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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Theresa May dodges difficult questions about social care and NHS in Andrew Neil interview

Prime Minister was on message but on the back foot.

Theresa May was interviewed for 30 minutes by Andrew Neil on BBC One this evening, and she managed to say next to nothing. Whether you see that as skilful politics or shameless dishonesty, there was very little that came out of this interview. Here’s the little we did learn:

The Prime Minister is assuming victory - even if she says otherwise

Although the Conservative party’s campaign has been based on trying to convince voters that there is a chance Jeremy Corbyn could be Prime Minister (to spook them into voting for May, and against a Corbyn-led coalition – a very unlikely scenario in reality), Theresa May revealed just how strongly her party is assuming victory. For example, when pressed on her plans for funding social care (means-testing the winter fuel allowance, and taxing the elderly on their assets), she could only answer that her government would hold a consultation to iron out the details. No matter how hard she tries to push the message that Corbyn is en route to No 10, if her policies are not policies at all but ideas to be fleshed out once she returns to power, this remains just rhetoric. As Neil asked about the consultations: “Wouldn’t you have done that before you came out with the policy?”

The Tories won’t lower themselves to costing their manifesto

It has always been the case that Labour has to work much harder than the Tories to prove its economic credibility, which is why in the Ed Miliband days it was decided that all policy proposals had to add up. But never have the Tories been so shameless in taking advantage of that political fact. For all the stick its received for being idealistic, Corbyn’s manifesto is more costed than the Tory effort, which May herself admitted during this interview is a set of “principles” rather than policies: “What we set out in our manifesto was a series of principles.” Where is the money going to come from for £8bn extra for the NHS? “Changing the way money is used”, “The strong and growing economy”, and “a variety of sources”, of course! At least Labour could patch together something about corporation tax and cracking down on tax avoidance if asked the same question.

Playing politics

Neil went in hard on May’s u-turn on her plan to fund social care – asking repeatedly why the Tories are now planning on bringing in a cap on how much the elderly have to pay, when originally there was no cap. All May could offer on this was that Corbyn was “playing politics” with the policy, and “scaremongering” about it. This deflection was flawed in a number of ways. First, it provided no explanation of what the policy will now be (what will the cap be? When will we know?), second, if Corbyn has been “scaremongering” it means he must have influenced the policy change, which May denies, and third, all it highlights is that May is herself “playing politics”.

Brexit is always the answer

As May cannot answer a single question about the specifics of policies or spending, Brexit is the perfect topic for her. It is a subject defined by its uncertainty and lack of detail, therefore something she can get on board with. She answered almost every question on every subject broached by Neil by asking who voters want around the Brexit negotiating table after the election – her or Corbyn.

Why are the polls closing? “...I’ve set out my vision for that strength in negotiations and that stronger plan. And the choice is who’s going to be doing those negotiations, me or Jeremy Corbyn.”

Are your policies uncosted? “...I think it is important that the country has certainty over the next five years, has the strong and stable leadership I think it needs, as I’ve just explained, particularly for those Brexit negotiations.”

Where is the extra NHS funding going to come from? “...Crucial to that, is getting the Brexit negotiations right, and that’s why this is so important. That’s why who is sitting around that negotiating table, 11 days after the election it’s going to start…”

Will National Insurance go up? “...Fundamental to that of course is getting the Brexit deal right and getting those negotiations right and having both a strong hand in those negotiations but also the strength of leadership in those negotiations…”

Will you break the immigration target promise for a third time? “...The question that people face is who do they trust to take this country though the Brexit negotiations..?”

But the soundbites must be working

A few seconds in to the interview, May had already used the phrase “strong and stable” and “my team”. While political insiders will groan and mock the repetitive use of such banal phrases, and emphasis on Brexit negotiations, we must remember the “long-term economic plan” slogan of 2015’s Tories. It worked, and clearly behind the scenes, the masterminds of the Conservative campaign believe these soundbites must be working. Theresa May is miles ahead of Jeremy Corbyn on the “who you trust to be Prime Minister” metric, which is why the Tories repeating how “strong and stable” their government would be, and running such a presidential campaign (“my team”, and May versus Corbyn) must be working.

Anoosh Chakelian is senior writer at the New Statesman.

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