The report by Justice Richard Goldstone on the Fact Finding Mission on the Gaza Conflict, released yesterday, is raising some interesting legal questions.
The report concluded that both Israel and the Palestinians had committed war crimes, and possibly crimes against humanity. The most obvious question people are asking is the effect of this report on the International Criminal Court (ICC).
The Israeli media has stated that the ICC has no jurisdiction over Israel, as a non-signatory to the Rome Statute. Israeli legal scholars have generally taken a similar position, but this appears to be flawed.
But a case can also be independently investigated by the Prosecutor when using their proprio motu powers under Article 15. The Goldstone report would likely be used as supporting material as part of any investigation initiated under this section,
2. The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.
Irrespective of either of these routes, Prosecutor Luis Moreno-Ocampo indicated in an interview last week with an Arabic paper that one of the Israeli legal advisers involved was South African, and the ICC could gain jurisdiction through that route as well. South Africa ratified the Rome Statute on Nov. 27, 2000.
The evidence used in the report is also being questioned as primarily from politicized NGOs with vested interests in the conflict. Sudan made the same argument last week by Sudan for its case before the ICC, stating that most of the figures and evidence were by affiliates of rebel groups in Darfur.
But unlike Sudan, Israel refused to participate with the investigation, or provide countering information for the report. Justice Goldstone rejects the impartiality charges, claiming most critics have not read the 575 page report (Disclosure: I haven’t either).
Worst of all, charges of anti-Semitism have been leveled against Justice Goldstone. He identifies himself as Jewish, and has worked with organizations within Israel in the past, including a position as trustee of Hebrew University.
Rahm Emanuel has also received similar charges for his role in the Obama administration, arguably the first American Presidency of the 21st c. to actually attempt engagement with parties in the region to work towards peace.
Closer to home, Jonathan Kay and Hillel Neuer level some quite direct vitriol towards Naomi Klein yesterday. But Klein has not, to date, claimed that Kay or Neuer are “anti-Semitic” or “self-hating Jews.”
Yes, the conflict in Israel is incredibly complex. And there may or not be problems with the methodology of the Goldstone report.
Labeling motivation as driven by hatred though should be reserved for the worst and clearest cases of animosity, or it stonewalls genuine attempts to achieve peaceful resolution of the conflict. Even worse, the terminology will lose its impact, and sympathy for combating racism will be eroded.
Level heads will be needed to address the outcomes of the report, to contemplate perhaps if it does have some merit, and to acknowledge its flaws. The true test will come if the case does go to the ICC.
Justice Goldstone’s daughter, Nicole, lives in Canada and says that his involvement actually moderated the tone of the report,
My father took on this job because he thought he is doing the best thing for peace, for everyone, and also for Israel..
It wasn’t easy [for him]. My father did not expect to see and hear what he saw and heard.
He is currently in Canada, visiting his family for the upcoming Jewish holiday of Rosh Hashana. He will be speaking at the University of Western Ontario tomorrow on the subject of war crimes, and the discussion is guaranteed to prove interesting.
A video of the speech will be uploaded on YouTube shortly.