Tuesday, July 21, 2009

Choosing to Stay Silent: Probably a Mistake

In an E-mail interview with the Jerusalem Post, Justice Goldstone who is leading the UN Human Rights Council Mission investigating war crimes related to Israel's war against Hamas argued that Israel should reverse its current position of non-cooperation and work with the fact finding mission.

Goldstone argues that the original mandate of his mission has changed and pledges to look far deeper into the conflict, including for example, Palestinian prisoners in Israel and the case of Gilad Shalit.

Israel maintains, however, that the mandate was never formally enlarged--though it may have been brought up in conversation--and legally, the mandate remains paragraph 14 of the resolution passed at a special session of the UN Human Rights Council on January 12, 2009. The paragraph reads:
"14. [the Council] Decides to dispatch an
urgent, independent international fact-finding mission, to be appointed by the
President of the Council, to investigate all violations of international human
rights law and international humanitarian law by the occupying Power, Israel,
against the Palestinian people throughout the Occupied Palestinian Territory,
particularly in the occupied Gaza Strip, due to the current aggression, and
calls upon Israel not to obstruct the process of investigation and to fully
cooperate with the mission;"

It's not difficult to see why Israel may be wary of a mission with such a mandate. The mandate narrowly limits itself to investigation of Israel only, ignores any activities by Hamas, adopts the controversial international legal position that Israel occupies Gaza even after having withdrawn and predetermines that Israeli action is pure aggression and not a defensive action in response to years of rocket fire, as Israel describes it.

Another point raised in objection to the mission is that one of its four members, Professor Chinkin, signed a letter in the Times of London that called Israel's attack on Hamas a war crime, suggested that the rockets fired by Hamas were not justification for self defense, that the attack against Hamas was not necessary, and commits the oft repeated and flawed position that because Israel killed more Palestinians than Hamas has killed Israelis, a violation of proportionality has occurred. This is a flawed position because proportionality does not mean equivalence. Proportionality means in proportion to the threat faced. It also ignores the fact that one reason the Israeli death toll is so low is that Israel has an excellent civil defense system and its people have basically been living in bunkers. There are a litany of other reasons, but this is besides the point.

The point is, a person on a panel established to "investigate" has already put in writing who she believes the guilty party is. It's true that this fact finding mission is not a court, but its findings could eventually come to be considered as authoritative and perhaps even used in court. If anything, the mission is more akin to detectives trying to gather evidence to condemn a suspect. In this case, however, the detective approaches the case having already decided who is guilty. If this were a court, a judge would be expected to recuse themselves as justice could be brought into disrepute by the perceived bias. There is international legal precedent for this. See a case from Sierra Leone where a judge who had previously written about a person he was about to judge recused himself. Professor Chinkin should do the same.

Despite the fact that the mandate of the investigation and one of its members seems to predetermine the outcome of the work they will do, Israel still should have participated. The consequence of Israel not participating in this mission is that one can be sure that groups like Hamas will. Hamas will show the investigators what Hamas wants them to see, will offer their version of events and one can be certain this will paint Israel to be about as evil as can be. Israel, on the other hand, which likely has oodles of intelligence information on what Hamas is and has been doing, who can likely explain each target they hit and provide minute by minute reports on combat in Gaza will not have the opportunity to make its case. It seems that by not participating, Israel ensures that the final report of the committee will be unfavorable to it. Israel is forfeiting its chance to not only influence the report as it is being drafted, but to afterwards critique portions with which it disagrees by saying that the evidence they may have provided was ignored and thus being able to more legitimately critique the report. Meanwhile, this opportunities that Israel is surrendering, Hamas will have.

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