Goldstone Report on Gaza: A Question of Trust

Author: Marko Milanovic
Filed under: EJIL Analysis

Wednesday
Sep 16,2009

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.

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2 Responses for "Goldstone Report on Gaza: A Question of Trust"

Carmi Lecker September 16th, 2009 at 18:51
Interestingly, the Mission could have cited the Committee against Torture,which in It’s recent Concluding observations on Israel’s fourth periodic report of (CAT/C/ISR/CO/4, 23 June 2009) adopted a smiler position(most likely for the same reasons ):

Allegations of torture and ill-treatment by Palestinian forces

34. According to reports before the Committee, both Hamas security forces in Gaza and Fatah authorities in the West Bank have carried out arbitrary arrests, abductions and unlawful detentions of political opponents, denied them access to a lawyer and subjected detainees to acts of torture and ill-treatment. Reportedly, those detained have been denied, inter alia, basic due process rights and the right to prompt and effective investigations. Additionally, an increase in such incidents¸ including deliberate maiming, as well as extrajudicial killings, was reported to have been conducted by Hamas forces in Gaza, allegedly against Fatah security services officials or persons suspected of collaboration with Israeli forces, during and after Operation Cast Lead.

The Palestinian authorities in the West Bank should take immediate measures to investigate, prosecute and appropriately punish persons under their jurisdiction responsible for these abuses; additionally, Hamas authorities in the Gaza Strip should take immediate steps to end its campaign of abductions, deliberate and unlawful killings, torture, and unlawful detentions, and to punish those responsible. The creation of an independent, impartial and non-partisan commission of experts to investigate these abuses should receive attention as a matter of priority.

Note also the Committee’s discussion regarding the applicability of the convention to the OPT and in particular to Gaza(para. 10-12) and it’s somewhat puzzling treatment on the relationship and interaction between IHRL and IHL (in particular viz operation “Cast Lead” para. 29)

C. Factors and difficulties impeding the application of the Convention

10. The Committee is fully aware of the situation of unrest prevailing in Israel and in the occupied Palestinian territories. The Committee reiterates its recognition of the State party’s legitimate security concerns and its duty to protect its citizens and all persons under its jurisdiction or de facto control from violence. However, the Committee recalls the absolute nature of the prohibition of torture contained in article 2, paragraph 2, of the Convention, stating that “no exceptional circumstances whatsoever may be invoked as a justification of torture.”

11. The Committee notes the State party’s continued argument that the Convention is not applicable to the West Bank or the Gaza Strip and the claim that this position stems inter alia from longstanding legal considerations that encompass the original drafting history of the Convention as well as from changed practical developments since Israel’s last appearance before the Committee, including the 2005 withdrawal of Israeli forces from the Gaza Strip, the dismantling of its military government and its evacuation of over 8,500 civilians from Gaza. In addition, the Committee notes the State party’s argument that the ‘law of armed conflict’ is the lex specialis legal regime that takes precedence. However, the Committee recalls its general comment No 2 (2007) that State parties’ obligation to prevent acts of torture or ill-treatment in any territory under its jurisdiction must be interpreted and applied to protect any person, citizen or non-citizen, without discrimination subject to the de jure or de facto control of a State party. The Committee further notes (a) that the State party and its personnel have repeatedly entered and established control over the West Bank and Gaza; (b) that, as acknowledged by the State party’s representatives during the dialogue with the Committee, security detainees from the area are, in substantial numbers, detained in prisons within the boundaries of the State of Israel; and (c) that Israel admittedly maintains “full jurisdiction” over cases of violence in the territories by Israeli settlers against Palestinians. Thus, the State party maintains control and jurisdiction in many aspects on the occupied Palestinian territories. Furthermore, the Committee notes with appreciation the State party’s affirmation that “an Israeli official is liable to Israel’s criminal jurisdiction for any unlawful conduct committed inside or outside the territory of Israel, provided that the official operates within his official capacity.” As to the lex specialis argument, the Committee recalls that it considers that the application of the Convention’s provisions are without prejudice to the provisions of any other international instrument, pursuant to paragraph 2 of its articles 1 and 16. Additionally, the Committee considers that, as stated by the International Court of Justice in its Advisory Opinion, international human rights treaties ratified by the State party, including the Convention, are applicable in the occupied Palestinian territories.[1]

[1] International Court of Justice, Legal consequences of the construction of a wall in the Occupied Palestinian Territories, Advisory opinion of 9 July 2004

12. In any event, the Committee notes that the State party has acknowledged that its actions in the West Bank and Gaza warrant scrutiny. It also notes that the State party has responded to and elaborated on many questions regarding the West Bank and Gaza posed by the Committee in the written list of issues and the oral discussion.

Use of force or violence during military operations

29. Notwithstanding the ongoing indiscriminate rocket attacks against civilians in southern Israel which reportedly provoked Israel to exercise its right to defend its population by launching operation “Cast Lead” against Hamas in the Gaza Strip, the Committee is concerned over the insufficient measures taken by the State party to protect the civilian population of the Gaza Strip and to prevent the harm, including many hundreds of deaths, of Palestinian civilians, including minors, caused as a result of the Israeli military operation. A report of nine United Nations experts describes civilians, including medical workers–16 having allegedly been killed and 25 injured while on duty. As confirmed by Israeli investigators, there were severe effects on civilians as a result of Israeli weaponry containing phosphorus, although it was reportedly aimed to create smoke screens or uncover tunnel entrances in Gaza. Notwithstanding the State party’s argument that this weapon is not banned by international humanitarian law and was not aimed at personnel, the Committee is concerned about its use in a densely populated area and the severe pain and suffering that this weapon caused, including deaths of persons who reportedly could not be duly treated at hospitals in Gaza, which were unable to provide palliative services for several reasons, including a lack of proper knowledge of the weaponry employed, as well as being used as headquarters, command centres and hiding places for Hamas attacks.

The State party should conduct an independent inquiry to ensure a prompt, independent and full investigation into the responsibility of state and non-state authorities for the harmful impact on civilians, and to make the results public.
Noam Wiener September 23rd, 2009 at 0:38
Marco I agree completely with the first part of your analysis. I too thought the statement that Israel is still an occupying power was too easily made, and not nearly as substantiated as it ought to be.

I don’t think I agree with your contention about the necessity of non-state actors to respect HRL. It is a little too US private-public distinction for my taste.

But the main problem with the report, I think, rests on the complete ignorance of the parties with respect to the need to write a report that will both be legally correct, and enjoy legitimacy.

As you correctly note, the scope of the report is too wide. While many of the observations relating to Palestinian Israeli relations are factually (and legally) correct, raising them in the context of this report will greatly alienate many readers.

But, no less important to the legitimacy of the report, and with absolute confidence in the integrity of the members of the committee, after publishing this petition:

http://www.timesonline.co.uk/tol/comment/letters/article5488380.ece

it is not possible to be a member of a fact finding mission on this very subject.