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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Ukip's "integration agenda" is another lurch away from the mainstream

Ukip's only chance of survival is on the nativist fringe. It won't be a happy - or successful - existence. 

After Ukip leader Paul Nuttall failed to steal a famous by-election victory in Stoke-on-Trent, his party’s militant tendency offered a prompt and simple diagnosis: the party was just too nice.

Two months on, with Nuttall now pledging to ban the burqa, sharia courts, new Islamic schools, subject girls from at-risk backgrounds to yearly female genital mutilation checks and make race an aggravating factor in some offences, they are unlikely to making those same complaints. Of the many criticisms one can make of the controversial policy blitz, a surfeit of niceness isn’t one of them – even if Nuttall is comparing himself to Gandhi. But what explains Ukip’s lurch deep into Breitbart territory – and what does it mean for the future of the party?

It’s tempting to chalk this one up as a victory for the hardliners who derided Nuttall – who, absurd though it seems now, was Ukip’s unity candidate – and his attempts to court women voters with a softer, “Nicekip” platform. It’s true that Douglas Carswell and Mark Reckless, loathed by the fags-and-flags wing of the party for their wet anti-Faragism and prim sensibilities, are safely gone. Liberated from the strain of, erm, having an MP, the true believers have taken back control.

That neat analysis quickly falls down when one takes a look at the chippiest defenders of Ukip’s new “integration agenda”: Suzanne Evans and Patrick O’Flynn. Once the pair were at the vanguard of the push to unseat Farage and chart a friendlier tack into Tory seats in the Shires. Now they try and spin policies that could be justly criticised with a favourite Carswell slur – “ugly nativism” – as a sort of noble muscular secularism. That they of all people are endorsing the new line underlines just how much trouble Ukip are in. Deprived of their ownership of Brexit, the party has little, if anything, left to offer the political mainstream.

The consequences have been felt more keenly inside the party than in the country, where Ukip has plunged to below 5 per cent in some polls. Plenty would argue that the party – even at their high watermark around 2014 – never operated within the mainstream currents of political thought anyway, instead dragging the Tories to the right. But it was always an uneasy and at times barely coherent coalition between the authoritarian and libertarian right, united only by their rejection of Europe. For the latter, Ukip isn’t about opposition to the sensibilities of polite society but compatibility with them. Theirs is a focus on grammar schools, hard graft and flat taxes, not smearing Romanians and hanging child murderers.

Whatever the likes of O’Flynn and Evans say, though, Ukip has now ceded that libertarian ground it once had claim to. Disgruntled and departed Kippers point to Nuttall’s loss in Stoke-on-Trent Central as the reason why.

“Since the focus on the EU has gone, and after the election in Stoke, there have been people within the Ukip NEC trying to drive the party towards the far-right,” says Tariq Mahmood, a practicing Muslim and self-styled libertarian who stood for the party in neighbouring Stoke-on-Trent South in 2015. He has since joined the Conservatives, and complains that efforts to court the aspirational middle classes and British Muslims (among whom he says Ukip are now “100 per cent” finished) have been jettisoned in favour of what an essentially nativist platform. While Ukip stress that their beef is with cultural practices and not Islam, Mahmood believes that argument is a mere figleaf - and Ukip, he says, know the distinction will be lost on many people. 

“It was an uphill struggle even previously to try to persuade individuals that we were a libertarian party and that we were not hostile to any individual belief,” he adds, ruefully. “Now, with what Peter Whittle and Paul [Nuttall] have said on integration, and with the prevailing mood with the NEC, the strategy seems to be to create division.”

The logic behind this ideological retrenchment is clear enough. Though Ukip stood in 624 seats at the 2015 election, insiders acknowledge that they are unlikely to reach anywhere near that total this time. Its chances of winning even one seat are perilously slim, as is painfully clear from Nuttall's prevarication as to whether he'll stand or where exactly. Resources will instead be poured into a handful of target seats that broke heavily for leave last June, and the party’s (white) core demographic courted much more ruthlessly. 

But those resources, historically scant anyway, have been depleted by its rightward lurch: both Mahmood and Owais Rajput, a former parliamentary candidate in Bradford East, speak of a flight of Asian members from the party. “There’s nothing left for me, other than to resign. It’s not only me – there are lots of other British citizens of Muslim faith who are following me as well,” he told me on the day Ukip dropped its new policies. “Their policy, long-term, is to try to create division in local communities, which is very, very dangerous.”

Both agree that Ukip’s future is as an ethnic nationalist party, which Nuttall and those around him have vigorously denied. But if that is the party’s strategy, it’s a witless one. Ukip has already swallowed most of those votes already, as the decline of the British National Party shows, and the electoral ceiling for those politics is a low one. The party may well tighten its grip on its small demographic core, but will hasten the flight of softer members and voters to the Tories.

Its breakneck change of pace will also bodes ill for its survival as a cohesive fighting force. There will inevitably be further tension among its febrile cohort of elected politicians. Nuttall’s foreign affairs spokesman, West Midlands MEP Jim Carver, this week resigned his post in protest at the burqa ban proposal (“I’m an old liberal,” he told me. “You’ve got to have that freedom of choice.”). He insists he won’t be quitting, and likened Ukip’s internal wrangles to those in other parties. “What you’ve got to is call out people you disagree with,” he said. “Look at the stick that people like Tom Watson is getting from Momentum! This isn’t just happening in Ukip. There’s a tug of war going in all political parties.”  

But Carver is a Ukip member of abnormal vintage, having joined the party in 1996. For others the allegiance cannot and will not hold as the party’s public face gets uglier and its electoral positioning even more uncompromising.  As the exodus of its 2015 supporters to the Tories shows, Ukip’s electoral cachet is a much more ephemeral thing than the parties of old. Senior figures protest that policing Brexit remains key to its policy platform.

Its new strategy underlines how the party cannot remain a broad church defined entirely by its opposition to Europe. “All I know,” Carver told me, “is that I’ve got to be true to my principles”. Recent events prove for most of the wetter wing of his party, that will mean leaving.

Patrick Maguire writes about politics and is the 2016 winner of the Anthony Howard Award.

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