Much has been written and said about the inaccuracies, shortcomings and the moral inversion of the United Nations Human Rights Council’s Mission presided over by Judge Richard Goldstone and his three fellow members. Most critics have understandably addressed the political and military issues involved. It is important, however, also to deconstruct the Goldstone Mission’s Report from a legal point of view. This is so because the report uses the veneer of respectability that comes with legal methodology, and with the presence of an internationally respected judge, to gain credibility. Law is a very powerful weapon to give respectability to contemptible actions and opinions. The South African Apartheid Government was very legalistic in its approach to racial oppression, and was punctilious about promulgating proper laws, and about maintaining a fully functioning judiciary to give the façade of respectability to its repugnant policies.
The United Nations, through its various organs, but particularly through its Human Rights Commission, uses the superficial veneer of law and legal methodology to give credence and credibility to its anti-Israel agenda. The Goldstone Mission is a case in point. Careful analysis reveals that the legalities utilized are merely a cover for a political strategy of deligitimizing Israel. Judge Goldstone claims that the Mission “is not a judicial enquiry [but is] a fact-finding mission.” This is a distinction without a difference. The Mission’s Report makes numerous factual findings, and some legal, just as if it were a judicial body. The Report could have salvaged some measure of integrity had it stated that its findings, both legal and factual, were only prima facie. It did not do so. Judges make factual and legal findings which have practical implications. There are very real consequences for Israel resulting from the findings of the Mission. Apart from holding Israel liable in international law to pay war reparations, Judge Goldstone refers the findings to the highest authorities of international law, including the United Nation’s General Assembly and the Security Council, and he recommends the commencement of criminal investigations in the national courts of the state signatories to the Geneva Convention of 1949. Of course, the Report also inflicts very great and real harm to Israel’s reputation in the court of world opinion. This has serious political, economic and military implications for Israel’s future, and for its very survival. Any civilized legal system requires that justice be done on two levels: procedural and substantive. The Goldstone Mission is replete with procedural and substantive injustices. From a procedural point of view, there are four main areas of injustice. Firstly, the Human Rights Council’s Resolution S-9/1 establishing the Mission expressly states that it “[s]trongly condemns the ongoing Israeli military operation [in Gaza] which has resulted in massive violations of the human rights of the Palestinian people”, and in so doing pre-judges the guilt of Israel. The Resolution refers many times to Israel’s guilt in a very lengthy document which is phrased in wide, undisciplined and aggressive language. Furthermore, it calls upon the Mission to investigate Israel’s conduct and not that of Hamas. Although Goldstone and the President of the Human Rights Council purported to extend the ambit of the mandate, the legal basis for their doing so without the express authority of the Council is not clear.
The second procedural injustice is that the members of the Mission publicly expressed beforehand their opinions on this conflict. The most explicit in this regard, Professor Christine Chinkin, was one of the signatories to a letter published in the Sunday Times of London which stated that “Israel’s actions amount to aggression, not self-defence, not least because its assault on Gaza was unnecessary.” The letter is published under the heading “Israel’s bombardment of Gaza is not self-defence – it’s a war crime.” The other three members, Judge Richard Goldstone, Hina Jilani and Desmond Travers all signed a letter initiated by Amnesty International stating : “Events in Gaza have shocked us to the core.” Thus, all four members of the Mission, including Goldstone himself, expressed public opinions concerning the Gaza conflict before they began their work.
Thirdly, the Goldstone Mission violated another basic principle of justice, audi alteram partem – let the other side be heard. At least due to the procedural injustices already referred to the State of Israel correctly refused to cooperate with the Mission. Once it had done so the Mission ought, if it were objective and fair, to have accepted Israel’s right to remain silent and then ought to have desisted from making findings whether factual or legal. But it did not do so, and as any lawyer knows unanswered allegations often prove unreliable and in almost all conflict situations there are serious disputes of fact, and often of law as well.
The Mission’s findings were based on accepting the allegations of only one party to the conflict. The Mission did not try to cross-examine or challenge the witnesses in any real way. There is a lengthy, fascinating article by Jonathan HaLevi of the Jerusalem Centre for Public Affairs in which he analyses in detail the methodology employed by the Mission in respect of witnesses. He demonstrates that there was a lack of adequate cross-examination of the testimony of the witnesses. Unproven allegations of Hamas officials were accepted as established facts. Even the most basic questions were not asked; when, for example, allegations were made of Israel’s bombing civilian installations, witnesses were not asked whether there were Hamas fighters or weaponry in the vicinity, or whether any attacks had been launched from the area.
There is a fourth procedural injustice which undermines the integrity and credibility of Judge Goldstone and the three other members of the Mission : there simply was not enough time to do the job properly. Any lawyer with even limited experience knows that there was just not sufficient time for the Mission to have properly considered and prepared its report. One murder trial often takes many months of evidence and argument to enable a judge to make a decision with integrity. To assess even one day of battle in Gaza with the factual complexities involved would have required a substantial period of intensive examination. According to the Mission’s Report, the Mission convened for a total of twelve days. They say that they considered a huge volume of written and visual material running into thousands of pages; they conducted three field trips; there were only 4 days of public hearings; and yet in a relatively short space of time the members of the Mission agreed to about five hundred pages of detailed material and findings with not one dissenting opinion throughout. They made no less than sixty nine findings, mostly of fact, but some of law and within those sixty nine there were often numerous sub-findings. All of this was quite simply physically impossible if the job had been done with integrity and care. The fourth procedural injustice also demonstrates the total sham of this process.
The substantive injustices of the Goldstone Mission’s Report are too numerous to mention in this article, but one illustrates how far the Mission was prepared to go, and that relates to the very important legal element of intent. Goldstone and his Mission impute the worst of intentions to the actions of the State of Israel, finding that Israel’s conduct was motivated by a desire to repress and oppress, and to inflict suffering upon the Palestinian people, and not primarily for the purpose of self-defence. It does this without any evidence and then, without any supporting evidence asserts that many of Israel’s military operations such as that of Lebanon were motivated by the same goal. The Mission fails to mention a modern leading military expert, Colonel Richard Kemp who said “From my knowledge of the IDF and from the extent to which I have been following the current operation, I do not think there has ever been a time in the history of warfare when an army has made more efforts to reduce civil casualties and deaths of innocent people than the IDF is doing today in Gaza.”
By contrast, on the Palestinian side, there is very clear evidence as to Hamas’s intentions – the Hamas Charter openly calls for the destruction of Israel, irrespective of borders. It also calls for the murder of all Jews worldwide. Their clear intention was to murder as many Israeli civilians as possible and to use its own civilian population as human shields. But not a word of Hamas’s expressly stated intentions appear in the report. One aspect of the evidence, presented to but not accepted by the Goldstone Mission was that of Hamas leader, Fathi Hammad, who said “This is why we have formed human shields of the women, the children, the elderly and the mujahideen, in order to challenge the Zionist bombing machine. It is as if we are saying to the Zionist enemy : we desire death while you desire life.”
These procedural and substantive injustices demonstrate the complete lack of integrity and fairness of the process. It looks like law, but it is not. It is just politics. The Goldstone Mission is a disgrace to the most basic notions of justice, equality and the rule of law. And it is dangerous. Injustice will only lead to more death and destruction. The Talmud says “The world stands on three things: truth, justice and peace.” These three values are linked. There can never be peace without justice and truth. The Goldstone Mission is unjust and wanting in truth. It has, therefore, harmed the prospects for peace in the Middle East.
Originally published in the Jerusalem Post and subsequently in the Business Day newspaper on 26 October 2009