"Israel, while required like any other state to accept international scrutiny of its conduct with regard to compliance with international law, is entitled to insist that such conduct be judged fairly and without bias," South Africa's Judge Richard Goldstone, who heads the UN Human Rights Council Mission investigating war crimes related to Operation Cast Lead, told The Jerusalem Post
in an e-mail interview this week.
The mission was tasked by the HRC resolution which created it with "investigat[ing] 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 [Cast Lead]."
Israel has refused to cooperate with the mission, saying it is "congenitally biased," because the founding resolution does not mention Hamas and puts the blame on Israel even while charging the mission with investigating those crimes.
But Goldstone believes Israel is ignoring the fact that his mandate has since changed.
"I am fully aware of the skepticism with which many Israelis view the Human Rights Council and of the objections to the council paying more attention to the Middle East than any other region of the world," Goldstone wrote.
"It is for that reason that I initially found the terms of the Human Rights Council resolution to have been an inappropriate basis for launching a fact finding mission into Operation Cast Lead, and at first I was not prepared to accept the invitation to head the mission."
"It was essential," he continued, to expand the mandate to include "the sustained rocket attack on civilians in southern Israel, as well as other facts in the period preceding the military operation of December-January, such as the sustained closure of the Gaza Strip," all of which must be "an integral part of the investigation."
He set this expansion of the mandate as a condition for chairing the mission, he told the Post.
"I indicated to the then-president of the Human Rights Council, Ambassador Martin Uhomoibhi of Nigeria, that I could not agree to take on the mission unless alleged war crimes and human rights violations on all sides were subject to the investigation."
Uhomoibhi replied that this was already "implied in the resolution and he made it absolutely clear in the mandate he gave the fact finding mission that the investigation should cover all sides. The mandate that my colleagues and I accepted is '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 to 18 January 2009, whether before, during or after,'" Goldstone wrote.
"Ambassador Uhomoibhi explained the mandate to the Human Rights Council at a plenary session and the members of the mission have discussed it explicitly with the ambassadors of all the nations that sponsored the original resolution, and there was no objection to it. That is the mandate the mission is pursuing to the best of its ability."
With that expanded mandate, Goldstone continued, "there is really no justification now for any government, including Israel, to refuse to cooperate with the mission."
Indeed, "I had sincerely anticipated that the Israeli government would have taken this opportunity to put its case before a United Nations investigative mission so comprehensively mandated. I thought that Israel might use this as a sign of a new direction by the Human Rights Council and would welcome it."
But Israel has maintained its boycott of the mission, even refusing it entry into the country, because the government disagrees with Goldstone's contention that its mandate has been expanded, according to Foreign Ministry spokesman Yossi Levy.
"There is no formal expansion of the mandate. The only relevant mandate is the one which includes operational paragraph 14 of the HRC resolution, as it was accepted in the council on 12 January 2009 [the original resolution that led to the establishment of the mission - H.R.G.]. That's the only binding legal basis of this mission," said Levy.
The founding resolution, Levy continued, "is a morally weak and legally defective basis for an investigation. The mandate is to find the evidence for a verdict that has already been handed down by an automatic [anti-Israel] majority in the HRC. It is not only immoral, but shows contempt for the international community and the truth. We will not cooperate with the mission because its duty is not to find the truth, but to find semi-judicial ways to attack Israel. We know this shpiel and are not willing to play a game that's stacked against us."
But Goldstone insisted everything was on the table, vowing that the mission's report would go far beyond Hamas rockets and the IDF incursion, to "the detention of Corporal Gilad Schalit, the detention of thousands of Palestinians by Israel, the ongoing blockade of the Gaza Strip, and violations of human rights by Hamas in Gaza and by the Palestinian Authority in the West Bank."
Despite the Israeli refusal to cooperate, "the fact finding mission has investigated and will report on all violations of international humanitarian law and international human rights law committed by any of the parties in the context of Operation Cast Lead," he promised.
Goldstone also responded to concerns that mission member Prof. Christine Chinkin had signed a public letter in January which called Israel's actions "war crimes."
"The letter in question also condemned the firing of rockets by Hamas into Israel and suicide bombings, which it said were also war crimes," he noted.
"I have known Professor Chinkin for some years and respect her intellect, knowledge and professional approach to her work. I have no doubt at all that she is able to keep an open mind on all of the issues we are considering, and that has indeed been demonstrated during our many deliberations over the past weeks."
He further said that "at the time of the letter signed by Professor Chinkin, and since, there have been widespread views expressed that war crimes were committed by the IDF. Indeed, in its own non-public investigation the IDF found that 'mistakes were made.' We have not been told what those mistakes might have been."
And finally, "the fact finding mission is not a judicial investigation and it has no powers other than to report and make recommendations."
He concluded by urging the sides to read the report carefully "and give consideration to its recommendations."
"All we can do and the only assurance I can give to the people of Israel and of the occupied Palestinian territory is that we have approached our task professionally and without bias," Goldstone said.
"I have no doubt that our conclusions will not please many people in the region and beyond, for there are none that do not bear some responsibility for violations of international law. I only hope that the debate on the report will have regard to the facts and merits of the arguments, [and will not focus] on reflex reactions to grievances that are not relevant to the issues under consideration by the mission."
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