Goldstone v. House of Representatives: The Unending Inquiry Into the War Crimes Inquiry
J.J. Goldberg November 1, 2009
There could be trouble brewing for the congressional resolution (PDF), now circulating for signatures in the House, that condemns the United Nations’ Goldstone Report on alleged Israel and Hamas war crimes in Gaza.
The House resolution, H.Res. 867, has collected 124 signatures so far for its appeal to the Obama administration to oppose any international consideration or endorsement of the report, which it calls “irredeemably biased.” The resolution was initiated by Republican Ileana Ros-Lehtinen of Miami and is co-sponsored by Democrats Howard Berman of Los Angeles and Gary Ackerman of Queens, along with Republican Dan Burton of somewhere in Indiana.
But Berman, who chairs the House Foreign Affairs Committee, is having second thoughts about the resolution, according to this Friday blog post by Spencer Ackerman of the on-line Washington Independent. Berman’s staff is said to be consulting with Ros-Lehtinen’s staff about how to proceed. The reason: a hard-hitting letter to the committee from Richard Goldstone, the South African jurist who authored the U.N. fact-finding report. Goldstone goes through the resolution paragraph by paragraph and points to a hefty list of distortions, misrepresentations and borderline fabrications about his 575-page report.
By way of background (if you’ve been following the case, skip this paragraph), Goldstone was appointed by the U.N. Human Rights Council last spring to lead a fact-finding mission probing alleged Israeli war crimes in Gaza during Operation Cast Lead last December and January. Goldstone’s report found evidence of war crimes by both Israel and Hamas. It was submitted September 15 to the Human Rights Council, which voted October 16 to refer it to the Security Council. The Security Council can send the report to the International Criminal Court for possible prosecution of suspected war-crimes perpetrators, unless Israel acts beforehand to launch its own independent investigation.
One point Goldstone has been making over and over since his report was published is that the international court may act only when a nation can’t or won’t conduct its own credible, independent inquiry into allegations of war crimes. Israel has conducted numerous such inquiries in the past, to worldwide acclaim. This time, for some reason, the Netanyahu government has been refusing to launch an inquiry, instead leaving it to the army to investigate itself.
Investigator: “Hey, O’Reilly, did you beat up that kid?”
Suspect: “Naah.”
Investigator: “Glad to hear it. Say hi to Marge and the kids.”
Israel tried at first to ignore the Goldstone commission. Now it’s waging an international campaign to discredit the report. Lehtinen’s resolution seems to be the campaign’s latest sortie; in fact, much of its language comes straight from Netanyahu government talking points. (I posted last week that Netanyahu now seems to be reconsidering his refusal to launch an inquiry.)
More on the details of the House resolution and Goldstone’s critique after the jump.
One of the House resolution’s biggest whoppers is its claim that “the mandate of the ‘fact-finding mission’ makes no mention of the relentless rocket and mortar attacks, which numbered in the thousands and spanned a period of eight years, by Hamas and other violent militant groups in Gaza against civilian targets in Israel, that necessitated Israel’s defensive measures…”
The trouble is that this refers to the original mandate from the Human Rights Council, which Goldstone refused to accept. Goldstone insisted on an amended mandate that included Hamas’s actions as well as Israel’s. The council’s chairman accepted the amended mandate and read it to the council, which voiced no dissent. In any case, the critical point is that ithe finished product, Goldstone’s actual report, spends about 70 pages on Hamas behavior. The House resolution conveniently ignores all that history. Ron Kampeas of JTA does a good job in this blog post dissecting the pros and cons of Goldstone v. Lehtinen and House Resolution 867.
The resolution also makes a big deal about an October 16 Forward article, currently a “gotcha” favorite in the right-wing blogsphere, in which Goldstone told reporter Gal Beckerman that “If this was a court of law, there would have been nothing proven.”
The trouble with this “gotcha,” of course, is that Goldstone’s mission was never meant to provide legal evidence. That’s the job of a prosecutor. Goldstone’s job was to assemble facts and try to determine if there’s enough evidence to open a legal investigation leading to a possible indictment. He’s like the detective who first visits the scene and brings evidence back to the D.A., who then decides whether there’s enough there to indict and go to court.
For anyone who’s really interested, here’s a PDF of the International Criminal Court’s Rules of Procedure and Evidence, from the original 2002 Rome Statute that created the court.
The demands of fairness (combined with a touch of prurient curiosity) require that we note this report posted by Michael Goldfarb on the Weekly Standard blog. He argues, for what it’s worth, that Goldstone’s letter to the House was actually drafted by Morton Halperin, “who serves on the J Street advisory council and is a senior adviser at George Soros’s Open Society Institute.” Goldfarb says Halperin’s role was revealed by a “check of the file’s ‘properties’.” He doesn’t document this properties check, either in his post or via link, so we’ll have to take it on faith. Incidentally, Halperin’s bio also includes senior positions in the Pentagon, State Department and National Security Council in Johnson, Nixon and Clinton administrations, but apparently all you need to do is say “George Soros” and you’ve got your target pigeonholed.
Tikkun magazine is circulating emails with a long, detailed dissection of the House resolution, authored by Middle East scholar (and frequent Israel critic) Stephen Zunes. It’s being sent around by email and doesn’t seem to be up on the Web, so I’ve pasted the whole thing here.
More info on the House Resolution Condemning the Goldstone Report
by Steve Zunes
There are a number of disturbing aspects of H. Res. 867, with implications that go well beyond simply attacking the report of the United Nations Human Rights Council’s fact-finding commission on the Gaza conflict, which documented war crimes by armed forces of both Hamas and Israel. Below is an analysis of some of the more misleading and disturbing clauses in the resolution:
The lead-off clause cynically places “fact-finding mission” in quotes, implying that this was not in fact the purpose of the investigation of a reputable and experienced team. In addition, the commission’s mandate was not, as the resolution claims, to investigate “Israel’s conduct…against violent militants,” but the conduct of its forces in relation to the civilian population.
This is followed by a series of clauses criticizing the original mandate of the UN Human Rights Council which called only for an investigation of Israeli war crimes. This is completely moot, however, since commission head Justice Richard Goldstone – to his credit – refused to accept the position unless its mandate was changed to one which would investigate possible war crimes by both sides in the conflict. and the mandate of the commission was thereby broadened. The House resolution does not mention this, however, implying that the original mandate was the basis of the report. In reality, from the start of the actual investigation, there was not such a bias against Israel, since it dedicating over 70 pages to detail a whole series of violations of the laws of war by Hamas, including rocket attacks into civilian-populated areas of Israel, torture of Palestinian opponents, and continued holding of kidnapped Israeli soldier Gilad Shalit. Yet H. Res. 867 makes no mention of this extensive critical reporting in the report regarding Hamas’ violations of international humanitarian law, thereby giving the false impression that the report unfairly only dealt with the actions of the Israeli armed forces. The inclusion of these clauses is apparently designed to give the false impression that the report was based upon this original one-sided mandate and ignore the fact that it had long been superseded by the revised balanced mandate upon which the report is actually based.
The resolution claims that the report makes “sweeping and unsubstantiated determinations that the Israeli military had deliberately attacked civilians during Operation Cast Lead.” If one bothers to actually read the report, there were indeed detailed and well-substantiated evidence of deadly attacks against schools, mosques, private homes and businesses nowhere near legitimate military targets. In particular, the report cites in detail eleven incidents in which Israeli armed forces engaged in direct attacks against civilians, including cases where people were shot “while they were trying to leave their homes to walk to a safer place, waving white flags.” The report’s conclusion that Israel’s military assault on Gaza was “a deliberately disproportionate attack designed to punish humiliate and terrorize a civilian population” echo detailed empirical reports released in recent months by Amnesty International, Human Rights Watch, and the Israeli human rights group B’Tselem, among others. Criticism of this report, therefore, is criticism of these reputable human rights groups as well.
Then the resolution goes on to claim that the report denies Israel’s right to self-defense. This is patently false. There was absolutely nothing in the report that denies Israel’s right to self-defense. It simply insists that neither Israelis nor Palestinians have the right to attack civilians.
The resolution resolves that Congress go on record that the report is “irredeemably biased,” ignoring – among other things – that the head of the commission was Richard Goldstone, who has had a longstanding reputation for fairness and objectivity and previously led the war crimes prosecutions for Yugoslavia. He is also Jewish, a longtime supporter of Israel, a member of the board of directors of Friends of Hebrew University and other Zionist groups, and the father of an Israeli citizen. He wrote most of it, he approved the final version, and has steadfastly defended it. This resolution, then, is a direct attack on the integrity of one of the world’s most principled defenders of human rights.
The resolution even claims that the report is part of an effort “to delegitimize the democratic State of Israel and deny it the right to defend its citizens and its existence can be used to delegitimize other democracies and deny them the same right.” In reality, there is absolutely nothing in the report that delegitimizes Israel or its right to defend its citizens, nor is there anything in the report that could conceivably delegitimize other democracies or deny other democracies their right to exist or defend their citizens. This is demagoguery at its most extreme and appears to be a right-wing effort to silence defenders of international humanitarian law by putting Congress on record as saying that documenting a given country’s war crimes is tantamount to denying that country’s right to exist and its right to self-defense.
There are other clauses in the resolution which take a number of quotes out of context and engage in other misrepresentations to make the case that, in the resolution’s words, the report is “irredeemably biased.”
Perhaps most seriously, there is the final clause of the resolution which endorses Israel’s right to attack Syria and Iran because of their alleged support of Hamas.
As a result, it is critical that there be a full-press effort to defeat this resolution. Please call your Congressperson first thing Monday and encourage them to vote against H. Res. 867.–Stephen Zunes
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