Published on Thursday, October 8, 2009 by Foreign Policy in Focus

The Goldstone Report: Killing the Messenger

by Stephen Zunes

On October 1, the Obama administration successfully pressured the Palestinian delegation to the United Nations Human Rights Council (UNHRC) in Geneva to drop its proposal to recommend that the UN Security Council endorse the findings of the Goldstone Commission report. The report, authored by renowned South African jurist Richard Goldstone, detailed the results of the UNHRC's fact-finding mission on the Gaza conflict. These findings included the recommendation that both Hamas and the Israeli government bring to justice those responsible for war crimes during the three weeks of fighting in late December and early January. If they don't, the report urges that the case be referred to the International Criminal Court (ICC) for possible prosecution.

The Obama administration has declared — in the words of U.S. ambassador to the UN Susan Rice — that such a recommendation is "basically unacceptable." It has insisted that any legal remedies be handled by the respected parties internally. Since neither Hamas nor the Israeli government will likely prosecute those responsible for war crimes, the administration's action will essentially prevent these Palestinian and Israeli war criminals from ever being brought to justice.

Indeed, the Obama administration and the Democratic leadership in Congress appear to be continuing the Bush administration's policy of ignoring and denouncing those who have the temerity to report violations of international humanitarian law by the United States or its allies.

The Role of the UN

The UN has special responsibility for human rights in territories under belligerent military occupation, since the treatment of civilians in such territories falls under the Fourth Geneva Convention. Israel withdrew its illegal settlements and its soldiers from the Gaza Strip in 2005, in belated compliance with a series of UN Security Council resolutions. But the territory legally remains under this status as a result of the continued Israeli siege of the region, including the blockading of its port, control of its air space, as well as most land access. The original mandate given by the UNHRC was for the creation of a commission to investigate "all violations of international human rights law and international humanitarian law by the occupying power, Israel, against the Palestinian people."

Goldstone, who has had a longstanding reputation for fairness and objectivity and previously led the war crimes prosecutions for Yugoslavia and Rwanda, is a Zionist Jew and longtime supporter of Israel. Goldstone agreed to accept the appointment only if the commission's mandate were expanded to look at the actions of both sides of the conflict. The HRC agreed to these conditions and the investigation went forward looking into violations of international humanitarian law by both Israel and Hamas. The Goldstone Commission report cited in detail a whole series of violations of the laws of war by Hamas, including rocket attacks into civilian-populated areas of Israel, torture of Palestinian opponents, and continued holding of kidnapped Israeli soldier Gilad Shalit.

What has upset Obama administration officials and congressional Democrats, however, was that the report also concluded that Israel's military assault on Gaza was "a deliberately disproportionate attack designed to punish humiliate and terrorize a civilian population," citing Israel's deadly attacks against schools, mosques, private homes and businesses nowhere near legitimate military targets. These conclusions echo detailed empirical reports released in recent months by Amnesty International, Human Rights Watch, and the Israeli human rights group B'Tselem, among others.

Response to Report

Despite the report's evenhandedness, both Hamas and the Israeli military rejected the commission's finding. They denied ever targeting civilian populations and claimed that their actions were in self-defense.

The United States has rejected the commission's findings as well, calling it "deeply flawed."  Rather than challenge the content of the meticulously documented 575-page report, U.S. officials have instead issued strong but vague critiques. For example, Ambassador Rice was particularly critical of the report's recommendation that those Palestinians and Israelis suspected of war crimes should be tried before the International Criminal Court. "Our view is that we need to be focused on the future," she argued. Though Rice had argued just a few months earlier during a UN debate on Darfur that war crimes charges should never be sacrificed for political reasons, she reinforced Assistant Secretary of State Philip Crowley's insistence that the report "should not be used as a mechanism to add impediments to getting back to the peace process."

Meanwhile, on Capitol Hill Democrats were echoing their Republican counterparts in denouncing the Goldstone report. Sixteen leading Senate Democrats joined an equal number of Republicans in signing a letter written by the Senator Kirsten Gillibrand (D-NY) to Secretary of State Hillary Clinton attacking what they insisted was a "biased report." The recently appointed Democratic senator praised the State Department's efforts to quash the report, claiming that "legitimizing the report sends a dangerous message to countries defending themselves against terrorism."

The letter insisted that any legal action regarding Israeli human rights abuses must not be taken up in international fora. Instead, despite the Israeli government's long history of covering up war crimes by its armed forces, the Israeli justice system should handle the matter internally. The signatories praised what they called "the extraordinary measures taken by the Israel Defense Forces to minimize civilian casualties," acknowledged the State Department for publicly raising its significant concerns about the report, and called upon the Obama administration to "denounce the unbalanced nature of this investigation." Among the 32 signatories were such leading Democratic liberals as Carl Levin (D-MI), Barbara Boxer (D-CA), Barbara Mikulski (D-MD) , Ron Wyden (D-OR), and Russ Feingold (D-WI).

That the report examined violations of international humanitarian law by both sides does not alter these senators' insistence of bias since, according to the letter, "the vast majority of the report focuses on Israel's conduct, rather than that of Hamas." The senators fail to note, however, that the ratio of civilian casualties inflicted by the Israelis relative to those inflicted by Hamas was more than 250:1, which would seem to indicate a legitimate reason to focus primarily on the former. Furthermore, these senators ignore the likelihood that the report's criticism of Hamas would have likely been longer and harsher had the Israeli government agreed to meet with the commission and allow its members to visit Israel. In their effort to hear from both sides, the UN was forced to fly Israeli victims to Geneva for interviews.

In the House of Representatives, Elliot Engel (D-NY) and Shelley Berkley (D-NV), senior members of the Middle East subcommittee, issued a joint statement claiming the Goldstone Commission report was "biased against Israel." Even more critical of the report was Gary Ackerman (D-NY), whom the Democrats have named the Mideast subcommittee chairman and vice-chair of the Foreign Relations Committee. "In the self-righteous fantasyland inhabited by the authors, there's no such thing as terrorism, there's no such thing as Hamas, [and] there's no such thing as legitimate self-defense," he said. In reality, the report refers to "terrorism" (or "terror" or "terrorists") more than 100 times, mentions Hamas more than 400 times, and failed to challenge the dubious claim that Israel launched its war on Gaza in self-defense. Ackerman even goes so far as to claim that the commission believes that "war is like a sporting event or a debate, rather than the most ghastly, destructive, chaotic phenomenon we human beings are capable of creating." In truth, the report goes into graphic detail of the violence, destruction, and terror the conflict inflicted on both sides.

These Democratic critics have insisted that the Goldstone Commission Report ignored how the Israelis supposedly went to great lengths to avoid civilian casualties by dropping leaflets and sending robo-calls to Palestinian homes warning them of impending attacks. In reality, the report examined these claims in detail, but concluded that many of the calls and leaflets were sent out too late or were too vague for civilians to reach safety.  Furthermore, Israeli calls for civilians to flee to downtown Gaza City led those who heeded such advice right into the line of Israeli fire, as when the Israelis attacked the UN compound and school with mortars and phosphorous bombs where hundreds of fleeing residents had sought refuge. The Goldstone Commission report confirmed the conclusions of previous investigations that there were no legitimate military targets in the area. Furthermore, the report cited 11 incidents where Israeli armed forces engaged in direct attacks against civilians, including cases where people were shot "while they were trying to leave their homes to walk to a safer place, waving white flags."

The Democratic Party leadership, however, apparently believes such attacks against civilians constitute legitimate self-defense. Not surprisingly, Ackerman, Engel, Berkley and other Democratic House leaders defending Israel's attacks on civilian targets in the Gaza Strip also insisted that the U.S. invasion and occupation of Iraq constituted legitimate self-defense.

And it is not just the Democratic Party's old guard that attacks human rights groups and the UN for their defense of international humanitarian law. Gary Peters (D-MI), without mentioning any specifics, condemned the Goldstone Report as "flawed," insisting that it "unfairly criticizes Israel despite its strong efforts to protect all civilians," and that is was yet another example of Israel being "wrongly assailed for defending its own borders and citizens." In reality, neither the UN report nor the reports from Amnesty International or Human Rights Watch in any way question Israel's right to defend its own borders and its citizens.

This past January, the entire U.S. House of Representatives passed a resolution by a 390-5 margin (with 22 abstentions) claiming that Hamas alone deserved the blame for the high civilian death toll and that Israel was simply exercising its "right to self-defense."  The resolution also insisted that Hamas used Palestinian civilians as human shields — a charge repeated by Engel and Berkley, among others, in their attack on the Goldstone Commission report. Exhaustive investigations by the commission, Amnesty International, and others found no evidence of even one such incident during the three-week conflict.

Impunity

On the one hand, the Obama administration and congressional Democrats have insisted that the issue stay confined to the UN's Human Rights Council. On the other hand, they have repeatedly attacked that body as being "anti-Israel." Why, then, would they insist that the issue remain confined to an entity that they consider biased against Israel?

If the matter is taken to the UN Security Council, as the Goldstone Commission recommended, it would place debate on violations of international humanitarian law by a key U.S. ally before a body that, unlike the UNHRC, has an enforcement mechanism. It would also allow far greater media exposure of Israeli war crimes, the bulk of which were implemented using U.S. weapons systems and ordinance.

Washington Democrats are even more concerned about the issue going before the International Criminal Court where those Palestinians and Israelis guilty of war crimes might actually face justice. The Obama administration and congressional Democrats are determined that such war criminals be granted impunity.

This latest assault against the human rights community by the Obama administration and congressional Democrats is not an example of their being too "pro-Israel." Indeed, such war crimes and other gross and systematic human rights abuses by the Israeli government endanger Israel's security, and have led to the rise of extremist groups such as Hamas and Hezbollah in the first place. Unfortunately, the Democratic leadership in Washington has joined the Republicans in a campaign, in effect, to kill the messenger: attack the United Nations, Amnesty International, or anyone else — be they journalist, scholar, activist, or even one of the world's most respected jurists — who dares put forward credible evidence of human rights abuses by the United States or its allies.

"A culture of impunity in the region has existed for too long," Goldstone told the UNHRC when presenting his report. "The lack of accountability for war crimes and possible war crimes against humanity has reached a crisis point." The Obama administration and the Democratic leadership in Congress are part of this problem, not part of its solution.