By Maurice Ostroff
Here are the facts. You decide.
Israel is being widely criticized for
refusing to cooperate with what it calls the "intrinsically flawed" UN fact-finding team led by Judge Richard Goldstone into
alleged violations of international law during the recent Gaza war.
As many consider Israel�s allegation
of bias by the Human Rights council (HRC) to be merely an excuse, it is worth examining HRC resolution S/9-1 in terms of which,
the mission was established.
The full text is available at
http://tinyurl.com/oya39d but the gist is contained in operative paragraph 14 (OP14), which states that the HRC decided �
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;�
Whichever
way one interprets OP14, the text unambiguously indicates that the HRC has already �decided� that violations
have been committed only by Israel while effectively avoiding any intention to investigate possible violations by anyone else.
It fails to call for investigating the
casus belli and its preconceived determination of Israel�s guilt is emphasized
by the fact that no pretence is made to adhere to the convention of referring to such guilt as �alleged,� until
proved. Only Israel is called upon not to obstruct the process of investigation. Other parties to the conflict are evidently
exempted from this requirement.
But the flaw runs deeper. As in selecting a jury, one would expect extra care
to be taken in appointing the members of a mission of this nature to ensure its credibility. It is a sine qua non that the
absolute impartiality of persons who sit in judgment of others must be highly visible. The importance of credibility was emphasized
by one of Judge Goldstone�s fellow judges in South Africa when the Transvaal Judge President, Bernard Ngoepe recused
himself from the rape trial of Jacob Zuma. He said that he did so, even though he disagreed with the reasons given by the
defense, because the importance of protecting the credibility of the judiciary weighed heavily with him.
It is
inexplicable that these considerations as well as the oft-quoted injunction by Lord Hewart that it is of fundamental importance,
that justice should not only be done, but should manifestly and undoubtedly be seen to be done, are disappointingly absent
in the appointment to the mission of a person who has anticipated the mission�s findings by publicly exonerating Hamas
and declaring Israel guilty.
On January 11, 2009, long before she had an opportunity to even cursorily examine
the facts on the ground, Professor Christine Chinkin signed a letter to London's Sunday Times containing the statement that
Israel's operations in Gaza amounted to an act of aggression contrary to international law, notwithstanding the rocket attacks
by Hamas.
Earlier in the year Professor Chinkin was party to a petition calling on the UK government to revoke
its support for any new agreements with Israel (The Guardian, January 5, 2009)
After a short visit to Gaza with
Archbishop Tutu in May last year, she judged Israel guilty in the November 2006 Beit Hanoun incident. No consideration
was given to the reaction of IDF soldiers as described the day after the incident by Steve Linde in the Jerusalem Post, who
wrote: "
Can you imagine how terrible the artillery troops who fired the shells at Beit Hanun yesterday must be feeling
now? After serving in IDF Artillery, I can only say that this is every gunner's nightmare scenario: killing innocent men,
women and children."
Linde pointed out that in response to Kassam rocket attacks gunners were ordered to
"
fire at the source" - which they did, firing a dozen or so shells. He adds that whereas the Kassams are intentionally
fired at civilian targets, hoping for maximum casualties and damage, the troops who fired at Beit Hanun weren't aiming to
hit civilians. They were targeting terrorists firing rockets.
Without bothering to solicit an opinion from any
military expert Professor Chinkin rejected outright, Israel�s explanation that the shelling was the result of a rare
failure in the artillery fire control system and she publicly declared that the incident was a breach of international law
by Israel. (The Guardian May 30, 2008). No account was taken of the fact that malfunctions and human error are known to occur
even in such highly disciplined fields as space exploration as well as in every army. How else can we explain frequent reports
of killing by "friendly fire" of Israeli, British and US soldiers during military operations?
Notwithstanding,
the defects in the mandate of the mission, Judge Goldstone�s integrity is undisputed and it remains to be seen whether
he will be able to impose some balance on a mission governed by a badly biased mandate.
In recent open correspondence
with Judge Goldstone I raised all the above points and also urged that his mission deal with the gross human rights violations
by Hamas in holding Gilad Shalit incommunicado. To his credit Judge Goldstone addressed all my concerns and referred me to
his remarks on receiving the MacArthur Foundation Award for International Justice on May 25. He said then "
It is not satisfactory
that the accountability of Israel for its recent military campaign in Gaza sought by some members of the United Nations Human
Rights Council should be partial and not even-handed. The terms of the resolution of the Human Rights Council of April, 2009
appeared to me and many others as being partial and biased
