The Goldstone Mission - Tainted to the core (II)

Aug. 18, 2009
IRWIN COTLER , THE JERUSALEM POST

In Monday's article, Prof. Cotler explained how the Goldstone Commission was tainted by the UN Human Rights Council resolution creating its mandate, as well as the predisposed views of some of its personnel. In the second part of his piece, he elaborates the systemic and systematic bias of the UN council itself, and the implications this bias has on the fact-finding mission and on the integrity of international law generally.

Disturbing as it may be, the failure to include a thorough review of Hamas's continuous rocket attacks in the resolution establishing the Goldstone Commission - and to then staff the mission with a member who has already decided that such attacks do not alter Israel's guilt - can be seen as evidence of the reductionist narrative that the UN Human Rights Council seeks to promulgate. None of this is intended to suggest, nor would I wish to have it inferred, that Israel is somehow above the law, or that Israel is not to be held accountable for any violations of law. On the contrary, Israel is accountable for any violations of international law or human rights like any other state. The Jewish people are not entitled to any privileged protection or preference because of the particularity of Jewish suffering.

But the problem is not that Israel seeks to be above the law; it is that Israel has been systematically denied equality before the law in the international arena. The issue is not whether Israel must respect human rights, but that the human rights of Israel and its people have not been respected. The discrimination emerges not from suggesting that human rights standards should be applied to Israel - which they must be - but from the fact that these standards have not been applied equally to anyone else.

IT IS on this basis that the Goldstone Commission should be opposed: not because it represents an objective inquiry into Israel - because independent and impartial inquiries should be welcomed by democracies - but precisely because it does not represent such an objective inquiry.

Consistently applying discriminatory standards has the effect not only of demonizing Israel, but of undermining the integrity of the UN and the edifice of international law. Decades from now, historians looking back at the meetings of the council will be led to believe that more Palestinians died at the hands of Israelis than Darfurians at the hands of Sudan; that discrimination was institutionalized in Israel to a larger extent than in apartheid South Africa; and that Israel - the lone democracy in the Middle East - was a greater threat to international peace and security than any other state since its inception.

But yet it was Hamas that fired deliberately on Israeli civilians. It was Hamas that boasted - only days before the conflict exploded in December - that Israel was "hopeless and desperate" when faced with its attacks. It was Hamas that promised to continue firing rockets, that painted Israel and Jews as the sons of apes and pigs and that called for their murder in its charter and publicly incited to their genocide.

Once the war began, it was Hamas that continued to target Israeli civilians - not infrequently but as part of a systematic, widespread attack. It was Hamas that chose to position its fighters in Palestinian civilian areas. It was Hamas that decided to misuse humanitarian symbols - such as using an ambulance to transport fighters - to launch attacks. It was Hamas that recruited children into armed conflict. These are all indisputable war crimes. Yet they do not find their way, at any point, into the resolution establishing the Goldstone Commission.

The mission's mandate is tainted through more subtle ways of prejudging its conclusions as well. For instance, the council's enabling resolution refers to the Gaza as being "occupied Palestinian territory." Such a description is loaded, and ignores the reality on the ground - that Israel fully withdrew from Gaza years ago. Indeed, the territory's status under international law remains unclear. By adopting this vernacular, the council - and Goldstone himself, who uses a similar characterization - implicitly predetermines an essential part of its analysis. For under international law, what constitutes a legitimate response will be very different depending on whether rocket attacks are coming from territory a state "controls," or whether they are coming from territory that is controlled by the attacking terrorist government, as in the case of Hamas.

In the end, whatever bargain Goldstone personally struck about his mandate, and whatever intentions he has of examining both sides of the conflict, his work will nonetheless be regrettably tarnished by its connection to the UN Human Rights Council, and may well be manipulated to satisfy the council's ends.

AND THUS we are left with the reality that Judge Richard Goldstone, previously shocked to the core, has become the leader of a mission that is tainted to the core.

Goldstone has, to his credit, opened his commission - and listened - to the witness testimony of both Israelis and Palestinians. They heard eloquent words from, among others, Noam Schalit, whose son Gilad remains in Hamas captivity under conditions that plainly violate international law. Moreover, while many may welcome an ultimate finding from the inquiry that Hamas was guilty of human rights violations as well, such an outcome should not be considered enough.

The commission's report is not yet written, and I would not wish to prejudge its findings. Suffice it to note, however, that the legitimacy of the report cannot be determined solely based on whether Hamas's heinous and significant crimes are revealed; the legitimacy of the report also rests - perhaps primarily - on the fairness of its findings with respect to Israel. And this fairness, in turn, is compromised not only by the tarnished mandate, but by the witness testimony and documentary evidence controlled by the Hamas terrorist government - while there is an absence of evidence from the Israeli government, which refused to cooperate with the mission to begin with.

Moreover, there is also a clear international legal asymmetry in the conflict between Israel and the terrorist group. This asymmetry exists not only in what lawyers call jus ad bellum - or the legal context of aggression and self-defense - but also in jus in bellum - the application of international human rights law to the combatants. With respect to Hamas, any attempt at "evenhandedness" will not do justice to this reality. Indeed, no analysis of the principle of proportionality can be undertaken without a keen understanding of intentionality. Accordingly, the commission should thus be singling out Hamas's deliberate and unprovoked acts of war, as well as its avowed and publicly-declared intention to destroy Israel and kill as many of its citizens as possible. Such intentions on the part of Hamas need to be contrasted with Israel's objective - to prevent and deter such armed attacks in order to better protect its innocent citizens.

THE PARADIGM of false moral equivalence not only wrongly puts Israel and Hamas on the same level, but it also undermines the importance of intentionality in international law.

For this reason, we should be looking for the Goldstone report not merely to observe that Hamas fired rockets at Israeli civilians while imperilling Palestinian civilians - a double war crime - but to look at this practice as the reason behind innocent Palestinian deaths. We should be looking for the Goldstone report not merely to mention Gilad Schalit in passing, but to look at his situation as a case study in Hamas terror and impunity.

In brief: We should be looking for the Goldstone report not just to mention Hamas's violations of international law, but to identify them as the root cause of the Gaza conflict. Simply put, if there had been no Hamas war crimes, there would have been no need for an Israeli response.

As the Goldstone inquiry is currently set up, however, expecting such an analysis to emerge clearly from its final report is likely unduly optimistic. The tarnish of the UN Human Rights Council, the enabling resolution it drafted, the personnel it grouped together, and the legal asymmetry cannot be so easily redressed. Indeed, between Goldstone - a renowned Jewish jurist who played right into the hands of a partial process - and Christine Chinkin - a law professor willing to sign off on an indictment before the evidence is in - the UN Human Rights Council no doubt found its ideal inquisitors.

And the council will no doubt be looking for their final report to be a final stamp of confirmation on the verdict it already determined.

The writer is the former minister of justice and attorney general of Canada. He is a member of the Canadian Parliament, special counsel on human rights and international justice to the Liberal Party, and a law professor (on leave) at McGill University.
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