Essay: Let's seek a true legal investigation of the Gaza war

Judge Richard Goldstone must act immediately against the UN Human Rights Council's bias.

Judge Goldstone 248.88 (photo credit: Courtesy )
Judge Goldstone 248.88
(photo credit: Courtesy )
The UN Human Rights Council's appointment of Richard Goldstone to serve as the head of a mission investigating Gaza-related war crimes and human rights violations triggered my memories of our time together as visiting professors at Fordham Law School in New York. At the time, Judge Goldstone and I were asked to debate the merits of a recent International Court of Justice decision concerning Israel's security barrier in the West Bank. It turned out not to be much of a debate. I argued that the decision was a travesty: legally insupportable and inexcusably biased against Israel. Goldstone agreed in substance but asked that we believe in the judges' good faith. If Goldstone is to live up to the standards of intellectual honesty and impartiality he has set for himself, he has no choice but to take immediate steps to root out the bias at the core of his investigation. Several weeks ago, Goldstone signed his name to a letter claiming that events in Gaza had "shocked [the signatories] to the core," and calling for "setting the record straight in a credible and impartial manner" by means of a "prompt and impartial investigation." In light of the thinly veiled anti-Israel agenda of the letter's organizers, signing it prior to receiving any serious information regarding crimes in Gaza raises serious ethical issues for investigators. While I presume that Goldstone was unaware that several of his cosigners were veteran anti-Israel activists more interested in attacking the Jewish state than achieving justice, I am sure he does know that the Human Rights Council that appointed him is neither credible nor impartial when it comes to Israel. THE UN Human Rights Council is so overwhelmingly biased against Israel that its agenda has been reduced almost exclusively to attacking it. Even Human Rights Watch, an unabashed and frequent critic of the Jewish state, has admitted that the council has failed in its duties due to "one-sided" attacks on Israel. The council's bias regarding Israel has been repeatedly demonstrated in issues related to the Gaza fighting. For instance, the council has endorsed an alleged Palestinian "right to resistance," which Arab states and Hamas have interpreted as approving Palestinian terror groups' illegal acts of terrorism. At the behest of the council, Special Rapporteur Richard Falk issued a report in which he lied about the events leading to the fighting in order to falsely accuse Israel of a "crime against peace," while whitewashing Hamas crimes. No members of the council have ever taken any steps to bring to justice Hamas criminals for their illegal incitement to genocide, terrorist bombings, use of civilian shields and other war crimes, or for their illegal attacks on civilians and fund-raising for the benefit of terrorist activities. If Goldstone is to have any credibility, he must immediately signal that his investigation will reject the council's anti-Israel bias, and that he himself does not share his cosignatories' animus toward the Jewish state. Goldstone can do this by acknowledging and rejecting the key points of the Human Rights Council's prejudice. First, he must acknowledge that he will investigate whether Hamas's repeated bloodcurdling calls for the mass murder of Jews constitute incitement to genocide according to Articles 1, 2 and 4 of the Genocide Convention, and that he will determine the parties and instrumentalities responsible for such crimes. He must also explore the effects of these crimes on the legality of Israel's targeting of Hamas and the duties of other states to "prevent and punish" Hamas's crimes. Second, Goldstone must explicitly reject the claim by some council members that Hamas has a right to engage in terrorism as a result of an alleged "right to resist." He must forthrightly acknowledge that Hamas's repeated and explicit targeting of Israeli civilians constitutes prima facie acts of terrorism according to the International Convention for the Suppression of Terrorist Bombings and other treaties. Consequently, he must observe that international law forbids states to aid Gaza - even if the aid is called "humanitarian" - if the assistance is likely to flow to Hamas or other Palestinian terrorist groups. Third, Goldstone must acknowledge that previous council investigations - particularly the recent one by Richard Falk - have distorted facts and law by relying upon evidentiary sources of dubious credibility and clearly biased against Israel, as well as upon outlandish legal theories. He must openly reject the use of evidentiary sources that have previously demonstrated a willingness to suppress the truth in favor of their anti-Israel agenda, and name the sources to be rejected. He must also explicitly disavow outrageous distortions of law such as the insistence that Israel militarily "occupies" the Gaza Strip. Fourth, and finally, Goldstone must pledge to name names of Hamas and other Palestinian fighters who have committed war crimes, crimes against humanity, acts of terrorism, incitement to genocide and acts of genocide, and other illegal acts, as well as the names of third parties that have violated international law by providing support - active or passive - to Hamas and other Palestinian terrorist groups. To counter the council's usual practice of focused anti-Israel criticism coupled with vague pro forma references to wrongdoing against Israel, he must also pledge to investigate these crimes before proceeding to anti-Israel accusations, and to take steps thereafter to ensure that guilty terrorists and their supporters are tried and punished. Unless Goldstone acts immediately against the council's bias, his investigation will become just another in the long list of UN-instigated illegal persecutions of the Jewish state. I believe he has the integrity to realize that these steps are necessary. Now let us hope he has the courage to do what is right. The writer is a professor of international law at Bar-Ilan University and the University of San Diego Law School.