Shortly after a Special Session of the Human Rights Council, 15-16 October 2009, the United Nations General Assembly debated and passed a resolution based on the Report of the Fact-Finding Mission on the Gaza Conflict led by Justice Richard Goldstone with three other experienced members. In addition to its field visits to the Gaza Strip and Amman, Jordan, public hearings were held in Geneva in June and July 2009. Staff members from the Office of the High Commissioner for Human Rights were in Gaza from May to July 2009 to conduct field investigations.
In the Report, the Mission concluded that there was evidence of serious violations of international human rights and humanitarian law committed prior to the 27 December — 18 January 2009 conflict as well as during the conflict itself. These actions amounted to war crimes and possibly crimes against humanity. As Justice Goldstone wrote concerning the Report in the International Herald Tribune “In the fighting in Gaza, all sides flouted the fundamental principle that in armed conflict civilians should to the greatest extent possible be protected from harm… Our fact-finding team found that in many cases Israel could have done much more to spare civilians without sacrificing its stated and legitimate military aims. It should have refrained from attacking clearly civilian buildings and from actions that might have resulted in a military advantage but at the cost of too many civilian lives. In these cases, Israel must investigate, and Hamas is obliged to do the same. They must examine what happened and appropriately punish any soldier or commander found to have violated the law.
In the fighting in Gaza, all sides flouted the fundamental principle that in armed conflict civilians should to the greatest extent possible be protected from harm.
“Unfortunately, both Israel and Hamas have dismal records of investigating their own forces. I am unaware of any case where a Hamas fighter was punished for deliberately shooting a rocket into a civilian area of Israel — on the contrary, Hamas leaders repeatedly praise such acts. While Israel has begun investigations into alleged violations by its forces in the Gaza conflict, they are unlikely to be serious and objective.
“Absent credible local investigations, the international community has a role to play. There are various mechanisms through which to pursue international justice. The International Criminal Court and the exercise of universal jurisdiction by other countries against violators of the Geneva Conventions are among them. But they all share one over-arching aim: to hold accountable those who violate the laws of war. They are built on the premise that abusive fighters and their commanders can face justice, even if their governments or ruling authority is not willing to take that step.”
The Goldstone Report confirmed earlier studies carried out be the non-governmental organizations Amnesty International and Human Rights Watch. Citizens of the world have placed great importance on fact-finding as a way to strengthen world law. Non-governmental organizations have often a leadership role in such fact-finding. [2] World citizens have also stressed the importance of fact-finding by the United Nations and intergovernmental bodies. [3]
Procedural battles and behind-the-scene negotiations, both in the Human Rights Council and the General Assembly rather overshadowed the discussion on the content of the Goldstone Report and on the future of Gaza. The US House of Representatives, on the eve of the UN General Assembly debate, had passed a resolution calling on the President and the Secretary of State “to oppose unequivocally any endorsement or further consideration of the Report which is irredeemably biased and unworthy of further consideration or legitimacy.” The Israeli government had rejected the Fact-Finding Mission from the start and did not cooperate during the Mission’s work. Thus the results of the Mission have also been rejected by the Israeli government which has run an active campaign against it saying that the Report was “biased, one-sided and political.”
Nevertheless the Goldstone Report is an important step forward in the development of world law and highlights the importance of UN fact-finding. There is now a pause in the UN follow up process to see if Israel and Hamas carry out their own investigations and move toward trials. There is also a request to the Swiss government, which is the depository state, to call a conference of the “High Contracting Parties” to the Geneva Conventions.
There are discussions among arms control specialists as to what steps to take concerning the use of white phosphorus munitions. White phosphorus is a chemical that burns with intense heat and inflicts terrible burns on victims. White phosphorus weapons are not banned, but their use near population areas require “all reasonable precautions” to avoid civilians. As the Report states “While accepting that white phosphorous is not at this stage proscribed under international law, the Mission considers that the repeated misuse of the substance by the Israeli armed forces during this operation calls into question the wisdom of allowing its continued use without some further degree of control.”
UN fact-finding such as the Report is a crucial task of the organization and needs increased public support.
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