mortar rounds have been directed at civilian targets in southern Israel. That comparatively few Israelis have been killed by the unlawful rocket and mortar attacks from Gaza in no way minimizes the criminality. The U.N. Human Rights Council should condemn these heinous acts in the strongest terms.

In the end, asking Hamas to investigate may have been a mistaken enterprise. So, too, the Human Rights Council should condemn the inexcusable and cold-blooded recent slaughter of a young Israeli couple and three of their small children in their beds.

I continue to believe in the cause of establishing and applying international law to protracted and deadly conflicts. Our report has led to numerous “lessons learned” and policy changes, including the adoption of new Israel Defense Forces procedures for protecting civilians in cases of urban warfare and limiting the use of white phosphorus in civilian areas. The Palestinian Authority established an independent inquiry into our allegations of human rights abuses — assassinations, torture and illegal detentions — perpetrated by Fatah in the West Bank, especially against members of Hamas. Most of those allegations were confirmed by this inquiry. Regrettably, there has been no effort by Hamas in Gaza to investigate the allegations of its war crimes and possible crimes against humanity.

Simply put, the laws of armed conflict apply no less to non-state actors such as Hamas than they do to national armies. Ensuring that non-state actors respect these principles, and are investigated when they fail to do so, is one of the most significant challenges facing the law of armed conflict. Only if all parties to armed conflicts are held to these standards will we be able to protect civilians who, through no choice of their own, are caught up in war.

The writer, a retired justice of the Constitutional Court of South Africa and former chief prosecutor of the U.N. International Criminal Tribunals for the former Yugoslavia and Rwanda, chaired the U.N. fact-finding mission on the Gaza conflict.


Comments?

Robbing the homeland of the Palestinians is the greatest crime against humanity. The war crimes committed by Israel are deliberate and the struggle in response to that is legitimate, it does not matter what some scums say about that.