By Jared Malsin
GAZA–Israeli soldiers shot a mentally ill Palestinian man in the leg when he ventured near the Erez crossing, in the northern Gaza Strip on Tuesday. Last Wednesday, a 65-year-old man was shot in the neck in the same area. A week earlier the soldiers shot a 17-year-old, who entered the 300 to 500 meter "buffer zone" in northern Gaza to collect construction scrap which he hoped to sell for a few dollars. Human rights groups say there is a direct link between these daily shootings and the international community's failure to hold Israel accountable for past violations, especially during its 2008-2009 offensive on Gaza, which left more than 1,300 Palestinians dead, most of them noncombatants. 13 Israelis also died. "The attacks [are] still going on, and the Israelis are taking the same stance as during Cast Lead. They're failing to distinguish between civilian and military targets," said Mahmoud Abu Rahma, of the Al-Mezan Center for Human Rights in Gaza.
Last month, under US and Israeli pressure, the Palestinian Authority (PA), once again delayed the process of accountability. This came at a September 29 vote at the UN Human Rights Council in Geneva, in which the PA backed a resolution to give Israel and Hamas officials in Gaza six more months to investigate crimes documented in Richard Goldstone's UN Fact Finding Mission report. According to Palestinian and international human rights groups, the Palestinian Authority has decided that the Goldstone report must remain in Geneva, away from the relatively more powerful UN bodies in New York. This is a position identical to that of the US State Department, which wants to keep pressure off Israel during the newly re-launched political negotiations.
By adopting this position, rights groups say, the PA is placing itself in open conflict with the interests of its own people. "What's very clear now is that the PA wants the report to stay in Geneva," said Fred Abahams of Human Rights Watch. "We thought there was a lot of progress made in New York and this was a step backwards…with peace talks going, they don't want Goldstone anywhere near the agenda," Abrahams said on the phone from New York.
Palestinian rights groups slammed the PA the day of the vote, saying in a joint press statement, "by holding justice hostage to politics, the PA is extending impunity to Israeli military and political leaders." In negotiations before the September 29 vote, human rights groups directly confronted the PA, urging them to back a robust resolution that would ensure justice for the victims by referring the matter back to the UN bodies in New York. This vote, moreover, came at the precise moment when the US-led negotiations process reached yet another seemingly insurmountable impasse, with Israel refusing to continue even minor limitations on settlement expansion in the occupied West Bank. The settlements themselves, rights groups will point out, are another violation of international law.
'Betrayal' in Geneva
"Actually it was catastrophic, what they did. They [the PA] took another direction that had nothing to do with law. It was a political direction," said Rania Madi, the Geneva representative of Bethlehem-based Palestinian refugee rights group Badil, in a phone interview regarding the Human Rights Council vote. According to several sources familiar with the negotiations in the lead-up to the September 29 vote, rights groups approached the PLO mission in Geneva asking for a resolution that would acknowledge and condemn the Israeli and Palestinian authorities for failing to carry out domestic investigations, and call for the issue to be referred to New York and then on to the International Criminal Court (ICC).
In one meeting, the day before the vote on the resolution, one rights group representative told the PLO delegate, "The PA sends a very dangerous message, by proposing a resolution that gives the impression that Israel is able and willing to conduct investigations that are in accordance with international standards, when Israel has made it very clear that they are unwilling to do so." "This resolution doesn't represent the will of the Palestinian people and, as our government, it would be important to take that into consideration," the representative said, according to a record of the talks obtained by this reporter. Faced with repeated appeals of this sort, a PLO official in the meeting would not speak to the specifics of the matter, responding in generalities like, "I appreciate your very valuable input. We will continue talking to you to see how we can proceed on this."
Rania Madi said that when she raised the same issues in separate contacts with PLO officials, they responded that they did not want to endorse a strong resolution because it would jeopardize the reconciliation talks between Fatah and Hamas. Representatives of other rights groups confirmed that they were given the same explanation by the PLO. Strangely, the PLO's stated argument was not that furthering the Goldstone report would harm the talks with Israel, but rather that would impede the torturously slow and fruitless negotiations with Hamas.
This explanation has to do with the double-edged nature of the Goldstone report, which devotes long sections to the failure of the Hamas government to prevent rockets fired from Gaza from targeting civilian communities in Israel. However crude and ineffectual these homemade projectiles may be, the argument goes, the Palestinian militias are also obligated to avoid civilian casualties. "We follow the recommendations of the Goldstone report," Madi said, "We work legally, the PA works politically. They don't want to mention the other government in Gaza."
Asked about this, the PLO's envoy to the UN in Geneva, Ibrahim Khreisheh, said that the concern was not with the reconciliation talks, but with the inadequacy of a report filed to the UN by the Hamas government in Gaza regarding efforts to investigate war crimes. Hamas' report, he said on the phone from Geneva, was "not a serious one, not up to international standards. The Israeli one was also not applicable to international standards." He added: "so we had discussions with all the parties and decided to give them more time…In March we will receive the final reports." Khreisheh also accused human rights groups of trying to discredit the Ramallah government for political reasons, saying, "This is related to the political conflict in Palestine–they use this issue for convincing their supporters." Asked if he had received instructions from the US or Israel about the resolution Khreisheh became defensive. "We have contacts with everyone, with the Islamic group, the Arab group, the Africans, the Europeans, and yes…I am not afraid to say that I met with the Israeli representative."
Hamas officials in Gaza, meanwhile, emphatically deny that they demanded any delay in the Goldstone follow-up process. "It is unjustifiable, what Ibrahim [Khreisheh] said. I don't buy this nonsense," said Ahmed Yousef, an official in the Gaza-based government's Ministry of Foreign Affairs. He added in an interview in his Gaza office: "We fully cooperated with them [the Goldstone team] and we do believe that we have nothing to hide. We were defending ourselves against aggression, a war waged against us, and if anything went wrong, as Palestinians who are suffering from occupation, we have all the legitimate right to defend ourselves."
Analysts and rights advocates are also skeptical about Khreisheh's claim that the PA was trying to avoid an affront to Hamas. When asked to assess Hamas' position on the Goldstone report, Mahmoud Abu Rahma, of the Al-Mezan Center for Human Rights in Gaza, said, "Hamas has decided to swallow a razor." "They want to see the report implemented," he said, even though it also implicates the Gaza authorities in war crimes.
Indeed, Hamas did allow Goldstone's team to visit Gaza and operate freely, while Israel spurned the Fact Finding Mission. Hamas authorities did the same when a UN-mandated Committee of Experts visited Gaza to assess the progress of domestic investigations. Sarah Leah Whitson, the Middle East and North Africa director for Human Rights Watch said, "Hamas has not taken a position that opposed the Goldstone report." However she stressed, in a phone interview, that Hamas "pretends that they're investigating" allegations of war crimes, "but really they'd like to brush their own under the carpet."
'Not once in the history of the occupation'
The diplomatic wrangling that has taken place in the UN since the Goldstone report's release centers on the question of whether Israel and the Palestinian authorities complied with Goldstone's call to conduct "appropriate investigations that are independent and in conformity with international standards," into the war crimes charges. If the parties fail to take strides to hold their own gunmen and officials accountable within three months, the report urges international bodies, in particular the International Criminal Court in The Hague, to take up the matter. In October 2009, under US pressure, the PA moved to delay an initial vote on the report in the Human Rights Council. When news of this move became public, the PA faced a full-scale political crisis, with calls for Abbas' resignation, or even to dismantle the PA entirely. Embarrassed, the PA immediately reversed its position, calling a vote in the Human Rights Council that referred the Goldstone report to the General Assembly in New York. Then, although Goldstone's document had made it out of Geneva and reached the UN bodies in New York, experts expressed concern that the UN, with the acquiescence of the Palestinian Authority, would merely go through the motions in addressing Goldstone's findings.
By leaving Geneva and arriving in New York, the report had made strides toward its implementation. After two inconclusive General Assembly resolutions, the PA took the report back to Geneva, confusing states sympathetic to the aim of following up on the report. In Geneva, the Human Rights Council created a Committee of Experts to evaluate Israeli and Palestinian war crimes investigations. "Creating the Committee of Experts was a confusing and dubious step because it turned attention away from the momentum in New York," said Human Rights Watch's Abrahams. States that were supportive of pursuing the report in New York, like Norway, did not support the creation of the Committee of Experts, because of this confusion. "What we were expecting or hoping to see was that the report would be referred back to New York so the momentum would continue in New York," Abrahams said. "The political base is in New York, it has more significance, more weight in New York."
In spite of these confusing origins, the Committee of Experts' report offered a chance to lay to rest the question of whether Israel and Hamas were capable of holding war criminals accountable. The Committee of Experts' answer to this question was a resounding "no." The Goldstone report documents 36 separate cases where Israel violated international law during the Gaza attack. The Committee of Experts noted that regarding these incidents, Israeli investigations yielded the following scorecard: "no violation or discontinuation of proceedings for various reasons (20); unclear results (7); disciplinary action taken (3); indictments (1); ongoing criminal investigations (5)." Of the two convictions in Israeli courts related to Operation Cast Lead, one was for credit card fraud. The other conviction, which was handed down after the Committee of Experts report was released, was for two soldiers' use of a Palestinian boy as a human shield.
In coming to the conclusion that Israel is either incapable or unwilling to investigate the claims in the Goldstone report, the Committee of Experts was endorsing a view long held by Israeli and Palestinian human rights groups. The Gaza-based Palestinian Center for Human Rights (PCHR) issued a 76-page report in August on Israel's reticence to investigate, titled "Genuinely Unwilling: An Update." "Not only is Israel unwilling, Israel's judicial system is also unable to investigate senior government and military officials, and assessing criminal responsibility for violations such as those outlined, inter alia, in the Goldstone Report," PCHR said in its report. Notably, the Committee of Experts also criticized the Hamas government for submitting a report that they said was sloppy and not in keeping with international standards.
Death of the Goldstone report?
Despite overwhelming evidence of the inadequacy of Israeli and Hamas investigations, the PA remains committed to the position that these domestic probes should be given more time. According to Abrahams, in terms of trying to move the report through the UN, "The bottom line is, they're [the PA] not going to push Goldstone right now."
One glimmer of hope is that the PA did approach ICC prosecutor Luis Moreno-Ocampo in 2009, asking him to rule whether the Gaza war falls under ICC jurisdiction. However, under the Rome Statute that created the ICC, Ocampo would have to decide whether Palestine is a state, a designation which, in the words of Fred Abrahams of Human Rights watch, is "complex legally and loaded politically." While Ocampo and officials at the ICC go about making that decision, rights advocates are beginning to speak of "the end of the Goldstone process."
Fred Abrahams said follow-up on the report is not completely dead, but is close to it: "The process is not dead because the Committee of Experts is still going, but I do fear that it's pushed further into the back row, and the air around this process is a little thinner, and the risk is that this is the start of a slow death." "Justice has to move forward on its own, on behalf of the victims," Abrahams said, "and there will not be a sustainable peace until these issues of accountability are addressed. And in this case it's quite clear that justice has taken a back track to the political process."
Jared Malsin is the former chief English editor of the Palestinian Ma'an News Agency and is currently based in Gaza. His website is jaredmalsin.wordpress.com
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.