Judge Richard Goldstone has a confusing and potentially damaging op-ed in today's Washington Post titled "Reconsidering the Goldstone Report on Israel and war crimes." Confusing, in that it directly contradicts Goldstone's own work and that of the UN Human Rights Council, and damaging in that it undercuts some of the most important claims of the UN mission that he led to investigate the Israeli attack on Gaza in the winter of 2008-09.
Goldstone's main point seems to be that the UN report that commonly bears his name would have looked different if Israel had given him access to information during the fact-finding mission, and now that Israel has conducted some of its own investigations it appears vindicated to a certain degree. In his article he refers to the U.N. committee of independent experts (led by former New York judge Mary McGowan Davis) which was charged with following the Israeli and Palestinian investigations following the Goldstone report. The committee of independent experts recently issued a report on its findings and Goldstone says "McGowan Davis has found that Israel has [investigated itself] to a significant degree; Hamas has done nothing." While it is clear that Hamas has not followed the recommendations of the Goldstone Report in establishing a credible investigation, a closer reading of the March 18, 2011 committee of independent experts' report (PDF) shows that Israel has also neglected to do the same.
Goldstone uses the Israeli investigation into the attack on the al-Samouni family (which killed 24 people) as an example of Israel's thourough investigatory and legal process in examining his report's claims. He writes:
For example, the most serious attack the Goldstone Report focused on was the killing of some 29 members of the al-Simouni family in their home. The shelling of the home was apparently the consequence of an Israeli commander’s erroneous interpretation of a drone image, and an Israeli officer is under investigation for having ordered the attack. While the length of this investigation is frustrating, it appears that an appropriate process is underway, and I am confident that if the officer is found to have been negligent, Israel will respond accordingly. The purpose of these investigations, as I have always said, is to ensure accountability for improper actions, not to second-guess, with the benefit of hindsight, commanders making difficult battlefield decisions.
This endorsement of the Israeli investigation is directly contradicted by the expert's report he appears to be referencing. Here is the relevant passage from the experts' report:
The Committee does not have sufficient information to establish the current status of the on-going criminal investigations into the killings of Ateya and Ahmad Samouni, the attack on the Wa’el al-Samouni house and the shooting of Iyad Samouni. This is of considerable concern: reportedly 24 civilians were killed and 19 were injured in the related incidents on 4 and 5 January 2009. Furthermore, the events may relate both to the actions and decisions of soldiers on the ground and of senior officers located in a war room, as well as to broader issues implicating the rules of engagement and the use of drones. There are also reports indicating that the MAG’s decision to investigate was opposed by the then Head of the IDF Southern Command. Media reports further inform that a senior officer, who was questioned “under caution" and had his promotion put on hold, told investigators that he was not warned that civilians were at the location. However, some of those civilians had been ordered there by IDF soldiers from that same officer’s’ unit and air force officers reportedly informed him of the possible presence of civilians. Despite allegedly being made aware of this information, the officer apparently approved air strikes that killed 21 people and injured 19 gathered in the al-Samouni house. Media sources also report that the incident has been described as a legitimate interpretation of drone photographs portrayed on a screen and that the special command investigation, initiated ten months after the incidents, did not conclude that there had been anything out of the ordinary in the strike. As of 24 October 2010, according to media reports, no decision had been made as to whether or not the officer would stand trial. The same officer who assertedly called in the strike reportedly insisted that ambulances not enter the sector under his control, fearing attempts to kidnap soldiers.
Despite Goldstone's insinuation, it appears that the officer responsible for bombing the Samouni house is not being legally investigated for the incident.
That being said, there have been Israeli investigations into cases of possible war crimes in the fighting in Gaza. But, this is a separate issue from whether these investigations are credible. One such investigation was the case of Majid Rabah, a 11 year old, boy who was used as a human shield by the Israeli military (a case that was not specifically mentioned in the Goldstone Report). IDF soldiers were accused of using Rabah and a younger child as human shields and where found guilty. For their crime the soldiers were simply demoted and given a suspended sentence. Here is the experts' report take on the Israeli investigation:
According to media reports, two soldiers forced a boy to search bags suspected of being booby trapped and were convicted of offenses including inappropriate behavior and overstepping authority. Both soldiers were demoted and received suspended sentences of three months each.
It should be noted that while some media reports described the conviction as a credit to the IDF, a former IDF deputy chief of staff reportedly said that the soldiers’ criminal records should be cleared and that such events should be probed inside the units and not in interrogation rooms.The boy’s mother apparently indicated her disappointment over the decision to suspend the prison terms and expressed concern at the message that such a lenient sentence would send to IDF soldiers. Reportedly, in the ruling, the actions of the soldiers were condemned by the judges, but they also gave weight to issues such as the contribution of the soldiers to Israel’s security and their personal circumstances, as well as to their fatigue at the time, the unprecedented nature of the case, and that the soldiers did not seek to degrade or humiliate the boy. Evidently the court also indicated that any future such incidents would be dealt with more severely.
The Committee does not have sufficient information to comment definitively on this judgment, although it is hard to square the apparent finding that the soldiers “did not seek to degrade or humiliate the boy” with evidence that they intended to put him directly in harm’s way at grave risk to his life. The Committee is likewise mindful of other judicial decisions, such as the case of the soldier who was sentenced to a prison term of seven and a half months for stealing a credit card during the operation in Gaza, where a harsher penalty was imposed for acts that did not entail danger to the life or physical integrity of a civilian, much less to a nine year old child.
Is this the kind of Israeli investigation that Goldstone wants to hold up?
Finally, Goldstone makes perhaps his most damning point, "While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy."
This claim is directly contradicted by the experts' report. In fact, they point to Israel's unwillingness, and inability, to investigate the policies of the Israeli military as the greatest fault of the Israeli investigation to this point. The report specifically says, "The Committee reiterates the conclusion of its previous report that there is no indication that Israel has opened investigations into the actions of those who designed, planned, ordered and oversaw Operation Cast Lead." This implies the entire question of policy has been left unaddressed. This is really disappointing from Judge Goldstone, and will most likely be used to attack the one of the Goldstone Report's most important charges that Israel executed an intentional strategy to attack Gaza's civilian infrastructure.
The experts' report also addresses the structural reason the Israeli investigation has failed to look into military policy. Evidently the Israeli office responsible for investigating the question of crimes committed in Gaza is the same office that would be responsible for providing legal counsel to the Israeli military's Chief of Staff and other military authorities. So basically, office that would accusing the military of committing crimes is the same one that would be defending them from the same charges. The experts' report explains:
The Committee further noted that notwithstanding the built-in structural guarantees to ensure the MAG’s independence, his dual responsibilities as legal advisor to the Chief of Staff and other military authorities, and his role as supervisor of criminal investigations within the military, raise concerns in the present context given allegations in the FFM report that those who designed, planned, ordered, and oversaw the operation in Gaza were complicit in international humanitarian law and international human rights law violations. It is notable that the MAG himself, in his testimony to the Turkel Commission, pointed out that the military investigations system he heads is not a viable mechanism to investigate and assess high-level policy decisions. When questioned by commission members about his “dual hat” and whether his position at the apex of legal advisory and prosecutorial power can present a conflict of interest under certain circumstances, he stated that “the mechanism is calibrated for the inspection of individual incidents, complaints of war crimes in individual incidents (…). This is not a mechanism for policy. True, it is not suitable for this.” Therefore, the Committee remains of the view that an independent public commission – and not the MAG’s office – is the appropriate mechanism for carrying out an independent and impartial analysis, as called for in the FFM report, into allegations that high-level decision-making related to the Gaza conflict violated international law.
The original Goldstone Report itself pointed to these structural contradictions as reasons for why Israel will not be able to conduct a thorough investigation into the issues raised in the report. Why Judge Goldstone is now ignoring this issue is unclear.
In the Post article Goldstone defends his initial report in a manner he has for some time claiming that it wasn't meant as a thorough legal investigation, it was an initial fact-finding mission. He says:
Some have charged that the process we followed did not live up to judicial standards. To be clear: Our mission was in no way a judicial or even quasi-judicial proceeding. We did not investigate criminal conduct on the part of any individual in Israel, Gaza or the West Bank. We made our recommendations based on the record before us, which unfortunately did not include any evidence provided by the Israeli government.
Goldstone is absolutely correct, and the inconsistencies and contradictions of his op-ed only demonstrate the need for a thorough legal proceeding has never been greater. Over two years since the fighting in Gaza has ended it is clear that neither Israel nor Hamas is going to conduct credible investigations into the charges leveled against them by the UN fact finding mission. The experts' report summarized:
The Committee heard the respective parties’ claims that their systems have established mechanisms to ensure accountability and justice. Yet, after listening to victims, witnesses and human rights organizations, it is clear that the needs of victims are not being adequately addressed.
For this reason, it is obvious that it is now time to follow-up on the recommendation of the Goldstone Report and refer the case to the prosecutor of the International Criminal Court to conduct a proper legal investigation.