Co-authored by Emily Alinikoff, Senior Research Assistant, Foreign Policy at Brookings.
At the risk of trying to find a silver lining in the emotional debate over Israel's heavy-handed tactics to punish Hamas' indefensible rocket attacks on Israeli civilians, it's worth looking beyond the drama surrounding the Goldstone Report and his subsequent mea culpa for lessons learned for the next stage of the conflict. For there will certainly be more blood shed, and more fact-finding missions, to attract the world's attention. If Israel takes the wrong lessons from this episode and decides, in the words of former Israeli Ambassador to the United Nations, that "there is no way to deal with this terror other than the same way we did in [Operation] Cast Lead," or if Hamas continues to ignore the damning verdict on its own illegal conduct, we can safely predict the cycle of violence and recriminations will continue.
To recap, the Goldstone Report was originally commissioned by the UN Human Rights Council as part of the Fact Finding Mission on the Gaza Conflict in January 2009. Its mandate was to "to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations" that Israel referred to as Operation Cast Lead. The mission's report was released later that year by former South African Justice Richard Goldstone, the head of the mission, and three eminent jurists after gathering information through field visits to Gaza, interviews with witnesses and victims, and public hearings. The government of Israel refused to cooperate with the investigators, while the Palestinian side engaged robustly.
Among its most controversial findings, the experts concluded that Israel had intentionally targeted civilians in "a deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population," thereby giving rise to individual criminal responsibility. The report and Justice Goldstone himself were immediately vilified by the Israeli government and pro-Israel groups. The public relations campaign to discredit the report's findings, a goal Prime Minister Netanyahu considered one of his top three national security objectives, went into over drive.
On April 1, 2011, in a bizarre turn of events, Justice Goldstone offered a personal response to the ongoing debate in The Washington Post, admitting that the report would have been different if he had had then the information he has now. In the piece, he rescinded one of the report's major allegations by declaring that "civilians were not intentionally targeted as a matter of policy" and recognized Israel's investigations into misconduct while reminding us of Hamas' complete failure to look into their own alleged war crimes.
His declarations went viral. Critics of the original report immediately invoked his op-ed as vindication for their assertions that civilian deaths were an unintended casualty of warfare and that any transgression had been or is in the process of being properly addressed. Those calling on the UN to revoke the report on the basis of Goldstone's personal op-ed have conveniently ignored that, as an official UN report filed by a committee of four experts, Goldstone by himself has no authority to retroactively revise its findings without the consent of the other three. More nuanced analyses began to emerge: some clarified that Goldstone's retraction doesn't apply to the finding that Israel engaged in other violations of the laws of war, such as indiscriminate warfare and massive destruction of civilian infrastructure. Other observers noted that even though Israel has opened military investigations of 400 cases of misconduct, these inquiries have neither been independent nor thorough and have resulted in only three convictions to date.
As most things go related to the Israel-Palestine conflict, this debate will rage on, complicated if not entirely consumed by politics and emotion. It's probably not surprising, then, that most commentators have entirely missed three critical points:
1. Cooperation Matters. Israel would have saved itself a lot of trouble if it had cooperated with the UN mission from the start. Had Israel worked with the experts committee, it could have invited the jurists to tour southern Israel and meet with victims of Hamas rocket attacks. It could have let the committee interview Israeli policymakers to hear first hand their efforts to avoid civilian casualties. Goldstone, intentionally or not, has made a compelling case for state cooperation with UN inquiries. Next time around, Israel should cooperate with these missions to ensure its side of the story is fully detailed.
2. A Balanced Mandate Matters. Israel typically refuses to cooperate with UN missions on the grounds that such mandates are biased and assumed Israel's guilt prior to investigation. To be fair, the majority of states on the UN Human Rights Council have displayed prejudice and hostility towards Israel and previous mandates have been biased. This inquiry, however, was fundamentally different. Justice Goldstone refused to take on the mission unless mandated to investigate actions of both Israel and Hamas -- a demand that has resulted in the unsung accomplishment of being the first UN report to examine and condemn illegal acts of terrorism committed by Hamas. The report even goes as far to allege potential war crimes committed by the de facto ruling body in Gaza. Somehow, this critical piece of the story has been lost amidst the acrimonious debate around the allegations against Israel and Israel's hypercritical response. Next time around, those interested in defending Israel's military actions should capitalize on any findings critical of Hamas, instead of dismissing the entire report.
3. External Pressure for Accountability Matters. One of the key recommendations of the Goldstone Report, backed by subsequent resolutions of the Human Rights Council, called for both Israeli and Palestinian sides to carry out prompt, independent and thorough investigations into the charges. A follow-on committee to assess progress was established and released a report on March 18, 2011, concluding that Israel is carrying out a number of investigations while Hamas has done virtually nothing. While Israeli officials again refused to cooperate with the committee, they did at least feel enough pressure from the Goldstone Report to conduct investigations into the alleged misconduct and submit them to the UN. It goes without saying that much more needs to be done by both sides, including the commencement of an investigation by Hamas. More importantly, the report also influenced Israel to adopt new procedures to protect civilians in urban warfare and to limit the use of white phosphorous in civilian areas -- potentially saving lives in future conflict.
Goldstone's findings will continue to be disputed as the legitimacy and independence of Israeli investigations into misconduct will remain hotly contested. But behind the uproar are some lessons learned not up for debate: states under investigation should cooperate to defend and explain their records; balanced mandates on Israel-Palestine should now be the norm; fact-finding missions work to influence national behavior and save lives. These may not be the most thunderous takeaways from the Goldstone drama but they have the promise to be the most influential.