By Jennifer Trahan
New York, N.Y.—Richard Goldstone, chairman of the Goldstone Commission that investigated crimes committed in Gaza during 2008-09 recently made a courageous and no doubt difficult decision—to recant part of the so-called Goldstone Commission report. It is important to understand the implications of this new development—which does not completely exonerate Israel forces, and does not at all exonerate crimes committed by Hamas.
Goldstone was originally offered a mandate by the U.N. Human Rights Council to only investigate Israeli crimes committed during the Gaza incursion. Goldstone, however, appropriately insisted on investigating crimes committed by both sides. This he and other members of the Commission did. Yet, Israel—not persuaded of the good faith of the Council’s inquiry (as suggested by the one-sided original mandate)—chose not to cooperate with the commission. This lead Goldstone and other team members to conduct essentially a battle-damage assessment where they examined targets struck by Israeli forces in Gaza, targeting by Hamas and interviewed persons in Gaza and elsewhere, but were unable to obtain information as to Israeli targeting decisions.
The problem with such a damage assessment is that when civilians are killed or civilian infrastructure hit, this does not necessarily mean a war crime was committed—because the war crime of intentionally targeting civilians and the war crimes of intentionally targeting civilian objects both require a finding of intent. Thus, for example, when a wedding party was hit in Afghanistan, the public did not assume that U.S. or coalition forces intended to target the wedding party. Similarly, when civilians or civilian objects were hit in Gaza, one cannot necessarily know whether the war crime of intentionally targeting civilians or civilian objects was committed, absent information about the intended target. The one instance where Israeli forces admit intentionally targeting houses for destruction provides a rare admission of such intent. But, as to other incidents, the Goldstone Commission was missing a key part of the puzzle due to Israel’s decision not to talk to the commission.
Admittedly, the Goldstone Commission’s findings that so many civilian structures were hit by Israeli forces tends to suggest that some, or even many, of the incidents could amount to war crimes. But without knowing more, one cannot really be definitive as to which ones were and which ones weren’t. For example, if Israeli forces perceived there to be a rocket launcher placed on a civilian target or mistakenly believed someone to be carrying a rocket launcher, that could warrant taking the strike (assuming proportionate use of force); if the information turns out to have been false no war crimes was committed, because intent was absent. The Commission had an extremely difficult task, and, in retrospect, should not have been as definitive as it was as to its conclusions that both war crimes and crimes against humanity were committed, given the lack of full information available to them.
What is important to remember, however, is that Goldstone has only recanted part of the report: the accusation that Israeli forces intentionally targeted civilians. There is much else in the report that covers destruction of civilian objects and questions the use of certain weapons in a densely populated environment. A report by a New York State Judge Mary McGowan Davis apparently finds that Israel has opened a number of investigations into the conduct of its forces, but as of yet only a few have been diligently concluded. There are also reports that Israel forces have re-examined their conduct and modified some of their procedures. Hamas, on the other hand, responsible for using rockets that were never directed at any particular military target (and thus an indiscriminate weapon), is not known to have conducted any comparable investigations, and continues to use such weapons. Here, actually, one can be more definitive that this constitutes a war crime, because it is impermissible to use a weapon indiscriminately.
We do not know exactly what information Richard Goldstone received that caused him to recant his position, but no doubt it was not a decision taken lightly. It is puzzling that he has received no support from his co-commissioners. What is needed now is to ensure that the remainder of the accusations made in the report and the demand for diligent follow-up investigations and prosecutions are seen to fruition—on both sides.
Jennifer Trahan is the Assistant Clinical Professor of Global Affairs, N.Y.U. Professor Trahan is also the author of two books entitled “Genocide, War Crimes and Crimes Against Humanity” about the case law of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia (Human Rights Watch 2006.
