January 3, 2010
And, as any rational person could have predicted, the response of the UN was to challenge the legality of the IDF’s actions, even in war. Ban Ki-Moon went ahead in June to instruct the UN Legal Counsel to prepare and formulate claims for compensation for these losses; a committee investigating the damage estimated it at $11 million, which the UN would demand Israel pay.
More important than material claims was the political decision to proceed against the perpetrators, through the instrument of a special UN commission. Established on April 3, 2009 by the president of the Human Rights Council, this Fact Finding Mission on the Gaza Conflict had the 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.” The Mission, led by South African Justice Richard Goldstone, met several times in Geneva in May, July, and August, and conducted three field visits, to Gaza and Amman. They spoke with Gaza authorities and those of the Palestinian Authority, but received no cooperation from the Israelis. They submitted lists of questions to all three sides, but received answers only from Gaza and the PA. They conducted 188 individual interviews and reviewed over 300 reports related to the war.
The Mission attempted to delve into Israeli use of force against Palestinians on the West Bank, but was denied all access. It did, however, verify the treatment of Palestinian prisoners in Israeli jails, including 65 members of the Palestinian Legislative Council arrested in 2005, and deemed such practices in “violation of international human rights and humanitarian law” (p. 28).
At the same time, the Mission looked into allegations of violence and targeting of Hamas supporters by the Palestinian Authority, and found them inconsistent with the PA’s obligations under law. After examining the physical and psychological impact of Hamas-fired rockets into civilian areas in Israel, it stated such acts “would constitute war crimes and may amount to crimes against humanity” (p. 32).
Finally, the Goldstone group monitored Israel’s own hasty internal “investigations,” which claimed that the IDF had acted in accordance with the law, a conclusion the Mission questioned. After reviewing the modality of such probes, in comparison with requirements of international human rights law and humanitarian law, the Mission held that “the Israeli system of investigation does not comply with all those principles,” and that there were “serious doubts about the willingness of Israel to carry out genuine investigations in an impartial, independent, prompt and effective way as required by international law” (pp. 35-36).
In its recommendations, the Mission called on the UN Security Council to require a report from Israel, within six months, on the results of investigations it must undertake, and tasked the Security Council to establish a group of independent experts to report on the progress of the same. In the event that Israel were to fail to comply, the Security Council should hand over the matter to the ICC Prosecutor. The same procedure was to apply to the Gaza authorities.
If Israel snubbed minimal cooperation with the Goldstone team on the ground, after the release of their report, Tel Aviv went into clinical hysterical denial: authorities categorically pooh-poohed the allegations, justifying this with the notion that Goldstone was a “self-hating Jew,” and that the report was nothing but an attempt to rob Israel of its right to defend its people. The Jerusalem Post quoted Netanyahu on December 23 as saying, “Goldstone is a codeword for an attempt to delegitimize Israel’s right to self-defense.”
The Judge’s Record
Goldstone’s curriculum vitae tells a different tale, one that the international community has largely acknowledged. Judge Richard Goldstone chaired the “South African Standing Commission of Inquiry Regarding Public Violence and Intimidation,” later dubbed the Goldstone Commission, which uncovered and published crimes by security forces during the Apartheid era. This led to the draft of a Road Map which the “Truth and Reconciliation Commission” took up. Goldstone served as a justice on the Constitutional Court after democratic elections (1994-2003). In August 2004 he became chief prosecutor to the International Criminal Tribunal for the former Yugoslavia (ICTY) and, later that year, performed the same role in the case of Rwanda (ICTR). He sat on the international panel investigating Nazi activities in Argentina (CEANA) in 1997, and chaired the International Independent Investigation on Kosovo from August 1999 to December 2001. He is also a trustee of the Hebrew University in Jerusalem.
With such qualifications, it is difficult to condemn Goldstone as a biased actor, much less an anti-Semite or a “self-hating Jew.” But that is what a hysterical Israeli establishment has done. When asked in an interview with Tikkun (http://www.tikkun.org/article.php/20091002111513371) on October 1, 2009, how he responded to such accusations of betraying Israel, Goldstone answered that it reminded him of similar charges lodged against him, a white South African, that he was “going against the interest of whites during Apartheid.” He went on: “And I said I thought having regard to the terrible history of the Jewish people, of over 2000 years of persecution, I found it difficult to understand how Jews wouldn’t respond in protecting the human rights of others.” Human rights, he added, were “a fundamental Jewish value.”
His group’s report appeared in September, and the UN Human Rights Council discussed it a month later, endorsing it on October 16, and recommending it be sent to the General Assembly and Security Council. This was over the no votes of the US. Israel’s UN Ambassador Gabriela Shalev found it all a waste of time, and reiterated the stance adopted by Prime Minister Benjamin Netanyahu and shared by the US, that any further debate about the Goldstone Report would sabotage the so-called peace process. Netanyahu moved into high gear following the vote, announcing that Israel had to brace for a protracted battle against the report. “The delegitimization [of Israel],” he said, “must be delegitimized,” Aljazeera reported on October 18. He added that “The UN has returned to the dark days during which it equated Zionism with racism.”
Israel then scrambled to block the report from being sent to the General Assembly or the Security Council. Foreign Minister Avigdor Lieberman spoke by phone with Secretary General Ban Ki-Moon on October 22, according to PressTV, and told him that he hoped Ban would not push the report onto the other venues. That ploy failed, and it reached the General Assembly for debate, where, despite US-led efforts to block it, a majority of 114 voted it up on November 5. (Eighteen voted no, and 44 abstained.) Ban Ki-Moon then presented it to the UN Security Council on November 10. According to the General Assembly’s resolution, Israel and the Gaza authorities have to conduct their own investigations into the allegations, which independent committees (foreseen by the Goldstone Report) should monitor. If, after six months, Israel does not come up with a credible report on serious probes into the allegations, the case could be forwarded to the International Criminal Court.
Whether or not it reaches that forum, the Goldstone Report has already fuelled a political offensive, led by Palestinians, aimed at bringing the Israeli establishment to account. Prominent Israeli political figures have found themselves in danger of being served arrest warrants for crimes against humanity (or war crimes) if they travelled abroad. One clamorous case involved former Foreign Minister Tzipi Livni, who cancelled a visit to London in mid-December after authorities issued an arrest warrant against her. Although Livni’s office denied it, saying she cancelled for scheduling reasons, the Israeli Foreign Ministry lodged a formal complaint with the British authorities, charging that, if such nonsense continued, it would seriously jeopardize the peace process and Britain’s desired role in it! The British Foreign Office accommodated with gushing apologies, and the matter was put to rest, at least for the time being.(3)
The arrest order was possible due to the existence of a law in England and Wales which allows individuals to call for such warrants for alleged war crimes, even without a prosecuting lawyer. This, as the Times explained on December 21, was the work of a Hamas-backed committee of legal specialists, who have compiled their own account of 1,500 cases of alleged war crimes, and encouraged victims to file charges not only in Britain, but also Belgium, Spain, and Norway, where similar legal conditions exist. Hamas committee member Diya al-Din Madhoun told the Times that, although Hamas is not directly involved in arranging for warrants to be issued, such legal action “is definitely our policy.” He added, “We do this as a government trying to protect our people and prevent these massacres from occurring.” The independent lawyers receive documents and evidence indicating war crimes, and then, as soon as a relevant Israel official prepares to travel abroad, they move to secure an arrest warrant.
Livni was lucky. But the mere fact that she could have been hounded while travelling abroad, is highly suggestive. Aside from the formally legal aspect, such an event projects the image of Israeli leaders as possible war criminals who could be punished accordingly, essentially putting them in the same category as a Ratko Mladic, a Slobodan Milosevic, or a Radovan Karadzic.
Test Case: Germany
Gaza changed all that. Not only did Germans take to the streets during the conflict to protest Israeli brutality, but in the ensuing months, public figures spoke out about the need to distance German policy from that of intransigents in Israel. One such intervention came from Dr. Gerhard Fulda, a former diplomat and leading member of the German-Arab Society, who in August issued a call for a change in German (and European) foreign policy towards the Middle East. Fulda stressed the need to hold Israel to account, regarding implementation of UN resolutions which consider annexations, be it of the Golan Heights, Jerusalem, or the West Bank, as illegal. Arguing against Israel’s renaming areas with Old Testament names, Fulda stated: “religion-based territorial claims cannot be allowed in our view. Jewish belief does not stand above international law.” The former diplomat also called for an end to the practice whereby the EU – and in the front line, Germany – periodically have to pledge funds at donor conferences to rebuild infrastructure destroyed by Israel, knowing that that infrastructure will only be obliterated in the next conflict. Instead, Fulda suggested a form of sanctions, whereby illegal Israeli actions, including settlement expansion, could be punished by withholding funds.
It is not likely that any government in Berlin would introduce such measures; but the mere public discussion of the option signals a new wind is blowing in Germany. The best proof of this is the fact that the Goldstone Report in its entirety will appear in German. The group which assumed the awesome task of translating the mammoth report and publishing it is the editorial staff of Semit, a bi-monthly magazine issued by a group of German Jews and others who refuse to condone Israeli government policies, and consequently refuse to be represented by the official organ of the Jews in Germany, the Zentralrat der Juden in Deutschland, which is nothing but a rubber-stamp for Tel Aviv’s foreign policy. Abraham Melzer, publisher and editor-in-chief of Semit, launched the Goldstone Report translation project with an eye to making the official documentation of Israeli war crimes available to relevant German institutions. All members of the Bundestag, the Parliament, as well as government offices should receive the voluminous 650-page documentation, slated to appear early in the New Year.
Such initiatives in Germany speak volumes for the quiet revolution in thinking that is unfolding in the political elites as well as the general population. This does not mean, however, that all fanatical voices have been silenced. When German President Horst Koehler awarded a high German honor, the Bundesverdienstkreuz, to Israeli lawyer and human rights defender Felicia Langer, on July 16, 2009, the pro-Israel lobby screamed. The Zentralrat der Juden and others demanded the prize be revoked, on grounds that Langer, who has dedicated her life to defending the rights of all — Arab or Israeli –, had uttered anti-Israeli statements. Some slandered her as a communist, and so forth. When a weekend seminar was organized in Munich with Ilan Pappe on October 23-25, the official Jewish community rose up in protest. The Deutsch-Israelische Gesellschaft AG in Muenchen sent a letter to the city authorities, denouncing Pappe for his historical research, and demanded that they deny Pappe the room provided for the seminar. The room was promptly denied. But just as promptly, organizers found an alternative room.
Such reactions are to be expected, and such guerilla warfare around logistics will continue. But no matter: the point is Germans — both individual German citizens and some German institutions – have finally entered the process of freeing themselves from the psychological conditioning imposed since the end of the Second World War.
None of this would have been thinkable before the Gaza war of 2008-2009. The Israelis miscalculated totally. And those responsible will pay
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Prospects for Peace?
How could such a crisis erupt in Israel? In my view, it is already simmering. When Netanyahu compares the “Goldstone threat” with the perceived Iranian nuclear threat, as he did December 23, he is broadcasting to the world that the Tel Aviv establishment is about to blow. International pressure, precisely of the type generated by the Goldstone Report, is instrumental in bringing such a healthy crisis to the fore. More of the same is needed. Were the US government to wield the undeniable power it has, and exert pressure of a political and financial nature on Israel, that could surely detonate an internal political explosion. But, given the recent performance of the Secretary of State while visiting Israel, followed by the US’s refusal to endorse the Goldstone Report, and the US Congress’s sterling performance on the same, it would be folly to imagine that President Obama’s alluring words in Cairo were worth more than the paper they were written on.
Other powers in the world are going to have to pick up the ball after Obama punted. Massive pressure, in Goldstone’s estimation, is required to force Israel to conduct the investigations demanded. If it fails to comply, then let the case go to the ICC. If the US, predictably, uses its veto power to prevent such a move, that will only further discredit the Obama administration in the eyes of the world.
Israel urgently needs a crisis, a “healthy trauma” which can shatter the consensus among the establishment and mobilize sane forces in the population to demand a fundamental rethinking of what nationhood means, what it means to be an Israeli. Part of this rethinking process will definitely focus on the issue of whether there should be two states – Israel and Palestine – or one multi-ethnic, multi-religious state with equal rights for all citizens. There are increasingly voices inside Israel calling for this latter option. And the pledge by the Hamas leadership, on the occasion of the twenty-second anniversary of the movement’s founding, that the solution lay in the liberation of all of Palestine, is a translation of the same idea in military terms.
Gaza was a turning point. It broke pernicious taboos and placed a new challenge on the agenda for the people and leadership of Israel: do they want to go down in history as yet another failed state? Or are there new political forces capable of meeting the historical challenge?
http://www.icrc.org/web/eng/siteend0.nsf/htmlall/palestine-report-260609? See also my book, “Through the Wall of Fire Armenian – Iraq – Palestine: From Wrath to Reconciliation, edition fischer, 2009, Part Three, Chapter Two: The Battle for Gaza.
2. Martin van Crefeld is an Israeli military historian, author of many books on war. In comments on Israel’s plans to deport Palestinians, as well as on Israel’s conduct of the 2006 war against Hezbollah, he used the term “mad dogs” to characterize the IDF’s disproportionate use of force.
3. According to PressTV on December 15, the British Foreign Office statement said: “The UK is determined to do all it can to promote peace in the Middle East and to be a strategic partner of Israel.” It added, “To do this, Israel’s leaders need to be able to come to the UK for talks with the British government. We are looking urgently into the implications of this case.” According to the Times on December 21, Israeli President Shimon Peres weighed in with the British to repair “one of the greatest political mistakes” London could make, and reported that the British government had promised it would “fix this.” Gordon Brown and David Miliband were deeply concerned; the Foreign Office and Commonwealth Office said that the government was “looking urgently at ways in which the UK system might be changed in order to avoid this sort of situation arising again.”
4. Walid Khalidi, “Plan Dalet: Master Plan for the Conquest of Palestine,” Journal of Palestine Studies, Vol. XVIII, No. 1, Autumn, pp. 3-70. This included a reprint of his 1961 article. See also my book, Part Three, Chapter Three: Palestine Lost.
5. The members of the Third Generation group are contemporaries of the young Israeli and Arab musicians who constitute the West-Eastern Divan orchestra, founded ten years ago by Daniel Barenboim and Edward Said. At the height of the Gaza war, on December 12, 2008, Germans, including German Jews, as well as Israelis and other foreigners flocked to the Berlin Staatsoper to attend an extraordinary concert by the orchestra. The Third Generation – works in progress – is directed By Yael Ronen.
River to Sea
Uprooted Palestinian
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