The ‘Goldstone’ Report is that report of the four-person committee, chaired by Justice Richard Goldstone, who undertook a Fact Finding Mission on the Gaza Conflict, published 16 Sept. 2009 and which was commissioned by the UN Human Rights Council. 

For the events leading up to the attack on Gaza see History and Background, for the conflict see Gaza.

The Investigation

Findings

The Report criticised both Israel and Hamas for violations of international humanitarian law, concluding that both the IDF and Palestinian armed groups committed war crimes and possibly crimes against humanity. Unsurprisingly, given that it was Israel that had attacked Gaza with overwhelming force, much of the Report is devoted to an analysis and critique of Israeli actions.

The critique of Israel centres on the fact that (as the Report concludes) the assault was directed at the population as a whole, not simply at military installations, and that disproportionate force was used with a view to collective punishment. (Cf. the Fourth Geneva Convention, adopted 1949, ‘for the protection of civilian persons in time of war’, to which Israel is a signatory but which it has refused to recognise is applicable to the OPT.) The Report considers, and criticises, the blockade (and thus the wider context in which the attack on Gaza took place). It focuses on various incidents and situations, for example the attack on the Al-Macqadmah mosque (one of several mosques apparently targeted during the campaign). Goldstone himself has clarified: ‘Assuming that weapons were stored in the mosque, it would not be a war crime to bomb it at night… It would be a war crime to bomb it during the day when 350 people are praying [which was the case]’, the Report noting that there was no evidence that the mosque had been used to store weapons, or that it was being used by Palestinian militants at the time. The response of the Israeli Government that the mosque was not attacked, but rather there was another target, is described in the Report as ‘unsatisfactory and demonstrably false’. Judge Goldstone has referred to the incident (separately) as a case where there is no other possible interpretation for what could have occurred other than a deliberate targeting of civilians. In discussing the mortar shelling of a UN-run school in a refugee camp, which was sheltering some 1,300 people, the Report does not exclude the possibility that Israeli forces were responding to fire, but says that this and similar attacks ‘cannot meet the test of what a reasonable commander would have determined to be an acceptable loss of civilian life for the military advantage sought’, thus concluding that the incident violated the law of proportionality. The Report finds that Israeli forces were reckless in their use of white phosphorus, highlighting attacks on the UN Relief and Works Agency in Gaza City and on two hospitals. After numerous denials, Israel had finally admitted the use of white phosphorus (one of the more notorious aspects of the attack) on 21.01.09.

The Report says that there is evidence that Palestinian armed groups committed war crimes and possibly crimes against humanity by deliberately launching rockets and firing mortars into Israel calculated to kill civilians and damage civilian structures. However it found no evidence that Palestinian civilians were used by armed groups as human shields, nor that they took part in combatant activities from within hospitals or UN facilities.

Calling on Israel and on Hamas to conduct investigations that meet international standards of objectivity in regard to these violations of the law of war, the Report recommends that, if this were not to be done within six months, report should be made to the UN Security Council, encouraging it to consider referring the matter to the prosecutor of the International Criminal Court in The Hague. 

It should be said that the Report differs little or not at all from earlier reports that had been carried out by Amnesty International, Human Rights Watch (the American-based human rights organisation), and Israeli and Palestinian human rights groups. Further the Israeli war veterans group ‘Breaking the Silence’ had, in July 2009, issued a damning report on the loose rules of engagement employed during the attack. As Richard Falk, (the American) Special Rapporteur for the OPT of the UN Human Rights Council, has commented: ‘No credible international commission could reach any set of conclusions other than those reached by the Goldstone Report on the central allegations.’ Indeed it could well be said that the Report was as sympathetic to Israel as could possibly have been expected. In particular it could give the impression of endorsing the Israeli narrative that Israel was acting in self-defence against a terrorist adversary; thus it nowhere suggests that Israel committed the international crime of aggression (though it does comment on the success of the ceasefire and attributes its disruption to Israel’s attack of 04 Nov. 2008. It further ignores Hamas’ repeated efforts to extend the ceasefire. (History and Backgound). Finally it fails to comment on Israel’s denial to Gazans of the option of becoming refugees, Israel having closed the borders of Gaza and only allowing holders of foreign passports to leave. (Cf. Falk’s discussion, bibliography below.)

Follow Through

The Palestinian Authority caused astonishment in the UNHRC for agreeing (it was thought under pressure from the US) that the vote on a resolution endorsing the recommendations of the Report be postponed. A raft of Palestinian human rights organisations immediately issued a statement ‘Justice Delayed is Justice Denied’. There followed a special session of the Council and the Report was endorsed on 15 Nov. 09. Abbas has since apologised for his action. It has since transpired (Ha’aretz 24.01.10) that this followed upon a ‘particularly tense’ meeting between the Shin Bet (the Israeli internal security agency) and Abbas, in which he was told that, if he did not ask for a deferral of the vote, Israel would turn the West Bank into a ‘second Gaza’. The resolution reaffirms the right of the Palestinian people to self-determination, affirms the applicability of the 4th Geneva Convention to the OPT, including East Jerusalem, and - in relation to the Fact-Finding Mission - condemns Israel’s non-co-operation, welcomes the Report endorsing its recommendations, recommends it to the General Assembly, and requests the High Commissioner for Human Rights to submit a report to a future session on whether the parties have taken up the recommendations (viz. carried out investigations). 

Following two days of debate in the UN General Assembly, on 06.11.09  the Report was overwhelmingly endorsed (114 in favour, 18 against, 44 abstentions); the US being the only member of the Security Council to vote against; Britain abstaining. A non-binding resolution requested the Secretary General to report to the General Assembly within 3 months on the implementation of the resolution with a view to considering further action if necessary. The UN Secretary General Ban Ki-moon promised to transmit the Report to the Security Council at the request of the GA. (There is little chance that the Security Council will take any action given the US objections, saying the Report should be handled by the HRC.) Speaking at the UN Security Council the British Ambassador John Sawers said that the Report ‘did not adequately recognize Israel’s right to protect its citizens’. (One may think this fairly far-fetched given: (i) what the Report says – see above; (ii) that rocket fire had all but ceased during the cease-fire, a cease-fire which Hamas wished to extend on condition that Israel, for its part, abide by the cease-fire agreement and lift the blockade.) On 26 Feb. 2010 the General Assembly passed a second resolution (98 in favour, 7 against, 31 abstentions) calling yet again for credible investigations by both sides into allegations of war crimes by both sides, giving them five months to report.

Responses

The Israeli response has been over the top. Israel refused to have anything to do with the Report, the Israeli President Shimon Peres calling it ‘a mockery of history’ that ‘fails to distinguish the aggressor and a state exercising the right of self-defence’ and saying that it ‘legitimizes terrorist activity, the pursuit of murder and death’. Israel was further critical of what it perceived as a lack of input from Israeli sources, a situation which one Jewish commentator has described as beyond chutzpah given that Israel refused to co-operate with the investigation! (Account was taken of the reports of Israeli human rights organisations, the testimony of Israeli soldiers who had supported the operation, and those whom the committee interviewed.) On 02 Oct. 2009 the Prime Minister’s office released a statement to the effect that the IDF had investigated most of the incidents and accusations mentioned in the Report. Goldstone and various human rights organisations responded that it is insufficient for the military to investigate itself, the US urged Israel to have an independent inquiry and support for this seemed to grow within Israel. On 26 Nov. 2009 Netanyahu announced that a team of legal experts that would reassemble and re-evaluate the IDF material but would not question soldiers and officers.

At first rejecting the Report (see reasons why it might be unhappy above), Hamas then said it would launch an investigation into its findings, the Hamas leader Khaled Meshal saying it would be honest and neutral. An official response was published in early February 2010 (for an English translation of excerpts click here), emphasising ‘the right of the occupied Palestinian people to resist and [undertake] self-defence as approved by ... international law and the UN charter’. Hamas distances itself from other Palestinian armed groups, which it has ‘more than once urged ... to refrain from attacking civilians’. They also defend their continued detention of the Israeli soldier Gilad Shalit, saying that he is well-treated, that permitting visits by the International Red Cross might lead to an Israeli attack which would pose a risk to his life, and expressing their readiness to release him in exchange for the release of the many Palestinian prisoners held by the Israelis. Meanwhile 1,500 notices of lawsuits against the IDF have been filed by individual Palestinians in the Gaza Strip relating to damage to property and lost earnings capacity.

The American response might be thought mind-boggling. On 3 Nov. 2009  the House of Representatives passed a resolution (by 344 to 36) which, speaking of the Report as ‘irredeemably biased and unworthy of further consideration or legitimacy’, calls on the President and the Secretary of State (Hillary Clinton) ‘to oppose unequivocally any endorsement or further consideration [of the Report] in multilateral fora [viz. the UN]’. The American Jew and Israeli citizen Jeff Halper comments on ‘the growing alienation between the United States and the rest of the world community, including Europe’ on account of ‘America’s failure, even under Obama, to embrace human rights as a guide to foreign policy’. In Washington he was told ‘that “justice” is not an active element in American foreign policy’ and was ‘advised by seasoned lobbyists not even to mention the term “human rights”’ in his meetings. The matter becomes more comprehensible (though not excusable) when one considers how much campaign money members of Congress receive from the American Jewish lobby. But, further, Mark LeVine comments that if Israel is guilty of war crimes then the US, which supports, funds and arms it, must be counted an accessory to those crimes: ‘Put simply, if there is blood on Israel’s hands, then it has dripped all over America’s shirt.’

On 29 Jan. 2010 Israel submitted a 46-page report to the UN, looking at a number of incidents and concluding that its forces abided by international law throughout the war. The report has been strongly contested. For example the report stated that the flour mill had been hit by tank shells, that it was not a pre-planned target and said it was however a legitimate target because there were Hamas fighters in the vicinity. The Guardian reports however (1 Feb. 2010) that its correspondent, visiting the scene days later, found what appeared to be the remains of an aircraft dropped bomb. Human Rights Watch has also disputed the report (Ha’aretz 7 Feb. 2010) while a Hamas spokesman has commented that Israel is seeking to mislead the international community ‘by conducting investigations based on fabricated and forged evidence’ (Ma’an News Agency, 7 Feb. 2010).

On 10 March 2010 the European Parliament passed a resolution endorsing the Report and calling on Catherine Ashton (High Representative for Foreign Affairs) and its member states to ‘publicly demand the implementation of [the Report's] recommendations and accountability for all violations of international law, including alleged war crimes’. This despite the fact that the deputies had been lobbied intensively by the European Jewish Congress.

Evaluation and Further Implications

It is notable that the Report argues (#1674) that the Gaza invasion ‘cannot be understood and assessed in isolation from developments prior and subsequent to it. The operation fits into a continuum of policies aimed at pursuing Israel’s political objectives with regard to Gaza and the Occupied Palestinian Territory as a whole’. It thus marks – whatever may be its fate – an important record as to the violation of Palestinian human rights by Israel; ‘Gaza’ is no one-off mistaken occurrence but is to be understood in an on-going context. The Report has been overwhelmingly accepted and endorsed by the international community as a whole, particularly by developing nations and the Arab world.

The Report is the first such that the international community has accepted through its institutions and which has been overwhelmingly endorsed at the bar of world opinion which has severely criticised Israel, its politicians and its soldiers. In this lies its crucial nature. It thus represents a turning point. Whatever may be its fate at the United Nations and whether or not Israel leaders are ever brought to the International Criminal Court, Israel is now in the dock for what is generally judged to be its outrageous behaviour. ‘Gaza’ has become a synonym for what is unjust. This must affect future Israeli action and how Israel would be judged in any future such attack. In regard to whether anything comes of the Report through the follow-through procedure at the United Nations, leading potentially to Israeli leaders being brought to the International Criminal Court, this could be said to be a test as to whether the international community is prepared and able to address the question of the impunity which Israel appears only too frequently to have enjoyed. If such prosecution fails to be brought against Israel, this puts in question how the international community can address such cases as for example that of the actions of war-lords in Dafur in the Sudan. A failure to address the question of impunity in the case of Israel (seen as an ally of the West) may critically affect the ability to call into question atrocities elsewhere.

It is clear that Israel is most concerned that the resolution of the UNHRC may open the door to Israeli officials, should they travel abroad, being apprehended and tried as war crimes under what is known as ‘universal jurisdiction’, the status of which is however unclear. Article 1 of the Geneva Conventions calls on states ‘to respect and ensure respect’ for international humanitarian law ‘in all circumstances’. (Cf. the efforts of several European courts to prosecute the former president of Chile, General Augusto Pinochet.)

Several Israeli prominent government officials are known to have cancelled proposed visits to London for fear of arrest. In July 2010 Kenneth Clark, Justice Minister, announced that the Coalition Government would be introducing legislation (already contemplated by the former Labour Government) to change the law. The chair and president of the board of deputies of the Jewish Leadership Council significantly welcomed the announcement as a ‘significant step towards the correction of a legal anomaly that has been exploited for the purpose of specific political agendas’ (The Guardian, 22.07.10.) Writing in that paper three days later Michael Mansfield QC castigated the intention of the government to circumscribe the doctrine of universal jurisdiction as a retrograde step which will make it far more difficult to bring those accused of serious human rights violations before the courts. ‘It sends entirely the wrong message and will be regarded by certain states as a reaffirmation of their de facto immunity. Small wonder Israel campaigned for the change and welcomed it with outstretched arms.’ (27.07.10).

Addendum

In a bizarre addendum, on 1 April 2011 Goldstone published an op-ed article in The Washington Post ‘Reconsidering the Goldstone Report on Israel and War Crimes’. He opined that: ‘We know a lot more today about what happened in the Gaza war of 2008-09’ than when he chaired the fact-finding mission, from which he drew the conclusion: ‘If I had known then what I know now’ the Report ‘would have been a different document’.  Goldstone continued: ‘I regret that our fact-finding mission did not have such evidence explaining the circumstances in which we said civilians in Gaza were targeted, because it probably would have influenced our findings about intentionality and war crimes.’ The problem was Israel’s lack of co-operation with the investigation. The comments caused astonishment and dismay among all those working for justice for the Palestinans (it being pointed out in some quarters that they were issued on April Fools Day.) Unsurprisingly the following day the Israeli Foreign Minister, Avigdor Lieberman went on Israeli TV speaking of Goldstone’s ‘retraction’. It has emerged that Goldstone has been subjected to almost intolerable pressure and threats (extending not only to himself but to his family) since the publication of the report. Indeed the South African Jewish lobby claimed: ‘We took sides against him, and it encourages us to know that our way had an effect…’. (Memo, April 2011). In an article published in the New Statesman on 6 April, John Dugard, former UN Special Rapporteur on Human Rights in the OPT, commented that there were ‘no new facts’ which exonerated Israel and ‘which could possibly have led Goldstone to change his mind’: the op-ed made ‘strange reading’.

In a joint press release published in The Guardian on 14 April, the other three members of the fact-finding mission commented that ‘in recent days some articles and comments’ in the press had attempted to ‘delegitimize the findings’ of the Report. But, as they pointed, the mission came to an end when it presented its Report; a Report that was now ‘an official UN document’. They found it ‘necessary to dispel any impression that subsequent developments [had] rendered any part of the Mission’s report unsubstantiated, erroneous or inaccurate’. Nothing of substance had appeared ‘that would in any way change the context findings or conclusions of that report’.  The Report contained conclusions made ‘after diligent, independent and objective consideration of the information … and careful assessment of its reliability and credibility’. They stood by these conclusions. Both parties to the conflict had thus far failed ‘to establish a convincing basis for any claims that contradict’ the Report. In the case of Israel only 3 of the 52 investigations of alleged wrong-doings had been submitted for prosecution, with two convictions (one for theft of a credit card and another for using a Palestinian child as a human shield which had resulted in a suspended sentence of three months).  Finally they regretted the ‘personal attacks and extraordinary pressure’ placed on members of the Fact Finding Mission: ‘Had we given in to pressures from any quarter to sanitize our conclusions, we would be doing a serious injustice to the hundreds of innocent civilians killed… the thousands injured and the hundreds of thousands whose lives continue to be deeply affected by the conflict and the blockade.’  The process should continue until ‘justice is done and respect for international human rights and humanitarian law by everyone ensured’.