Goldstone: I believed it would be good for Israel

Q: Do you expect that there is any realistic possibility that Israel will launch its own investigation into Operation Cast Lead?

I suggest that in time Ambassador Oren will be ashamed of his remarks

A: I certainly hope that Israel will launch its own public, independent and good-faith investigation into the conduct of Operation Cast Lead. A refusal to launch such an inquiry will fairly be interpreted as an attempt to hide the true state of affairs.

Q: In your Jerusalem Post article, you said you have spoken out against the “unfair” treatment of Israel at the UN and at the Human Rights Council in particular, and you did so last week. Was it true you were unhappy at the omission of Hamas from the draft resolution?

A: There has been some misunderstanding about the objection I voiced concerning the original draft resolution that was before the Human Rights Council. I was disturbed that the references to the report were buried in a long resolution condemning Israel in respect of issues that had nothing to do with the report. It gave me and many others the impression that the references to the report were also directed only against alleged violations by Israel. Partly as a result of my public complaint, a paragraph in the preamble was added that reads as follows:

Condemning all targeting of civilians and stressing the urgent need to ensure accountability for all violations of international human rights law and international humanitarian law to prevent further violations.

Given that the report detailed serious violations committed by both Israel and Hamas, and other armed Palestinian groups, this addition appeared to me to be adequate. After all, there were no specific references to Israeli violations in the paragraphs referring to the report. No one was left in any doubt that the resolution included alleged violations by Palestinians.

Q: Doesn’t this criticism of the Human Rights Council lend weight to your critics’ argument that the body is so tainted by Israel bias that any report produced under its auspices could never have been perceived as fair and impartial?

A: I don’t accept at all that any prior bias of the Human Rights Council against Israel in any way impugns the objectivity of the report. The four members of the mission were quite independent of the HRC and of any other body, whether in the UN family or outside of it. That followed particularly from the very well-publicised refusal by me to accept what I considered to be a biased mandate, and the even-handed mandate given to me by the President of the HRC. That mandate has not been questioned by the Human Rights Council. It has now adopted the whole report.

Q: You talk of the IDF targeting “civilians and civilian objects”. Israel says it only attacks sites that are being used for military purposes. Is there room for genuine difference of interpretation?

A: The evidence that we found in respect of some of the incidents clearly indicated an intentional targeting of civilians and civilian sites. Again, apart from a bare denial there has been no attempt thus far to respond to the specific allegations made in the report in this regard. How can one evaluate a difference of opinion in the absence of any substantive response from Israel?

Q: What in your view would have been a “proportionate” response by Israel to the rocket attacks?

A: A proportionate response from Israel would have been the targeting of combatants, ie members of the militant armed groups. What happened was a huge military assault against all of the people of the Gaza Strip. Again, there has been no response from Israel to justify the bombing of some 200 industrial factories, including the only flour-producing facility, and a substantial part of the egg-producing industry that involved the killing of many thousands of chickens — not to mention the bulldozing of huge tracts of agricultural land. Such a proportionate response might well have involved commando operations. That would certainly not be beyond the capability of the Israel Defence Force.

Q: Do you believe that any Israelis will end up at the International Criminal Court in the Hague charged with war crimes as a result of the Gaza incursion?

A: Whether Israelis end up in the International Criminal Court will depend upon whether good-faith domestic investigations and possible prosecutions are held and, of course, the attitude of the permanent members of the Security Council.

Q: In one newspaper (The Forward), you were quoted as saying that the report was “a roadmap for investigators” and not evidence for a court case. But is this not a problem in that many people have taken the report as a prosecutors’ document?

A: I am happy to have the opportunity of responding to what was either misunderstood or misreported in The Forward. I explained to the journalists that the UN Fact-Finding Mission was not a judicial or even a quasi-judicial proceeding. It was a mission to establish the facts relating to the commission of violations of international law. As the report made clear, we did not apply a criminal standard of proof, i.e. proof beyond a reasonable doubt. We based our finding on what we saw with our own eyes and the evidence we heard with our own ears. We carefully checked the evidence against other established facts and reports, and had regard to the consistency of the versions given by the people with whom we spoke. In a substantial number of cases, we checked the information against other evidence, including photographs and satellite imagery. We did not attempt to identify persons who might be responsible for the commission of the alleged violations — that was not within our mandate and, in any event, we did not have the resources or time to do that. We did not collect any information for the purpose of prosecutions — that would be a consequence only of a formal inquiry and that is what we have recommended.

I might add that there have been many other similar fact-finding missions. They were conducted prior to the establishment of both the Yugoslavia and Rwanda tribunals, and they were useful when determining where we should direct our investigations. To suggest that this explanation is a backtracking on my part is without any foundation.

Q: Some of your detractors in Israel and in the Jewish world accuse you of betraying Israel by agreeing to head the inquiry. How do you respond to such accusations?

A: The suggestion that I have betrayed Israel by agreeing to head the inquiry is difficult to understand. On the contrary, I believed that what I agreed to do would be in the interests of Israel and the region. Having received an even-handed mandate, I believed that Israel would seize the opportunity of co-operating with the mission and assist us in deciding how to approach our mandate and inform us of the issues that Israel would like to have investigated. Had that happened, the mission could have placed Israel on the high moral ground and helped the Human Rights Council embark in a new direction of even-handedness with regard to Israel. In any event, I take the strongest objection to the suggestion that because I am Jewish I should refuse to become involved in a situation where alleged unlawful conduct by Israel is the subject of investigation. On that basis, no Israeli judge or lawyer should become involved in a good-faith investigation into the same allegations.

Q: Israel’s ambassador to the USA Michael Oren wrote that your report “goes further than Ahmadinejad and the Holocaust-deniers by stripping the Jews not only of the ability […] but of the right to defend themselves”. He goes on to say that it portrays Jews as “deliberate murderers of innocents — as Nazis?” How would you respond to such an attack?

A: The highly regrettable and, I might say, disgraceful remarks of Ambassador Oren that the Report “goes further than Ahmadinejad and the Holocaust deniers by stripping the Jews not only of the ability and the need but of the right to defend themselves” and “portrays Jews as deliberate murderers of innocents — as Nazis” are difficult to credit as having come from a senior representative of Israel. Ambassador Oren must surely appreciate that the report in no way contradicts the right of Israel to defend itself. His remarks are again evidence of a refusal by the government of Israel to come to grips with the substance of the report and its policy to deflect its substance by making tendentious and highly emotional insults. I suggest that in time Ambassador Oren will be ashamed of those regrettable assertions.

Q: The inclusion of Professor Christine Chinkin, who had openly criticised Israel’s actions at the time, on your inquiry only convinced people that the dice were loaded against Israel from the outset. How would you answer such criticism?

A: I have responded to attacks upon Professor Chinkin now on countless occasions and I had hoped that it was by now widely understood that her condemnation during Operation Cast lead of both the Israel Defence Force and of Hamas related to issues with which our mission and report had nothing to do.

She questioned Israel’s right of self-defence as an occupying power — a technical issue on which the International Court of Justice had earlier ruled against Israel. It was an issue that we were not called upon at all to opine. I have repeatedly stated that in my opinion, the letter she signed, together with many eminent international lawyers, was in no way a reason for her to withdraw from the mission.

Q: Some people argue that the rules of warfare are outdated and fail to address scenarios such as Operation Cast Lead, when an army is faced with irregular forces operating within a civilian population. Do you think this is a valid point?

A: The rules of warfare are by no means outdated. That is the general view of international humanitarian lawyers. The manner in which they are to be interpreted in [the context of] new forms of warfare is another matter.