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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Why we can't let Liam Fox negotiate post-Brexit trade deals behind closed doors

MPs have little control over agreements struck with the US and others. 

Today Liam Fox will start discussing a trade deal with the United States. We don’t know who will attend or what’s on the agenda, and neither do our elected representatives in parliament. Nor do MPs have the power to guide the talks, to set red lines, to amend or to stop an eventual deal.

International Trade Secretary Fox is acting with regal powers. And that should scare us all. 

What we do know is that this deal, if completed, will affect pretty much everyone in the country. Like most modern trade deals it won’t be primarily about tariffs. Far from it, it will be about our environmental and consumer protections, about how we’re allowed to spend taxpayers' money, about how we run our public services and the power we give to big business. 

We also know that those feeding into these negotiations are overwhelmingly big businesses.  

New analysis of ministerial meetings published today by the Corporate Europe Observatory and Global Justice Now, shows that 90 per cent of meetings held by trade ministers in the last six months are with businesses. Most of these are massive companies including Starbucks, Walmart, Amazon, BP and HSBC.

So businesses have nine times the access of everyone else. In fact, it’s worse than it appears, because “everyone else” includes pro-big business consultants from the Legatum Institute and the Adam Smith Institute, together with a handful of campaign groups, trade unions and public institutions.

We can guess from Donald Trump’s approach to the North American Free Trade Agreement (NAFTA) renegotiations, which start in a couple of weeks, what the US agenda will look like. Corporate courts – which give big businesses power to sue states for decisions they don’t like – are fine, but state-to-state resolution isn’t. That’s because the US sometimes loses in the latter, but not in the former. 

Trump is also pushing Canada and Mexico for one-sided access for US companies to bid for government spending contracts (Buy America is allowed, but not Buy Canada or Buy Mexico it seems). He also wants better access for US financial corporations and further liberalisation of energy markets.

This is “America First” in practice. With Britain, it’s highly likely that access to the NHS and the UK’s higher food standards will be on the agenda. After all, Fox is likely to agree with Trump on those issues.  

Indeed, this is big politics for Fox. He knows that outside the EU, Britain must choose whom to align itself with – the US or Europe. Fox’s preference is clearly the former, because that would push us down the path of lighter regulation, lower standards, and “the market knows best”. That’s why failure to secure an EU trade deal while agreeing a US deal has enormous implications for our society.  

Finally, we know that this is only the first of ten trade working groups with 15 countries which will meet in coming weeks and months. Others involve Saudi Arabia and Turkey, hardly human rights bastions, where we have a big arms market. It also includes countries such as India, where Britain is desperate to increase intellectual property rules to help big pharmaceutical corporations clamp down on generic medicine provision. 

The long and the short of it is that none of this should be discussed behind closed doors. This is not a game of poker involving tariff levels. Huge issues of public policy are at stake. Yet even the most basic information about these meetings is apparently so sensitive that it is exempt from Freedom of Information laws. And don’t accept the assurance of Fox, who has form in this area. He promised a parliamentary debate on the Canada-EU trade deal last year. The debate never came. Fox simply signed the deal off on behalf of this country with no scrutiny or discussion. MPs should refuse to accept his assurances a second time. 

Anyone who suspects this is a Remoaner making up scare stories about Brexit should remember the process is the exact same one that will be used to agree our trade deal with the EU when we leave. That means our MEPs will have more power over that deal than our MPs. As will the MEPs of all other EU member states, and their national parliamentarians. In fact, the parliamentarians of the Belgian region of Wallonia will have more power than British MPs. Taking back control it ain’t.

But don’t despair. We have 18 months in which the government is not allowed to sign off any trade deals. We have a Trade Bill which will be introduced to parliament in the autumn. And we have a hung parliament. And a cross-party motion has already been tabled calling for scrutiny of trade deals like this. There is every chance we can overturn this archaic method of negotiating trade deals. But the clock is ticking. 

Nick Dearden is director of Global Justice Now