Bipartisan Attack on International Humanitarian Law

In a stunning
blow against international law and human rights, the U.S. House of
Representatives overwhelmingly approved a resolution on Tuesday
attacking the report
of the United Nations Human Rights Council's fact-finding mission on
the Gaza conflict. The report was authored by the well-respected South
African jurist Richard Goldstone and three other noted authorities on
international humanitarian law, who had been widely praised for taking
leadership in previous investigations of war crimes in Rwanda, Darfur,
the former Yugoslavia, and elsewhere. Since this report documented
apparent war crimes by a key U.S. ally, however, Congress has taken the
unprecedented action of passing a resolution condemning it. Perhaps
most ominously, the resolution also endorses Israel's right to attack
Syria and Iran on the grounds that they are "state sponsors of
terrorism."

The principal co-sponsors of the resolution (HR 867),
which passed on a 344-36 vote, included two powerful Democrats: House
Foreign Relations Committee chairman Howard Berman (D-CA) and Middle
East subcommittee chairman Gary Ackerman (D-NY). Democratic majority
leader Steny Hoyer (D-MD) successfully pushed Democrats to support the
resolution by a more than 6:1 margin, despite the risk of alienating
the party's liberal pro-human rights base less than a year before
critical midterm elections.

The resolution opens with a series of clauses criticizing the
original mandate of the UN Human Rights Council, which called for an
investigation of possible Israeli war crimes only. This argument is
completely moot, however, since Goldstone and his colleagues - to their
credit - refused to accept the offer to serve on the mission unless its
mandate was changed to one that would investigate possible war crimes
by both sides in the conflict.

As a result, the mandate of the mission was thereby broadened. The
House resolution doesn't mention this, however, and instead implies
that the original mandate remained the basis of the report. In reality,
even though the report contained over 70 pages detailing a series of
violations of the laws of war by Hamas, including rocket attacks into
civilian-populated areas of Israel, torture of Palestinian opponents,
and the continued holding of kidnapped Israeli soldier Gilad Shalit,
there's no acknowledgement in the 1,600-word resolution that the
initial mandate had been superseded or that the report criticizes the
conduct of both sides. In fact, despite the report's extensive
documentation of Hamas assaults on Israeli towns - which it determined
constituted war crimes and possible "crimes against humanity" - the
resolution insists that it "makes no mention of the relentless rocket
and mortar attacks."

The Goldstone mission report - totaling 575 pages - contains
detailed accounts of deadly Israeli attacks against schools, mosques,
private homes, and businesses nowhere near legitimate military targets,
which they accurately described as "a deliberately disproportionate
attack designed to punish humiliate and terrorize a civilian
population." In particular, the report cites 11 incidents in which
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 House
resolution, however, claims that such charges of deliberate Israeli
attacks against civilian areas were "sweeping and unsubstantiated."

Both the report's conclusions and most of the particular incidents
cited were independently documented in detailed empirical
investigations released in recent months by Amnesty International, Human Rights Watch, and the Israeli human rights group B'Tselem,
among others. Congressional attacks against the integrity of the
Goldstone report, therefore, constitute attacks against the integrity
of these reputable human rights groups as well.

Equating Killing Civilians with Self-Defense

In an apparent effort to further discredit the human rights
community, the resolution goes on to claim that the report denies
Israel's right to self defense, even though there was absolutely
nothing in the report that questioned Israel's right to use military
force. It simply insists that neither Israelis nor Palestinians have
the right to attack civilians.

The resolution resolves that the report "irredeemably biased"
against Israel, an ironic charge given that Justice Goldstone, the
report's principal author and defender, is Jewish, a longtime
supporter of Israel, chair of Friends of Hebrew University, president
emeritus of the World ORT Jewish school system, and the father of an
Israeli citizen.
Goldstone was also a leading opponent of apartheid in his native South
Africa and served as Nelson Mandela's first appointee to the country's
post-apartheid Supreme Court. He was a principal prosecutor in the war
crimes tribunals on Rwanda and the former Yugoslavia, took a leading
role in investigations into corruption in the UN's "Oil for Food"
program in Iraq, and was also part of investigations into Argentina's
complicity in provided sanctuary for Nazi war criminals.

Having 80% of the U.S. House of Representatives go on record
attacking the integrity of one of the world's most respected and
principled defenders of human rights is indicative of just how far to
the right the U.S. Congress has now become, even under Democratic
leadership. In doing so, Congress has served notice to the human rights
community that they won't consider any human rights defenders
credible if they dare raise questions about the conduct of a U.S. ally.
This may actually be the underlying purpose of the resolution: to
jettison any consideration of international humanitarian law from
policy debates in Washington. The cost, however, will likely be to
further isolate the United States from the rest of the world, just as
Obama was beginning to rebuild the trust of other nations.

Indeed, the resolution calls on the Obama administration not only
"to oppose unequivocally any endorsement" of the report, but to even
oppose unequivocally any "further consideration" of the report in
international fora. Instead of debating its merits, therefore, Congress
has decided to instead pre-judge its contents and disregard the actual
evidence put forward. (It's doubtful that any of the supporters of the
resolution even bothered actually reading the report.) The resolution
even goes so far as to claim that Goldstone's report is part of an
effort "to delegitimize the democratic State of Israel and deny it the
right to defend its citizens and its existence can be used to
delegitimize other democracies and deny them the same right." This is
demagoguery at its most extreme. In insisting that documenting a given
country's war crimes is tantamount to denying that country's right to
exist and its right to self defense, the resolution is clearly aimed at
silencing defenders of international humanitarian law. The fact that
the majority of Democrats voted in favor of this resolution underscores
that both parties now effectively embrace the neoconservative agenda to
delegitimize any serious discussion of international humanitarian law,
in relation to conduct by the United States and its allies.

License for War?

Having failed in their efforts to convince Washington to launch a
war against Syria and Iran, neoconservatives and other hawks in
Washington have now successfully mobilized a large bipartisan majority
of the House of Representatives to encourage Israel to act as a U.S.
surrogate: Following earlier clauses that define Israel's massive
military assault on the civilian infrastructure of the Gaza Strip as a
legitimate defense of its citizens and make the exaggerated assertion
that Iran and Syria are "sponsors" of Hamas, the final clause in the
resolution puts Congress on record supporting "Israel's right to defend
its citizens from violent militant groups and their state sponsors"
(emphasis added). This broad bipartisan congressional mandate for a
unilateral Israeli attack on Syria and Iran is extremely dangerous, and
appears designed to undercut the Obama administration's efforts to
pursue a negotiated path to settling differences with these countries.

Misleading Accusations

There are other clauses in the resolution that take quotes out of
context and engage in other misrepresentations to make the case that
Goldstone and his colleagues are "irredeemably biased."

One clause in the resolution attacks the credibility of mission
member Christine Chinkin, an internationally respected British scholar
of international law, feminist jurisprudence, alternative dispute
resolution, and human rights. The resolution questions her objectivity
by claiming that "before joining the mission, [she] had already
declared Israel guilty of committing atrocities in Operation Cast Lead
by signing a public letter on January 11, 2009, published in the Sunday Times, that called Israel's actions 'war crimes.'" In reality, the letter
didn't accuse Israel of "atrocities," but simply noted that Israel's
attacks against the civilian infrastructure of the Gaza Strip were "not
commensurate to the deaths caused by Hamas rocket fire." The letter
also noted that "the blockade of humanitarian relief, the destruction
of civilian infrastructure, and preventing access to basic necessities
such as food and fuel, are prima facie war crimes." In
short, it was a preliminary assessment rather than a case of having
"already declared Israel guilty," as the resolution states.

Furthermore, at the time of the letter - written a full two weeks
into the fighting - there had already been a series of preliminary
reports from Amnesty International, Human Rights Watch, and the
International Committee of the Red Cross documenting probable war
crimes by Israeli armed forces, so virtually no one knowledgeable of
international humanitarian law could have come to any other conclusion.
As a result, Chinkin's signing of the letter could hardly be considered
the kind of ideologically motivated bias that should preclude her
participation on an investigative body, particularly since that same
letter unequivocally condemned Hamas rocket attacks as well.

The resolution also faults the report for having "repeatedly
downplayed or cast doubt upon" claims that Hamas used "human shields"
as an attempted deterrence to Israeli attacks. The reason the report
challenged those assertions, however, was that there simply wasn't any
solid evidence to support such claims. Detailed investigations by
Amnesty International and Human Rights Watch regarding such accusations
during and subsequent to the fighting also came to same conclusion. As
with these previous investigations, the Goldstone report determined
that there were occasions when Hamas hadn't taken all necessary
precautions to avoid placing civilians in harm's way, but they found no
evidence whatsoever that Hamas had consciously used civilians as
shields at any point during the three-week conflict.

Despite this, the House resolution makes reference to a supposed
"great body of evidence" that Hamas used human shields. The resolution
fails to provide a single example to support this claim, however, other
than a statement by one Hamas official, which the mission investigated
and eventually concluded was without merit. I contacted the Washington
offices of more than two dozen co-sponsors of the resolution,
requesting such evidence, and none of them were able to provide any. It
appears, then, that the sponsors of the resolution simply fabricated
this charge in order to protect Israel from any moral or legal
responsibilities for the more than 700 civilian deaths. (Interestingly,
the report did find extensive evidence - as did Amnesty International -
that the Israelis used Palestinians as human shields during their
offensive. Israeli soldiers testifying
at hearings held by a private group of Israeli soldiers and veterans
confirmed a number of such episodes as well. This fact was conveniently
left out of the resolution.)

In another example of misleading content, the resolution quotes
Goldstone as saying, in relation to the mission's investigation, "If
this was a court of law, there would have been nothing proven."
However, no such investigation carried out on behalf of the UNHRC has
ever claimed to have obtained evidence beyond a reasonable doubt, the
normal criterion for proof in a court of law. This does not, however,
buttress the resolution's insistence that the report was therefore
"unworthy of further consideration or legitimacy." What the
fact-finding mission did find was probable cause for criminal
investigations into possible war crimes by both Hamas and the Israeli
government. Another spurious claim of bias is the resolution's
assertion that "the report usually considered public statements made by
Israeli officials not to be credible, while frequently giving
uncritical credence to statements taken from what it called the `Gaza
authorities', i.e. the Gaza leadership of Hamas." In reality, the
report shows that the mission did investigate such statements and
evaluated them based upon the evidence. The resolution also fails to
mention that while Hamas officials were willing to meet with the
mission, Israeli officials refused, even denying them entrance into
Israel. The mission had to fly Israeli victims of Hamas attacks to
Geneva at UN expense to interview them. The mission found these
Israelis' testimony credible, took them quite seriously, and
incorporated them into their findings.

The resolution goes on to claim that the report's observation that
the Israeli government has "contributed significantly to a political
climate in which dissent with the government and its actions . . . is
not tolerated" was erroneous. In reality, it has been well-documented
- and has been subjected to extensive debate
within Israel - that the right-wing government of Prime Minister
Benyamin Netanyahu has interrogated and harassed political activists as
well as suppressed criticism and sources of potential criticism of
actions by the Israeli military, particularly non-government
organizations such as the dissident soldiers' group Breaking the Silence.

No Accountability

The House resolution is particularly vehement in its opposition to
the report's recommendation that, should Hamas and Israeli authorities
fail to engage in credible investigations and bring those responsible
for war crimes to justice, the matter should be referred to the
International Criminal Court for possible prosecution. The resolution
insists this is unnecessary since Israel "has already launched numerous
investigations." However, Israeli human rights groups have repeatedly criticized their government's refusal to launch any independent investigations and have documented
how the Israeli government has refused to investigate testimonies by
soldiers of war crimes. (At this point, the only indictments for
misconduct by Israeli forces during the conflict have been against two
soldiers who stole credit cards from a Palestinian home.)

The primary motivation for the resolution appears to have been to
block any consideration of its recommendation that those guilty of war
crimes be held accountable. Since the ICC has never indicted anyone
from a country which had a fair and comprehensive internal
investigation of war crimes and prosecuted those believed responsible,
the goal of Congress appears to be that of protecting war criminals
from prosecution.

As a result, the passage of this resolution isn't simply about the
alleged clout of AIPAC or just another example of longstanding
congressional support for Israeli militarism. This resolution
constitutes nothing less than a formal bipartisan rejection of
international humanitarian law. U.S. support for human rights and
international law has always been uneven, but never has Congress gone
on record by such an overwhelming margin to discredit these universal
principles so categorically. This is George W. Bush's foreign policy
legacy, which - through this resolution - the Democrats, no less than
their Republican counterparts, have now eagerly embraced.