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.

A pro-union march in 2014. Photo: Getty
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The legacy of sectarianism is still poisoning the air of Scotland

Ruth Davidson has reinstated two Stirling councillors who posted anti-Catholic and racist messages on social media. That this kind of cretinous guff still goes on in my hometown in 2017 raises my hackles.

Kenny Dalglish was a bluenose: as a boy in the mid-60s, he and his father would make the short journey to Ibrox to cheer on Rangers, then Scotland’s most successful team. With the football allegiance came a cultural one, too. Or, probably, the other way round.

Wee Kenny could play a bit, obviously, and dreamed that his beloved Gers would sign him up. But, as Richard T Kelly writes in Keegan and Dalglish, his enjoyable new double biography of the two footballing greats, "Rangers had a certain preference for big lads, or else lads with an obvious turn of pace; and Dalglish, despite his promise, had neither of those easy attributes."

Rangers’ loss was Celtic’s gain, but it took some effort. The former, writes Kelly, "was the club of the Queen, the Union, Scotland’s Protestant majority… founded by Freemasons and members of the Orange Order, strongly tied to the shipyards of Govan. Glasgow Celtic was the team of Irish Catholic patriots, revolutionary Fenians and Home Rulers, begun as a charitable organisation… a means to bolster the faith and keep the flock out of the clutches of Protestant soup kitchens. It was going to be a serious step across a threshold for Dalglish to accept the overtures of Celtic."

In the end, Jock Stein dispatched his number two, the unhelpfully named Sean Fallon, to meet the young starlet’s family. "Fallon entered a domestic environment he felt to be 'a bit tense' -  a Rangers house, a lion’s den, if you will. Fallon even picked up the sense that Bill [Dalglish’s father] might rather his son pursue [an] apprenticeship in joinery."

The deal was done ("My dream was to become a professional footballer – the location was just a detail," Dalglish would later say) and the most gifted player Scotland has ever produced went on to make his reputation kitted out in green and white stripes rather than royal blue -  a quirk of those difficult times for which those of us classed as Fenian bastards rather than Orange bastards will be forever grateful.

Growing up in west and central Scotland, it was hard to avoid being designated as one type of bastard or the other, even if you supported a team outwith the Old Firm or had no interest in football at all. Thanks to 19th century immigration, the terrible religio-political divide of Ulster was the dominant cultural force even in Stirling, the town around 25 miles from Glasgow where I grew up and where I now live again. If you went to the Catholic school, as I did, you were a Fenian; if you went to the Proddy (officially, non-demominational) school, you were a Hun. You mostly hung around with your own, and youthful animosity and occasional violence was largely directed across the religious barricades. We knew the IRA slogans and the words to the Irish rebel songs; they had the UVF and the Red Hand of Ulster. We went to the Cubs, they went to the Boys’ Brigade. We got used to the Orange Walks delivering an extra-loud thump on the drums as they passed the chapel inside which we were performing our obligatory Sunday observance.

At the time – around the early and mid 80s – such pursuit of identity might not have been much more than a juvenile game, but it was part of something more serious. It was still the case that Catholics were unemployable in significant Scottish industries – "which school did you got to, son?" was the killer interview question if your answer began with "Saint". This included the media: in the late 90s, when I joined the Daily Record – the "Daily Ranger" to Celtic fans (its Sunday sister, the Sunday Mail, was known to Rangers fans as the "Sunday Liam") – vestiges of this prejudice, and the anecdotes that proved it, were still in the air.

The climate is undoubtedly better now. Secularisation has played its part - my own daughters attend non-denominational schools – even if, as the sportswriter Simon Kuper has observed, many are "not about to give up their ancient traditions just because they no longer believe in God". The peace process in Northern Ireland and important gestures such as the late public friendship between Ian Paisley Sr and Martin McGuinness have made a difference. And I suppose the collapse of Rangers as a footballing force, amid financial corruption that saw them dumped into the bottom tier of Scottish football, helped.

But the sensitivity remains. The 2014 Scottish independence referendum broke down in part across tribal lines, with many Celtic supporters, once Labour, now SNP, loudly backing a Yes vote, while Rangers fans were on the No side. The prospect of Brexit creating a significant border between the north and south of Ireland, which could inflame recently and shallowly buried tensions, makes one shudder. And even locally, the old enmities continue to raise their grubby heads. Ruth Davidson, leader of the Scottish Tories, is currently taking flak for allowing the reinstatement of two Stirling councillors who had posted anti-Catholic and racist messages on social media prior to their election. The pair have apologised and agreed to take part in diversity training, but I confess that this kind of cretinous guff still goes on in my hometown in 2017 raises my hackles. The rawness remains.

That this is so was brought to me a few years ago when I filed a column containing the word ‘sectarianism’ to a Scottish newspaper. Though the context had nothing to do with Catholic/Protestant or Celtic/Rangers, the editor asked me to remove it. "It’ll be deliberately misunderstood by one side or the other, and probably both," he said. "It’s not worth the hassle. In Scotland I’m afraid it never is."

Chris Deerin is the New Statesman's contributing editor (Scotland).