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 the past 12 months have been the worst of my lifetime

We desperately need a return to calm and moderation.

Twitter is a weird phenomenon: a deeply selective, wholly unreliable Survation or YouGov in your pocket, with an even bigger margin for error. I’ve been tweeting for a year now, but I’m still useless at guessing what is likely to attract attention; so I was taken completely by surprise at the end of last week when a comment I jotted down received thousands of Likes and retweets. “It’s a year since Jo Cox was murdered,” I wrote: “the worst year for Britain in my lifetime. We badly need a return to Jo’s concept of moderation now.”

Fairly anodyne, you would have thought, but it seems to have touched a nerve. Clearly many other people feel that the past year, with its violence and disasters and wholesale political instability, has been a bad one. For days afterwards, my phone kept buzzing as more people retweeted it. There were, as always, a few contrarians who objected that other years since 1944 must have been worse; some said “much worse”. But that isn’t really true.

After D-Day, we knew the war was going to be won. Despite the bombs, the country was proud of itself and pulling together, and the likes of my father were hoping for a better world as soon as it was finished. The year of the Suez crisis, 1956, was pretty bad, but Anthony Eden was gone directly, and Harold Macmillan’s phoney self-confidence convinced people that things would be all right – and anyway the economy was growing impressively.

The period of the Heath government had awful moments: 1972, the year of Bloody Sunday and IRA attacks, was especially bad. Yet there was nothing like the appalling Grenfell Tower fire to divide the nation. And 1974 was humiliating for the government, but our membership of the European Economic Community offered a certain stability. We had a different, more forelock-tugging relationship with our political leaders then. The news bulletins used to talk reverently of “the prime minister, Mr Wilson”; now they just say “Theresa May”.

Today we have a prime minister who is held to have been mortally wounded by a series of personal failures and miscalculations; a governing party that has been self-harming for years over the question of ­Europe; an opposition that, until just recently, was regarded as hopelessly incompetent and naive; an economy that could be damaged by an ill-judged Brexit agreement; and a new vulnerability to terrorism, in which one atrocity quickly overlays the memory of the last.

There’s a newly hysterical tone in British society, which had always seemed so reassuringly reliable and sensible. The crowd that stormed Kensington Town Hall as though it were the Bastille or the Winter Palace mistook a man in a suit for a Tory councillor and beat him up. It transpired that he was an outside contractor who had spent much of the week helping the Grenfell Tower victims.

Above all, what was until recently the world’s fifth-largest economy has suddenly found itself on the edge of a trapdoor in the dark. “Back to the Thirties”, some people are saying. “Venezuela”, say others. Even Brexiteers who feel liberated and excited at the prospect of getting out of the EU can’t know if it’s going to work. Friends of mine who voted Leave because they were fed up with David Cameron or thought things needed a shake-up now show a degree of buyer’s remorse. Perhaps, like Boris Johnson in the BBC2 drama Theresa vs Boris, they thought the country was so stable that nothing bad would actually happen.

We’ve entered a period of sudden, neurotic mood swings. The opinion polls, unable to cope, tell us at one moment that Jeremy Corbyn is regarded as dangerous and useless, and at the next that a growing number of people see him as the national saviour. The Prime Minister’s “safe pair of hands” are now deemed too shaky to carry the country’s china. Ukip polled over 10 per cent in 450 seats in 2015, and in only two seats in 2017.

If any further evidence of neuroticism is needed, there is the longing that people have to be enfolded in the arms of a comforting authority figure. For some, it was the Queen, calming everyone down with a message of unity, or Prince William, hugging a grieving woman after the Grenfell Tower fire. For others, it was Corbyn doing the right human things while Theresa May walked past the tower ruins awkwardly, not knowing what to say.

It feels like being back in 1997, with the huge crowds in the Mall or outside Kensington Palace demanding to be comforted after the death of Diana. Then, the Queen was blamed for not being the mother figure we seemed, disturbingly, to want. Tony Blair had the right words at that time, and no doubt he would have had the right words after Grenfell Tower. But is it merely words and gestures we need?

It’s a bad sign when countries feel that they need an individual to sort them out. It’s because of its system, based on openness, inclusiveness and the rule of law, that Britain has grown strong and wealthy. Jo Cox said in her maiden speech in June 2015: “While we celebrate our diversity, what surprises me time and time again as I travel around the constituency is that we are far more united and have far more in common than that which divides us.”

She was murdered by a fanatic who screamed, “This is for Britain! Britain will always come first!” The year that those words ushered in has indeed been the worst in my lifetime. The government slogan “Keep calm and carry on” was invented in 1939, when all-out German bombing seemed imminent. It is easy to lampoon but when it was rediscovered a few years ago it became popular, because it spoke directly to our national consciousness. We’ve never had more need of calmness than now.

John Simpson is World Affairs Editor of BBC News, having worked for the corporation since the beginning of his career in 1970. He has reported from more than 120 countries, including 30 war zones, and interviewed many world leaders.

This article first appeared in the 22 June 2017 issue of the New Statesman, The zombie PM

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