UNDERSTANDING
THE GOLDSTONE REPORT

David Bernstein, September 18, 2009

My inclination is to dismiss out of hand any report that emerges from the U.N. Human Rights Council, which includes such human rights stalwarts as China, Cuba, Egypt, and Saudi Arabia. I'm even more inclined to do so when it establishes a four-person panel to issue a investigate and issue a report on human rights abuses in the recent Gaza war and the panel is initially ordered to focus only on Israel and ignore Hamas (and it's not clear the mandate was ever really changed); one of the members had already declared Israel guilty of war crimes; the chairman of the panel was on the Board of Directors of Human Rights Watch when it accused Israel of war crimes in Gaza; and the panel couldn't do much actual investigating, because the Israeli government quite properly wouldn't let its members set foot in Gaza or Israel.

Nevertheless, for those who don't share my innate skepticism, I thought I'd pass along the following critique of the Goldstone report, received from Professor Avi Bell of University of San Diego and Bar-Lan University:

 

In paragraphs 100-102, the Goldstone report finds that the Palestinian Authority violates international law guarantees (presumably speech and assembly) by denying funds and employment to Hamas and Hamas affiliates as well as closing their institutions. It raises similar charges against Israel in paragraph 91-92, where it says that Israel carried out "collective punishment contrary to international humanitarian law" by arresting Hamas members who won election to the Palestinian legislature and that Israel violated "international human rights and humanitarian law, including the prohibition of arbitrary detention, the right to equal protection under the law and not to be discriminated based on political beliefs and the special protections to which children are entitled" by arresting "persons affiliated with Hamas."

 

 

 

This is perverse in the extreme, particularly in light of duties of states under UN Security Council resolution 1373 to do exactly that. Israel has additional duties to arrest these people under the International Convention for the Suppression of the Financing of Terrorism (1999) and International Convention for the Suppression of Terrorist Bombings (1997). Of course the PA is arguably not a state and not required to abide by 1373, but by the same token, it's not a state required to obey the universal declaration of human rights (assuming that was binding anyway).

 

Which brings me to the bigger issue: how Goldstone deals with terrorism altogether. This is the shocker: Goldstone examines the issue and finds only one party guilty of terrorism — ISRAEL. In paragraphs 60, 880, 1169, 1718 (second time – there are two paragraphs numbered 1719) & 1724 (second), the Commission accuses Israel of violating article 33 ban of the Fourth Geneva Convention and article 51 (2) of Additional Protocol I by committing acts of terror.

 

The closest the Commission gets to admitting that Hamas committed acts of terror is in paragraph 1722 (first), where it says "it is plausiblethat one of the primary purposes of these continued [Hamas rocket] attacks is to spread terror," paragraph 1724 (first), where the report finds that the rockets "have caused terror in the affected communities of southern Israel" and in paragraph 108 where the report finds “significant evidence to suggest that one of the primary purposes … is to spread terror." But, ultimately, the Commission refuses even here to make a finding that Hamas has committed acts of terror, and instead in paragraph 1724, the report charges Hamas with the crime of indiscriminate attacks.

 

Elsewhere, the Report never refers to Hamas as a terrorist group or even hints that there might be a legal question. When citing Israeli references to Hamas as terrorist, it includes scare quotes (e.g., paragraph 282 and arguably paragraph 382) if the reference is not in a longer quotation (e.g., paragraph 371). In one place (footnote 246), the report, while refusing to acknowledge that Hamas is a terrorist organization, stresses that surely "political" and "social welfare" wings of Hamas are not terrorist, citing the Australian listing of only the military wing as "terrorist." In another spot (paragraph 1206), the report mocks the idea that one can distinguish activity promoting or supporting terrorism: the report states, "There is, in particular, a lack of clarity about the concept of promoting 'terrorist activity': since Israel claims there is no real division between civilian and military activities and it considers Hamas to be a terrorist organization, it would appear that anyone who supports Hamas in any way may be considered as promoting its terrorist activity. Hamas was the clear winner of the latest elections in Gaza. It is not far-fetched for the Mission to consider that Israel regards very large sections of the Gazan civilian population as part of the ‘supporting infrastructure'."

 

On the other hand, there is numerous use, without scare quotes, of the word terror to describe Israeli activities. See, for instance, paragraph 1256, where the report describes the psychological state of Palestinians in Gaza as follows, "Many of those who met the Mission stated that they felt terrorized." Or paragraph 1690, where the report states, "It is in these circumstances that the Mission concludes that what occurred in just over three weeks at the end of 2008 and the beginning of 2009 was a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population."