A Tale of Two Investigations

The aftermath of the Goldstone Report: Israel investigates, Palestinians stonewall.

UN Secretary-General Ban Ki-moon has now issued his report following up on the General Assembly resolution calling for Israel and the Palestinian Authority to submit the results of their domestic investigations of the Goldstone Report’s allegations of international humanitarian and human rights law violations during the 2008-2009 Gaza conflict.

In a press briefing held at United Nations headquarters in New York on February 5th, the Secretary General’s spokesperson told reporters that only the first three pages of the full document submitted by the Secretary General to the General Assembly on the Goldstone Report investigations were written by the Secretary-General and the Secretariat.  The remainder of the document consisted of annexes containing information provided, respectively, by the Government of Israel and the Permanent Observer Mission of Palestine.  A brief submission by the Permanent Mission of Switzerland was also included.

Ban Ki-moon did little more than serve as a courier of the information he was provided to the General Assembly.  He offered no analysis or evaluation of the investigations except to say that they were still ongoing.

Although the Goldstone Report itself was a crude attempt to incriminate Israel for protecting its own citizens from Hamas rocket attacks launched from Gaza against Israeli civilians, Israel devoted significant resources into examining the Goldstone Report’s allegations of wrong-doing.  Israel’s submission contained details on its investigative methodology, the complaints and evidence that it investigated, an analysis of the relevant legal framework and its findings to date.

The Palestinian Authority investigation, if you want to call it that, began only a week before the deadline for the submissions to the Secretary General.  Its report listed the members of an “independent commission” who met for the first time on January 28th to discuss how it was to go about its work.  Not a single bit of substance appeared in the Palestinian Authority Commission submission a week later to Ban Ki-moon.

Yet Al Jazeera’s two correspondents at the February 5th press briefing abandoned any pretense of objective journalism by dominating the questioning with diatribes against Israel.  Here is an example, accusing the Secretary General of a “cop-out” for not denouncing the Israeli military’s exhaustive investigation:

“The whole debate in Israel is whether or not Israel is conducting independent investigations, independent and credible investigations, and whether or not the form of these military commissions ‑‑ that these are military investigations that are independent and credible… But isn’t that the essential question, as to whether or not Israel is complying with this [General Assembly]mandate.”

The paltry Palestinian submission was not mentioned. Shouldn’t the essential question be whether both parties – the Palestinians as well as the Israelis –were carrying out the General Assembly mandate, assuming even that the mandate had any legal basis in the first place?

As Israel’s report pointed out, its investigative system has multiple layers of review to ensure impartiality and independence, including the Military Advocate General’s Corps which is legally independent from the military chain of command, Israel’s Attorney General who provides civilian oversight, and Israel’s Supreme Court acting either as an appeals court, or exercising judicial review over any decision of the Military Advocate General or the civilian Attorney General.  Palestinians can petition for review.  Out of the 150 incidents investigated to date, nearly a quarter have been referred for criminal investigation. Criminal investigators have taken evidence from almost 100 Palestinian complainants, human rights organizations and witnesses, along with approximately 500 IDF soldiers and commanders.  According to Israel’s report, disciplinary action has already been taken against two top officers for permitting artillery fire near a United Nations compound, despite evidence that the firing came after Hamas units had targeted Israeli troops with anti-tank missiles and other weaponry.

The Palestinian Authority report, by contrast, revealed nothing more than the fact that it took the Palestinian Authority several months just to establish what it called an “Independent Commission to follow up implementation of the recommendations made in the Goldstone report.”  This Commission is headed by Judge Issa Abu Sharar, a former Jordanian pubic prosecutor who later served as the President of the Palestinian High Judicial Council.

Unlike Israel, the Palestinians do not have a credible independent judiciary.  Indeed, the judiciary in the Gaza Strip has been paralyzed because of the politicization of the judiciary in the ongoing power struggle between Fatah and Hamas.  Things were so bad that the chairman of the new Independent Commission, set up to investigate what Hamas did in Gaza leading up to and during the conflict with Israel, had once ordered a suspension in Gaza of all judicial decisions requiring police enforcement in the days when he served as President of the Palestinian High Judicial Conference.  All Gaza cases in which the Palestinian Authority, represented by the Attorney-General, was a party were completely suspended due to the stoppage of the work of the Attorney-General and his assistants. This included criminal cases and cases before the High Court that have the Palestinian Authority as a party.

Hamas terror trumped any semblance of the rule of law in Gaza.  There is no reason to expect any different outcome today.  Whatever the Palestinian Authority Commission reports as its investigation gets under way will be no doubt be rejected by Hamas as illegitimate unless it produces a complete exoneration of the terrorist group.

In fact, Hamas, which is the governing authority in Gaza, claimed that it prepared its own separate report, although there is no evidence that the United Nations had received it as of the time this article was written.  Nevertheless, Hamas gave us a taste of its definition of a credible investigation when it stated in its press release that the Human Rights Council “hadn’t asked the Palestinian people to do any follow-up because the Goldstone mission believed that the Palestinian people were the victim and the occupation was the hangman and the criminal must be brought to account.”

Why bother investigating when the conclusion is pre-ordained?  And just for good measure, Hamas claimed that its missiles launched from Gaza at Israeli population centers were not intended to target civilians, only the Israeli military.  This was too much even for Human Rights Watch.  Its Middle East Division’s deputy director, said, “Hamas can spin the story and deny the evidence, but hundreds of rockets rained down on civilian areas in Israel where no military installations were located. Hamas leaders at the time indicated they were intending to harm civilians.”

The one-sided Goldstone Report itself was deeply flawed.  Even so, Israel has embarked on a serious investigation of possible wrong-doing and has taken action already in some cases.  The Palestinians continue to exploit the Goldstone Report for propaganda purposes, with no intention of bringing any Hamas terrorists to account for their numerous violations of international law.