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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The government's air quality plan at a glance

This plan is largely a plan to make more plans.

Do you plan on living in a small, rural hamlet for the next 23 years? Or postponing having children till 2040? For this is when the government intends to ban all new petrol and diesel cars (and vans) - the headline measure in its latest plan to tackle the UK's air pollution crisis.

If the above lifestyle does not appeal, then you had better hope that your local authority is serious about addressing air quality in your area, because central government will not be taking responsibility for other restrictions on vehicle use before this date. Former Labour leader Ed Miliband has tweeted that he fears the ban is a “smokescreen” for the weakness of the wider measures. 

Here’s an overview of what the new Air Quality plan means for you (Health Warning: not much yet).

Will the 2040 ban end cars?

No. Headlines announcing the “end of the diesel and petrol car” can sound a pretty terminal state of affairs. But this is only a deadline for the end of producing “new” fossil-fuel burning vehicles. There is no requirement to take older gas-guzzlers (or their petrol-head drivers) off the road. Plus, with car companies like Volvo promising to go fully electric or hybrid by 2019, the ban is far from motoring’s end of the road.

So what does the new plan entail?

This plan is largely a plan to make more plans. It requires local authorities to submit their own initial schemes for tackling the issue by the end of March 2018 and will provide a £255 million Implementation Fund to support this process. Interventions could include retrofitting bus fleets, improving concessionary travel, supporting cyclists, and re-thinking road infrastructure.  Authorities can then bid for further money from a competitive Clean Air Fund.

What more could be done to make things better, faster?

According to the government’s own evidence, charges for vehicles entering clean air zones are the most effective way of reducing air pollution in urban areas. Yet speaking on the BBC’s Today programme, Michael Gove described the idea as a “blunt instrument” that will not be mandatory.

So it will be down to local authorities to decide how firm they wish to be. London, for instance, will be introducing a daily £10 “T-charge” on up to 10,000 of the most polluting vehicles.

Does the 2040 deadline make the UK a world leader?

In the government’s dreams. And dreamy is what Gove must have been on his Radio 4 appearance this morning. The minister claimed that was in Britain a “position of global leadership” in technology reform. Perhaps he was discounting the fact that French President Emmanuel Macron also got there first? Or that India, Norway and the Netherlands have set even earlier dates. As WWF said in a press statement this morning: “Whilst we welcome progress in linking the twin threats of climate change and air pollution, this plan doesn’t look to be going fast or far enough to tackle them.”

Will the ban help tackle climate change?

Possibly. Banning petrol and diesel cars will stop their fumes from being released in highly populated city centres. But unless the new electric vehicles are powered with energy from clean, renewable sources (like solar or wind), then fossil fuels will still be burned at power plants and pollute the atmosphere from there. To find out how exactly the government plans to meet its international commitments on emissions reduction, we must wait for the 2018 publication of its wider Clean Air Strategy.

Will the plans stand up to legal scrutiny?

They're likely to be tested. ClientEarth has been battling the government in court over this issue for years now. It’s CEO, James Thornton, has said: “We’re looking forward to examining the government’s detailed plans, but the early signs seem to suggest they’ve still not grasped the urgency of this public health emergency.”

India Bourke is an environment writer and editorial assistant at the New Statesman.