The UN Human Rights Council has named the respected South African jurist and war crimes investigator, Richard Goldstone, to head a panel investigating alleged war crimes in Gaza during Operation Cast Lead. The official mandate of the panel, as one may expect from the UNHRC, prejudges the outcome of the investigation, since the mandate is directed only at uncovering Israeli war crimes. Goldstone insists however, that the panel would examine the behavior of both sides. The appointment of Goldstone, presumed to be a Zionist, has led many to believe the the investigation would be fair. But it may be more relevant to focus on other panel investigators. In particular, we should consider the record of Christine Chinkin, who has already been involved in Gaza "war crimes" investigations.
The panel, in addition to Goldstone, consists of British Professor Christine Chinkin, Retired Irish army officer Desmond Travers, and Pakistani jurist Hina Jilani. Notwithstanding Goldstone's membership of the Board of Trustees of the Hebrew university, Goldstone, Jilani and Travers are signatories of a recent letter to Amnesty International calling for an investigation of Israeli war crimes in Gaza. Jilani is a well known and courageous defender of women's rights in Pakistan. She has also appeared in hearings on behalf of Palestinians in Israel as a member of the board of the Frontline Defenders organization.
Under international law, all but rogue countries are generally trusted to do their own internal investigations of war crimes. Only rogue regimes, such as Nazi Germany, former Yugoslavia or Sudan are generally subject to external investigations and war crimes trials. Therefore, the calls for war crimes investigations of Israel are just another gimmick used in the war to delegitimize Israel.
Chinkin, along with the infamous Richard Falk, is among the signatories of a poisonous item in the Sunday Times entitled "Israelís bombardment of Gaza is not self-defence Ė itís a war crime." As she has already decided the matter, it would seem that from her point of view there is no need to have any investigation. In a fair judicial procedure, a judge like Chinkin would have to recuse herself, but the nature of this "judicial procedure" should already be evident.
Chinkin was also co-investigator with Desmond Tutu of the incident in Beit Hanoun, in which Israeli artillery fire killed 18 civilians, evidently due to a technical malfunction. Her conclusions, and additional editorializing in a press conference following that investigation are relevant to understanding the likely outcome of this investigation, :
The story of the Beit Hanoun shelling is, if anything, as story of the failure of the rule of law. No verifiable explanation has been offered, no independent, impartial and transparent investigation has been held, no one has been held to account. The Israeli military has admitted responsibility but claimed a technological error. As we say in our report, the response of a largely secret internal military investigation is absolutely unacceptable from both legal and moral points of view.
Faced with this absence of a well-founded explanation from the Israeli military, the mission has to conclude that there is a possibility that the shelling of Beit Hanoun constituted a war crime...
The greatest current factor affecting the victims and survivors of the shelling is the general situation in Gaza, specifically the blockade. This unjust and illegal action by Israel has vastly increased the suffering of a population which, being under occupation, is legally entitled to look to Israel protection and support. The occupation remains the root cause of incidents such as the shelling of Beit Hanoun. In our efforts to discharge our mandate, we have witnessed positions based on political objectives rather than on principle by all relevant parties.
Professor Chinkin thinks that Israel has an obligation to make public all of its military secrets in order to satisfy her judicial curiosity, including for example, the workings of the artillery range calculation computer that was in error, the details of IDF operations procedures, and the network of informants (the names, please!) that provides information about targets. That is the sort of information that is only revealed after a country has been defeated in war. She would not be satisfied by partial information, and of course, information is always partial. On the "guilty until proven innocent" theory, no information is sufficiently exculpatory unless someone else confesses to the crime or is shown conclusively to have committed it, and there are no other culprits in sight. That was true in Beit Hanoun, and it is true today in Gaza. Hamas is not about to volunteer a confession.
Having rejected the Israeli findings, and given that they had no evidence except the dead civilians, Chinkin and Tutu took that "natural" course of blaming everything on the "occupation" (there are no Israeli soldiers in Gaza). Regardless of the fine points of international law, it is unclear how Israel is supposed to take responsibility as an "occupier" if the Hamas is in charge in Gaza, and the UN and international community opposes any measures to remove them from power.
The sort of justice that will be administered by this investigation is the sort where the court is charged "to ensure that the defendants are found guilty and executed in accordance with Soviet justice." Chinkin has already announced the verdict in the Sunday Times. In calling for a war crimes investigation, Goldstone, Jilani and Travers have already expressed no confidence in Israeli justice and military investigations. The only question left open is whether the fallout will be worse if Israel cooperates or does not cooperate with this investigation of its already "proven" guilt. Of course, the investigation may also find that the Hamas are violating human rights by firing rockets and mortars on civilians, not to mention kidnapping Gilad Shalit and holding him while denying him the rights guaranteed under the Geneva convention. But we already know all that, and Christine Chinkin has already blamed everything on the Israeli "occupation."
In any fair investigation, a defendant has the right to remain silent, which is not taken as proof of guilt, and a defendant has the right not to testify against themselves. Chinkin's approach is already evident from the Beit Hanoun investigation: the "occupation" is at fault for everything, Israelis are guilty until proven innocent, and Israelis can never be proven innocent. The Beit Hannoun approach will no doubt set a precedent for the Gaza mission, if a precedent is needed.
On the principle that non-cooperation indicates guilt to Professor Chinkin, we can expect that in this investigation IDF officers who refuse to testify will be convicted of war crimes. If they do testify, no matter how much they protest their innocence, they will necessarily be convicted by the evidence of Palestinian "witnesses." There is no way to ascertain whether these "witnesses" are testifying to the truth or under duress, as they and their families are under the control of the Hamas.
Whatever Israel does, the result is bound to be a one sided condemnation of Israeli "war crimes." There is no chance that any Palestinian witnesses would admit, for example, that civilians were deliberately concentrated in an area to form human shields. The UN itself was party to a war crime hoax in Gaza, when it charged that Israel had shelled a UNRWA school and killed 40 civilians. The truth was than Israel had shelled outside the school and killed four Hamas terrorists. It is reasonable to expect that the UN will be a party to bigger and better fabrications in this "investigation."
It seems the wisest course for Israel to take, would be to conduct an open investigation of its own into all the outstanding issues, a judicial court of inquiry similar to the Kahan commission. If we have nothing to hide in a fair procedure, let's not hide it. It won't be pleasant, but it may be a far better alternative than the poisonous kangaroo trial that is already process in the international media and will gather momentum as the UN "investigation" proceeds. Instead of another circus, justice will be done, and it will have been seen to have been done. Instead of depriving Israel of legitimacy, the proceedings will help build trust in the Israeli justice system and Israeli society.
Admittedly, this investigation will never satisfy Chinkin and her ilk unless it results in the hanging of half the soldiers of the IDF. The appointment of such a commission, however, would satisfy most fair minded people. It could serve as the basis of an Israeli request to the Secretary General of the UN to postpone or cancel the mission of the UNHCR "investigation."
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Replies: 3 Comments
A benchmark has been established for investigations of this kind and that is the UN fact finding mission on Jenin which found that no massacre took place. In fact Israel questioned the make-up of the team and did not allow entry into the refugee camp in question. The final report exonerated Israel.
The Gaza problem is more complex because it is clear that the total number of casualties is greater, many of them civilians.
The problem with an independent investigation by an Israeli commission is twofold. It may come up with nasty facts and in then in turn the cry for a UN Human Rights Commission would be strengthened. Alternatively it could completely exonerate Israel which would also create a cry for an independent UN commission. Its pretty much a no-win situation here.
One of the precedents regarding Jenin is that Israel challenged the nature of the teamís composition and its members. This would probably be the wisest course of action here, making entry to Gaza conditional on a selection of unbiased members and military professionals who understand the constraints under which the IDF works. Another condition servicing the truth, could be that none of the combatants or decision makers in the conflict can be brought to trial consequent to facts emerging from the inquiry.
The three members of the Goldstone team who signed the petition have not necessarily signed away their integrity by doing that, however Israelís right to a balanced non-prejudicial body must be upheld.
jayzed, Friday, April 10th
1. In the letter that Goldstone, Jilani, and Travers are among its signatories "Israeli war crimes in Gaza" are not mentioned, only "conduct and actions both by the Israeli military and by the Palestinian armed groups".
2. I see a problem in signatories' intent "to send an unfaltering signal that the targeting of civilians during conflict is unacceptable by any party on any count". Palestinians' reply to that would be that they lack the technical means to do target anything, while Israel is boasting about its precision weapons. Hence when non-combatants are hit, Palestinians are not guilty (can not aim) while Israel is (or must prove a technical glitch).
3. I think that Israel must add to all international conventions that it had signed a proviso that requires reciprocity from a party to the conflict that Israel is engaged in. E.g., if the other side shells Israeli territory indiscriminately, we shall do the same; if they hold our prisoners incommunicado - we shall do the same to theirs. From what I've seen, such stipulations are not common but admissible.
Misha Shauli, Wednesday, April 8th
The question should be: Are Israelís representatives, diplomats and leaders, skillful enough to deal with this panel, or even with neutral ones?
Dvar Dea, Wednesday, April 8th
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