Wednesday, September 16, 2009

Predictability from Goldstone

CAVEAT: the following it written prior to having read the report that is the subject of this post in great detail. I have only had the opportunity to read the executive summary and certain other sections rather quickly. As such, it is my intention to read more thoroughly over the coming few days and provide more comment.

Cue the chorals. "Goldstone the Jew" and the UN commission he led has published its report entitled "HUMAN RIGHTS IN PALESTINE AND OTHER OCCUPIED ARAB TERRITORIES" which had as its mandate "To investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009, whether before, during or after." Critics are lining up to take shots at the report, from NGOs, to bloggers to governments, (also) everyone has an opinion.

The report is perhaps somewhat predictable given the criticism that was leveled at it even in advance of its publication. It concludes that both Israelis and Palestinians committed war crimes during the period of the mandate it was to have investigated and proposed that if Israel failed to conduct a serious independent investigation of the report's findings, it should be sent to the defendants docket at the International Criminal Court in the Hague upon receiving the requisite recommendation from the UN security council. Israel is not a signatory of the Rome Statute of the ICC and so only the UNSC would be able to order a trial against Israel (see article 13.) This is a position that Israel may never find itself in so long as it has friends on the UNSC that hold vetos. It's hard to imagine the US allowing Israel to be brought before the Hague.

The report is heavy on testimony--some of it perhaps skewed by Palestinian witnesses who seemed reluctant to discuss certain matters in full--by individuals and information provided by Hamas, but notes that the Israeli government would not cooperate with the mission writing the report. This article suggests that perhaps Israel should have overwhelmed the mission with its account of events and refuted in detail every accusation against it, to combat the distasteful outcome of the document produced. The urge to say "told you so, Israel" it too strong to resist. It is also worth noting that the report acknowledges that the information they gathered at no time meets the standards required to make a case against any party for war crimes, meaning the authors acknowledge that what they have been told or found could be little more than speculation or entirely untrue.

The report also delves into areas that have nothing to do with operation Cast Lead or the Gaza strip. It pronounces dubious suggestions of Israel persecuting dissent, questions the integrity of Israeli courts and looks at activities in the West Bank, having no connection to Cast Lead.

One area that could prove to be more controversial than others is the question of the status of Gaza as an occupied territory. An occupier has certain obligations towards the occupied population. This includes, for example, the obligation to provide food to the population of the occupied territory. Much of the criticism of Israel in this report stems from the premise that the Gaza Strip remains occupied territory and so Israel failed in many of the obligations it would have as an occupier. This is a flawed position. The Gaza strip is not occupied territory, a position thoughtfully presented here. It is true that the Gaza strip is more or less under siege by Israel, but Israel has no obligation to supply or trade with the population of a region governed by an enemy. Israel has no more obligation to the people of Gaza than it does to those in south Lebanon.

The report correctly based its position that Israel occupies Gaza on the point of the effective control test. It wanted to see if Israel effectively controlled the Gaza strip. It's conclusion that during Cast Lead, Israel did control the strip is flawed. Hamas remained the government of the strip, directed activities of Hamas forces and life and never relinquished power. Nor was it Israel's goal to remove Hamas or to remain and reoccupy the region. Israel also was not able to merely waltz in to Gaza, but was forced to fight its way into the strip and its forces were at all times under the threat of violence. An occupier would not need its forces to fight its way into a territory over which it exercised effective control.

The report also suggests the strip is occupied because the international community thinks it is, and in so asserting, looks to UNSC resolution 1860 (2009) in which the following line appears: “Stressing that the Gaza Strip constitutes an integral part of the territory occupied in 1967 and will be a part of the Palestinian state..." That the Gaza strip and the West Bank form an integral part and will both be part of a future Palestinian state is not a point of contention, but this does not mean that just because the two create a whole occupation of one means occupation of the other. It sounds here that the commission is making a highly technical and flawed argument that since the west bank is occupied, then so is Gaza.

The argument of Israeli occupation of Gaza is flimsy at best. The same is true of arguments that follow from this flimsy premise.

Israel is gearing up for a diplomatic campaign to counter the report so no doubt the Israeli foreign ministry and Public Diplomacy will be in high gear for the next while. What they say will be interesting to watch. My thoughts on this matter will be further elaborated and developed in the days to come. I note, however, that i do not wish for this report to distract from attention to efforts that are ongoing to jumpstart peace talks. It is calamitous that the ugly shadow of a highly critique-able report is being cast over efforts to move towards a day when such reports will be a relic of the "bad old days."


annie said...

Hi Charlie, this is not a bad summary though I don't agree with everything you've written. I'm very unsure whether Israel should have assisted in the investigation. On the one hand, you have a point that without Israeli input it was obvious how this report would turn out. On the other hand I doubt the report would have turned out any differently, considering the terms of engagement of the investigation (starting only from the date of the invasion, without any preceding context), the initial terms of engagement which demanded an investigation only into Israel's behaviour, and the composition of the commission itself which included several known anti-Zionists (aka anti-Semites).

It is also exceedingly insulting to Israel that the commission even considers the possibility that any investigation Israel carried out into the war would not have been thorough, and therefore Israel could possibly be sent to the ICC.

As to your assertion that the veto powers on the UNSC would prevent such an event from happening, under the present Obama Admin, I have my severe doubts.

cba said...

I'd also like to point out that, although generally unreported outside of Israel, many tons of humanitarian aid (including food and fuel) are provided to Gaza by Israel. Some of this aid was even delivered during the hostilities.

Charlie H. Ettinson said...

Annie, CBA, thanks you for the comments and welcome and welcome back, respectivley!

Annie, first, don't worry about disagreeing with me. It keeps things livley. So long as we can be friendly and intelligent it's my pleasure to be disagreed with and debated. It means at the very least, I made someone think!

My argument that Israel should have participated is both strategic and comes from my general bias towards participating in judicial hearings. It is true that Israel can now respond in any way it chooses. It can issue its own facts, its own report and provide reams of evidence to exonerate itself (assuming such evidence exists.) That evidence, however, will never be on the official record. It's too late. The report is written, it will be presented as is and will become an official UN document, without Israel's side of the story. Had Israel provided contrary evidence and the conclusions were the same as they are now, then there is a clear case of the commission failing, now, as things stand, the Israeli government is forced to attack procedure and form of the commission and the report, but the report itself has been less scrutinized (from what I can see.) Though, I do agree with you that it's somewhat disingenuous for the commission to consider Israel's judicial institutions to be lacking.

As for Obama...I really don't see what the fuss is about. I don't see anything about Obama or his administration as problematic vis a vis Israel. Assume the US did not veto such a resolution, however, or went further and supported it. I cannot imagine that under such circumstances that Israel would be willing to consider the US as a friend or fair mediator in the region. This could in turn lead to a breakdown in any sort of peace talks which not only damage US interests (peace is of course in their interests) but also damage US prestige. On the other hand, the threat of not vetoing, or abstaining instead of vetoing puts another ace in the US's deck into pressuring Israel to do or to not do things.

CBA, you're quite right. I recal those convoys gonig through. Criticisms I've heard of them though were that they were not enough (but again, I don't think they were owed in the first place) and that the ceasefires that were supposed to be in place during their deliveries were often broken.