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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Nigel Farage's love for Dunkirk shows how Brexiteers learned the wrong lessons from WWII

Film has given Britain a dangerously skewed perspective on World War II

For months now it’s been hard to avoid the publicity for what seems like an epidemic of new World War Two films for 2017. June brought us Churchill (starring Brian Cox), which concerns Operation Overlord and the allied invasion of Normandy in 1944. A month later, in July we were pushed back four years, to Dunkirk, with Christopher Nolan’s film of the evacuation of Allied troops from French soil in the summer of 1940. April had already brought Their Finest, a comedy about making a - let us not let the irony go unacknowledged -  stirring film about the evacuation of Dunkirk in the event’s more or less immediate aftermath and November will bring us Darkest Hour, some events in which will predate all three earlier films, as Gary Oldman’s Churchill struggles through the earliest days of his war premiership.

This glut is peculiar. There are no significant round anniversaries to commemorate (e.g. Dunkirk is 77 years ago, the Normandy landings 73). More, we’re meant to be in the middle of a series of commemorations of the horror and waste of the Great War of 1914-18, but that seems to have slipped away from us in the political turmoil that’s engulfed this country since 2014. Instead, it’s to the Second World War we return yet again. To modern Britain’s founding myth.

It’s a coincidence, of course, that these films should come along together, and at a seemingly odd time. They were developed separately, and films takes so long to conceive and produce that no one could have anticipated them arriving together, let alone arriving in a toxic Brexit Britain where they seem like literally the least useful things for anyone in the UK to watch right now. As works that will inevitably, whatever their own creative intentions and merits, be hi-jacked by a press and political culture that is determined to gloss its opposition to the UK’s membership of the European Union, and its appalling mishandling of the process of exit with garbled references to, the conflict the films portray.

This is an impression that is not exactly dismissed by Nigel Farage posting to twitter of an image of himself standing next to the poster for Dunkirk, along with a statement in which he encourages all young people to see the film. For what reason, we’re entitled to wonder, does he make this encouragement? Does he admire the sound design? Or the aerial photography? Or is he just a big fan of Mark Rylance and Harry Styles? Or perhaps he is, inevitably, indulging in a behaviour that some might call "nostalgic"? Of pining for the past. Except, of course, nostalgia requires an element of pain. The suffix "algia" the same as employed when referring to chronic conditions. For Farage and his ilk there is no pain in this behaviour, just the most extraordinarily banal comfort.

Farage is asking us and asking the young who voted against his chosen cause by an overwhelming majority, and who are are sickened by where he and his ilk have brought us - to share in his indulgence. To enjoy, as he does, those fatuous analogies between the UK’s isolation between Dunkirk and Pearl Harbour with its imminent failures in European politics. To see that "escaping from Europe with nothing is at least better than not escaping at all". Or to believe, once again, in a "plucky little Britain, standing up against the might of a wicked mainland European tyranny, its back against the wall".

All this, confused, indeed nonsensical, as it is, is being invoked, as surely as the anti-EU right have always invoked Churchill. This is despite his own family recognising him, as the EU itself does, as the fervent pro-European he was. Indeed, he was one of the founding fathers of the whole post-war pan-European enterprise.

What Farage and his behaviour demonstrates, yet again, is that British culture, in many ways, learned not merely the wrong lessons from the war against Hitler, but exactly the wrong lessons. It’s a lesson that found its most enduring, poisonous expression in Margaret Thatcher’s breathtaking assertion that the European Union was a "third attempt" by Germany to take over the world.

In contrast to the rush of war films in cinemas, television has recently given us glimpses into theoretical worlds where Nazism did succeed in conquering the planet, in Amazon Prime’s The Man In The High Castle and BBC One’s SS-GB. There are lessons too, in these alternative histories, proper lessons that we have collectively failed to learn from the real one. Which is that fascism or authoritarianism are not diseases to which anglophone countries are somehow miraculously immune due to [insert misunderstood historical fetish of choice].

The Man in the High Castle, particularly in its more subtle first series, goes out of its way to show Americans that their lack of experience of collaboration with Nazi occupation is a result of circumstance, even luck. Not because collaboration is a peculiarly European tendency. SS-GB also worked hard to demonstrate the helplessness of occupation, and how that leads to the sheer ordinariness of collaboration. Both show the understanding that while fascism from the outside is funny accents and funny uniforms, fascism from the inside is your neighbours informing on you and the absence of the rule of law.

That experience of occupation, of subsequent complicity, and humiliation, felt by many other other European nations, is absent in Britain. Farage’s fellow Leaver Liam Fox, without anything resembling self-awareness, asserted that "the United Kingdom is one of the few countries in the European Union that does not need to bury its 20th century history". Fox’s remark summed up, again seemingly unintentionally, the oafishness of the principle Brexiteers. A group who exemplify a culture that boils a vast and unimaginably complex conflict down to the title sequence of Dad’s Army - an animation in which a Union Flag is forced off the European continent by a trio of Nazi triangles, and after returning home bobs around defiantly. A group who, in a strange and witless inversion, have fantasised themselves into a position where they see the Britain’s membership of the European Union as the occupation the country once avoided.

This is the UK’s postponed tragedy. At a timethat European countries experienced national humiliations which fundamentally reconfigured their understandings of their place in the world, the UK got yet another excuse to shout about how much better it was than everyone else.

I’m a child of the very late Seventies. I grew up in a world where (British) boys’ comics were dominated by war stories rather than science fiction or superheroes, where literally everyone knew several people who had fought in World War Two - and almost everyone someone who could remember World War One. That war was the ever-present past. I am, as a friend who teaches history neatly phrased it "Of the last post-war generation." After me, the generations are post-post-war. They are free. The moral clarity of the war against Hitler has, in the end, been a curse on British culture - a distorting mirror in which we can always see ourselves as heroes. 

But, not, of course, all other generations. The war generation collectively (I make no claim that there were not exceptions) understood what the war was. Which meant they understood that the European Union was, and is, its antonym, not an extension of it. Unlike their children and the eldest of their grandchildren, they had real experience of the conflict, they hadn’t just grown up surrounded by films about how great Britain was during it.

The Prime Minister who, or so he thought, had secured Britain’s European destiny had also, as he related in his autobiography, seen the devastation wrought by that conflict, including by shells he himself had given the order to be fired. Like Helmut Kohl, whose worshipped, conscripted older brother died pointlessly fighting for Hitler, and Francois Mitterrand, himself captured during the fall of France, his experience was real and lived, not second hand.

This can be seen even in the voting in 2016 referendum. That the young principally voted Remain and the old voted Leave has been often noted. But if you break that over-65 vote up further, there’s a substantial flip to back towards Remain amongst the oldest voters, the survivors of the survivors of World War Two. After all, someone who is 65 today was born nearly a decade after the war ended. It was their parents’ war, not their own. A war that has been appropriated, and for purposes of which those who fought in it would, collectively, not approve.

Let’s return to Dad’s Army, after all, BBC Two does often enough. Don’t Panic! The Dad’s Army Story (2000) a cheerful history of the sitcom great written and presented by Victoria Wood contains a telling juxtaposition of interviewees. The series' surprising continued popularity is discussed and Wendy Richard (born 1943) expresses a nostalgia for the war years, and how people banded together during them. This is a sentiment which Clive Dunn (born 1920) bluntly dismisses. “Like most people I had a foul war,” he says, and disgust and horror briefly pass across his face.

It’s the difference between those who remember war, and those who only remember war films.