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by Irwin Cotler


Part I. Tainted by the UN resolution and Commission personnel

After nearly a decade of rocket-fire from Gaza targeting Israeli civilians - including armed attacks that continued and escalated for the three years after Israel withdrew from Gaza in 2005 - this year's conflict in Gaza was nothing if not preventable and predictable.

From the moment Hamas officially announced that it would not extend its truce with Israel in December 2008, military confrontation appeared unavoidable. In the conflict that ensued, Israel - even if acting in self-defence - was bound to the rules of war like any other combatant. Yet despite the fog of war immediately covering the on-going hostilities, the international community was rife with "experts" who were ready to convict Israel of war crimes.

Among those supposed experts was Christine Chinkin, a law professor in England. As events would turn out, Chinkin would become both a member of, and an apt metaphor for, the seriously-flawed Goldstone Commission that would be called upon by the United Nations Human Rights Council (UNHRC) to investigate the conflict.

IF ONE wanted to have a distinguished person to head up an inquiry into the events of the Gaza War, Richard Goldstone would be a natural candidate. He was the chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. He headed the South African commission on violence and intimidation. And he was a distinguished member of the Constitutional Court of South Africa. He brings to the table a special expertise and experience in matters of the intersection between international human rights law and humanitarian law.

Goldstone, it would seem - and his record would indicate - is also a man preoccupied with fairness. As he himself declared: "I'm just not prepared to be involved in any inquiry, in any mission, in any report that has any unprofessional or inappropriate political agenda. I can give you that absolute assurance." It is somewhat surprising then that he now heads yet another infamous United Nations mission to investigate Israel. That Goldstone is heading an inherently tainted inquiry whose formal mandate is to investigate Israel and not Hamas is as disturbing as it is evident.

Indeed, the mandate that was handed over to Goldstone was deeply one-sided and flawed, by his own admission. For the resolution of the UNHRC creating the mandate already served as a direct indictment of Israel - it began by "strongly condemn[ing] the ongoing Israeli military operation… which has resulted in massive violations of the human rights of the Palestinian people and systematic destruction of Palestinian infrastructure." Canada, Japan, France, Germany, Italy, Switzerland and the United Kingdom - among others - accordingly refused to support it.

Former UN High Commissioner for Human Rights Mary Robinson stated that "the resolution is not balanced because it focuses on what Israel did, without calling for an investigation on the launch of the rockets by Hamas. This is unfortunately a practice by the Council: adopting resolutions guided not by human rights but by politics. This is very regrettable." Asked to head up the mission before Goldstone, Robinson refused.

Goldstone admits that he also refused the appointment - at least initially. "More than hesitate, I initially refused to become involved in any way [with the inquiry], on the basis of what seemed to me to be a biased, uneven-handed resolution of the UN Human Rights Council," he explained. But he felt comfortable enough to proceed when the then-president of the Council, Martin Ihoeghian Uhomoibhi, purportedly expanded the mission's mandate for him, even though the enabling resolution behind the inquiry would remain unchanged, and though he would still be accountable to the Council that passed this resolution.

HOW GOLDSTONE could have considered his personal conversation with Uhomoibhi sufficient to quell his fears is surprising to say the least. One-sided or not, the mandate in the enabling Human Rights Council resolution is the one that determined the scope and tenor of the "fact-finding" mission. Uhomoibhi could no more have altered that mandate unilaterally than Goldstone could have himself, in defiance of the Council.

Indeed, any faith Goldstone possessed in the re-definition of his mandate should have dissipated when Uhomoibhi publicly stated on the day the inquiry was announced: "I am confident that the mission will be in a position to assess in an independent and impartial manner all human rights and humanitarian law violations committed in the context of the conflict which took place between 27 December 2008 and 18 January 2009."

The alleged expansion of the mandate's timeframe that Goldstone apparently fought for, to include reference to Hamas's provocation (apparently from June 2008), was nowhere to be found in the description of his mandate.

I know from first-hand experience the baggage that comes with participating in a mission created by the UN Human Rights Council - a UN body systematically and systemically biased against Israel. For this is a Council that has a special and permanent agenda item targeting Israeli violations of human rights, and another agenda item for the rest of the world - thereby singling out Israel for differential and discriminatory treatment. This is a Council that targets some 80% of its resolutions at one member state, Israel, while the major human rights violators enjoy exculpatory immunity. This is a Council that has had more emergency "Special Sessions" directed against Israel than against all the other countries of the world combined. This is a Council that excludes only one country - Israel - from membership in any regional grouping, thereby denying it international due process.

As it happens, I was invited to participate in one of the UN Council's exercises in Alice in Wonderland justice - where the conviction is secured even before the hearing begins - in 2006. The context was a fact-finding mission to investigate the Israeli "wilful killing of Palestinian civilians" in Beit Hanoun, Gaza, without reference to the targeting of Israeli civilians in Sderot, Israel.

Then, as now, the mandate was one-sided from the start. Then, as now, the conviction preceded the investigation. Then, as now, the mission was designed less as a true independent inquiry than as an imprimatur of legitimacy on the Council's own, biased declarations.

I felt obliged to decline. I was told that at least I could play a part in the inquiry and, if I disagreed with its conclusions, write a dissenting opinion. But I realized that I could not validate this mission in any way, including through my mere presence, for the integrity of United Nations mandates was at stake.

Notably, one Professor Christine Chinkin accepted the appointment. Now Chinkin joins Goldstone in an inquiry that bears the hallmarks of bias and politicization that he supposedly shunned. Indeed, before the mission began - as if to add insult to injury - Chinkin notoriously signed her name to a public letter that was titled "Israel's bombardment of Gaza is not self-defence - it's a war crime." Why she feels qualified at this point to hear witness evidence along with the rest of the commission - without triggering a reasonable apprehension of bias - is not entirely clear.

Rather than bestow legitimacy upon the Council's mandate, Goldstone's role should have been to act as a corrective. Now occupying the same Jewish figurehead role that I would have in 2006, he does not appear to have realized this fact.

Or, perhaps, he did. Though it was somewhat softer than Chinkin's, Goldstone did also sign his name to a public letter on the Gaza conflict, stating that the events "shocked [him] to the core." Yet he signed no such letter about Hamas's terrorist crimes in the years that preceded the war. In an interview earlier this month, he had the temerity to excuse away the UN's inaction vis-à-vis Hamas based on the fact that Israel never brought the matter to the Security Council's attention.

The only problem, of course, is that Israel repeatedly did.

PART II. Tainted by the systematic bias of the UN Council

Disturbing as it may be, the failure to include a thorough review of Hamas's continuous rocket attacks in the resolution establishing the Goldstone Commission - and to then staff the mission with a member who has already decided that such attacks do not alter Israel's guilt - can be seen as evidence of the reductionist narrative that the UN Human Rights Council seeks to promulgate.

None of this is intended to suggest, nor would I wish to have it inferred, that Israel is somehow above the law, or that Israel is not to be held accountable for any violations of law. On the contrary, Israel is accountable for any violations of international law or human rights like any other state. The Jewish people are not entitled to any privileged protection or preference because of the particularity of Jewish suffering.

But the problem is not that Israel seeks to be above the law; it is that Israel has been systematically denied equality before the law in the international arena. The issue is not whether Israel must respect human rights, but that the human rights of Israel and its people have not been respected. The discrimination emerges not from suggesting that human rights standards should be applied to Israel - which they must be - but from the fact that these standards have not been applied equally to anyone else.

IT IS on this basis that the Goldstone Commission should be opposed: not because it represents an objective inquiry into Israel - because independent and impartial inquiries should be welcomed by democracies - but precisely because it does not represent such an objective inquiry.

Consistently applying discriminatory standards has the effect not only of demonizing Israel, but of undermining the integrity of the UN and the edifice of international law. Decades from now, historians looking back at the meetings of the council will be led to believe that more Palestinians died at the hands of Israelis than Darfurians at the hands of Sudan; that discrimination was institutionalized in Israel to a larger extent than in apartheid South Africa; and that Israel - the lone democracy in the Middle East - was a greater threat to international peace and security than any other state since its inception.

But yet it was Hamas that fired deliberately on Israeli civilians. It was Hamas that boasted - only days before the conflict exploded in December - that Israel was "hopeless and desperate" when faced with its attacks. It was Hamas that promised to continue firing rockets, that painted Israel and Jews as the sons of apes and pigs and that called for their murder in its charter and publicly incited to their genocide.

Once the war began, it was Hamas that continued to target Israeli civilians - not infrequently but as part of a systematic, widespread attack. It was Hamas that chose to position its fighters in Palestinian civilian areas. It was Hamas that decided to misuse humanitarian symbols - such as using an ambulance to transport fighters - to launch attacks. It was Hamas that recruited children into armed conflict. These are all indisputable war crimes. Yet they do not find their way, at any point, into the resolution establishing the Goldstone Commission.

The mission's mandate is tainted through more subtle ways of prejudging its conclusions as well. For instance, the council's enabling resolution refers to the Gaza as being "occupied Palestinian territory." Such a description is loaded, and ignores the reality on the ground - that Israel fully withdrew from Gaza years ago. Indeed, the territory's status under international law remains unclear. By adopting this vernacular, the council - and Goldstone himself, who uses a similar characterization - implicitly predetermines an essential part of its analysis. For under international law, what constitutes a legitimate response will be very different depending on whether rocket attacks are coming from territory a state "controls," or whether they are coming from territory that is controlled by the attacking terrorist government, as in the case of Hamas.

In the end, whatever bargain Goldstone personally struck about his mandate, and whatever intentions he has of examining both sides of the conflict, his work will nonetheless be regrettably tarnished by its connection to the UN Human Rights Council, and may well be manipulated to satisfy the council's ends.

AND THUS we are left with the reality that Judge Richard Goldstone, previously shocked to the core, has become the leader of a mission that is tainted to the core.

Goldstone has, to his credit, opened his commission - and listened - to the witness testimony of both Israelis and Palestinians. [Few pro-Israeli or anti-Arab testimonies made it into the Committee report -- BSL.] They heard eloquent words from, among others, Noam Schalit, whose son Gilad remains in Hamas captivity under conditions that plainly violate international law. Moreover, while many may welcome an ultimate finding from the inquiry that Hamas was guilty of human rights violations as well, such an outcome should not be considered enough.

The commission's report is not yet written, and I would not wish to prejudge its findings. Suffice it to note, however, that the legitimacy of the report cannot be determined solely based on whether Hamas's heinous and significant crimes are revealed; the legitimacy of the report also rests - perhaps primarily - on the fairness of its findings with respect to Israel. And this fairness, in turn, is compromised not only by the tarnished mandate, but by the witness testimony and documentary evidence controlled by the Hamas terrorist government - while there is an absence of evidence from the Israeli government, which refused to cooperate with the mission to begin with.

Moreover, there is also a clear international legal asymmetry in the conflict between Israel and the terrorist group. This asymmetry exists not only in what lawyers call jus ad bellum - or the legal context of aggression and self-defense - but also in jus in bellum - the application of international human rights law to the combatants. With respect to Hamas, any attempt at "evenhandedness" will not do justice to this reality. Indeed, no analysis of the principle of proportionality can be undertaken without a keen understanding of intentionality. Accordingly, the commission should thus be singling out Hamas's deliberate and unprovoked acts of war, as well as its avowed and publicly-declared intention to destroy Israel and kill as many of its citizens as possible. Such intentions on the part of Hamas need to be contrasted with Israel's objective - to prevent and deter such armed attacks in order to better protect its innocent citizens. UN investigator Richard...

UN investigator Richard Goldstone arrives for a meeting at the Hamas Health Ministry, in Gaza City. (Photo: AP)


THE PARADIGM of false moral equivalence not only wrongly puts Israel and Hamas on the same level, but it also undermines the importance of intentionality in international law.

For this reason, we should be looking for the Goldstone report not merely to observe that Hamas fired rockets at Israeli civilians while imperilling Palestinian civilians - a double war crime - but to look at this practice as the reason behind innocent Palestinian deaths. We should be looking for the Goldstone report not merely to mention Gilad Schalit in passing, but to look at his situation as a case study in Hamas terror and impunity.

In brief: We should be looking for the Goldstone report not just to mention Hamas's violations of international law, but to identify them as the root cause of the Gaza conflict. Simply put, if there had been no Hamas war crimes, there would have been no need for an Israeli response.

As the Goldstone inquiry is currently set up, however, expecting such an analysis to emerge clearly from its final report is likely unduly optimistic. The tarnish of the UN Human Rights Council, the enabling resolution it drafted, the personnel it grouped together, and the legal asymmetry cannot be so easily redressed. Indeed, between Goldstone - a renowned Jewish jurist who played right into the hands of a partial process - and Christine Chinkin - a law professor willing to sign off on an indictment before the evidence is in - the UN Human Rights Council no doubt found its ideal inquisitors.

And the council will no doubt be looking for their final report to be a final stamp of confirmation on the verdict it already determined.

The writer is the former minister of justice and attorney general of Canada. He is a member of the Canadian Parliament, special counsel on human rights and international justice to the Liberal Party, and a law professor (on leave) at McGill University.

Part I appeared August 16, 2009 in the Jerusalem Post
Part II appeared August 20 2009 in the Jerusalem Post


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