- The Washington Times - Wednesday, September 30, 2009

ANALYSIS/OPINION:

Mark Twain once wrote, “Truth is stranger than fiction,” and the largely negative international reaction to Operation Cast Lead, Israel’s military effort to stop thousands of Hamas rockets from being launched into southern Israel from the Gaza Strip at the turn of the year, certainly seemed to confirm this.

It was truly amazing to see the streets of major international capitals filled with the protests of self-proclaimed “human rights” and “peace” activists joined in lock step with militant Islamists and anti-Semites. It seemed as if Hamas could do no wrong and Israel could do no right. Unsurprisingly, the United Nations Human Rights Council took an immediate interest in Cast Lead. On Jan. 12, it adopted Resolution S-9/1, which called for a fact-finding mission to “investigate all violations of international human rights law and international humanitarian law by the occupying Power, Israel, against the Palestinian people throughout the Occupied Palestinian Territory, particularly in the occupied Gaza Strip, due to the current aggression.”

The mission, led by South African Justice Richard J. Goldstone with the assistance of Irish Col. Desmond Travers, University of London international law professor Christine Chinkin and Pakistani Supreme Court Advocate Hina Jilani, released its report Sept. 15.

Perhaps the best place to start in critically evaluating this ad hoc exercise in the manipulation of law and legal discourse is the resolution’s underlying terms of reference. There were a number of obvious problems with them, not the least of which was the fact that they had clearly already presumed that Israel had violated its international legal obligations during Cast Lead. This leads one to wonder, of course, exactly what “facts” the resolution actually tasked the mission with finding because any process that can even pretend to be taken seriously surely requires ascertaining facts before reaching conclusions of law.

When and through the agency of who or what, furthermore, had allegations of violations morphed into categorical violations, as the resolution stated? And why did the resolution’s mandate not charge the mission with looking into possible Palestinian violations during the conflict? Was it so clear that there were not any? It is true that there were some attempts, particularly by the then president of the Human Rights Council and Justice Goldstone himself, to “massage away” the resolution’s unfortunate underlying terms of reference, but those attempts were inconsistent and convoluted and likely exceeded the powers extended to the mission.

The mission was bound to play the conclusory cards it had been dealt and could not convincingly create an illusion to the contrary. If the underlying terms of reference in the resolution were an unfortunate example of putting the cart before the horse, a perception that the members of the mission were at least potentially biased was even more regrettable, and problematic.

Consider that Justice Goldstone until recently sat on the board of directors of Human Rights Watch, a human rights nongovernmental organization that has thrown its hat into the ring on Cast Lead. Justice Goldstone also, along with Col. Travers, Ms. Jilani and others, signed a letter, “Find the Truth About the Gaza War,” in which they called for an “international investigation of gross violations of the laws of war, committed by all parties to the Gaza conflict.”

Ms. Chinkin, as a signatory to an opinion piece in London’s Sunday Times on Jan. 11 titled “Israel’s Bombardment of Gaza Is Not Self-Defence - It’s a War Crime,” effectively had argued and legally concluded, as early as Jan. 11, that Cast Lead had violated the law related to the use of force and that Israel had committed an act of aggression in Gaza.

The report, about 575 pages long, concluded that Israel essentially had violated the whole panoply of international law. Given its mandate and membership, this was wholly to be expected. Rather than appreciating the good-faith efforts the Israel Defense Forces had made to comply with the laws of war and international human rights law in a complex urban environment of asymmetrical warfare, the mission seemed more interested in caricature than dispassionate inquiry. For the mission, the Israelis seemed to be the modern equivalent of the “noble savage” of yesteryear.

To quote from the report, Israel, the most robust liberal democracy in the Middle East, had engaged not in legitimate self-defense in Gaza but, rather, in a “deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population, radically diminish its local economic capacity both to work and to provide for itself, and to force upon it an ever increasing sense of dependency and vulnerability.”

Unfortunately, this report is just the beginning of a process that will continue to unfold in the coming months. Thirsting for its own version of accountability, the report seeks to set in motion a series of actions against Israel by, among others, the U.N. Security Council and General Assembly and the International Criminal Court.

It also encourages individual states to exercise universal jurisdiction over certain crimes related to Cast Lead, though it insists, perhaps naively, that this be done in conformity with “internationally recognized standards of justice.”

When the Human Rights Council met Tuesday in Geneva to discuss the report, it was a sight to see, though the script already had been written.

All this confirms what has long been true about Israel in international affairs. To turn George Orwell’s words on their head: All states are equal, but some states are less equal than others.

Robert P. Barnidge Jr. teaches international law and terrorism and the laws of war at the School of Law at the University of Reading in England. The views expressed in this piece are those of Mr. Barnidge alone.

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