Ed Morgan, Professor of law at the University of Toronto and a member of the SPME Legal Task Force.
The Report of the United Nations Fact Finding Mission on Gaza has now been endorsed by the UN Human Rights Council as documenting Israeli war crimes. But from a legal point of view, the Goldstone report is full of more holes than the tunnel-riddled strip along the Gaza-Egypt border.
Despite its 574-page girth and the heaviness of its potential impact, the actual evidence compiled against Israel is rather thin. Justice Richard Goldstone himself has worried that the UN action on the report is being treated as conclusive when it was never intended that way. “If this was a court of law, there would have been nothing proven,” Goldstone told a reporter.
Among its most damning findings, the report states that Israeli forces indiscriminately attacked universities, mosques and civilian areas. Its pages are full of testimony from witnesses, or partial witnesses or, more accurately, non-witnesses who heard stories from their brother-in-law who knows someone who was almost there. As Goldstone has described it, “We had to do the best we could with the material we had.”
A careful read through the seemingly weighty report reveals that, legally, they didn’t have much.
For example, the report describes the Israeli attack on Gaza’s Islamic University, stating: “These were civilian, educational buildings and the mission did not find any information about their use as a military facility.”
Anyone with a normal university campus in mind would agree, unless they were in the habit of watching Palestinian television. The Islamic University was previously featured as the site of clashes between Fatah and Hamas gunmen, with Fatah soldiers identifying it as a weapons laboratory for the new and improved Qassam rockets that Hamas fires by the thousands into Israel. Palestinian Authority television had a full display of the weapons cache found in the Islamic University at the time.
The report also condemns the destruction of several mosques in Gaza by Israeli fire, finding no basis for the Israeli allegations that mosques were used as launching points for Hamas attacks and as weapons storage facilities. Again, anyone with a normal image of a house of worship in mind would have to agree.
But the “fact-finding” mission did not seem to gather all of the facts. Israeli soldiers testifying at Tel Aviv’s Rabin Academy after the war displayed first-hand photographs – not hearsay accounts from a friend of a friend – showing weapons stored in Gaza mosques and Hamas gunmen using mosques as firing platforms. Goldstone has complained that the Israelis did not cooperate with the mission, but the IDF testimony is publicly available for anyone, including the UN’s “fact finders,” to see.
Finally, the report condemns Israel for the many civilian deaths in Gaza. In response to Israeli accounts – again, well photographed – that Hamas forces concentrated themselves in civilian populated areas, the report put its head in the sand: “The mission notes that those interviewed in Gaza appeared reluctant to speak about the presence of or conduct of hostilities by the Palestinian armed groups.”
But if they couldn’t get locals to talk, and if they didn’t want to look at Israeli evidence, they could have paid attention to Hamas spokesman Fathi Hammad, who when interviewed described his organization as being at one with the people of Gaza: “This is why they have formed humans shields of the women, the children, the elderly and the mujahideen, in order to challenge the Zionist bombing machine.”
Now that’s a war crime.
There are many tragedies in Gaza that deserve proper investigation, including death and destruction on both sides. But the biggest tragedy of the Goldstone report is the damage done to international law. Goldstone, a renowned jurist, has wasted his reputation on a deeply flawed and biased report. It will undermine faith in the rule of international law for any who, apparently unlike the members of the UNHRC, actually take the time to read it.