"[T]he United Nations Security Council should refer the matter [of war crimes in the Gaza War] to the International Criminal Court" in six months if "serious, independent investigations" are not carried out by Israel and the Palestinian Authority, said the 575-page report of the U.N. fact-finding mission led by Richard Goldstone, the New York Times reported in a front-page story Wednesday.[1]  --  The Times noted that Goldstone, a highly respected South African Constitutional Court judge with vast experience in international humanitarian law, is Jewish.  --  Within hours Israel had "bluntly dismissed" the call for an Israeli investigation, the New York Times reported late Wednesday.[2]  --  Although an ancient legal maxim holds that no one is judge in their own cause, an Israeli spokesman opined "that the internal military investigations into the Israeli Army’s conduct in Gaza already under way were 'a thousand times more serious' than the investigation just completed by the United Nations mission."  --  Israel continues to promulgate a false narrative according to which the appalling attack on Gaza was in the nature of self-defense.  --  Israel is already trying to mobilize the Obama adminstration to assist in its effort to avoid prosecution in the International Criminal Court, Haaretz reported early Thursday.[3]  --  Israel is also mobilizing resources in an effort to shape American public opinion, Barak Ravid and Anshel Pfeffer said.  --  Deputy Foreign Minister Daniel Ayalon said "that the same approach that was taken to United Nations General Assembly Resolution 3379 equating Zionism with racism needs to be taken regarding the Goldstone report."  --  It has been decided that Israeli Prime Minister Benjamin Netanyahu and Foreign Minister Avigdor Lieberman "would not express themselves publicly on the matter," leaving this to Israeli President Shimon Peres.  --  According to Haaretz, a "senior Foreign Ministry official" said the harshness of the report surprised Israeli officials.  --  But the surprise cannot have been great, since "[f]ollowing Operation Cast Lead, Haaretz revealed a directive by the IDF not to publish the names and photos of battalion commanders who took part in the operation due to fear of legal reprisals against them."  --  "The IDF and the Justice Ministry are concerned that the report will make it difficult for Israeli officers to travel abroad," said Ravid and Pfeffer, especially to universal jurisdiction countries like Britain, Belgium, Spain, and Norway.  --  "A joint panel of the Justice Ministry, IDF, and Foreign Ministry already has a team of legal experts that advise officers not to leave the country and in some cases has prevented them from visiting specific countries." ...



Middle East

By Neil MacFarquhar

New York Times
September 16, 2009 (posted Sept. 15)


[PHOTO CAPTION: Members of the Samouni family, killed in an Israeli attack on their home in January, at the morgue shortly before burial.]

UNITED NATIONS -- A United Nations fact-finding mission investigating the three-week war in Gaza last winter issued a highly critical report on Tuesday detailing what it called extensive evidence that both Israel and Palestinian militant groups took actions amounting to war crimes, and possibly crimes against humanity.

While the long-anticipated, 575-page report condemned rocket attacks by Palestinian armed groups against Israeli civilians, it reserved its harshest language for Israel’s treatment of the civilian Palestinian population in the Gaza Strip, both during the war and through the longer-term blockade of the territory.

The report called Israel’s military assault on Gaza “a deliberately disproportionate attack designed to punish, humiliate, and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.”

The mission -- led by Richard Goldstone, a respected South African judge and once the lead war crimes prosecutor for former Yugoslavia and Rwanda -- did not attempt an exhaustive look at the war, instead focusing on 36 cases that it said constituted a representative sample. In 11 of these episodes, it said the Israeli military carried out direct attacks against civilians, including some in which civilians were shot “while they were trying to leave their homes to walk to a safer place, waving white flags.”

In all but one of these civilian attacks, the report said, “the facts indicate no justifiable military objective” for them.

The report cited other possible crimes by the Israelis, including “wantonly” destroying food production, water, and sewerage facilities; striking areas, in an effort to kill a small number of combatants, where significant numbers of civilians were gathered; using Palestinians as human shields; and detaining men, women, and children in sand pits. It also called Israel’s use of weapons like white phosphorus “systematically reckless,” and called for banning it in urban areas.

On the Palestinian side, the report said that firing rockets that either deliberately were aimed at Israeli civilians or were so inaccurate as to risk hitting civilians caused widespread trauma and constituted a war crime. It also singled out Palestinian actions within Gaza, including killings and other abuse of members of the rival Fatah political movement as a “serious violation of human rights.”

The four members of the fact-finding mission called on both the Israeli government and the Palestinian Authority to carry out serious, independent investigations. If that did not occur within the next six months, the mission said, the United Nations Security Council should refer the matter to the International Criminal Court.

The Israeli government said it was studying the report, but Gabriela Shalev, the Israeli ambassador to the United Nations, quickly rejected it, saying it failed to take into account that the operation was in “self-defense.”

In a statement, the Foreign Ministry said it had refused to co-operate with the mission, calling it biased from the start.

In Gaza, a spokesman for Hamas said it fired the rockets at Israel to try to defend itself. “We did not intentionally target civilians,” said Ahmed Yousef, a Hamas adviser. “We were targeting military bases, but the primitive weapons make mistakes.”

Palestinian armed groups have launched about 8,000 rockets and mortars into southern Israel since 2001. During the conflict, the report said, they killed 3 Israeli civilians and a soldier, and injured over 900 people.

But the report did not take a position on the number of Palestinian casualties, noting that they ranged from the Israeli government figure of 1,166 to the Hamas number of 1,444, without saying how many were civilians.

Israel had tried to discredit the mission from the start, saying that the United Nations Human Rights Council has a long record of bashing Israel. The report was released Tuesday to give members of the council time to study it before the panel formally presents it on Sept. 29, said Doune Porter, a spokeswoman for the fact-finding mission, calling it a standard procedure.

The United States recently joined the council. Ian Kelly, a State Department spokesman, said officials were reviewing the report.

Judge Goldstone said the panel heard extensive testimony, conducting 188 interviews and reviewing 10,000 pages of documents and 1,200 photographs. After Israel refused to allow the investigators into the country, the Human Rights Council paid for Israeli witnesses, including the mayor of Ashkelon and Israeli victims, to give testimony in Geneva.

The panel rejected the Israeli version of events surrounding several of the most contentious episodes of the war.

Israel’s mortar shelling near a United Nations-run school in the Jabaliya refugee camp, which was sheltering some 1,300 people, killed 35 and wounded up to 40 people, the report said.

The investigation did not exclude the possibility that Israeli forces were responding to fire from an armed Palestinian group, as Israel claimed, but said that this and similar attacks “cannot meet the test of what a reasonable commander would have determined to be an acceptable loss of civilian life for the military advantage sought.”

Israel repeatedly accused Hamas of using mosques to shelter armed men or munitions, and a report by Israel said an attack against the Maqadmah mosque in Jabaliya had killed six known militants.

But the Human Rights Council report said the attack came during evening prayers, when some 300 men and women were in the mosque, and killed 15 people. There were no secondary explosions to indicate the presence of an arms cache.

If Israel wanted to destroy a mosque suspected as an arms cache, it should have done so in the middle of the night, Mr. Goldstone said.

The report also noted that some 10 Israeli shells, including white phosphorus, hit the main Gaza City compound of the United Nations Relief and Works Agency while up to 700 civilians were sheltered there. The compound contained a huge fuel depot, but the shells kept coming, it said, though United Nations officials spoke to their Israeli military liaison repeatedly.

In another episode, the report said the destruction of a house in which nearly two dozen relatives died, appeared to be “the result of deliberate demolition and not of combat.”

Asked about accusations that he was anti-Israel, Judge Goldstone acknowledged he was Jewish and said, “It is grossly wrong to label a mission or to label a report critical of Israel as being anti-Israel.”

--Isabel Kershner contributed reporting from Jerusalem, and Taghreed El-Khodary from Gaza.



Middle East

By Isabel Kershner

New York Times
September 16, 2009


JERUSALEM -- Israeli officials on Wednesday bluntly dismissed one of the main recommendations of the United Nations fact-finding mission’s report on the three-week war in Gaza last winter: a call for the Israeli government to begin an independent investigation of “serious violations” of international humanitarian and human rights law, including evidence of war crimes, during the military campaign.

Mark Regev, a spokesman for the Israeli prime minister, Benjamin Netanyahu, said that the internal military investigations into the Israeli Army’s conduct in Gaza already under way were “a thousand times more serious” than the investigation just completed by the United Nations mission led by Richard Goldstone, a respected South African judge.

Reflecting a broad consensus in Israel, the Israeli president, Shimon Peres, also harshly criticized the report, calling it “a mockery of history” for failing “to distinguish between the aggressor and a state exercising its right for self-defense.” Mr. Peres, a Nobel Peace Prize laureate, added that the report “legitimizes terrorist activity, the pursuit of murder and death.”

The report, released on Tuesday, says that if no appropriate independent inquiry gets under way in Israel within six months, the United Nations Security Council should refer the matter to the prosecutor of the International Criminal Court. It made a similar recommendation for Palestinian authorities, calling for an inquiry into evidence of war crimes committed by Palestinian armed groups firing rockets into Israel.

Ahmed Yousef, a senior adviser to the Hamas government in Gaza, said the local authorities would investigate the relevant cases in the report. But he reiterated his government’s position that Israeli civilians killed by rockets were victims of the fact that the Palestinians had only “primitive weapons, and with such weapons, mistakes are to be expected.” The rockets, he added, were fired in self-defense.

Israeli officials were particularly incensed about what they called the report’s delicate treatment of Hamas. Israel mounted its military offensive in self-defense and as a last resort, they said, to curb the rocket fire from Gaza against southern Israel. In a statement late Tuesday, the Foreign Ministry said the report “effectively ignores Israel’s right of self-defense, makes unsubstantiated claims about its intent, and challenges Israel’s democratic values and rule of law.”

“At the same time,” it said, “the report all but ignores the deliberate strategy of Hamas of operating within and behind the civilian population and turning densely populated areas into an arena of battle.”

The report addressed the Israeli allegations, but said it found limited evidence that Palestinian fighters had deliberately used civilians as human shields.

Mr. Regev, the Israeli government spokesman, said he found the whole equation between Israel and Hamas in the United Nations report’s recommendations “bordering on the bizarre.”

Among the Israeli public, the report elicited, for the most part, a furious reaction. Most Israelis strongly supported the offensive in Gaza as the only way to stop the rocket fire. The international condemnation did little to crack that unity, nor have the highly critical reports issued since the war by international organizations and human rights groups. Instead, the reports have prompted a sense that Israel’s very legitimacy is under attack.

The Goldstone report fell into the same pattern. Some Israelis said they were shocked by the breadth of topics it addressed -- its description of life in the West Bank and the separation barrier, for example, and Israel’s internal politics -- seeing many issues as outside the commission’s mandate. Instead, they said, the report appeared to embrace years of United Nations complaints.

Many Israelis also criticized the report for what they called its failure to understand the difficulties of asymmetrical warfare.

“The whole body of international law is based on army against army,” said Gerald M. Steinberg, a political scientist at Bar-Ilan University and a leading force in Israel against what some here consider the politicized nature of human rights discourse. “What is a civilian? They used to be people who don’t wear uniforms and are outside the military. But if you have Gaza or Southern Lebanese guerrilla forces who don’t wear uniforms, who are illegal combatants, when is it a legitimate target?”

Yaron Ezrahi, a political scientist at Hebrew University who has been highly critical of the Gaza operation, said: “Goldstone should have acknowledged that this asymmetry creates a disadvantage for the state. It places a great strain on our political system. Israel has an extremely difficult time staying democratic in the ruthlessly hostile environment of the Middle East. Comfortable governments in the West cannot begin to understand the plight of a country that went through nine wars.”

During the years when Hamas sent thousands of rockets at Israeli civilians, the United Nations human rights bodies did not put together an investigation or issue a condemnation, Professors Steinberg and Ezrahi, and other experts, said, doing so only after Israel retaliated. In addition, officials here said, Israel’s attack on Gaza was part of its need to deter Iran and its proxies and could not be looked at in isolation.

Amid the furor, some in Israel concurred with the panel’s call for further investigation. A group of nine rights organizations said in a statement that they had written to Israel’s attorney general to demand that he establish an independent body to investigate the military’s activities in Gaza, but that he rejected their request.

--Ethan Bronner contributed reporting from Jerusalem, and Taghreed el-Khodary from Gaza.


By Barak Ravid and Anshel Pfeffer

September 17, 2009


Israel Wednesday asked a number of senior members of the Obama administration to assist in curbing the international fallout from the Goldstone Commission report released this week, which accuses Israel of committing war crimes in Gaza during Operation Cast Lead.

The Foreign Ministry decided Wednesday to focus their efforts to combat the report's accusations on the United States, Russia, and a few other members of the United Nations Security Council and the Human Rights Council that are involved in the wars in Iraq and Afghanistan.

The Israeli message is that the Goldstone report threatens those countries because it makes the war on terror very difficult, and therefore efforts must be made to prevent it from being brought before the International Criminal Court in The Hague.

Prime Minister Benjamin Netanyahu raised the issue Wednesday with U.S. Special Middle East Envoy George Mitchell, while Deputy Foreign Minister Daniel Ayalon discussed it with U.S. ambassador to the United Nations Susan Rice and other senior officials.

The international commission appointed by the U.N. Human Rights Council and headed by Judge Richard Goldstone accuses Israel of war crimes, and is passing on its recommendations to the ICC in The Hague.

According to the report: "Some of the actions of the Government of Israel might justify a competent court finding that crimes against humanity have been committed," and ". . . the Mission finds that there have been a number of violations of international humanitarian law and human rights law."

The Foreign Ministry has established a forum of legal experts to follow any lawsuits that could be filed as a result of the report and to prepare for a scenario in which a suit would be brought forward in The Hague.

Ayalon, who is on a working visit to the United States, began Tuesday to transmit messages to senior members of the U.S. administration and Congress on the need to object to the report. He noted that the same approach that was taken to United Nations General Assembly Resolution 3379 equating Zionism with racism needs to be taken regarding the Goldstone report.

President Shimon Peres Wednesday released a statement saying that the Goldstone report "made a mockery of history."

The Prime Minister's Office decided Wednesday that Peres would take the front lines in Israel's campaign against the report. Netanyahu and Foreign Minister Avigdor Lieberman would not express themselves publicly on the matter, but would engage in quiet diplomacy.

Senior Foreign Ministry officials said Wednesday that Israel's decision not to cooperate with the Goldstone Commission was the right one. They insisted this was the case, despite the fact that every Israeli who testified before the Goldstone Commission independently, like Noam Shalit, father of kidnapped Israeli soldier Gilad Shalit, had an impact on the report and Goldstone himself related to each of the Israeli testimonies.

"We knew the report was going to be harsh, but Goldstone surprised us with how harsh," a senior Foreign Ministry official said. "It just goes to show we were right not to cooperate. If we would have, we would have legitimized this scandal."

The 575-page report describes 36 specific cases in which the IDF ostensibly broke international laws. A great many of the cases were already investigated by the IDF following the operation, within the units that took part in the fighting and by five committees established by order of Chief of Staff Gabi Ashkenazi. In most cases, the investigations determined that the soldiers acted according to orders as well as international law. However, it has not yet been decided whether to make public use of the material gathered by the IDF to refute the findings of the Goldstone panel, or to leave it as evidence in the event that suits are brought against specific Israel Defense Forces officers abroad.

The IDF and the Justice Ministry are concerned that the report will make it difficult for Israeli officers to travel abroad. A joint panel of the Justice Ministry, IDF, and Foreign Ministry already has a team of legal experts that advise officers not to leave the country and in some cases has prevented them from visiting specific countries.

Every soldier and officer is required to undergo a security briefing before traveling abroad; over the past year, some officers who have participated in the fighting in Gaza, particularly if their names have appeared in the media, are required to undergo a special briefing.

Legal sources said that civilian experts are mainly involved in dealing with the issue, rather than the Military Advocate General's office.

Other than its participation in the joint panel, the IDF has officially declined to respond to the allegations in the Goldstone report. The army has decided to leave responses to criticism abroad of its actions to the Foreign Ministry.

Following Operation Cast Lead, *Haaretz* revealed a directive by the IDF not to publish the names and photos of battalion commanders who took part in the operation due to fear of legal reprisals against them. A few months later, the IDF reversed itself on the matter.

Israel is concerned that officers, and even senior government officials and ministers who were involved in approving the operation, would be at risk of being arrested in any country that is a signatory to the treaty recognizing the ICC in The Hague and is therefore obligated to respect its arrest warrants.

The authorities are particularly concerned about officers visiting countries that allow their legal systems "universal jurisdiction" -- following complaints filed by private citizens or the initiatives of investigative judges -- to try an individual suspected of war crimes in another country. Such countries include Britain, Belgium, Spain, and Norway.

To date, there has only been one case of an IDF officer at risk of being tried in a foreign country -- Maj. Gen. Doron Almog, former GOC Southern Command -- who had to remain on board the plane when he flew to London and return to Israel for fear of being arrested, after a Palestinian group filed a suit against him for war crimes.