Analysis: The problem with Goldstone

Israel: UN 'fact-finding' mission's outcome was decided ahead of time; Hamas: Report to be "like ammunition."

By HAVIV RETTIG GUR
Goldstone in Gaza 248.88 (photo credit: AP [file])
Goldstone in Gaza 248.88
(photo credit: AP [file])
Richard Goldstone has a problem. As head of the Goldstone Mission established by a resolution of Cuba, Egypt and Pakistan in the Human Rights Council in January, Goldstone is charged with investigating Israeli war crimes in Gaza. He has good reasons to be worried. For one, Israel has refused to cooperate with the mission, citing its founding resolution, which calls on it "to investigate 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." The word "Hamas" appears nowhere in the resolution. Only Israel, already designated as the aggressor, is under investigation. In this, the Goldstone Mission's founding is no different from the HRC's regular habit of Israel-bashing. Eighty percent of its resolutions have condemned Israel alone. "He's participating in something that is very bizarre," said UN Watch director Hillel Neuer on the phone from Geneva. "I think he's convinced himself that he's presiding over some kind of truth and reconciliation commission a la South Africa." Goldstone was chair of the 1991 South African Standing Commission of Inquiry Regarding Public Violence and Intimidation, part of South Africa's "truth and reconciliation" process. "Last week he was in Gaza saying to victims, 'I hear your pain.' He's already said he's doing this for the victims," said Neuer. Indeed, his invitation of Palestinians and Israelis to Geneva, all expenses paid, to testify before the mission "is something the UN has never done before." But Goldstone's good intentions may be torpedoed by his desire to shoehorn South African-style reconciliation into an ongoing, unreconciled conflict. With the conflict unresolved, a reconciliation process will surely be hijacked for the purposes of the conflict. Israel believes the mission's findings were decided ahead of time. It doesn't help Goldstone's case that mission member Christine Chinkin, a law professor at the London School of Economics, signed an editorial published in the Sunday Times in January calling Operation Cast Lead a war crime. Would you go before a judge who had already told the media you were guilty? Goldstone leads a "fact-finding mission" whose purpose is clearly to prove the conclusion already reached in the HRC resolution. Senior Hamas official Ahmed Yousef, in expressing his hopes for the mission, explained that its purpose was to file a report that would be "like ammunition in the hands of the people who are willing to sue Israeli war criminals." As any first-year law student knows, a legal system must be fanatically obsessed with procedure, since only a fair process can guarantee fairness and equality of defense before the law. Yet, what passes for "fact-finding" in the Goldstone Mission involves traipsing around Gaza led by Hamas handlers who never left the room while Palestinians testified. Too many tears have been shed, too much "shock" has been expressed by Goldstone himself during the Gaza visit, for this to continue to retain the veneer of a legal process. International law is a strange animal. It is a legal system with no consistent enforcement mechanism, no clear and acknowledged legislator, no bedrock procedural rules for a fair gathering of evidence and no system for appeal. While its principles may be noble, it is not a trial by judge or jury, but by an international version of a parliamentary committee. Thus, Libya or China have little to fear from the likes of the Human Rights Council or international courts, because they are supported by a political mob - either in the form of the Arab and Muslim blocs, or sheer financial and demographic clout. Only when it comes to a country such as Israel, lacking the benefit of hundreds of millions of Jews at its back, international law - in the form of commissions established by, among others, Egypt and Pakistan - suddenly finds its voice. Courts of law must not only be objective, but must be perceived as such. Judges do not wield real weapons, but rather the power of the perception of fairness, of transcending the conflict they are arbitrating. Law is the diametric opposite of the rule of the mob. In a reality in which the gaps in international law have made it at times the legitimizer of the lynch mob, can Goldstone be sure his committee will be anything but the start of another front in a war of delegitimization? Is he so ignorant of the methods and history of this conflict that he fails to see this possibility unfolding before him? And, more deeply, Israelis have the right to wonder: is it moral to have a legal system whose laws aren't legislated by the elected, whose procedures aren't known ahead of time and which denies all right of appeal - a legal system where only minorities, small states and small peoples ever find themselves on trial?