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"Mum's the word on Gaza probe" by Amira Howeidy

From time to time, the Palestine Center distributes articles it believes will enhance understanding of the Palestinian political reality. The following article by Amira Howeidy was published in Al-Ahram Weekly Online on 11 February 2010. To view this article online, please go to http://weekly.ahram.org.eg/2010/985/re6.htm.

"Mum's the word on Gaza probe"

By Amira Howeidy

Critics are accusing the UN of stalling legal action against Israel after an independent fact finding mission accused Israel of possibly committing war crimes and crimes against humanity in its December 2008 to January 2009 assault on Gaza.

Dubbed after the name of the head of the mission, the 575-page long Goldstone Report submitted to the UN last September recommended that both Israel and Palestinian authorities undertake investigations into the accusations and follow up with action within six months. If the parties were to fail to meet international standards of objectivity in their efforts, then the UN Security Council (UNSC) should consider referring the whole matter to the International Criminal Court (ICC) in The Hague.

An emergency meeting of the UN General Assembly on 5 November endorsed the report's recommendations and gave both parties a timeframe of three months to conduct investigations in accordance with international standards. Come 4 February, UN Secretary- General Ban Ki-Moon, upon receiving responses from Israel and Palestinian authorities, declared in a report to the General Assembly that, "no determination can be made on the implementation of the [UN General Assembly] resolution by the parties concerned."

While the secretary-general's vague response was welcomed in Israel, it proved controversial with human rights groups who have implied that the UN is preparing to bury the Goldstone findings. UN sources say that, in effect, Ban is giving both sides another three months to complete their reports.

Amnesty International described Ban's "failure" to make an assessment of the Israeli and Palestinian investigations into the 22-day Operation Cast Lead offensive in Gaza as "deeply disappointing and a missed opportunity to help secure accountability for the conflict's hundreds of victims". The UN secretary- general "merely passed the Israeli and Palestinian responses he had received to members of the General Assembly without an assessment of whether the parties had met the required standards," said a statement issued 5 February.

Israel, for its part, said its army conducted an investigation into the Goldstone findings. Thus far it has "disciplined" two senior military officers for authorising the shelling of a UN facility with white phosphorous, a lethal chemical that once in contact with oxygen burns human flesh to the bone. The 22-day Israeli war killed more than 1,400 Palestinians, and injured or maimed 5,000. The Israeli army also destroyed 3,500 building units and significant sectors of Gaza's infrastructure. At least 50,000 Palestinians were displaced.

Amnesty, Human Rights Watch and the Israeli B'Tselem human rights group were critical of Israel's investigation and the report it submitted to the UN. They questioned the Israeli military's objectivity in investigating itself. They also criticised Hamas's investigations and failure to prosecute anyone for firing "indiscriminate" rockets into southern Israel. These rockets killed three Israelis during the war.

The Gaza-based independent Palestinian Centre for Human Rights said it was "shocked and appalled" by Ban's "lack of responsibility". The UN secretary-general, it said in a 6 February statement, "did not express any concern regarding the evident problems arising from the lack of an independent, credible, impartial civilian investigation committee [on Israel's part] and over the lack of progress to date."

Although the Goldstone Report accuses both Israel and Hamas of possibly committing war crimes and crimes against humanity, it devotes the vast majority of its accusations to Israel's violations of international humanitarian law. South African Judge Richard Goldstone, a Jew and self-proclaimed Zionist, was appointed by the UN High Commissioner for Human Rights in April 2009 to lead the independent investigation into the 22-day war. His mission included three heavyweight investigators from the UK, South Africa and Pakistan.

Meanwhile, in the UN, all is quiet on the Goldstone Report front. It is unclear when and if the UN General Assembly will convene to discuss Ban's report on the Israeli and Palestinian responses to the Goldstone findings. The Israeli daily newspaper Haaretz on 7 February quoted unnamed UN diplomatic sources saying that the UN is likely to refer the findings to the International Court of Justice (ICJ) and not the ICC as initially recommended in the Goldstone report, but there have been no assertions from the UN, or outside of it, supporting this direction.

In its statement this week, Amnesty proposed that Ban immediately prepare an independent assessment of the steps being taken by Israel and the Palestinian side to ensure accountability. Such an assessment, it said, should provide a basis for decisions on further action. "If the parties remain unable or unwilling to take the steps required by the General Assembly, this may include an eventual referral of the situation in Gaza by the UNSC to the ICC."

But because the ICC can exercise jurisdiction only in cases when the accused is a national of a state party, and since Israel is not, and the Palestinians do not have a state, this is not an option. The Rome Statute of the ICC allows the UNSC to refer an investigation to the court, however. Yet because of the veto power enjoyed by the US (which supports Israel), this channel is not an option either. In fact, informed legal sources argue that Goldstone knew this and yet included the ICC option in his recommendations nonetheless.

These legal intricacies are also further complicated by political considerations. The two combined form an impossible situation for the Palestinian victims of Israel's war, and for justice. It went unreported that when he was approached by the UN Human Rights Council (UNHRC), Goldstone said he would only accept his task if his mission's mandate was modified.

The mandate as adopted by the UNHRC on 12 January 2009 was to investigate all violations of international human rights law and international humanitarian law "by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression". This original mandate to investigate Israel only was expanded upon Goldstone's request to "investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after."

In interview with the Jewish online daily Forward published 16 September 2009, Goldstone explains this in detail, arguing that by including a timeframe of months preceding Israel's war on Gaza when Hamas was launching rockets into Israel, Goldstone was allowed to frame his mission as one to examine abuses "on both sides" of the conflict.

Ali El-Ghatit, an Egyptian professor of international law who was involved in an Arab League-sponsored fact-finding mission in Gaza following the war insists that there have been deliberate efforts to "confuse" human rights law with international humanitarian law in relation to the UNHRC fact-finding mission.

In international humanitarian law, or the laws of war, he told Al-Ahram Weekly, the belligerent occupying power -- in this case Israel -- is not equal to the occupied, which is here Gaza and Hamas resistance. Gaza remains under full Israeli military occupation from land, sea and sky. And since resistance of occupation is enshrined as a right in international law, accusing Hamas of war crimes when it is in a state of self-defence and resistance is a denial of these legal rights. The confused or deliberate twisting of the diplomatic and legal discourse regarding Israel's occupation and the Palestinian resistance is wrong because it suggests that Gaza is an independent sovereign state which, if it was, would be subject to "human rights law", El-Ghatit explained. By altering the mandate of the UNHRC fact- finding mission to include the actions of the resistance, Goldstone "superimposed on Hamas what shouldn't have been under international law," El-Ghatit said.

Consequently, it was "very wrong" of Hamas to have apologised for firing rockets into southern Israel that killed a few Israelis. According to El-Ghatit: "Instead, they should have responded to the Goldstone Report's accusations by asking what kind of law are you holding us accountable to?" The fact-finding mission and the UN's handling of the conflict should be assessed in this context, he told the Weekly.

All three members of Goldstone's mission were absent on 29 September when the final report was submitted to the UNHRC, which was seen by some as unusual. It triggered speculation on rumoured disagreements between the three and Goldstone over the outcome of the findings, particularly in relation to the protected right of resistance.

Amira Howeidy is a reporter for Al-Ahram Weekly.

The views expressed in this article are those of the author and do not necessarily reflect those of The Jerusalem Fund.