I have just skimmed through the Goldstone Fact-Finding Mission’s Report on Gaza that was released yesterday. It is a beast at almost 600 pages, so I was necessarily more quick than thorough. All in all, my impression of the Report is that it is balanced, corroborated and credible. But this is, mind you, no more than an impression. I can pass no judgment on the Mission’s many factual determinations – in line with what I have said before, I can only consider them more credible (or not) than those of the Israeli government and its rival version of reality.
Regrettably, the bias of the majority of the UN Human Rights Council against Israel is evident, as was the case with the Human Rights Commission that preceded it. To what extent this taints the credibility of the Goldstone Mission is, of course, a hotly disputed matter. For Israel, that taint was such that no cooperation with the Mission was possible. For others, the authority and reputation of the Mission’s members and their decision to look at the conflict more broadly than the Council were enough to mitigate the biased mandate.
And again the question is not what the facts are, but whom to trust, and whose account of the facts to believe. This is as true of us, as distant observers, and of the Mission itself. Its members also had to choose whether to believe a particular witness, or expert, or NGO. They also had to take into account the possibility of staging by Hamas or other Palestinian groups of events, or of potential intimidation or instruction of witnesses. Upon reading the report, if at high-speed, it seems to me that the Mission’s members were well aware of this, and the report is riddled with numerous caveats.
In its efforts to remove the appearance of bias, the Mission interpreted its mandate broadly, so as to include crimes against Israeli civilians. But perhaps the Mission went farther than it should have – it explores, as ‘context’, an enormous number of other situations and possible human rights violations, including inter alia the internecine Palestinian conflict, the wider facets of the Israeli occupation and the blockade of Gaza in particular, Israel’s strategic goals, the alleged suppression of pro-Palestinian protests by Israel during the most recent conflict, etc. The Mission justifies its approach by saying, for example, that:
1674. The Mission is of the view that Israel’s military operation in Gaza between 27 December 2008 and 18 January 2009 and its impact 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. Many such policies are based on or result in violations of international human rights and humanitarian law. Military objectives as stated by the government of Israel do not explain the facts ascertained by the Mission, nor are they congruous with the patterns identified by the Mission during the investigation.
A better view might be that the Mission’s task was not in understanding, but in establishing the facts. The line, I know, is a delicate one, but the former approach necessarily admits a greater influence of value and ideological judgments. Perhaps it was unwise to examine so many issues that are not directly related to the most recent Gaza conflict – the broader the brush, the broader the conclusions, the broader and more uncertain the factual basis, the easier it is to dismiss particular factual and legal findings as biased in one way or another, justifiably or not. But again, on the whole, my impression is that the Mission performed its task admirably.
As for its legal conclusions – them I don’t have to take on as much faith. All in all, most of the law as stated and applied by the Mission is uncontroversial, even though the factual basis is not. Thus, for example, the Mission’s conclusion as to the nature of the rocket attacks against Israel to me appears to be as manifestly correct as they come:
1724. From the facts available, the Mission finds that the rocket and mortars attacks, launched by Palestinian armed groups in Gaza, have caused terror in the affected communities of southern Israel and in Israel as a whole. Furthermore, it is the Mission’s view that the mortars and rockets are uncontrolled and uncontrollable, respectively. This indicates the commission of an indiscriminate attack on the civilian population of southern Israel, a war crime, and may amount to crimes against humanity. These attacks have caused loss of life and physical and mental injury to civilians and damage to private houses, religious buildings and property and have eroded the economic and cultural life of the affected communities.
The same goes for the many instances which the Mission identifies as a disproportionate use of force or as the deliberate targeting of civilians by Israel, if the factual basis is taken as correct. Some of the Mission’s legal findings, however, are more controversial (and interesting), and it is to these that I would like to draw the readers’ attention, while one in particular is to my mind a stretch of rather monumental proportions.
First, there is the Mission’s discussion of whether Israel is still the occupying power in Gaza, despite the 2005 disengagement, at paras. 275 ff of the Report. Perhaps unsurprisingly, the Mission concludes that Israel remains the occupant. Its analysis, however, is with respect somewhat cursory. I don’t think that it tackles some of the real issues, and it repeats arguments which are in my view unpersuasive (see more here). The Mission fails to appreciate the complexity of this question, and the fact that reasonable people may disagree. Rather, it presents its conclusion as obvious and generally accepted (something that it is not).
For instance, it says inter alia that the ‘international community’, i.e. the Security Council and Human Rights Council, also considers Israel to be the occupant of Gaza, and referring at para. 277, fn. 163 to USNC resolution 1860 (2009). Having just read it, this resolution does not say what the Mission thinks it does – it just remarks in a preambular paragraph that ‘the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state’ – referring quite obviously to the ongoing Palestinian infighting, not to Israel’s control over Gaza.
Second, there is the issue of the classification of the armed conflict between Israel and Palestinian armed groups, considered at paras. 281 ff of the Report. Though it invokes the Israeli Supreme Court’s view that this is an international armed conflict, the Mission decides to take no position on the issue, reasoning that the applicable rules are the same in both IACs and NIACs. Though of course this glosses over many difficult issues, the Mission was probably justified in doing so.
Third, there is the Mission’s analysis of the applicability of human rights law, particularly with respect to the extraterritorial application of IHRL to Gaza, and in the interaction between IHRL and IHL. The Mission’s conclusion that IHRL binds Israel in relation to Gaza rests on the assumption that the factual underpinning of this conclusion, that Israel still has the requisite level of control over Gaza, withstands scrutiny. It probably does, but the issue is again more complex than the Mission makes it out to be. The Mission also quite liberally intersperses IHL with human rights when dealing with specific events and violations. On the whole it does so in a persuasive manner, but a court dealing with the same question would have to tread more delicately.
Fourth, as to specific applications of IHL, I find the Mission’s approach to the principle of distinction in regard of Israeli targeting of the buildings of the Hamas government in Gaza which had a purely civilian function (paras. 380-390), as well as in regard of the civilian status of Hamas policemen (paras. 406 -436), to be generally correct (see Dapo’s take on that issue here and here).
Finally, I come to the one legal finding of the Mission that I find entirely unsubstantiated:
305. The relationship between IHL and IHRL is rapidly evolving, in particular in relation to non-State actors’ obligations, with the ultimate goal of enhancing the protection of people and to enable them to enjoy their human rights in all circumstances. In the context of the matter within the Mission’s mandate, it is clear that non-State actors that exercise government-like functions over a territory have a duty to respect human rights.
Get that? It is CLEAR that non-state actors have human rights obligations? Oh, come on. That may be an arguable position, but it is by no means clear – if anything, the contrary position is. There is no treaty which says that non-state actors have such obligations – in fact, the major human rights treaties have affirmed the state-centric nature of the global legal order. No state practice, no opinio juris is cited in support of such a sweeping proposition. See also para 1363 and fn. 699 of the Report, citing the joint statement of several UN special rapporteurs and Andrew Clapham’s book on the human rights obligations of non-state actors; and paras. 1609 ff in regard of the Palestinian Authority. Last time I checked, and with all due respect really, UN special rapporteurs are not the ones tasked with making international law.
Don’t get me wrong – the Mission’s motives in adopting this position are admirable. It does so in order to submit e.g. the Hamas repression of dissent in Gaza, the behaviour of the PA in the West Bank, and indeed the attacks against Israeli civilians, to some form of human rights analysis. But particularly in a situation as sensitive as this one, the distinction between lex lata and lex ferenda should be maintained. There will be enough attacks on the Mission’s credibility as it is. There was no need for the Mission to endanger it further by labelling as ‘clear’ or ‘beyond doubt’ propositions which are everything but.