Where now for the Goldstone report?

In short, there are no new facts that could possibly have led Richard Goldstone to change his mind a

In an op-ed in the Washington Post, Richard Goldstone, the former South African constitutional court judge and prosecutor of the International Criminal Tribunal for the Former Yugoslavia, expresses misgivings about the central finding of the UN Human Rights Council fact-finding mission report on the Gaza conflict of 2008-2009 (named, after its chairman, "the Goldstone report") that Israel's indiscriminate attacks on civilians in Gaza were intentional.

The op-ed makes strange reading.

It states that the Goldstone report would have been a different document "had I known then what I know now", but fails to disclose any information that seriously challenges the findings of the Goldstone Report.

It claims that investigations published by the Israeli military and recognised by a follow-up UN committee report chaired by Judge Mary McGowan Davis, which appeared in March, "indicate that civilians were not intentionally targeted as a matter of policy". But the McGowan Davis report contains absolutely no such "indication" and instead seriously questions Israel's investigations, finding them to be lacking in impartiality, promptness and transparency.

Goldstone expresses "confidence" that the officer responsible for perhaps the gravest atrocity of Operation Cast Lead (Israel's code name for its assault on Gaza) – the killing of 29 members of the al-Samouni family – will be punished properly by Israel, even though the McGowan Davis report provides a critical assessment of Israel's handling of the investigation into this killing.

Finally he claims that the McGowan Davis report finds that Israel has carried out investigations "to a significant degree", but in fact this report paints a very different picture of Israel's investigations of 400 incidents, which have resulted in two convictions, one for theft of a credit card, resulting in a sentence of seven months' imprisonment, and another for using a Palestinian child as a human shield, which resulted in a suspended sentence of three months.

Cold, calculated and deliberate

In short, there are no new facts that exonerate Israel and that could possibly have led Goldstone to change his mind. What made him change his mind therefore remains a closely guarded secret.

The Goldstone report was not the only fact-finding report on Operation Cast Lead. Amnesty International, Human Rights Watch and the League of Arab States (whose mission I chaired) all produced thorough reports on the conflict.

In all the reports, including the Goldstone report, there were accounts of the killings of civilians by Israel Defence Forces (IDF) in a cold, calculated and deliberate manner. But the principal accusation levelled at Israel was that during its assault on Gaza, it used force indiscriminately in densely populated areas and was reckless about the foreseeable consequences of its actions, which resulted in at least 900 civilian deaths and 5,000 wounded.

In terms of the Rome Statute of the International Criminal Court, it is a war crime to direct attack so intentionally against a civilian population (Article 8(2)(b)(i)). Such an intention need not be premeditated: it suffices if the person engaging in such action meant to cause the consequence of his action, or "is aware that it will occur in the ordinary course of events" (Article 30).

Goldstone's op-ed may be interpreted to mean that he is now satisfied (though there is no evidence to support this) that Israel did not as a matter of policy deliberately and in a premeditated manner target civilians, and that where the calculated killing of civilians occurred this was without the blessing of the Israeli military and political leadership.

But he could not possibly have meant that Israel did not "intentionally target civilians as a matter of policy" in the legal sense of intention. That Israel's assault was conducted in an indiscriminate manner with full knowledge that its consequences would be the killing and wounding of civilians is a matter of public record fully substantiated by the Goldstone report and other, equally credible findings.

In his op-ed, Goldstone declares that Hamas's indiscriminate firing of rockets into Israel, which resulted in the killing of four civilians, was an "intentional" targeting of civilians and consequently a war crime. But it is a mystery how he can suggest that the indiscriminate bombing and shooting of Palestinians in Gaza by the IDF, which resulted in nearly a thousand civilian deaths, was not "intentional".

Goldstone does not, like his critics, describe his op-ed piece as a retraction of the Goldstone report. This is not surprising. Richard Goldstone is a former judge and he knows full well that a fact-finding report by four persons, of whom he was only one, like the judgment of a court of law, cannot be changed by the subsequent reflections of a single member of the committee.

This can be done only by the full committee itself with the approval of the body that established the fact-finding mission – the UN Human Rights Council. And this is highly unlikely, in view of the fact that the three other members of the committee – Professor Christine Chinkin of the London School of Economics, Ms Hina Jilani, an advocate of the Supreme Court of Pakistan, and Colonel Desmond Travers, formerly an officer in the Irish Defence Forces – have indicated that they do not share Goldstone's misgivings about the report.

Fight for accountability . . . from Israel and Hamas

Last month the Goldstone report was referred to the General Assembly of the United Nations by the Human Rights Council with the request that it be referred by the Assembly to the Security Council, and that the Security Council submit the matter to the prosecutor of the International Criminal Court, as it has done in the cases of Darfur and Libya.

Doubtless the General Assembly will refer the report to the Security Council, despite Goldstone's op-ed, but it will end there as the customary United States veto will ensure that Israel remains unaccountable.

The Goldstone report is a historical milestone. It is a credible, reasoned, comprehensive and thoroughly researched account of atrocities – war crimes and crimes against humanity – committed by Israel in the course of Operation Cast Lead, and of war crimes committed by Hamas in the indiscriminate firing of rockets into Israel. It is a serious attempt to secure the accountability of a state that has for too long been allowed by the west to behave in a lawless manner.

That the credibility of the Goldstone report has been undermined by Goldstone's strange op-ed in the Washington Post cannot be denied.

Although the report was authored by four experts with the backing of a team from the office of the High Commissioner for Human Rights, it has undoubtedly come to be associated with the name of Richard Goldstone. Inevitably the misgivings he has expressed about his own role in the report will weaken its impact as an historical record of Operation Cast Lead.

Already, the Israeli government has expressed delight at what it construes to be a retraction of the report, and demanded both a contrite apology from Goldstone and a refutation of the report by the United Nations. Predictably the US department of state has welcomed Goldstone`s op-ed, and one fears that European governments will find in it an excuse to justify their continued support for Israel.

Richard Goldstone has devoted much of his life to the cause of accountability for international crimes. It is sad that this champion of accountability and international criminal justice should abandon the cause in such an ill-considered but nevertheless extremely harmful op-ed.

John Dugard is professor of law at the University of Pretoria, emeritus professor of the University of Leiden and former UN special rapporteur on human rights in the occupied Palestinian territory.

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It's time the SNP's terrible record in government was exposed

Do not expect the SNP to apologise for these failings anytime soon. They do not really need to, so successful have they have been in creating a new paradigm in Scottish politics.

The only suspense in Scotland’s elections lies in who comes second. So complete is the Scottish National Party’s dominance that the Scottish Conservatives’ manifesto is called ‘A Programme for Opposition’, summing up a campaign in which the Tories and Labour scrap for second while the SNP waltz to victory.

Nicola Sturgeon says it is a matter of when, not if, there is another referendum on Scottish independence; should the UK vote to leave the EU in June, the SNP is likely to push for another independence vote. But all the debates over constitutional questions miss a bigger point: Scotland already has one of the most powerful devolved administrations in the entire world. The SNP has ruled in Holyrood for nine years, and had a majority for the last five. Yet the SNP’s record, particularly for the most disadvantaged in society whom it claims to speak for, is dire.

Let’s begin with higher education. This, after all, is the area in which the SNP are proudest. Five years ago, Alex Salmond declared: “The rocks will melt with the sun before I allow tuition fees to be imposed on Scotland’s students.” He was so enamoured with the SNP’s policy of maintaining free tuition north of the River Tweed that he unveiled them on a commemorative stone at Heriot-Watt University on his last day as First Minister in 2014.

Scotland is by far the worst country in the UK to be a disadvantaged student. The richest Scottish students are 3.53 times more likely to enter university at age 18 via UCAS than the poorest ones, compared with 2.58 in Northern Ireland, 2.56 in Wales and 2.52 in England. Fewer than one in ten young people from the most disadvantaged areas begin to study towards a degree by the age of 20. And the problems are actually getting worse: just 8.4 per cent of entrants to Scotland’s elite universities came from the poorest communities in 2014/15, down from 8.8 per cent the previous year.

Rather than being beneficiaries of free university tuition, poor Scots have actually been victims of it. Protecting Scottish students from university tuition fees has resulted in a £20 million transfer from disadvantaged students to middle-class ones, according to the policy analyst Lucy Hunter Blackburn. Free tuition has been funded by cutting student grants. And, for all Sturgeon’s disingenuous rhetoric that she would not have been able to afford university with the tuition fees south of the border, protecting Scottish students from tuition fees has been funded by loading debts onto the poorest Scottish students. There is an iron law in Scottish universities: poorest kids graduate with the most debt. Students from households earning less than £34,000 typically graduate with between £4,000 to £5,000 more debt than those from families earning more.

The situation in primary and secondary schools is little better. The Scottish Survey of Literacy and Numeracy shows standards of reading, writing and numeracy for 13-14-year-olds all declining since 2011. As if that wasn’t bad enough, the biggest decrease in both writing and numeracy attainment aged 13-14 has been among disadvantaged students.

Educational inequality cripples Scotland from an early age. At the age of five, the vocabulary of the poorest quintile of students is 13 months behind the richest quintile in Scotland. Poor children aged five perform worse than those in England; the gap in cognitive development between children from less well-off backgrounds and others is also bigger in Scotland. Disadvantaged children are the real victims of the SNP’s failure to make good on its pledge, in 2007, to reduce average class sizes in primary schools to 18; they are now 23.3. And this, in turn, can be traced back to the political choice to prioritise spending on free tuition fees over other areas that would help disadvantaged children far more. Between 2010 and 2013, school spending in Scotland fell by five per cent in real terms from 2010 to 2013 while, in England, it rose by three per cent in real terms between 2010 and 2015. Perhaps that explains why, after Easter, 17 schools in Edinburgh  remained closed because of safety concerns, leaving pupils to be taught in other schools and temporary classrooms instead.

The SNP is not only failing Scots in schools and universities. The number of working age adults living in absolute poverty (after housing costs) rose by 80,000 between 2010/11 and 2013/14; the number of children living in absolute poverty also rose by 30,000, and the number of pensioners by 20,000. Pockets of crippling intergenerational deprivation remain too frequent in Scotland: life expectancy in Glasgow is a year lower than in any other part of the UK. Indeed, life expectancy across Scotland is almost two years younger than the rest of the UK, even though Scotland has the highest health expenditure per head of any UK country.

It is a microcosm of wider problems with NHS Scotland. The SNP’s targets for waiting times for hospital admission have been repeatedly missed, including its “guarantee” of a 12-week maximum wait for planned treatment for inpatients. Patients are more likely to have to wait over 31 days for cancer treatment in Scotland than England, and the percentage waiting so long in Scotland has been rising since 2014. There are also grave health inequalities: those in most deprived areas are 2.4 times more likely to have a heart attack than those in the most affluent areas.

Yet perhaps the most shameful part of Scotland’s health record lies in mental health. Patients are 8 per cent more likely to have to wait over 18 weeks for psychological therapy based treatment than in England. Since July 2014, NHS Scotland has also repeatedly missed its targets on children’s mental health.

Do not expect the SNP to apologise for these failings anytime soon. And they do not really need to, so successful have they have been in creating a new paradigm in Scottish politics, in which the independence debate is the only game in town. But none of this should obscure the truth that the SNP have been in government, and with huge power, for nine years. They have floundered - and underprivileged Scots have been the biggest victims of all.

Tim Wigmore is a contributing writer to the New Statesman and the author of Second XI: Cricket In Its Outposts.