Justice Richard Goldstone this past week released his much anticipated report to the United Nations Human Rights Council that investigated human rights abuses committed during the Gaza conflict in January. The report found that both the Israeli Defense Force and Hamas were responsible for war crimes – and, as expected, Goldstone’s findings immediately precipitated an acrimonious exchange of verbal crossfire between partisans on each side of the Israeli-Palestinian divide.
While I admittedly have not had time to track all of the attacks and counterattacks, what I find interesting – and disappointing – is the way that this vitriolic debate immediately began to resemble the uproar that ensued after the International Criminal Court in March issued an arrest warrant for Sudanese President Omar al-Bashir on charges of war crimes and crimes against humanity committed in Darfur.
Daniel Levy of the New American Foundation (a former Israeli negotiator) has written an extensive and incisive analysis of the post-Goldstone report reactions:
Most of the pushback and the vituperative attacks have come from the Israeli side, and indeed while comprehensive, the preponderance of the report does deal with Israel’s actions. This is no coincidence. The overwhelming majority of causalities and destruction were incurred on the Palestinian side (which is not to detract from the fact that all loss is tragic). The report is forthright in acknowledging the power dynamic at work…This relationship of power is crucial – too many Israelis and Palestinians have effectively dehumanised the other, but the practical policy and operational consequences of that dehumanisation are very different for an occupying power as opposed to an occupied people. Since the report’s publication, and in the context of its pushback, Israel has bemoaned a different power dynamic, namely that investigations such as these are not conducted when it comes to, for instance, American transgressions in Iraq or Afghanistan.
Indeed, it is not a fair world: the Palestinians are to Israel as Israel is to America. Ironically, it is international human rights law and humanitarian law, the essence of this report, that exists to partially redress this unfairness.
The official Israeli response has followed a familiar if disappointingly ritualistic pattern. The emphasis has been on pre-emptively discrediting the report’s findings rather than substantively addressing them. Israel’s key claim – that the mission had concluded its findings in advance of its investigation – would appear to be true, only in reverse: namely that the Israeli government had decided on its response to the report in advance of its publication.
Official Israel refused to co-operate with the mission, refused to meet with its members or grant them official entry into Israel (or to the West Bank or Gaza via Israel), and had even banned the media from being in Gaza at the time of Operation Cast Lead. Israeli officials have marched in lock-step in their assertive rejection of the report, from the avuncular figure of Shimon Peres right down to the pugnacious ex-bouncer foreign minister, Avigdor Lieberman (lambasting the report from, of all places, Serbia – no sense of irony was detected).
In drawing comparisons with the reaction of the Sudanese government to the ICC indictment (and of many opposed to the indictment), let’s start at the end of this section of his analysis and work our way up. First, the Sudanese government also refused to cooperate with ICC Prosecutor Luis Moreno-Ocampo – and then challenged his understanding of the facts by stating that Ocampo had never visited the scene of the crime. Second, the Sudanese government has never responded substantively to the charges against it – instead, it has since 2005 attempted to discredit the ICC by questioning the motives of the prosecutor and the countries and NGOs in support of the proceedings. Third, like the Israeli government this week, the Sudanese government has argued that international justice is “unfair” – specifically that the ICC only targets African countries and ignores the human rights violations of more powerful countries, namely the United States and Israel.
The Goldstone report and its recommendation that international venues of justice take up the Gaza case, if the Israeli and Palestinian authorities themselves continue to refuse to do so, actually weakens this last line of argument from Bashir and the National Congress Party. On this point, Goldstone himself in the New York Times defended the role of the international community in investigating egregious crimes like those committed in Darfur and Gaza – and challenged western governments to be even-handed in their responses to both:
Absent credible local investigations, the international community has a role to play. If justice for civilian victims cannot be obtained through local authorities, then foreign governments must act…Pursuing justice in this case [Gaza] is essential because no state or armed group should be above the law. Western governments in particular face a challenge because they have pushed for accountability in places like Darfur, but now must do the same with Israel, an ally and a democratic state.
Finally, regarding the Goldstone report, Levy also discusses “the tension between the demands of seeking justice now and of influencing the course of future events.”
I anticipate that the constellation of political forces will mean that this does not reach international criminal proceedings, and I have no desire to see Israelis appearing before such tribunals. But what this report does, and this is one of its most significant contributions, is to point a finger at a failure and in fact an illegitimacy to the overall policy that guided Israel’s actions in Gaza. The report finds that the manifestations of human rights violations in Gaza were the structural byproduct of policies that encouraged the targeting of civilians – namely, an expansive definition of the so-called infrastructure of terrorism and an intentional price-tag of disproportionality.
In the case of Sudan, the debate over “peace versus justice” is the “tension” between now and the future – that is whether you can pursue both goals at the same time or, if by pursuing justice before the attainment of peace, one actually forsakes the possibility of peace, at least, in the present. As we wait for another round of Darfur negotiations to begin, this question for Sudanese and the international community remains unresolved.
Yet disregarding whether Bashir ever ends up at The Hague, the arrest warrants issued by the three ICC judges for President Bashir, using Levy’s words, similarly “point[s] a finger at a failure and in fact an illegitimacy to the overall policy that guided” Sudan’s actions in Darfur. Indeed, the Sudanese government’s deplorable mishandling of Darfur is summarized by the seven charges handed down by the ICC judges against Bashir: intentionally directing attacks against a civilian population, pillage as a war crime, and murder, extermination, forcible transfer, torture and rape as crimes against humanity.
In the coming days and weeks, I will have more to write on this subject – including looking at the U.S. reaction to the Goldstone report compared to its evolving position concerning the ICC proceedings on Darfur, how the Goldstone report places defenders of both Khartoum’s actions in Darfur and Tel Aviv’s execution of the Gaza war in rather difficult positions, and how the rebels in Darfur and Hamas have approached these mechanisms of international justice. Stay tuned.
Darfur, gaza, goldstone, icc, israel, justice, Sudan
