Yesterday the UN General Assembly approved the Human Rights Council sponsored Goldstone Report recommendations.
The Report found that Israel and Hamas may both have committed war crimes and crimes against humanity during Operation Cast Lead in Gaza.
Israel refused to cooperate with the fact-finding mission because it believed that those doing the fact finding had already made up their minds that Israel (and not Hamas) had committed war crimes. The report, therefore, was biased from the start.
The report itself focused almost entirely on perceived Israeli infringements whilst barely mentioning Hamas at all. The weight of the report was firmly against Israel with accusations of disproportionality, deliberately targeting civilians and even attacked the Israel Supreme Court and its justice system, acknowledged to be one of the very best and most impartial in the world. In other words, Israel was accused of the very things it prides itself as not being.
The HRC decision to recommend to the General Assembly was made by a rag-bag of dictatorships and human rights offenders including Libya and Egypt. The HRC and, indeed, the UN General Assembly have proved to be obsessed with condemnations of Israel whilst overlooking gross injustices and crimes elsewhere in the world which dwarf even the worst accusations against Israel.
Any country which has such accusations against it must surely respond to the recommendations which would be to set up an independent body to investigate the findings of the report.
Israel (that is the IDF) had already begun and completed a number of investigations even during the conflict and these investigations are ongoing. Israel considers itself to be as capable as any Western democracy in investigating alleged crimes that it or its citizens are accused of making.
But the problem Israel has in agreeing am independent internal investigation is that it gives legitimacy to a UN and an HRC that comprise members whose sole obsession is to paint Israel as the fount of most of the evil in the world whilst ignoring the crimes of other UN members including Security Council members Russia (Chechnya, South Ossetia) and China (Tibet).
But there is some confusion about what any investigation should investigate. Goldstone did not seem to be concerned with named soldiers as much as the state itself in the areas of: proportionality including inter alia the extent of destruction to civilian infrastructure, illegal weapons use and rules of engagement including white flag infringements.
In other words it is state policy that is in the dock although, in theory of course, individuals in government and senior officers could be held accountable within Israel or abroad.
Israel has already stated that it will allow no IDF officer to be prosecuted abroad. If Israel does not hold internationally credible investigations it seems we will shortly be in a position where Israeli politicians and soldiers will be unable to travel to Europe, for example, for fear of arrest. There have already been attempts by pro-Palestinians in Britain to have Israeli politicians arrested.
So what is the ‘opportunity’ in my title. Well it is this: both Israel AND Hamas have been asked to carry out credible investigations. Despite the absurdity of a terrorist organisation investigating its own terrorism, here’s the opportunity: if Israel complies, however hard that bitter pill is to swallow, and if the conclusions of such an investigation are accepted, then there will be no need for the International Criminal Court to issue warrants or whatever it is they do. But as Hamas surely won’t investigate themselves then they will be subject to such actions and their gross violations laid bare, even in absentia, perhaps.
Is this too much to hope for? Well, the first question is: is there any way that Israel could ever satisfy the international community that their own investigations are fair when that same community is so clearly bent on the destruction of Israel and the glorification of its enemies? Probably not.
Then there is the issue of interpretation of international law. Proportionality, which lies at the heart of the accusations against Israel, depends on who is doing the proportioning. If you are a Human Rights NGO or you are predisposed to be anti-Israel for whatever motivation, then your interpretation of what is proportional will be different to that of Israel itself which is fighting an existential war against forces which are fanatically committed to its destruction and who use all and every means to further their genocidal war against Israel and the Jews. I speak of Hamas, Hizbullah AND Fatah (the latter who are seen as moderates but whose intentions ultimately are the same – destroy Israel, destroy Jewish culture and blot out and annihilate Jewish history in the Holy Land).
Israel’s definition of proportionality will depend on its interpretation of the level of threat posed by Hamas and the methods Hamas used to wage war from within a civilian population and to exploit that population and all its instruments mercilessly and cynically.
So it is likely that any putative independent Israeli investigation’s conclusions will not be accepted by an Israel-hostile world. But as I have argued before, it is still worth doing for Israel’s sake because the Goldstone Report despite its many flaws does ask serious questions about the conduct of asymmetric warfare (although it does not properly give weight to the challenge of such warfare) and an independent investigation is necessary for Israel’s moral health and will also bring to the fore some of the most important questions we face: how do you fight an enemy which hides behind the sick, women, children and the elderly; how do you fight an enemy prepared to sacrifice itself and its own civilians; how do you fight an enemy that has a cult of death; how do you fight religious fanatics; how do protect the innocent under such circumstances; what value do you put on your own life and the life of your fellow soldiers and civilians when compared to the lives of the enemy and its civilians with whom you have no quarrel.
The laws of warfare and human rights have developed apace since World War II. They were framed for a very different world order. That doesn’t make those laws any less valid, but it does mean that interpretation of them has to be nuanced and contextual. If the UN and the HRC are not even-handed when it comes to investigating nations then the HRC and the UN should be held in contempt. Sadly, as flawed as the UN is, a world without it and the opportunities it provides for dialogue among nations and even enemies, would be a lot worse.