The three-month deadline the United Nations General Assembly gave
Israel and the Palestinians to
begin investigations into allegations of war crimes in last year’s attack
expired last week. Now, the
Secretary-General was expected to issue his conclusions regarding
sending the Goldstone’s
recommendations for implementation by the UN Security Council.
Because the five-member
organization has indicated it will not pursue it further and the
investigations the Israelis and Palestinians
conducted were “inadequate,” and “disappointing” The Real News’ Lia
Tarachansky asks what
alternatives exist.
Story Transcript
LIA TARACHANSKY (VOICEOVER), PRODUCER, TRNN: The Goldstone Report that investigated allegations of war crimes in the recent Israeli attack on Gaza is making its media comeback this month. After the report was commissioned and endorsed by the United Nations General Assembly, a resolution was passed on November 2 which called on the government of Israel to undertake an independent and credible investigation within three months. The General Assembly also urged the Palestinian side, not indicating whether this implied Hamas or the Palestinian Authority, to also conduct investigations. At the end of the three-month period, the secretary-general, Ban Ki-moon, was to issue a statement regarding the progress of the two sides’ investigations and state whether he recommends the Goldstone Report go up to the top body of the UN, the Security Council. This three-month period expired this week, when Ban Ki-moon published his conclusions about the investigations. To understand the UN’s process, The Real News spoke to Wisam Ahmad of Al-Haq, a Ramallah-based legal organization.
WISAM AHMAD, ADVOCACY OFFICER, AL-HAQ: Well, the next step should be for the General Assembly to assess the report by the secretary-general, and then to take proper movement with the report forward, either through the Security Council, and then to act as the General Assembly, should the Security Council fail to do so. And that would be the limit within the mechanism itself, within the UN mechanism.
TARACHANSKY: After getting the Israeli report, a Hamas report, and letters indicating intent from the Palestinian Authority regarding conducting investigations, Ban Ki-moon concluded that “no determination can be made on the implementation of the resolution by the parties concerned.”
AHMAD: As far as it has gotten now is as far as it can go, other than the Security Council taking some specific action, because in the end it’s the Security Council that has the binding authority to be able to take any concrete action.
TARACHANSKY: We also spoke to Michael Kearney at Al-Haq, who specializes in international law.
MICHAEL KEARNEY, LEGAL STAFF, AL-HAQ: United States, as well as China and Russia, the Human Rights Council [from previous version: indicated clearly that they are not willing to sponsor or support endorsement of the recommendations of the Goldstone Report at the Security Council.] This is primarily out of self-interest that they do not want to be subject to such investigations or criminal prosecutions in the future for their own actions.
TARACHANSKY: The secretary-general’s statement was accompanied by the report Israel submitted to the UN. A major theme the Israelis outlined is that Israel’s military-accountability system is very similar to that of other Western nations. Israel has three bodies inside the military that implement law enforcement in cases of criminal offenses in the occupied territories. The UN’s demand for an investigation emphasized independence and credibility, but according to the Israeli NGO B’Tselem, members of this investigation system were involved in making decisions during the war itself. B’Tselem’s response to Israel’s report said that the Judge Advocate General’s Office, which oversees the investigations, was involved, for example, in drafting the open-fire regulations for the attack, in deciding what constituted a legitimate target, and in approving the use of certain weapons. Therefore, if it is found that these determinations contravene international humanitarian law, members of the office are liable to be investigated and prosecuted themselves. Clearly, then, they cannot be put in charge of these investigations. The 46-page document Israel gave the UN provided some updates on some of the investigations but did not list cases. Israel has said that while the Goldstone Report concentrated on 34 incidents, it opened 115 investigations. But human rights groups say that this is misleading. Nearly 90 of these 150 investigations are what the military calls an “operational debriefing”. These are after-action reports, not criminal investigations, in which an officer in the chain of command interviews the soldiers involved with no testimony from victims or witnesses. Human Rights Watch says that 45 of these 90 cases have been closed. The report also overestimated the role of the judge advocate general and the Supreme Court in overseeing this process. Other legal goups say the investigations the Israeli army opens usually lead to cases dragging on for years, even if the investigation is conclusive and is not likely to lead to convictions. In fact, since the beginning of the Second Intifada in 2000, only 6 percent of the military investigations Israel conducted led to indictments. Speaking of the Office of the Military Advocate, which was put in charge of investigating the Gaza attack allegations, the Israeli legal rights organization Yesh Din says that despite its establishment in October 2007, there has been no increase so far in the rate of investigation files that are ultimately translated into indictments. To date, Israeli military courts have convicted only one soldier of wartime abuses during the Gaza conflict. He was sentenced to 7-months’ imprisonment for theft of a credit card. The military also said it has disciplined four soldiers and officers for violating orders. Two are top-level officials said to be disciplined for their decision to use white phosphorus, but the army denied this was the case. Human rights groups say the problem is that the army is only doing that�investigating individual soldiers for disobeying orders. In a press release published this week, B’Tselem said the army’s investigation leads to most of the responsibility for violations being placed only on the soldiers in the field, while the senior officials and the political echelon who were responsible for giving the orders go free. In October, Hamas announced it will conduct an investigation as well, but as far as is known, it has not prosecuted anyone. The conclusion of its investigations have been submitted to the UN last week. The Gaza-based Palestinian Center for Human Rights said Hamas’s report was disappointing and that “It merely confirms that the government in Gaza has failed to establish a credible, impartial investigative committee.” At the end of January, the Fatah-led Palestinian Authority announced that it will conduct an investigation as well, and sent Nabil Shaath to Gaza. In a historic meeting with elected president Ismail Haniyeh last week, the Fatah official met with leaders of the Hamas. The Real News spoke to Sameh Habeeb, founder and editor of the Palestine Telegraph, via Skype from Gaza.
SAMEH HABEEB, EDITOR-IN-CHIEF, PALESTINIAN TELEGRAPH: Well, as you know, it’s been years since the separation between Fatah and Hamas took place, after the actions and the events that happened in the Gaza Strip and after Hamas took over power in all the territory taken in the Gaza Strip. It’s been years, and it’s the first meeting after the separation with a good, high level, such as Nabil Shaath, who’s well-recognized in Fatah, and he’s a moderate person. It was received very good in the Palestinian territories as a sign of the upcoming national reconciliation day.
TARACHANSKY: The Palestinian Center for Human Rights said that because the Fatah-led Palestinian Authority is based in the West Bank, it will be impossible for it to conduct an investigation into Hamas’s actions in Gaza. I asked Habeeb whether Fatah deciding to investigate Hamas was a political move.
HABEEB: Well, [inaudible] not about the point that Fatah investigated Hamas. The point of making the report for Goldstone from the Fatah side is that the Palestinian Authority consider itself as the only representative for the Palestinians in the meantime, so they don’t recognize Hamas. And this is part of the division.
TARACHANSKY: Considering the situation with the investigations, the UN secretary-general’s conclusions and the disinterest in the UN Security Council to implement the Goldstone Report’s recommendations, I asked Wisam Ahmad and Michael Kearney whether there are alternative means to do so.
AHMAD: Well, there are mechanisms by individual states with regard to their status as signatories to the Fourth Geneva Convention, their ability to utilize the principle of universal jurisdiction, where they can prosecute war criminals for crimes committed outside of their territory. There’s a resolution called Uniting for Peace, where if the Security Council fails to act, then the General Assembly can take action.
KEARNEY: You know, maybe in 10, 20, 30 years, if we get around to reforming the Security Council, this might have been one of those kind of watershed moments where the anti-democratic nature of the Security Council really comes to light.
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