Academic journal article Global Governance

Valuing the Goldstone Report

Academic journal article Global Governance

Valuing the Goldstone Report

Article excerpt

THE GOLDSTONE REPORT had a politicized and emotional reception that has colored its evaluation to date. There have been so many attacks on the report, both before and after its release, that the campaign took on a life and logic of its own. Most of the attacks allege bias in some way without seriously contesting the actual findings of the report. Given that Justice Richard Goldstone revised the mission's mandate to apply equally to all sides, and found serious crimes on the part of both Hamas and Israel, these attacks are ill-founded at best and sometimes just efforts to change the subject. But calls of bias strongly resonate, given Israel's sense of continual siege and the mission's sponsorship by the UN Human Rights Council, hardly a neutral broker in the conflict. Another frequent contention is that the report passes judgment on Israel's right to defend itself, or pronounces standards that make effective self-defense impossible. This angle plays into both Jewish anxiety over the threat to the existence of Israel, and Western worries about fighting asymmetrical war. The few critiques that go to real substance tend to rely on the inadequately documented assertions of Israeli officials or reflect disagreements on the proper legal standards to apply to the conflict. So far, there has been virtually no well-sourced, transparent response by either side to the report's very serious allegations.

The scuffling obscures a longer perspective: will the report accomplish its mission; namely, to impel the parties in conflict to examine their conduct and hold those responsible for violations to account? A functional assessment of the report on its own terms, compliance with human rights and international humanitarian law (IHL), is most relevant to those who suffered violations and to the development of law, practices, and institutions in this area. (1) From this vantage point, there is a mixed picture, with some success.

As an example of UN fact-finding, the mission followed the best UN efforts, and its findings are consistent with that of other independent analysts. Although it might have been more explicit as to the evidentiary standards it employed, the mission did consider facts on each side and explained how it discounted or credited evidence. Its legal analysis follows current international legal interpretation while opening new questions to debate and development. The report provided a detailed template against which to judge progress in investigation and accountability.

However, action by the Security Council on the report remains blocked, and Israel has so far rejected an independent commission of inquiry. The mission doubtless prompted more visible efforts by the Israel Defense Forces (IDF) to investigate itself, and more discussion on whether the IDF's investigations and legal oversight of military operations are adequate. It is unclear whether Hamas, despite its cooperation with the inquiry, will take any action against those responsible on its side, but at least there is now some pressure in the endorsement by the Human Rights Council of a report that holds it to account. While this is still far from the accountability that the report called for, it is at least a step in the right direction.

The Context of the Controversy

By any measure, the civilian toll of Operation Cast Lead (OCL) was severe. Casualties on the Palestinian side were in the neighborhood of 1,400 lives, with the Israeli human rights group B'Tselem estimating more than half of these civilian deaths, even excluding the killing of police. (2) The IDF inflicted enormous destruction of the civilian infrastructure on top of the deprivations already produced from Israel's blockade, resulting in tens of thousands of persons displaced, approximately 4,000 residences destroyed and 3,000 seriously damaged, (3) in addition to tremendous damage to farms, factories, and water and sanitation works. Reconstruction is largely at a standstill due to Israel's refusal to allow cement and iron through its blockade. …

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