The prospect of senior Israeli politicians and generals standing in front of an international war crimes court took a significant step forward this week with the release of Richard Goldstone's UN-based report on the recent attacks against Gaza and related Israeli violations across the Occupied Territories.
Goldstone, a prominent South African judge with noted experience in helping to dismantle that apartheid regime, delivered a scathing set of findings and recommendations, concluding, most notably, that Israel has committed a series of high war crimes and possible crimes against humanity, all of which should be investigated and prosecuted through the International Criminal Court (ICC).
As the report states:
1732. From the facts gathered, the Mission found that the following grave breaches of the Fourth Geneva Convention were committed by Israeli forces in Gaza: willful killing, torture or inhuman treatment, willfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly. As grave breaches these acts give rise to individual criminal responsibility. The Mission notes that the use of human shields also constitutes a war crime under the Rome Statute of the International Criminal Court. As an accompanying statement to the report also concludes:
"The Mission found that, in the lead up to the Israeli military assault on Gaza, Israel imposed a blockade amounting to collective punishment and carried out a systematic policy of progressive isolation and deprivation of the Gaza Strip. During the Israeli military operation, code-named "Operation Cast Lead," houses, factories, wells, schools, hospitals, police stations and other public buildings were destroyed… More than 1,400 people were killed during the military operation…
The report concludes that the Israeli military operation was directed at the people of Gaza as a whole, in furtherance of an overall and continuing policy aimed at punishing the Gaza population, and in a deliberate policy of disproportionate force aimed at the civilian population. The destruction of food supply installations, water sanitation systems, concrete factories and residential houses was the result of a deliberate and systematic policy which has made the daily process of living, and dignified living, more difficult for the civilian population…"
The language from Netanyahu has been, predictably, dismissive. As with Israel's refusal to co-operate with the Goldstone team, there will be no active response to the report's recommendation that Israel conduct its own investigations within six months.
Israel's institutional aversion to instructing any such enquiry is duly noted in the report:
122. The Mission concludes that there are serious doubts about the willingness of Israel to carry out genuine investigations in an impartial, independent, prompt and effective way as required by international law. The Mission is also of the view that the Israeli system overall presents inherently discriminatory features that make the pursuit of justice for Palestinian victims very difficult. This forms part of a more damning set of charges and instructions to Israel:
1769. To Israel
The Mission recommends that Israel immediately cease the border closures and restrictions of passage through border crossings with the Gaza Strip and allow passage of goods necessary and sufficient to meet the needs of the population, for the recovery and reconstruction of housing and essential services and for the resumption of meaningful economic activity in the Gaza Strip.
• The Mission recommends that Israel cease the restrictions on access to the sea for fishing purposes imposed on the Gaza Strip and allow such fishing activities within the 20 nautical miles as provided for in the Oslo accords. It further recommends that Israel allow the resumption of agricultural activity within the Gaza Strip, including within areas in the vicinity of the borders with Israel.
• Israel should initiate a review of the rules of engagement, standard operating procedures, open fire regulations and other guidance for military and security personnel. The Mission recommends that Israel avail itself of the expertise of the ICRC, the United Nations Office of the High Commissioner for Human Rights and other relevant bodies, and Israeli experts, civil society organizations with the relevant expertise and specialization, in order to ensure compliance in this respect with international humanitarian law and international human rights law. In particular such rules of engagement should ensure that the principles of proportionality, distinction, precaution and non-discrimination are effectively integrated in all such guidance and in any oral briefings provided to officers, soldiers and security forces, so as to avoid the recurrence of Palestinian civilian deaths, destruction and affronts on human dignity in violation of international law.
• The Mission recommends that Israel allow freedom of movement for Palestinians within the OPT - within the West Bank including East Jerusalem, between the Gaza Strip and the West Bank and between the OPT and the outside world - in accordance with international human rights standards and international commitments entered into by Israel and the representatives of the Palestinian people. The Mission further recommends that Israel forthwith lifts travel bans currently placed on Palestinians by reason of their human rights or political activities.
• The Mission recommends that Israel release Palestinians who are detained in Israeli prisons in connection with the occupation. The release of children should be an utmost priority. The Mission further recommends that Israel cease the discriminatory treatment of Palestinian detainees. Family visits for prisoners from Gaza should resume.
• Israel should forthwith cease interference with national political processes in the OPT, and as a first step release all members of the Palestinian Legislative Council currently in detention and allow all members of the PLC to move between Gaza and the West Bank so that the Council may resume functioning
• The Government of Israel should cease actions aimed at limiting the expression of criticism by civil society and members of the public concerning Israel’s policies and conduct during the military operations in the Gaza Strip. The Mission also recommends that Israel set up an independent inquiry to assess whether the treatment by Israeli judicial authorities of Palestinian and Jewish Israelis expressing dissent in connection with the offensive was discriminatory, both in terms of charges and detention pending trial. The results of the inquiry should be made public and, subject to the findings, appropriate remedial action should be taken.
• The Government of Israel should refrain from any action of reprisal against Palestinian and Israeli individuals and organizations that have cooperated with the UN Fact Finding Mission on the Gaza Conflict, in particular individuals who have appeared at the Public Hearings held by the Mission in Gaza and Geneva and expressed criticism of actions by the State of Israel.
• The Mission recommends that Israel reiterates its commitment to respect the inviolability of UN premises and personnel and that it undertakes all appropriate measures to ensure that there is no repetition of violations in the future (ref Convention on Privileges and Immunities of the UN). It further recommends that reparation to the United Nations be provided fully and without further delay by the State of Israel, and that the General Assembly consider this matter.
The enquiry team also took in-depth submissions regarding Israel's gross violations across the West Bank, including the wilful shooting of peaceful demonstrators at Bi'in and Nil'in.
Goldstone further asserts that Hamas rockets fired into Israel constitute war crimes and recommends similar referral to the ICC:
108. The Mission has determined that the rockets and, to a lesser extent, mortars, fired by the Palestinian armed groups are incapable of being directed towards specific military objectives and were fired into areas where civilian populations are based. The Mission has further determined that these attacks constitute indiscriminate attacks upon the civilian population of southern Israel and that where there is no intended military target and the rockets and mortars are launched into a civilian population, they constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity.
Israel supporters and much of the media have seized upon this as evidence of a 'two sides to blame' conflict. Israel, of course, is reluctant to endorse this view given that it would incriminate itself as one of those guilty parties.
But the case against Hamas can also be viewed as an added opportunity for a full and just revelation of the truth behind this conflict.
This writer has been clear that the firing of rockets is a counter-productive strategy. Ultimately, violence achieves nothing - even violence against 'superior' forms of violence. However, it's also obvious - and implicit in the weight of the report's indictment against Israel - that such actions have been carried out as part of a desperate, rearguard effort against overwhelming Israeli oppression.
Consistently identifying such attacks as contrary to international law may be valid. But one also has to recognise the context within which they happen: namely, the brutal siege of Gaza and daily terror perpetrated by Israeli forces. Again, while maintaining the case against Hamas, Goldstone appears to offer unstated 'recognition' of that context in the report's proportional indictments and critical instructions towards Israel.
Referring Hamas to the ICC may, thus, be regarded as a helpful step in bringing all the evidence of Palestinian suffering to court. It will offer those who have felt driven by such desperate measures the opportunity to present mitigating evidence of self-defence.
Goldstone's report is also careful to say that anyone subsequently investigated by the ICC is presumed innocent until proved guilty.
It's also worth noting, with regard to rocket fire, the report's concerns about the discriminatory nature of Israeli defence arrangements:
110. The Mission notes that the relatively few casualties sustained by civilians inside Israel is due in large part to the precautions put into place by Israel. This includes an early warning system, the provision of public shelters and fortifications of schools and other public buildings at great financial cost – a projected USD 460 million between 2005 and 2011- to the Government of Israel. The Mission is greatly concerned, however, about the lack of an early warning system and a lack of public shelters and fortifications available to the Palestinian Israeli communities living unrecognized and in some of the recognized villages that are within the range of rocket and mortars being fired by Palestinian armed groups in Gaza.
The question now is whether the key Security Council powers, notably the US, will exercise their veto on having the report referred to the ICC. The option of upholding international law and giving teeth to the ICC, rather than default-line protection for Israel, will be another major test of Obama's proclaimed desire to see justice in the Middle East. Alas, as evidenced by Washington's current appeasement of Israel over the 'settlement freeze', any just action appears unlikely.
However, in a further section of the report, Goldstone also made this significant recommendation to individual states:
1772. To the international community
The Mission recommends that States Parties to the Geneva Conventions of 1949 start criminal investigations in national courts, using universal jurisdiction, where there is sufficient evidence of the commission of grave breaches of the Geneva Conventions of 1949. Where so warranted following investigation, alleged perpetrators should be arrested and prosecuted in accordance with internationally recognised standards of justice.
Which, with proper application by signatory states and full implementation by others into national law, gives little excuse now for ministerial and legal inaction.
Whether or not states like Britain now pursue and arrest prima facie Israeli war criminals arriving in the UK, the international standing of Goldstone's report and recommendations now makes it much more difficult for governments and courts to ignore.