The Goldstone Mission - Tainted to the core (part I)

Consistently applying discriminatory standards demonizes Israel, but also undermines the integrity of the UN and the edifice of international law.

By IRWIN COTLER
Goldstone in Gaza 248.88 (photo credit: AP [file])
Goldstone in Gaza 248.88
(photo credit: AP [file])
After nearly a decade of rocket-fire from Gaza targeting Israeli civilians - including armed attacks that continued and escalated for the three years after Israel withdrew from Gaza in 2005 - this year's conflict in Gaza was nothing if not preventable and predictable. From the moment Hamas officially announced that it would not extend its truce with Israel in December 2008, military confrontation appeared unavoidable. In the conflict that ensued, Israel - even if acting in self-defence - was bound to the rules of war like any other combatant. Yet despite the fog of war immediately covering the on-going hostilities, the international community was rife with "experts" who were ready to convict Israel of war crimes. Among those supposed experts was Christine Chinkin, a law professor in England. As events would turn out, Chinkin would become both a member of, and an apt metaphor for, the seriously-flawed Goldstone Commission that would be called upon by the United Nations Human Rights Council (UNHRC) to investigate the conflict. IF ONE wanted to have a distinguished person to head up an inquiry into the events of the Gaza War, Richard Goldstone would be a natural candidate. He was the chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda. He headed the South African commission on violence and intimidation. And he was a distinguished member of the Constitutional Court of South Africa. He brings to the table a special expertise and experience in matters of the intersection between international human rights law and humanitarian law. Goldstone, it would seem - and his record would indicate - is also a man preoccupied with fairness. As he himself declared: "I'm just not prepared to be involved in any inquiry, in any mission, in any report that has any unprofessional or inappropriate political agenda. I can give you that absolute assurance." It is somewhat surprising then that he now heads yet another infamous United Nations mission to investigate Israel. That Goldstone is heading an inherently tainted inquiry whose formal mandate is to investigate Israel and not Hamas is as disturbing as it is evident. Indeed, the mandate that was handed over to Goldstone was deeply one-sided and flawed, by his own admission. For the resolution of the UNHRC creating the mandate already served as a direct indictment of Israel - it began by "strongly condemn[ing] the ongoing Israeli military operation… which has resulted in massive violations of the human rights of the Palestinian people and systematic destruction of Palestinian infrastructure." Canada, Japan, France, Germany, Italy, Switzerland and the United Kingdom - among others - accordingly refused to support it. Former UN High Commissioner for Human Rights Mary Robinson stated that "the resolution is not balanced because it focuses on what Israel did, without calling for an investigation on the launch of the rockets by Hamas. This is unfortunately a practice by the Council: adopting resolutions guided not by human rights but by politics. This is very regrettable." Asked to head up the mission before Goldstone, Robinson refused. Goldstone admits that he also refused the appointment - at least initially. "More than hesitate, I initially refused to become involved in any way [with the inquiry], on the basis of what seemed to me to be a biased, uneven-handed resolution of the UN Human Rights Council," he explained. But he felt comfortable enough to proceed when the then-president of the Council, Martin Ihoeghian Uhomoibhi, purportedly expanded the mission's mandate for him, even though the enabling resolution behind the inquiry would remain unchanged, and though he would still be accountable to the Council that passed this resolution. HOW GOLDSTONE could have considered his personal conversation with Uhomoibhi sufficient to quell his fears is surprising to say the least. One-sided or not, the mandate in the enabling Human Rights Council resolution is the one that determined the scope and tenor of the "fact-finding" mission. Uhomoibhi could no more have altered that mandate unilaterally than Goldstone could have himself, in defiance of the Council. Indeed, any faith Goldstone possessed in the re-definition of his mandate should have dissipated when Uhomoibhi publicly stated on the day the inquiry was announced: "I am confident that the mission will be in a position to assess in an independent and impartial manner all human rights and humanitarian law violations committed in the context of the conflict which took place between 27 December 2008 and 18 January 2009." The alleged expansion of the mandate's timeframe that Goldstone apparently fought for, to include reference to Hamas's provocation (apparently from June 2008), was nowhere to be found in the description of his mandate. I know from first-hand experience the baggage that comes with participating in a mission created by the UN Human Rights Council - a UN body systematically and systemically biased against Israel. For this is a Council that has a special and permanent agenda item targeting Israeli violations of human rights, and another agenda item for the rest of the world - thereby singling out Israel for differential and discriminatory treatment. This is a Council that targets some 80% of its resolutions at one member state, Israel, while the major human rights violators enjoy exculpatory immunity. This is a Council that has had more emergency "Special Sessions" directed against Israel than against all the other countries of the world combined. This is a Council that excludes only one country - Israel - from membership in any regional grouping, thereby denying it international due process. As it happens, I was invited to participate in one of the UN Council's exercises in Alice in Wonderland justice - where the conviction is secured even before the hearing begins - in 2006. The context was a fact-finding mission to investigate the Israeli "wilful killing of Palestinian civilians" in Beit Hanoun, Gaza, without reference to the targeting of Israeli civilians in Sderot, Israel. Then, as now, the mandate was one-sided from the start. Then, as now, the conviction preceded the investigation. Then, as now, the mission was designed less as a true independent inquiry than as an imprimatur of legitimacy on the Council's own, biased declarations. I felt obliged to decline. I was told that at least I could play a part in the inquiry and, if I disagreed with its conclusions, write a dissenting opinion. But I realized that I could not validate this mission in any way, including through my mere presence, for the integrity of United Nations mandates was at stake. Notably, one Professor Christine Chinkin accepted the appointment. Now Chinkin joins Goldstone in an inquiry that bears the hallmarks of bias and politicization that he supposedly shunned. Indeed, before the mission began - as if to add insult to injury - Chinkin notoriously signed her name to a public letter that was titled "Israel's bombardment of Gaza is not self-defence - it's a war crime." Why she feels qualified at this point to hear witness evidence along with the rest of the commission - without triggering a reasonable apprehension of bias - is not entirely clear. Rather than bestow legitimacy upon the Council's mandate, Goldstone's role should have been to act as a corrective. Now occupying the same Jewish figurehead role that I would have in 2006, he does not appear to have realized this fact. Or, perhaps, he did. Though it was somewhat softer than Chinkin's, Goldstone did also sign his name to a public letter on the Gaza conflict, stating that the events "shocked [him] to the core." Yet he signed no such letter about Hamas's terrorist crimes in the years that preceded the war. In an interview earlier this month, he had the temerity to excuse away the UN's inaction vis-à-vis Hamas based on the fact that Israel never brought the matter to the Security Council's attention. The only problem, of course, is that Israel repeatedly did. Part II of this critique will appear on Wednesday. The writer is the former minister of justice and attorney general of Canada. He is a member of Canadian Parliament, special counsel on human rights and international justice to the Liberal Party, and a law professor (on leave) at McGill University.