IT IS important to deconstruct the Goldstone report into the Gaza w ar from a legal point of view, because it uses the veneer of respectability that comes with legal methodology, and the presence of an internationally respected judge, Richard Goldstone, to gain credibility. Law is a very powerful weapon to give respectability to contemptible actions and opinions. The apartheid government was very legalistic in its approach to racial oppression, and was punctilious about promulgating proper laws, and about maintaining a fully functioning judiciary to give the facade of respectability to its repugnant policies.
The United Nations often uses the superficial veneer of law and legal methodology to give credence and credibility to its anti-Israel agenda. The Goldstone Mission is a case in point. Careful analysis reveals that the legalities used are merely a cover for a political strategy of delegitimising Israel.
Goldstone claims that the mission "is not a judicial inquiry (but is) a fact-finding mission". This is a distinction without a difference. The mission's report makes numerous factual findings, and some legal, just as if it were a judicial body. The report could have salvaged some measure of integrity had it stated that its findings, both legal and factual, were only prima facie. It did not do so. Judges make factual and legal findings that have practical implications. There are very real consequences for Israel resulting from the findings of the mission. Apart from holding Israel liable in international law to pay war reparations, Goldstone refers the findings to the highest authorities of international law.
Any civilised legal system requires that justice be done on two levels: procedural and substantive. The Goldstone Mission is replete with procedural and substantive injustices. From a procedural point of view, there are four main areas of injustice. First, the Human Rights Council's r esolution S-9/1 establishing the mission expressly states that it "strongly condemns the ongoing Israeli military operation (in Gaza), which has resulted in massive violations of the human rights of the Palestinian people", and in so doing prejudges the guilt of Israel. The resolution refers many times to Israel's guilt in a very lengthy document, which is phrased in wide, undisciplined and aggressive language.
The second procedural injustice is that the members of the mission publicly expressed beforehand their opinions on this conflict. The most explicit in this regard, Prof Christine Chinkin, was one of the signatories to a letter published in the Sunday Times of London, stating that "Israel's actions amount to aggression, not self-defence, not least because its assault on Gaza was unnecessary". The letter is published under the heading "Israel's bombardment of Gaza is not self- defence - it's a war crime." The other three members of the mission, including Goldstone, signed a public letter stating: "Events in Gaza have shocked us to the core."
Due to the two procedural injustices referred to, Israel could not receive a fair trial, and, therefore, correctly refused to co-operate with the mission. This resulted in the third procedural injustice: the violation of another basic legal principle of fairness, audi alteram partem - let the other side be heard. The mission ought, if it were objective and fair, to have accepted Israel's right to remain silent and then ought to have desisted from making findings, whether factual or legal . But it did not and, as any lawyer knows, unanswered allegations often prove unreliable and in almost all conflicts there are serious disputes of fact, and often of law as well.
The mission did not try to cross-examine or challenge the witnesses in any real way. Unproven allegations of Hamas officials were accepted as established facts. Even the most basic questions were not asked; when, for example, allegations were made of Israel's bombing civilian installations, witnesses were not asked whether there were Hamas fighters or weaponry in the vicinity, or whether any attacks had been launched from the area.
There is a fourth procedural injustice that undermines the integrity and credibility of Goldstone and the three other members of the mission: there simply was not enough time to do the job properly. Any lawyer with even limited experience knows that there was just not sufficient time for the mission to have properly considered and prepared its report. One murder trial often takes many months of evidence and argument to enable a judge to make a decision with integrity. To assess even one day of battle in Gaza with the factual complexities involved would have required a substantial period of intensive examination.
According to the mission's report, the mission convened for a total of 12 days. They say that they considered a huge volume of written and visual material running into thousands of pages; they conducted three field trips; there were only four days of public hearings; and yet, in a relatively short space of time, the members of the mission agreed to about 500 pages of detailed material and findings, with not one dissenting opinion . They made no less than 69 findings, mostly of fact, but some of law, and numerous sub-findings. All of this was quite simply physically impossible if the job had been done with integrity and care.
The substantive injustices of the Goldstone Mission's report are too numerous to mention in this article, but one illustrates how far the mission was prepared to go, and that relates to the very important legal element of intent. Without any evidence, the Goldstone report imputes the worst of intentions to the actions of the state of Israel, finding that Israel's conduct was motivated by a desire to oppress, and to inflict suffering upon, the Palestinian people, and not for the purpose of self-defence. It also asserts, again without any evidence, that many of Israel's military operations, such as that in Lebanon, were motivated by the same goal. The mission fails to mention Col Richard Kemp, the former commander of British forces in Afghanistan, who said: "I do not think there has ever been a time in the history of warfare when an army has made more efforts to reduce civil casualties and deaths of innocent people than the IDF (Israel Defence Forces) is doing today in Gaza."
By contrast, on the Palestinian side, there is very clear evidence as to Hamas's intentions - the Hamas c harter openly calls for the destruction of Israel, irrespective of borders. It also calls for the murder of all Jews worldwide. Their clear intention was to murder as many Israeli civilians as possible and to use its own civilian population as human shields. But not a word of Hamas's expressly stated intentions appear in the report.
One aspect of the evidence, presented to but not accepted by the Goldstone Mission, was that of Hamas leader, Fathi Hammad, who said: "This is why we have formed human shields of the women, the children, the elderly and the mujahideen, in order to challenge the Zionist bombing machine. It is as if we are saying to the Zionist enemy: we desire death while you desire life."
These procedural and substantive injustices demonstrate the complete lack of integrity and fairness of the process. It looks like law, but it is not. It is just politics. The Goldstone Mission is a disgrace to the most basic notions of justice, equality and the rule of law. And it is dangerous. Injustice will only lead to more death and destruction. The Talmud says: "The world stands on three things: truth, justice and peace." These three values are linked. There can never be peace without justice and truth. The Goldstone Mission is unjust and wanting in truth. It has, therefore, harmed the prospects for peace in the Middle East.
n Goldstein has a PhD in Human Rights Law and is the Chief Rabbi of SA.
'All of this was quite simply physically impossible if the job had been done with integrity and care'