Despite the existence of numerous international reports that support the Palestinian rights, the Goldstone report garnered special attention as it was issued by an international body that enjoys an official capacity. This allows for the possibility of prosecuting Israel and its leaders in international courts and in a number of Western countries, for the war crimes and violations mentioned in the report.
The Israeli response to the Goldstone report assumed the usual pattern in denying the accusations and in defying the will of the international community. This Israeli stance was bolstered by the U.S position, while the European position appeared divided and inconsistent with its own declared slogans of justice and human rights. Moreover, the stance taken by the Palestinian Authority (PA) in Ramallah was extremely embarrassing, and became the immediate focus of overwhelming public anger, prompting the PA to backtrack from this stance and adopt a position that is closer to that of the general public opinion. In the meantime, Hamas pushed towards endorsing the report, despite its initial reservations.
The Goldstone report reflects a growing awareness of the importance of using the international law and the international forums to serve the Palestinian cause. The report also weakens Israel’s ability to pursue its military and destructive options in its future wars. However, it should be mentioned that the report, on the other hand, paves the way for the prosecution of the resistance and its leaders for their alleged terrorism and war crimes.
The Palestinian issue has a long history of intervention by third parties, mediators, reports and international testimonies. Some of these interventions were focused on identifying the nature of the conflict taking place in Palestine and its surrounding regions, and the causes, motives, and developments of this conflict. Such interventions may culminate in proposals for a settlement, such as the report submitted by the King-Crane Commission (August, 1919), the Palestine Royal Commission (July 1937), and Count Folke Bernadotte’s report (September 1948). And perhaps the reports and statements issued by the contemporary international Quartet fall under this category.
This is while we can find other forms of intervention, that were particularly invested in the task of shedding light on specific events and certain partial issues, in a way that resembles criminal or forensic investigations, all with the aim of ascertaining particular legal estimations and referring them to the relevant legal authorities. These include the reports released by the British Military Commission of Inquiry into the Jerusalem riots (April 1920), and by the International Commission for the Wailing Wall
These various types of reports succeeded at the time in provoking various reactions, ranging between satisfaction and anger; acceptance and rejection; while attaining differing levels of significance among the actors concerned. In this vein, perhaps the Goldstone report had the biggest success in terms of the publicity it received and its snowballing implications, which varied in both breadth and prominence. This is not to mention the extreme wrangling among the different stances, points of views and arguments regarding the report, and among the parties directly involved in this issue on one hand, and among the actors and sides within these parties on the other hand.
The Report: Implications and Practical Results
The report’s inception dates back to when the United Nations Human Rights Council (an official subsidiary body of the United Nations comprising of 47 countries) established in April 2009 a United Nations Fact Finding Mission to investigate the Israeli war on the Gaza Strip in late 2008 and early 2009. Richard Goldstone, a Jewish South African Judge, was appointed to head the mission up until his report was issued in mid September 2009 (with the ensuing reactions). This timeline with all its intricacies provides a unique example of the willingness of the factions involved in the Palestinian cause to exploit such international interventions (and inputs) in the ongoing dispute among them. While this latter assessment is accurate and applicable to all parties, the repercussions that ensued demonstrated that the Palestinian scene was the most vulnerable to such exploitation, which took place in a reactionary and irrational manner.
The report gave a comprehensive account of the Israeli military operations that were launched against Gaza, and included a detailed analysis of 36 specific incidents in this context, and concluded that these operations:
1. Have targeted the people of Gaza as a whole, which indicates the intention to inflict collective punishment on the people of the Gaza Strip.
2. Have violated the provisions pertaining to the protection of civilians in the Geneva Convention.
3. Have involved the willful killing and torture [of Palestinian civilians], extensive destruction of property, using Palestinians as human shields, firing at civilians and hundreds of worshippers, all in a manner that cannot be justified by military necessity.
The report concluded that “that personal responsibility for some of these actions lies with those who perpetrated them; that these actions may amount to war crimes and crimes against humanity…” but that “there is no legally admissible evidence”…
The report also addressed the other side and pointed out that the Palestinian armed groups – which the report described as being terrorist groups –have launched about 8000 rockets and mortars from Gaza onto the Israeli settlements between 2001 and 2008. The report arrived at the conclusion that such actions, in addition to the continued detention of Gilad Shalit, are in violation of international conventions.
The report demanded that the parties referred to therein, i.e. Israel and the Palestinian factions, conduct their own investigations into their alleged violations and respond within six months. In the event that these parties fail to comply, the findings will be referred to the International Criminal Court which will exercise its jurisdiction over the alleged crimes.
Despite the fact that the report had confirmed the conclusions made by the previous reports published by nongovernmental organizations, the Goldstone report is the first of its kind in that it was issued by an official international body that is considered to be a subsidiary of the United Nations, something that essentially sets it apart from other similar reports. Hence, the Goldstone report is an important step towards reaffirming international criminal justice by a body affiliated with the United Nations, and may thus be added to other international resolutions relevant to the Palestinian issue.
Upon the publishing of these major findings, and before the addressees and the parties concerned had the chance to examine the report’s final draft, the reactions to these findings began surfacing, ranging from firm rejection by Israel and the United States, to the ambiguity, or rather, the contradiction between rejection and acceptance (in what regards the Palestinian stance specifically), in addition to the caution and haziness that characterized the Arab and European positions!
On the one hand, Israel was the side that took the most extreme position in rejecting the report and attacking its contents and deriding its authors, and against Goldstone himself. Israel accused them of being partial and biased, and of equating between the self-defense measures taken by Israel and the terrorism perpetrated by the armed Palestinian factions.
But in fact, by adopting this stance, Israel has confirmed its unwavering adherence to its old and usual doctrine and approach in dealing negatively with international law, the Bill of Human Rights, international conventions and the watchdogs involved in these domains.
Here, we would like to say that Israel, supported once again by U.S policy, demonstrated its consistency with itself and with its behavior in relation to the international human rights and international law communities in all their components and scopes. This is regardless of the incidents and occasions that enable Israel to obtain condemnation against some of its enemies, such as the sections of the Goldstone report that carried literal accusations of terrorism against the resistance factions. In fact, Israel has turned every stone to prevent the deliberation of the report at the Human Rights Council and the rest of the United Nations’ bodies, and mobilized its advocates, both on the official and popular levels, to support Israel against the report in other capitals, and to attempt to bury it. Israel also exerted pressure on the PA to follow this same direction by using the harshest means of political coercion, including threatening the PA to expose personal files that tarnish the image of the Presidency of the PA and its so-called moderate officials, including Mahmoud Abbas personally.
This steadfastness shown by Israel in confronting international justice and its representatives was, on the other hand, poles apart from the Palestinian reaction in dealing with the report, whether by Hamas in Gaza or the PA in Ramallah.
When the Goldstone mission was formed, Hamas declared that a commission headed by a Jew will not be impartial, and that the movement [Hamas] will not accept its findings, which is what indeed happened, immediately after the report was released. What specifically outraged Hamas was the report’s article No. 108, which mentioned that “…the attacks launched by the Palestinian armed groups constitute a deliberate attack against a civilian population. These acts would constitute war crimes and may amount to crimes against humanity…” In addition, the report went on to criminalize Hamas’s actions against its local opponents; these actions must ultimately – according to the report – be investigated and Hamas must be held accountable. This conclusion raised a question about what Hamas’s position would be in case the court in the Hague exercises its jurisdiction and convicts Hamas of committing crimes against humanity, and summoning its leaders to be tried?!
However, Hamas then quickly backtracked on its reservations after several senior jurists and international human rights organizations highlighted that the report’s findings may help indict Israel and the Israeli leadership in international courts and international bodies, and that the Goldstone report legally circumvents more than seven reports issued by Israel. Furthermore, the suspicions of Hamas along with those of many experts and the various segments of society in Palestine and the Arab world were aroused when it was learned that the PA had asked the Human Rights Council to postpone the deliberation on the Goldstone report until its next session in March 2010. Subsequently, Hamas shifted its position from rejection and reservation, to expressing praise and support for the report. Hamas then staunchly condemned the stance taken by the PA, along with condemnations by the majority of the Palestinian factions and political and popular groups.
In light of the extreme embarrassment and the weak position in which the PA found itself against the overwhelming popular anger, the PA in turn decided to shift its position regarding the report into a favorable one, and sought out justifications for its previous stance whereby it had asked to defer its deliberation to a later time; thus, the PA adopted a new position and requested a vote on the report, which is what ultimately took place.
In the course of this deadlock, the Palestinian political forces were dragged into exchanging mutual blame and accusations of failure in terms of securing the rights of Palestinians, and of holding the responsibility for the blood of the martyrs and the suffering of the people in Gaza, and for disrupting the national dialogue.
Moreover, it is also valid to believe that the Arab stance echoed the Palestinian ambiguity. In truth, the Arab countries, according to the testimonies of senior Palestinian officials, were inclined to defer the report and thus applied their pressures in this direction. However, they distanced themselves from this stance as soon as the popular reaction turned out to be in the opposite direction, and hence, all these countries supported a vote on the report and its adoption at the Human Rights Council, without a single country breaking away from this consensus. This was a remarkable stance that can be built upon in similar issues in the future.
In addition, the reactions that ensued exposed the European deceitfulness towards an extremely crucial international human rights issue. During the debate that took place following the publication of the report, the Europeans chose to withhold taking a position while being relatively closer to the view that deliberating the report should be deferred, under the pretext that the Goldstone report’s findings are detrimental to the peace process and the prospects of the resumption of the Israeli-Palestinian negotiations.
However, this position lost its potency, and was no longer practical when the report became again a subject for debate at the United Nations Human Rights Council, as the Europeans were then compelled to specify their positions towards the report when the time came to hold a vote for its endorsement (16/10/2009). It was hence revealed that they do not share a common position, and were divided among themselves into countries that supported the report, others that opposed it and countries that abstained or were absent from the vote.
In the course of the Goldstone report, we stumbled upon a wealth of symmetrical legal and political assessments and opinions, but which were not completely devoid of the influences of the crisis-inflating media, and intellectual and legal trivialization. In the scope of non-reactionary reflection and analysis of the report and its implications, there is a chance to make the following observations:
The first observation: The report raises suspicions regarding Israel’s criminal conduct. However, it does not employ peremptory and conclusively direct language in this regard. Perhaps its author Judge Goldstone was the most realistic debater in terms of this issue when he said: “the results of this investigation are not conclusive proof in case the International Court considers it. The report is just a useful road map for the investigations that the two parties concerned would conduct.”…
The second observation: The report judged the conduct of Hamas and the resistance factions by employing a more indicting tone, given that the report deemed these groups to be terrorist groups, and ignored any notion of legitimate resistance that these groups’ actions might have. This is an inference that has serious implications in the future.
The third observation: The Palestinian National Authority, similarly to the rest of the Arab regimes, is not immune from succumbing to foreign pressure and arm bending. However, they, at the same time, cannot antagonize the public opinion at home and its aspirations if this public opinion manifested itself in seriousness and anger to the level that threatens to become a major eruption. Perhaps it has been thus concluded that responding to these aspirations will protect the PA from the pressures incoming, or expected from abroad. Thus, the Palestinian President backtracked on his request to defer the report, and a vote was held on the report and the latter was subsequently endorsed; also, neither the United States nor Israel carried out their threats against it.
The fourth observation: The stances that were taken in reaction to the report and its aftermath both tested the Western human rights community’s declared stances in general, and in particular, those of the official human rights bodies. In fact, the report strongly confounded these stances, eventually leading their authors to adopt stances that are unequivocally contradictory.
As a matter of fact, those addressed by the report did not leave much latitude for the relevant parties to conceive how they will deal with this report, in terms of both form and content. Their hasty reactions thus reflected some aspects of their future plans and the steps that they will take (their strategy so to speak) regarding the manner in which they want the report to be dealt with. This is because the Israeli rejection of the report, which was paralleled with an exhaustive diplomatic and public relations campaign to repudiate it, resist it, and reverse its damages, does not only reflect an effort to face the report, since the latter does not provide a decisive and direct indictment of Israel…What is rather more logical can be deduced if we try to understand the Israeli approach in the broader context of the absolute Israeli intransigence with regard to international law, and its refrainment from ever responding in a manner that indicates its submissiveness to this law.
Nonetheless, with regard to the Goldstone report affair, Israel has focused on three particular steps: First, turning the international attention away from the report’s condemnation of Israel, towards the report’s condemnation of the Palestinian resistance. Second, following an approach similar to the one adopted by the US who refuses any judicial and legal procedures that involve its soldiers and officers, except for its own legal and judicial system. The third step is engaging in legal maneuvers by conducting its own investigation into the incidents that took place in Gaza with the aim of circumventing the report and alleging that Israel has fulfilled its entitled obligations.
At the Palestinian level, it is more likely that hesitant jittering and lack of direction will continue to prevail…unless the PA went on to pass the entire Palestinian issue to the international community, in a serious attempt of investing in the numerous supporting evidence of the Palestinians’ human and legal rights. In that case, the Goldstone report will acquire great value in this direction. Moreover, the resistance factions, in particular Hamas, are not expected to be concerned by the accusations of terrorism against them, which was shown in Hamas’ endorsement of the report regardless of the report’s accusations of Hamas. This is because these factions’ confidence in the international justice’s readiness to protect Palestinian rights is limited, if not non-existent. Their belated endorsement of the report hence was more the result of their desire to benefit from it in their internal disputes and in embarrassing the PA and Fatah, than it was the result of their conviction in the possibility of its implementation.
Prior to the publication of the Goldstone report, the Palestinian cause did not generally suffer from any dearth in legal and moral grounds, as the shelves of international bodies are full of reports and resolutions which are more than enough to indict Israel and its inhumane and unjust conduct. One of the most prominent of these dossiers is the advisory opinion of the International Court of Justice in 2004 regarding the illegality and illegitimacy of the Separation Wall in the Occupied Territories of 1967. However, the weak point of the cause lies in the prevailing political impotence and the lack of Arab-supported Palestinian alternatives that can stand up to Western pressures, in particular those applied by the United States, and which would also seek to alter the balance of power with the Israeli side. This would ultimately increase the cost of the occupation and of the legal violations for Israel up to a level that the latter cannot bear, both physically and morally.
Most Palestinian factions embrace this conviction, and therefore, there is good reason to believe that to these factions, the Goldstone report will not represent anything more than a new dossier added to the legal heritage that is threatened with the prospect of being added to the list of obsolete and archaic arguments, despite the fact that this would not eliminate the possibility of resorting to this heritage as part of the Palestinian cause’s large legal dossier, should this course of action be genuinely adopted as we have mentioned above.
Meanwhile, the confusion exhibited by the West, especially in what regards the European stance, does not bode well in terms of seeing a change in the near and foreseeable future, and which would otherwise threaten Israel with sanctions for its violations of the laws of war and the laws in peacetime. This expectation was quickly confirmed when the Europeans backtracked on adopting a proposal to recognize Jerusalem as the capital of the Palestinian state, that was presented by Sweden for deliberation in late November 2009. Instead, they opted to side with the Israeli vision which considers that bilateral negotiations with the Palestinians is the optimal approach for reaching a final settlement on the Palestinian track.
Arab and non-Arab human rights and groups that are in solidarity with the Palestinian cause seem to be the party most likely to add the Goldstone report to their dossier pertaining to their case against Israel, and to their efforts to indict the Israeli ‘shameful’ conduct. Class action of the sort will in fact have disturbing effects for Israel, should the groups mentioned above succeed in convincing the competent courts specialized in international crimes to prosecute Israeli officials.
In our assessment, the controversy that surrounded the report will not necessarily put a stop to the efforts of those who are seeking to bring it back into the limelight; also, we believe that the legal scene allows for the possibility to benefit from the report in holding Israel and its leaders accountable, and even perhaps to indict them, by presenting the report in the law suits filed before all the judicial bodies specialized in international law, as is the case with some European courts, leading up to presenting it in the International Criminal Court. This can be done by filing Palestinian law suits backed by the Arab world, the Islamic world and Third World countries. The sooner these steps are taken by the parties concerned, while taking into account what will take place within the six months period allowed by the report for conducting internal investigations, the better the results will be.
1- Establishing an independent and reliable Palestinian judicial system, and conducting an internal investigation, which is a necessary step for the prosecution of Israel before International and European courts.
2- Conducting the necessary investigations during a period of six months. This would contribute in reviving the issue of the Goldstone report, which would in turn enable the Palestinian side to invest the momentum of prosecuting Israel in international and European courts, against the backdrop of its various crimes in the Gaza Strip.
3- Relying on the Goldstone report, in addition to other international reports, in filing criminal lawsuits, both private and public, and using the International and European justice courts as a new front in the confrontation with Israel’s leaders and the senior officers of the occupation army.
4- Using the legal material in the Goldstone report and other reports as material for public relations in exposing Israel’s ugly image, and affecting its standing and reputation, especially in the eyes of the international public opinion.
* Al-Zaytouna Center would like to express its sincere thanks to Dr. Mohammad Khaled al-Az’ar for writing the draft text on which this assessment was based.
The Arabic version of this Assessment was published on January 2009