By ALAN BAKER
It is difficult to think of a figure of the international stature and reputation of Richard Goldstone, with his rich experience as an international criminal prosecutor and investigator of human rights situations, as being naive or unrealistic. It is all the more difficult therefore, to fathom the curious justifications that he proffers for the very one-sided and critical report issued in his name by the United Nations.
He criticizes Israel's decision not to cooperate with his Fact-Finding Mission, but naively ignores the very one-sided and politically hostile mandate of the mission as set out by the United Nations Human Rights Council, that determined in advance that Israel had committed war crimes. Any concession towards impartiality that he claims to have received from the president of the HRC never materialized into a change in the council's mandate, which remained rabidly one-sided and politically loaded.
Similarly he strangely ignores the fact that one of the senior members of his mission - Prof. Christine Chinkin - had, during the course of the fighting in Gaza, already voiced her opinion in the most public manner through the British media, accusing Israel of war crimes.
In such circumstances, how, in all logic, could any reasonable observer familiar with the United Nations and its inquiry procedures expect Israel to cooperate with such a politically prejudiced and gravely flawed inquiry? In doing so, Israel would have been perceived to have accepted the substantive elements of the Human Rights Council's initial criticism.
AS SOMEONE who is aware of this impossible situation, and as a reasonable and not-unsympathetic person, one might have expected Goldstone, as a condition for his agreement to head the mission, to insist that the mandate be genuinely and formally impartial. Had he been asked by the UN secretary general himself to conduct such an inquiry, without the political bias and gung-ho emanating from the HRC, the Israel government would have been hard-put to refuse cooperation, as has been the case in similar instances in the past.
While indeed the mission heard, saw and was persuaded by the very one-sided picture elaborately staged by Hamas in Gaza, including hand-picked witness testimony and internationally televised and web-circulated public hearings, Goldstone's complaint that they were not provided with input from the Israeli side is simply untrue to the point of being ridiculous. Several prominent Israeli and other international lawyers (including myself) and Jewish organizations forwarded to the mission and to Goldstone personally, vast amounts of information, including the official papers issued by Israel's Foreign Ministry, legal opinions, facts and media cuttings regarding the Hamas rocket barrages, violations, ambulance hijackings and the like.
I appeared before the mission in Geneva, together with a senior delegation of Magen David Adom (MDA), in an attempt to persuade it of the seriousness of the terrorization of Israel's southern population by the Hamas rockets, and the psychological effect on the public. The delegation detailed the wide-ranging activities by MDA in treating those affected - including Palestinian residents of the Gaza Strip. Others, including representatives of Israeli families harmed by Hamas, appeared before the mission.
But obviously all this was to no avail, since Goldstone and his team chose, for whatever reason, to ignore this extensive information in favor of a Hamas-organized production and some very selective Israeli and foreign non-governmental organizations known for their criticism of Israel.
Goldstone really adds insult to injury when he attempts to acknowledge, and even express a modicum of condemnation, of the UN and international media's Israel-bashing and tendency to hold Israel to a different standard than other countries. Is it not because of his one-sided, flawed and blatantly biased report that legal warfare has now been declared on Israel and on Israeli political and military leaders?
If the right to defend against terror is downplayed to the point of being denied by Goldstone and his team, then the message to the international community and to terror organizations is clear.
His repeated insistence, despite the information and data to which he had access, that Israel intentionally and even willfully targeted Palestinian civilians, is an accusation that requires serious and substantive treatment by Israel. This dreadful and malicious charge that serves as the core of the Goldstone report appears to rely on a curious mixture of irresponsible political statements by Israeli political leaders and accusations by various NGOs and Hamas propagandists. But without even attempting to make an independent and professional military analysis of Israel's position, and of the tactical choices faced by Israel, the accusation cannot be treated as well-founded criticism.
THE ISRAELI government cannot ignore the call by Goldstone and everyone else, to institute an official governmental inquiry. If indeed Israel has the substantive answers to the accusations levelled by Goldstone, then there is no reason to delay any further the establishment of such an inquiry. It would not, as has been claimed, be perceived as submitting to terror or caving in to international pressure, and would not be seen as lack of faith in our soldiers and officers.
Considerable damage has been done by the Goldstone accusations. Such damage cannot be repaired by hasbara, which has proven itself to be utterly useless, or by repetitive, weak statements by Israeli ministers and deputy ministers.
Israel must act to control that damage by establishing an inquiry manned by a prominent retired Supreme Court justice and serious military and legal experts. Such a move would instantly neutralize and deflate international criticism; it would provide a viable claim of non-admissibility to any attempt to prosecute Israel or Israeli leaders before international or national courts and tribunals.
Above all, such an inquiry would answer many of the questions that are still gnawing away at Israel's psyche, and given the length of time needed to carry out a serious and professional task (unlike the Goldstone Mission), time itself will place the Gaza conflict in its correct perspective.
The writer, a widely acknowledged international lawyer, served as the legal adviser to the Foreign Ministry and as ambassador to Canada. He is currently a partner in the Tel Aviv law firm of Moshe, Gicelter & Co.
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