The Report published by the Goldstone Fact-Finding Commission presents a major challenge to democracies forced to act against terrorist groups.

The Report published by the Goldstone Fact-Finding Commission presents a major challenge to democracies forced to act against terrorist groups.  As outlined below, the Report:

  • Ignores the reality and true nature of terrorism and urban warfare;
  • Ties the hands of democratic countries fighting terror worldwide.
  • Calls into question the legitimacy of national legal systems and investigations;
  • Promotes criminal proceedings against forces confronting terrorism in foreign states and tries to expand the jurisdiction of the ICC beyond its Statute.
     

Simplistic approach to the realities of armed conflict

The Report prejudices all states confronting terrorist threats by presenting a simplistic and prejudicial picture of armed conflict. It fails to consider the realities of the conflict and in particular the mode of operation of terrorist organizations which deliberately endanger civilians and make urban areas their battlefield of choice. It makes no reference to the recruitment and exploitation of children and the smuggling of weapons through tunnels, and ignores clear evidence of the abuse of mosques, ambulances, hospitals and residences.

At the same time it places unrealistic and unworkable demands on any State seeking to protect its civilians from terrorist attacks. For example, the Report is critical of the decision undertaken by Israeli forces to use mortar fire in order to prevent Hamas terrorists from launching missiles, "given the mobilization speeds of helicopters and fighter jets". The assumption that in the midst of intense fighting on many fronts, fighter jets can be summoned by soldiers in the field on demand suggests a troubling disconnect from the military reality.

Such a simplistic and impractical approach to the complex challenge of confronting terrorism effectively creates a presumption of guilt for State forces confronting terrorists in all contexts.  

Minimizing threats to democracies facing terror

The Report limits the scope of States’ response to terrorist threats by downplaying and minimizing the effects of such attacks. For example, describing missile attacks on the Israeli town of Ashdod, the Report describes the impact as "a brief interruption to [its] economy brought about by the temporary displacement of some of their residents". The death and injury to Ashdod’s residents caused by missile attacks are simply not mentioned.

Similarly, in its 575 pages the Report does not make a single reference to the smuggling of weapons and ammunition into the Gaza Strip through hundreds of tunnels under the Egypt-Gaza border. 

Minimizing the effect of and threat posed by terrorist activity undermines the legitimacy of measures taken by States in defense of their own civilians.

Demands for financial reparations from defending States

The Report suggests that States confronting terrorism should have to pay for damage caused in their self-defense, while recognizing no obligation on terrorist groups to pay for the injury they have deliberately caused.

Specifically the Report calls for the United Nations General Assembly to establish an escrow fund to provide adequate compensation to Palestinians and to require that the Government of Israel pay fund it. The Report does not make any demands on Hamas to make reparation for the damage and injury caused by its terrorist attacks – even though the Report recognizes that the missile attacks on Sderot alone have forced Israel to spend hundreds of millions of dollars to protect civilian homes and buildings.

Outlawing the use of lawful weapons – especially by defending states

The Report calls for an ‘urgent discussion’ on the ‘future legality of the use of certain munitions referred to in this Report". Pending the outcome of this attempt to make unlawful currently lawful munitions, it calls on Israel to "undertake a moratorium in the use of such weapons".

The effect of such calls, without any similar call on the terrorist groups themselves to stop the use of inherently indiscriminate rockets and the abuse of civilian infrastructure, can only serve to tie the hands of the forces of democratic States confronting terrorist threats.

Rejection of national legal systems and domestic investigative mechanisms

The Report threatens to challenge the legitimacy of national legal systems and their investigation efforts worldwide.  The Report dismissively rejects the extensive system of investigations of allegations of wrongdoing within the Israeli legal system, determining that these do not satisfy standards of investigation in an "impartial, independent prompt and effective" way.

In fact, Israel’s system for investigation of alleged violations mirrors that of many other democratic states such as the UK and the US.  Indeed, in certain aspects, the Israeli legal system imposes more stringent safeguards. These include the right of every individual, Israeli or Palestinian, to petition the Court for judicial review of the decision whether or not to open criminal proceedings in any given case. Since the Gaza Operation, over one-hundred investigations have already been conducted, including criminal investigations in 23 cases.

By dismissing out-of-hand, domestic legal procedures which are as rigorous, if not more, than those of most western countries, the Report suggests that soldiers from these countries may be subject to foreign or international legal proceedings, hampering defensive operations throughout the world.

Promoting criminal proceedings in foreign states

Even while it makes calls for investigations into allegations of wrongdoing by the parties, the Report "supports the reliance on universal jurisdiction as an avenue for States to investigate violations".

This call represents a serious threat to any State whose forces have been engaged in defending it, since it encourages foreign states to put its soldiers on trial, even when the State itself takes efforts to enforce international humanitarian law by its own domestic mechanisms.

The political nature of this campaign of ‘lawfare’ is evident from the Report’s insistence that such a measure is necessary because of "increasing unwillingness on the part of Israel to open criminal investigations that comply with international standards".  The reference only to Israel, and the fact that no reference is made to the lack of any Palestinian efforts to investigate violations suggests only proceedings against Israelis are intended.

Such an approach must concern any State confronting terrorism, since is suggests that only the State can be subject to international legal proceedings, while  terrorist organizations are exempted.

Calls to expand the jurisdiction of International Criminal Court

In addition to calling for universal jurisdiction prosecutions, the Report also seeks to expand the jurisdiction of the International Criminal Court beyond the provisions of its Statute.

Referring to a Palestinian declaration purporting to accept the jurisdiction of the Court, the Report ignores that fact that there is currently no Palestinian state, and so there is no basis for jurisdiction under the Court’s Statute. Instead it states that "The Prosecutor may determine that for the purposes of Article 12, paragraph 3, under customary international law, Palestine qualifies as ‘a state’".

In its recommendations, the Report strongly hints that the determination of the Prosecutor on this matter must be in favor of expanding the jurisdiction of the Court when it insists that "accountability for victims" requires the legal determination should be made by the Prosecutor as expeditiously as possible.

Seeking to expand the jurisdiction of the International Criminal Court in this way undermines respect for the rule of law. It  is also particular cause for concern for any State that has not chosen to join the Court’s statute, as it suggests that they may, nonetheless, find their nationals subjected to criminal proceedings in The Hague.

Rewarding intimidation, penalizing democracy

The Report reflects an approach to military situations which effectively rewards intimidation and penalizes democracy.

The Report finds no evidence whatsoever of Hamas having used human shields during the war or storing its weapons and missile launches in mosques and hospitals – despite the widespread independent and Israel evidence to the contrary. As for its own investigations, the Mission acknowledged that those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups. Despite this clear evidence of threatening the public, the Report takes the matter no further, rewarding the tactic of intimidation.

By contrast, under the heading, "Repression of Dissent" the Report attributes intimidation to the Israeli side.  It bases this assertion in large part on the widespread support for the military operation in the Israeli public, and that Israel has "created a political climate in which dissent is not tolerated". The notion that the majority of Israelis genuinely supported action to bring years of continuous rocket and missile attacks against Israeli civilians to an end does not appear to have occurred to the members of the Mission.