In the first part of this article, I said that by being willing to level such a harsh attack against a person as deeply sympathetic to Israel as Judge Goldstone indicates that no truth-teller will be exempted from the Israeli vilification.
Considered more carefully, there are some good reasons for Israel's panicked reaction to this damning report. First, it does come with the backing of an eminent international personality who cannot credibly be accused of anti-Israel bias, making it harder to deflect attention from the findings, no matter how loud the screaming of "foul play." Any fair reading of the report would show that it was balanced, took full and sensitive account of Israel's arguments relating to security, and indeed gave Israel the benefit of the doubt on some key issues. Secondly, the unsurprising findings are coupled with strong recommendations that do go well beyond previous reports. Two are likely causing the Israeli leadership great worry: The report recommends strongly that if Israel and Hamas do not themselves within six months engage in an investigation and follow-up action that meets international standards of objectivity with respect to these violations of the law of war, then the Security Council should be brought into the picture, being encouraged to consider referring the whole issue of Israeli and Hamas accountability to the prosecutor of the International Criminal Court in The Hague. Even if Israel is spared this indignity by the diplomatic muscle of the United States, and possibly some European governments, the negative public relations implications of a failure to abide by this report could be severe.
Thirdly, whatever happens in the UN system, and at the Human Rights Council in Geneva, the weight of the report will be felt by world public opinion. Ever since the Gaza War the solidity of Jewish support for Israel has been fraying at the edges, and will likely now fray much further. More globally, a very robust boycott and divestment movement was gaining momentum ever since the Gaza War, and the Goldstone Report will clearly lend added support to such initiatives. There is a growing sense around the world that the only chance for the Palestinians to achieve some kind of just peace depends on shaping the outcome by way of the symbols of legitimacy, what I have called the Legitimacy War. Increasingly, the Palestinians have been winning this second nonmilitary war. Such a war fought on a global political battlefield is what eventually and unexpectedly undermined the apartheid regime in South Africa, and has become much more threatening to the Israeli sense of security than has armed Palestinian resistance.
A fourth reason for Israeli worry stemming from the report, is the green light given to national courts throughout the world to enforce international criminal law against Israeli suspects should they travel abroad. Such suspects could be detained for prosecution or extradition in some third country. These Israelis could be charged with war crimes arising from their involvement in the Gaza War, convicted, and sentenced to imprisonment. Such an eventuality is unlikely, but its mere prospect gives rise to deep concern. The report in this way encourages a somewhat controversial reliance on what is known among lawyers as "universal jurisdiction," that is, the authority of courts in any country to detain for extradition or to prosecute individuals for violations of international criminal law regardless of where the alleged offenses took place. Universal jurisdiction has long been relied upon to apprehend pirates and their vessels.
Reaction in the Israeli media reveals that Israeli citizens are already anxious about being apprehended during foreign travel. As one law commentator put it in the Israeli press, "From now on, not only soldiers should be careful when they travel abroad, but also ministers and legal advisers." It is well to recall that Article 1 of the Geneva Conventions calls on states throughout the world "to respect and ensure respect" for international humanitarian law "in all circumstances."
The efforts in 1998 of several European courts to prosecute Augusto Pinochet for crimes committed while he was head of state in Chile, are a reminder that national courts can be used to prosecute political and military leaders for crimes committed elsewhere than in the territory of the prosecuting state.
Of course, Israel will fight back. It has already launched a media and diplomatic blitz designed to portray the report as so one-sided and inaccurate as to be unworthy of serious attention. The United States Government has without explanation disappointingly endorsed this view, and apparently rejected the central recommendation in the Goldstone Report that the Security Council be assigned the task of implementing its findings. The American Ambassador to the UN, Susan Rice, evidently told a closed session of the Security Council on September 16, just a day after the report was issued, that "(w)e have serious concerns about many recommendations in the report." Elaborating on this, Ambassador Rice indicated that the UN Human Rights Council, which has no implementing authority, is the only proper venue for any action to be taken on the basis of the report. The initial struggle will likely be whether to follow the recommendation of the report to have the Security Council seized of the issue so as to consider referring issues of individual accountability for war crimes to the International Criminal Court. Of course, such a referral could be blocked by a veto from the United States or other permanent members, but even a discussion in the Security Council would be a severe setback for Israel.
There are reasons to applaud the forthrightness and comprehensiveness of the report, its care, and scrupulous willingness to conclude that both Israel and Hamas seem responsible for behavior that appears to constitute war crimes, if not crimes against humanity. Although Israel has succeeded in having the issue of one-sidedness focus on fairness to Israel, there are also some reasons to insist that the report falls short of Palestinian hopes. For one thing, the report takes for granted, the dubious proposition that Israel was entitled to act against Gaza in self-defense, thereby excluding inquiry into whether crimes against the peace in the form of aggression had taken place by the launching of the attack. In this respect, although the report takes notice of the temporary cease-fire that had cut the rocket fire directed at Israel practically to zero in the months preceding the attacks, it seems to avoid drawing any legal conclusions as to the bearing of this context in which the Gaza War was initiated. The report also ignores Hamas' repeated efforts to extend the cease-fire indefinitely provided Israel lifted its unlawful blockade of Gaza. Israel disregarded this seemingly available diplomatic alternative to war to achieve security on its borders. Recourse to war, even if the facts were to justify self-defense, is according to international law, a last resort. By ignoring Israel's initiation of a one-sided war the Goldstone Report implicitly accepts the dubious central premise of Operation Cast Lead, and avoids making a finding of aggression.
Also, disappointing was the failure of the report to comment upon the Israeli denial of a refugee option to the civilian population trapped in the tiny, crowded combat zone that constitutes the Gaza Strip. Israel closed all crossings during the period of the Gaza War, allowing only Gaza residents with foreign passports to leave. It is rare in modern warfare that civilians are not given the option to become refugees. Although there is no specific provision of the laws of war requiring a state at war to allow civilians to leave the combat zone, it seems like an elementary humanitarian requirement, and should at least have been mentioned either as part of customary international law or as a gap in the law that should be filled. The importance of this issue is reinforced by many accounts of the widespread post-traumatic stress experienced by the civilians in Gaza, especially children that comprise 53% of the population. One might also notice that the report accords considerable attention to Gilad Shalit, the one IDF prisoner held by Hamas in Gaza, recommending his release on humanitarian grounds, while making only a very general recommendation that Israel release some of the thousands of Palestinians being held under conditions of harsh detention, suggesting that children especially should be released.
In the end, the Goldstone Report is unlikely to break the inter-governmental refusal to challenge the Israeli blockade of Gaza or to induce the United Nations to challenge Israeli impunity in any meaningful way. Depending on backroom diplomacy, the United States may or may not be able to avoid playing a public role of shielding Israel from accountability for its behavior during the Gaza War or its continuing refusal to abide by international humanitarian law by lifting the blockade that continues to impinge daily upon the health of the entire population of Gaza.
Despite these limitations, the report is an historic contribution to the Palestinian struggle for justice, an impeccable documentation of a crucial chapter in their victimization under occupation. Its impact will be felt most impressively on the growing civil society movement throughout the world to impose cultural, sporting, and academic boycotts, as well as to discourage investment, trade, and tourism with Israel. It may yet be the case that as in the anti-apartheid struggle the shift in the relation of forces in the Palestinian favor will occur not through diplomacy or as a result of armed resistance, but on the symbolic battlefield of legitimacy that has become global in scope, what might be described as the new political relevance of moral and legal globalization. (Concluded)
— Richard Falk is the UN special rapporteur on human rights in the occupied Palestinian territories. This article was written at the request of a Turkish newspaper.
